Protecting Californians from Warrantless Searches (AB 358)
AB 358 would unnecessarily weaken the “nation’s best digital privacy law”, the California Electronic Communications Privacy Act (CalECPA), and expose Californians’ private information to warrantless searches.
CalECPA is a common-sense extension of the U.S. Supreme Court’s unanimous decision in Riley v. California. That decision required police to comply with the basic constitutional process that applies to other searches – “get a warrant” – before police can access the troves of intimate information held on a smartphone. CalECPA reflects the protections in the Riley case and generally requires police to get a warrant before accessing electronic device information.
AB 358 would create a broad exception to CalECPA by allowing for phones, tablets, and laptops to be searched without a warrant, violating Fourth Amendment rights. While the bill uses the phrase “tracking and surveillance device”, that phrase is hardly a limitation as nearly every modern device tracks and surveils people through standard location and camera functions.
The bill purports to protect the public from alleged stalking devices but nothing in existing law prevents police from searching these devices in an efficient and timely manner. CalECPA simply requires that law enforcement get a warrant before searching any device – a process that can take as little as 15 minutes. CalECPA also currently allows for warrantless searches of devices where the police agency believes an emergency involving danger of death or serious physical injury to any person requires accessing the device.
AB 358’s broad warrantless search scheme leaves the public at risk of warrantless searches of their personal devices. The desire to speed up investigations should not rely on the violation of constitutional rights. Instead, we encourage the Legislature to invest in expanding judicial capacity to consider, analyze, and make decisions on applications for warrants.
Principal Bill Author:
Assemblymember David A. Alvarez
Bill sponsor:
San Diego District Attorney Summer Stephan