What to Know About California's Warrant Requirements for Electronic Communications
California’s new law increases privacy protections for individuals
on September 1, 2016
Updated on March 21, 2022
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—clearly violating your resonable expectation of privacy and Fourth Amendment rights. 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’s legislature enacted the Electronic Communications Privacy Act, which went into effect on January 1, 2016. (See the Department of Justice’s federal law equivalent, the Electronic Communications Privacy Act of 1986, here.)
Below are some of the guaranteed protections pursuant to the California law:
Limiting access to electronic information
Under the CalECPA, law enforcement officers can not access information on an electronic device (either via the service provider or the device itself) unless they meet one of the following conditions:
- They have a search warrant based on probable cause, or a court order;
- 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.)
The state 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. You’re also free to call a legal representative.