Opinion

Thank Gov. Jerry Brown for protecting cell phones

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Cell phones, smart phones, and other personal electronic devices are free from arbitrary police snooping in California — at least for the time being, thanks to actions taken by the state legislature and Governor Jerry Brown.

In a rare victory for personal privacy rights, legislation prohibiting police from accessing information on a cell phone without a warrant recently became law in the Golden State.

The law stems from a case decided earlier this year by the California Supreme Court involving the 2007 arrest of Gregory Diaz, who was caught trying to sell drugs to an informant. After Diaz’s arrest, police went through his cell phone and found text messages alluding to potential drug sales, evidence that was used at his trial.

In January, the California high court held that Fourth Amendment protections, which requires police to obtain a warrant in order to search a suspect’s property, did not apply in Diaz’s case, because the cell phone was “immediately associated” with him and was “fair game in terms of being evidence of a crime or instrumentality of a crime or whatever the theory might be.”

The decision essentially removed any lawful impediment to California police officers perusing a person’s cell phone, so long as the person was placed under arrest. The arrestee’s personal cell phone was subject to search notwithstanding that the arrest had nothing to do with the suspect’s cell phone.

The majority decision misapplied prior decisions of the United States Supreme Court, including opinions allowing police to search clothing of arrestees for other items or evidence. One of the cases cited by the California majority, United States v. Robinson (1973), involved a search of a suspect that turned up a cigarette packet containing heroin capsules.

Obviously — except to the majority of the California Supreme Court — there is a major difference between a cigarette pack and a cell phone, which contains all manner of personal and sensitive information. That distinction was noted by Justice Kathryn Werdegar, who explained in her dissent that “electronic communication and data storage devices carried on the person — cellular phones, smart phones and handheld computers — are not sufficiently analogous” to the circumstances of prior cases.

Werdegar sternly warned that the majority’s ruling allowing this “highly intrusive and unjustified type of search” would give police “carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person.”

In an effort to rectify this bad ruling, the California State Assembly overwhelmingly passed SB 914 in August. The legislation prevents police from obtaining information from a cell phone or other “portable electronic devices” without a warrant. Gov. Brown allowed the bill to become law in September.

Unfortunately, federal authorities still maintain the right to peruse individuals’ cell phones and portable computers at border crossings without warrants or suspicion of wrongdoing. The federal government also insists it can use GPS tracking devices to monitor a suspect’s movements indefinitely, without first securing a warrant. And police in some other states continue to rummage through suspects’ cell phones, even for persons stopped for mere traffic offenses.

Thus, while this victory in California is welcome news, the battle between the individual right to privacy secured by the Constitution (most notably, the Fourth Amendment) on the one hand, and the government’s constant effort to control those it governs, continues to rage on a number of fronts.

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.