california-penal-code-1546-cell-phone-searches There has been a significant new development in the law governing search and seizure of cell phones. On October 8, 2015, Governor Brown signed Senate Bill 178 and in so doing created the California Electronic Communications Privacy Act (CalECPA).

This bill provides a “uniform warrant rule for law enforcement access[ing]” electronic and digital information.[1]  In recent years  technology has evolved to such a degree that electronic information stores sensitive information about personal life, friends and associates, physical and mental health, religious and political beliefs.[2] 

CalECPA is an effort by California to keep in step with our modern world and our evolving expectations of privacy. As citizens rely more heavily on technology, so too does law enforcement. CalECPA now requires law enforcement entities to obtain a search warrant before accessing digital and online data. Only two other states have passed similar legislation.

This bipartisan legislation marks a shift in how we view the data kept by cell phone companies and other online service providers. It is also, however, a shift in the degree to which technology companies acknowledge that consumer confidence demands they keep data protected: the bill was endorsed by many of the top technology companies, including Facebook, Google, Snapchat and Twitter. With law enforcement turning to electronic and digital information more and more as investigative tools, private communication service providers were left to decide on their own whether and how to protect consumer’s rights. In many instances, cell phone providers and online services became increasingly cooperative with law enforcement, creating streamlined processes for the delivery of requested digital information. Before the passage of this bill, law enforcement could and were routinely obtaining digital records and electronic communication without the aid of a warrant.

CalECPA aims to strike a balance between protecting citizens’ privacy interests in electronic information with law enforcement’s need to access this information for public safety. The electronic information CalECPA protects consists of “signs, signals, writings, images, sounds data or intelligence of any nature” that reveal:

contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent or received, or any information pertaining to any individual or device participating in the communication, including… an IP address.[3]

In other words, the statute protects data from:

  • personal electronics devices,
  • emails,
  • digital documents,
  • text messages,
  • metadata, and
  • location information.

Now before obtaining any of this information, or information stored by online services, law enforcement must demonstrate they have probable cause to target someone’s digital information.[4] The bill[5] requires law enforcement to describe with “particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts.”[6] The bill also requires that law enforcement notify the targeted individuals or accountholders:

  • that the warrant was approved
  • what information was sought.

Further cementing the warrant requirement, CalECPA bars the use of records obtained by subpoena in criminal prosecutions.[7] Any person may make a motion Code section, to suppress any electronic information obtained by law enforcement in violation of the Fourth Amendment.[8]

Narrow Exceptions    

In keeping with the balancing of the competing interests of law enforcement and private citizens, in certain circumstances law enforcement may compel some electronic information without first seeking a warrant, law enforcement may obtain digital or electronic communications or data without first getting a warrant if:

  • there is an emergencies (which is narrowly defined),
  • the devices is lost, stolen or abandoned, or
  • the recipient of the information gives consent.[9]

Consent

When “specific consent” is given by the “authorized possessor of the device”, a government entity may access electronic device information by means of “physical interaction or electronic communication with the device.”[10] Consent can be given directly to the government entity seeking the information, or may be considered to have been given if the government entity is “a member of the intended audience of an electronic communication.”[11] This latter exception is intended to aid law enforcement targeting child pornographers in peer-to-peer networking sites.

This significant change in the law is likely to have a significant impact on the practices of both prosecutors and defense attorneys. There may be more litigation of warrant issues and, probably, less cell phone evidence admitted. We look forward to seeing how this new law unfolds on the ground.

Andrea Zambrana is the Director of the ACBA’s Court Appointed Attorney Program. Previously, she was a Deputy Public Defender in Contra Costa County for 12 years.


[1] SB 178 Senate Bill- Bill analysis page 11.

[2] SB 178 Senate Bill- Bill analysis page 11.

[3] Pen.Code §1546(c)-(d.)

[4] Pen.Code §1546.1(d)(2)

[5] Penal Code sections 1546, 1546.1, 1546.2 and 1546.4

[6] Pen.Code § 1546.1(d)(1)

[7] Pen.Code §1546.1(b)(4)

[8] Pen.Code §§1538.5, 1546.4(a)

[9] Pen.Code §1546.1(c)(3)-(6)

[10] Pen.Code § 1546.1(c)(3)

[11] Pen.Code §1546(k)

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