What to Know About the New Warrant Requirements for Electronic Communications

California’s new law increases privacy protections for individuals

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For a typical Californian, electronic devices—cellphones, laptops, tablets—contain his or her life. They store personal photos, bank account information, and the names and contact information of friends and family—not to mention texts, emails and voicemail messages. When someone accesses your device without your permission, it can feel as though they broke into your home and rummaged through your belongings. And when that someone also happens to be a law enforcement officer, they may locate information sufficient to bring criminal charges against you.

To protect privacy in connection with electronic communications, California enacted the Electronic Communications Privacy Act, which went into effect on January 1, 2016. Here are some of the protections guaranteed by this law:

  • Limiting access to electronic information. Under the law, law enforcement officers can not access information on an electronic device unless they meet one of the following conditions: They have a search warrant; a wiretap order; consent from the possessor of the device; consent of the actual owner of the device if the device was reported stolen; there’s an emergency which requires immediate action to prevent death or serious bodily injury; or the device is abandoned—but in this situation, the officer may only access the device to identify or contact its owner. If an officer accesses information in any other way or for any other reason, the information obtained cannot be used in any prosecution of the device’s owner.
  • Protection for probationers. People being supervised on probation retain their privacy rights to their electronic devices and digital communications. This means that law enforcement officers can only access digital communications of a probationer if doing so falls into one of the six situations identified above. (Note, though, that some probation offices are requesting probationers to sign waivers which effectively give up this right.)
  • Emergency pings. The law authorizes that an “emergency ping”—that is, sending a signal to the electronic device in an attempt to locate the device—is permissible only for emergency circumstances such as a kidnapping. If an emergency ping is conducted, a warrant must be sought within 72 hours. If a judge determines that the emergency ping or emergency access was not lawful, the information obtained must be destroyed and cannot be used in a criminal prosecution.

These are just some of the new protections designed to protect the privacy interests of Californians. Do not be afraid to assert your rights: If a law enforcement officer requests or orders you to allow him or her to view the contents of your phone, you may have the right to request that the officer first obtain a search warrant—or else the officer risks losing the ability to use any information he or she might obtain.

California

Law enforcement officers can access the digital information of an electronic device only when:

  • They have a search warrant;
  • They have a wiretap order;
  • They have the specific permission of the possessor of the device;
  • They have the specific permission of the owner of a device reported stolen;
  • There are exigent circumstances; and/or
  • The device is abandoned (officers can only access the device to discover and/or contact the owner).

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