You, and Your Smart Phone, Have a Right to Privacy

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By Mark Leno

If you like to attend political rallies, parades, protests or sit-ins, you might consider leaving your cell phone at home in the unlikely event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails. This warrantless search is now legal in California, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.

Law enforcement has long had the right to search an arrestee in order to maintain officer safety and avoid destruction of evidence. Generally this included searching their clothing and other incidental items, such as a pack of cigarettes, where weapons or drugs could be hiding. Until now, smart phones were not included in this search.

The recent Supreme Court decision changed all that, and raises many privacy concerns. With rapidly advancing technology, cell phones have become more than just a device used to make a phone call. They store a wealth of personal information, including private correspondence from spouses and loved ones, photographs, banking records, proprietary information from businesses, medical data, passwords, web browsing history, and even GPS systems to track a person’s whereabouts. Smart phones are essentially our personal mobile computers. The simple fact that technology allows us to store all this information in our portable phones instead of our homes doesn’t give government the right to view them at will. Such an intrusive search is a violation of your privacy, and could allow authorities to incriminate you and others, even if it is not related to your arrest.

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Earlier this year I introduced a bill that would protect Californians against the Supreme Court decision allowing warrantless searches of the private information contained in portable electronic devices, including cell phones. Senate Bill 914 clarifies that an arrestee’s cell phone can only be accessed with a warrant, except in circumstances where there is an immediate threat to public safety or the arresting officer. It acknowledges that accessing information on a cell phone is fundamentally different than searching an arrested person’s wallet, cigarette pack or jeans pockets.

While SB 914 provides critical privacy safeguards for Californians, these protections are not new. Until the California Supreme Court decision earlier this year, state and local police correctly assumed that the state’s constitutional privacy protections prohibited warrantless searches of cell phones during an arrest. In addition, the Ohio Supreme Court has ruled that cell phone searches require a warrant, and federal law enforcement agencies also abide by the warrant protocol.

In most cases, searching a cell phone immediately during an arrest is an extraordinary measure. Once an arrest is made and the arrestee’s belongings are confiscated, a warrant for a cell phone search can be obtained if it is important to a criminal case. SB 914 will help ensure that a simple arrest – which may or may not lead to charges – is not used as a fishing expedition to obtain a person’s confidential information.

SB 914 is sponsored by the First Amendment Coalition, the American Civil Liberties Union and the California Newspaper Publishers Association. The bill passed the California Senate in June with significant bipartisan support and is working its way through the Assembly. I expect that we can get it to the Governor’s desk in late summer with the hope of his signature.

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Senator Mark Leno represents the Third Senate District of California, which includes portions of San Francisco and Sonoma Counties and all of Marin County.

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