Taryn Phaneuf Apr. 22, 2016, 4:35pm


SAN DIEGO – After California’s privacy law took effect in January, questions arose over whether the additional protections extend to people on probation who already are subject to searches without a warrant as a condition of their sentence.

Judges and attorneys in San Diego County decided to let the Court of Appeals make the call.

Last year, the state enacted the California Electronic Communications Privacy Act, which says law enforcement needs a warrant to search a person’s cellphone, laptop or other digital storage devices. But people on probation, parole or other forms of supervised release already agree to what’s called a “fourth waiver,” which gives police permission to search them or their property without a court order.

So, does that mean the courts can force a person to also waive this new right to privacy?

Courts and the district attorney in San Diego County introduced a form that, when signed, extended those search rights to a person’s electronic life, including call logs, voicemail, text messages, social media accounts, email, gaming consoles, and many other devices and accounts, including their respective passwords and access data.

Defense attorneys in the county objected to the form and to the idea that the standard Fourth Amendment waiver extends to the new electronic protections, Frank Birchak, deputy public defender for the county, told the Northern California Record.

After meeting and discussing it, it was clear that the district attorney thinks the Fourth Amendment waiver already covers a person’s electronic identity and defense attorneys disagree. Like they do with any other conflicting interpretation of state law, everyone agreed to allow the issue to be litigated and decided on by a higher court.

“Both the courts and the district attorney stopped using those forms here,” Birchak said. “We convinced them to go back and void out the forms that were signed when they were using them. None of those forms are being used and none of those forms are currently in effect.”

Defense attorneys took issue with the forms for a couple of reasons. First, the form is too broad. It doesn’t exclude attorney-client correspondence or medical information. It also provided no time frame, so law enforcement could conceivably conduct a search and collect information from years ago because information isn’t deleted.

Second, they argue that, if the Fourth Amendment covered electronic data, the state wouldn’t have required a new law. By passing the electronic privacy law, lawmakers demonstrated that they believe additional protections were necessary, Birchak said.

“We think imposing that kind of condition doesn’t make sense especially with the ECPA, which is intended to provide greater protections than just the Fourth Amendment,” he said. “I think a lot of times people don’t truly think through just how invasive that kind of search can be.”

He pointed to the 2014 landmark decision in Riley v. California, in which the U.S. Supreme Court determined it’s unconstitutional to search and seize the digital contents of a cellphone during an arrest without a warrant.

In its decision, the court commented that cellphones have become “a pervasive and insistent part of everyday life.”

“Cellphones … place vast quantities of personal information literally in the hands of individuals. A search of the information on a cellphone bears little resemblance to the type of brief physical search considered in (a previous precedent-setting case),” the opinion concludes.

While the matter is settled for now in San Diego, pending future court decisions, other counties were considering the forms, according to The Intercept.

“I think it was resolved here in San Diego in a good way,” Birchak said. “It’s a very complicated issue that’s going to take a long time to fully flesh out.”

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County of San Diego
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