California’s State Assembly approved a bill that would require law enforcement officers to secure a warrant before searching cell phones, another example of how state governments grapple with balancing mobile technology privacy and public safety.
If the measure makes it to the desk of Governor Jerry Brown and he signs it into law, it would overturn the January California Supreme Court ruling allowing officers to search cell phone contents from anyone who is arrested.
“This will not interfere with the legitimate needs of police,” said Assemblyman and former police officer Steve Knight. “All established exceptions that currently exist will still apply.”
Knight is referring to the fact that the new measure will still allow police to search phones without a warrant if they believe it necessary to prevent injuries, stop the destruction of evidence or prevent a crime from occurring.
While these exceptions alleviate some of the state’s public safety community’s concerns, many still stand in opposition to the bill.
“There are circumstances where it’s just not practical to get a search warrant, no matter how expedited the process is in that county,” said Ron Cottingham, president of the Peace Officers Research Association, California’s largest public safety organisation. “We still believe that the California Supreme Court was correct, and that subsequent to an arrest (searching a cell phone) is appropriate.”
Because smartphones can, and often do, store unlimited personal data, supporters of the bill compared searching cell phones to combing through a person’s bedroom or office desk.
“If you are caught with a laptop, they need a warrant. If they come to your home for some reason, they can’t walk into your bedroom, personal office or look at your computer without a warrant,” said the bill’s author and state senator Mark Leno. “Everything inside your phone requires a warrant wherever else it can be found, so why should the smartphone be different?”
The legislative news regarding warrants for cell phones in California comes at a time when other states are examining similar measures.
This past spring, Michigan State Police reportedly searched drivers’ cell phones, accessing contacts, pictures, texts, and even geo-location data, using specialised devices from Cellebrite. The news sparked debate, with advocacy groups taking sides.
“Cell phones contain information that many people consider to be private, to be beyond the reach of law enforcement and other government actors,” said Mark Fancher, ACLU attorney. “There is great potential for abuse here by a police officer or state trooper who may not be monitored or supervised on the street.”
The Michigan practice raises questions on how and when law enforcement can and should collect mobile data, an area that is arguably fuzzy since technology has far outpaced legislation in recent years. For example, one guideline for law enforcement, the Electronics Communication Privacy Act, is 25 years old and doesn’t cover Twitter, Facebook or smartphones.
Despite the controversy, states aren’t standing still. California’s 68-0, bipartisan assembly vote calls into question law enforcement groups’ argument that the bill would thwart police officers as they investigate crimes. Amendments to the bill may reduce this likelihood and at the same time protect citizens’ safety and privacy rights, but the question of protecting information on cell phones while protecting public safety will continue to arise.