ANALYSIS — There’s a bill sitting on the desk of California Governor Jerry Brown, which if signed would ban police from searching the mobile devices of people arrested for a crime.
Instead, police would need to get a warrant from a judge to search a person’s smartphone or tablet, the same as they would if they wanted to search someone’s house or home computer. The governor has until October 9 to sign or veto the bill, but his office is giving no indication which way he’s leaning.
However, there are rumors in the privacy community that Gov. Brown will veto the bill, known as SB 914, as a favor to law enforcement.
That would be a mistake.
Increasingly, the mobile devices we carry around are portals into our personal and professional lives, full of photos, our e-mails and banking information.
It’d be absurdly unconstitutional to give the police carte blanche to come search through your home and your home computer and your online accounts without a warrant if they arrested you at a protest or for any other reason. Just because we now carry a portal to that information around with us in our pockets does not mean that the rights of people to be secure in their papers and possessions should be left in the 20th century.
The bill includes an exception for emergencies — so in the extremely rare instance where a suspected kidnapper had been apprehended, an officer could search the device to look for clues pointing to the location of the abducted — without having to get a warrant.
If anything that exception is too large, given that it doesn’t require any annual reporting on how often such “exigent” circumstances are used to bypass the warrant requirement. In absence of such audits, officers are likely to abuse the “exigent” clause, just as FBI agents did with the Patriot Act when they broke the law to get the phone records of American citizens.
Despite the bill being weaker than we’d like, Governor Brown should take this opportunity to join with the legislature in overturning a January Supreme Court ruling that mistakenly decided that searching through the contents of the computing devices in our pocket was equivalent to searching through a suspect’s pockets.
Of course, law enforcement wants as much power and as little paperwork as possible, and it is a powerful lobby in California that Brown wants on his side (L.A.’s District Attorney’s office spent more than $144,000 on lobbying in just the first six months of 2011.)
But in this case, Governor Brown should put the rights of the people first and respect that California has long been on the forefront of privacy laws that protect citizens.
Or to put it more simply, just because we live in a wireless world, that doesn’t mean we should live in a warrantless world.
Photo: SunFox/Flickr