BILL ANALYSIS �
SB 914
Page 1
SENATE THIRD READING
SB 914 (Leno)
As Amended July 1, 2011
Majority vote
SENATE VOTE :28-9
PUBLIC SAFETY 5-0
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|Ayes:|Ammiano, Cedillo, Hill, | | |
| |Mitchell, Skinner | | |
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SUMMARY : Restricts the authority of law enforcement to search
portable electronic devices without obtaining a search warrant.
Specifically, this bill :
1)Provides that information contained in a portable electronic
device shall not be subject to search by a law enforcement
officer incident to a lawful custodial arrest except pursuant
to a search warrant, and states that other established
exceptions to the warrant requirement continue to apply.
2)Defines a "portable electronic device" as "any portable device
that is capable of creating, receiving, accessing, or storing
electronic data or communications."
3)Finds and declares the following:
a) The right of privacy is fundamental in a free and
civilized society;
b) The number of Californians utilizing and carrying
portable electronic devices is growing at a rapidly
increasing rate. These devices are capable of and
encourage the storing of an almost limitless amount of
personal and private information. Commonly linked to the
Internet, these devices are used to access personal and
business information and databases that reside in computers
and servers located anywhere in the world. Users of
portable electronic devices have a reasonable and
justifiable expectation of privacy in the information these
devices contain and can access through the Internet;
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c) The intrusion on the information privacy and freedom of
communication of any person arrested is of such enormity
that it must require arresting officers to obtain a warrant
to search information contained in or accessed through an
arrestee's portable electronic device; and,
d) It is the intent of the Legislature to reject as a
matter of California statutory law the rule announced by
the California Supreme Court in People v. Diaz (2011) 51
Cal.4th 84, which held that the information in portable
electronic devices may be subject to search incident to an
arrest without a warrant or other judicial supervision.
EXISTING FEDERAL LAW provides that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched an the persons or things to be seized."
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author," If you like to attend
political rallies, parades, protests or sit-ins, you might want
consider leaving your cell phone at home in the event arrests
are made. A recent California Supreme Court decision allows
police to rummage through all of the private information on your
smart phone as part of an arrest, including your text messages
and e-mails. This warrantless search is now legal in
California, regardless of whether the information on the phone
is relevant to the arrest or if criminal charges are ever filed.
"The recent CA Supreme Court case, People v. Diaz, raises many
privacy concerns. In the split decision, a majority of Justices
ruled that police have unrestricted authority to search the data
stored on an arrestee's mobile phone without a warrant, just as
they may search clothing or small physical containers found on
the arrestee's person such as a crumpled cigarette package. The
Court failed to recognize the larger application of the decision
on everyday society given that nearly every Californian has a
cell phone and a corresponding expectation of privacy of the
information stored there.
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"With rapidly advancing technology, cell phones have become more
than just a device used to make a phone call. They store a
wealth of personal information, including private correspondence
from spouses and loved ones, photographs, banking records,
proprietary information from businesses, medical data,
passwords, web browsing history, and even GPS systems to track a
person's whereabouts. Smart phones are essentially our personal
mobile computers. The simple fact that technology allows us to
store all this information in our portable phones instead of our
homes doesn't give government the right to view them at will.
Such an intrusive search is a clear violation to an individual's
reasonable expectation of privacy.
"SB 914 is a bill that would protect Californians from the
warrantless search of the private information contained in
portable electronic devices, including cell phones. The bill
clarifies that an arrestee's cell phone can only be accessed
with a warrant, except in circumstances where there is an
immediate threat to public safety or the arresting officer. It
acknowledges that accessing information on a cell phone is
fundamentally different than searching an arrested person's
wallet, cigarette pack or jeans pockets.
"Until the California Supreme Court decision earlier this year,
state and local police correctly assumed that the state's
constitutional privacy protections prohibited warrantless
searches of cell phones during an arrest. In addition, the Ohio
Supreme Court has ruled that cell phone searches require a
warrant, and federal law enforcement agencies also abide by the
warrant protocol. SB 914 simply restores these critical privacy
safeguards for Californians.
"In most cases, searching a cell phone immediately during an
arrest is an extraordinary measure. Once an arrest is made and
the arrestee's belongings are confiscated, a warrant for a cell
phone search can be obtained if it is important to a criminal
case. SB 914 will help ensure that a simple arrest - which may
or may not lead to charges - is not used as a fishing expedition
to obtain a person's confidential information.
"By requiring law enforcement to obtain a search warrant prior
to viewing the information on an arrestee's portable electronic
device, SB 914 places a reasonable limit on the search to
mitigate an unrestricted invasion of privacy. SB 914 concurs
with the dissent in People v. Diaz which found that the majority
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went too far in 'apparently allowing 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 merely because the device was taken from an
arrestee's person.'
"While there is no harm to law enforcement in obtaining a
warrant once a portable electronic device is within their
possession, a warrantless search presents great harm in the
level of intrusion of personal privacy. SB 914 protects
Californians from a highly intrusive and unjustified type of
search that neither meets the warrantless standard, nor the
reasonableness standard."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
FN: 0001420