May 19, 2011 | By Hanni Fakhoury

Join EFF in Supporting California Bill That Requires Police to Get a Warrant Before Searching Cell Phones

EFF is proud to support SB 914, a bill that requires the police to obtain a warrant before searching a recent arrestee’s cell phone.

SB 914 is a response to a January decision of the California Supreme Court in People v. Diaz. In that case, the court authorized police officers to search any person’s cell phone after they had been arrested under a narrow exception to the Fourth Amendment’s warrant requirement that permits law enforcement officers to search the area immediately around a person “incident to arrest.” This exception has two traditional rationales: ensuring officer safety by allowing a search for weapons, and protecting evidence from immediate destruction. By permitting the warrantless search of a cell phone under this exception, the Court gave officers carte blanche to rummage through all the private data and information people keep on their cell phones – emails, text messages, call history, websites they’ve visited, and their calendars, to name just a few examples –regardless of whether the police believed there was evidence of the crime on the cell phone and without any judicial oversight.

Courts throughout the country have been grappling with this issue and have reached conflicting results, with some courts authorizing warrantless searches of cell phones and others not. In an amicus brief (pdf) recently filed before the Oregon Supreme Court, EFF argued that warrantless searches of cell phones incident to arrest violate the Constitution’s right to privacy. This is all the more troubling because cell phones pose no danger to the police, the threat of destruction of evidence can be easily remedied through simple preservation methods, and many arrests do not result in criminal prosecution at all.

SB 914 is a proactive attempt to legislate Constitutional protection and reverse Diaz’s dangerous course. Introduced by California Senator Mark Leno and sponsored by the Northern California ACLU, the bill reasonably balances law enforcement needs with people’s privacy rights by allowing the police to look through cell phones only when they have convinced a magistrate judge there is likely evidence of the crime on the phone.

The bill is expected to be on the Senate floor soon. All Californians should ask their state lawmakers to support SB 914 and tell law enforcement that if they want access to the personal and private data stored on cell phones, they need to come back with a warrant.


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