This week’s question comes from Joel F. in Berkeley who asks: “I read your article last week on Apple’s objection to the FBI demanding that they build a back door to the IPhone operating system to bypass the encryption on the phone of the San Bernardino shooter. What rights do I have over my IPhone if a cop demands that I unlock my phone and show it to him?”
Joel, your question is very timely and shows how the interpretation of our constitutional rights to privacy must constantly evolve to keep up with technology.
The basis for privacy and freedom from unlawful search and seizure stems from the very foundation of our democracy as embodied in the Fourth Amendment to the U.S. Constitution.
The Fourth Amendment states 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, and the persons or things to be seized.”
This fundamental right protects us from unwarranted and unlawful intrusion into our rights as citizens and to protect us from oppressive government interference with our rights to privacy and security.
The Fourth Amendment has been interpreted over the last several centuries to keep up with our ever expanding methods of communication as well as the storing of our personal data.
For example, with the advent of the telephone came wiretaps. Technology also allowed the bugging of private spaces such as one’s home and/or car. After police action which where evidence was obtained, without a warrant, through these methods and the DA sought to introduce such evidence in criminal proceedings lawyers, that’s right lawyers, challenged these means as being in violation of the Fourth Amendment through what are called suppression motions.
A suppression motion is one which seeks to preclude the police/DA from using that evidence to obtain a conviction. Ultimately, the U.S. Supreme Court ruled that such warrantless searches violated the Fourth Amendment.
So, before the police can seek a tap or such surveillance they must demonstrate probable cause that such a search is warranted by evidence of actual criminal behavior.
We recently saw such evidence, gathered pursuant to a warrant, in the case of Raymond “Shrimp Boy” Chow and former State Senator Leland Yee, being employed to obtain a guilty plea (Yee) as well as a conviction for racketeering and murder (Chow).
As the cell phone became the modern equivalent of our “papers and effects” various courts have interpreted the application of the Fourth Amendment in cases of government intrusion.
After some questionable decisions, State Senator Mark Leno, representing San Francisco and part of San Mateo County, introduced the California Electronic Privacy Act, Senate Bill 178. Because the Bill affected the California Constitution’s Right to Truth in Evidence, it required a 2/3 vote of the Legislature to become law. Such a “super majority” was obtained and the Governor signed bill into law on October 8, 2015.
The Electronic Privacy Act provides that a government entity (which includes your local police department and the District Attorney) shall not:
- Compel the production of or access to electronic communication information from a service provider;
- Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; or
- Access electronic device information by means of physical interaction or electronic communication with the electronic device.
The law does not prohibit an intended recipient of an electronic communication to voluntarily provide that to a government entity.
There are exceptions allowing the government access to such information under certain circumstance such as when they have obtained a warrant, wiretap order, or pursuant to a subpoena issued pursuant to existing state law.
So Joel, you have the absolute right to refuse a police order to unlock your phone or provide access to your electronic communications absent a warrant.
My best advice to all readers a) do not commit crimes and b) put a pass code on your phone so it’s clear you want to keep your data private.
If a private citizen has accessed your private data contact a Trial Lawyer to pursue a civil case for a violation of your privacy rights.