Brown caves to police, vetoes bill to restrict searches of cellphones

October 12, 2011

OPINION By PETER SCHEER

Jerry Brown, as you may have heard, has vetoed SB 914, a bill sponsored by the First Amendment Coalition that would have required police to get a warrant before searching through cellphones or other digital devices of people they arrest.

You may have been among the several hundred  folks who added their names to our online petition urging Brown to sign SB 914. The Governor got the message. Regrettably, it didn’t have the desired effect.

Brown’s brief veto letter said only that “the courts are better suited” than the Legislature “to resolve the complex and case-specific issues relating to” police searches. The argument is disingenuous, to say the least. SB 914 was a response to a recent California Supreme Court case granting police a free pass, following an arrest, to search any and all files on a suspect’s cellphone. No warrant needed. No probable cause needed.

The state’s highest court, in other words, has already given its final word on this subject. There will be no judicial debate. The issue is settled so far as the California courts are concerned  (which is why SB 914 was an appropriate exercise of legislative authority to use state law to protect privacy and free speech rights that the state’s highest court, applying federal law, had neglected).

The most likely explanation for the veto is that Brown caved to the pressure of law enforcement special interest groups. Their knee-jerk opposition to SB 914 was strong enough to overcome the judgment of large bipartisan majorities in both the Senate and the Assembly. This outcome, overriding the public will, raises the question whether police wield too much political power in California.

What next?

First of all, be careful about taking your cellphone with you to public places. Journalists, participants or observers at “Occupy . . .” demonstrations in California are at risk, in the event of arrests, of having police seize and search their cellphones for: emails, texts, contacts, photos, financial information, drug prescriptions, calendared events and meetings, messages to your spouse, news sources, attorney-client communications–anything and everything found within a phone’s gigabytes of storage.

This is not something that Jerry Brown has to worry about. He’s the Governor. But ordinary citizens now have to think twice even about transporting their cellphones in a car. If you are pulled over and arrested (it doesn’t take much: failure to pay a prior ticket, suspicion of driving under the influence, etc.), you will be subject to a search of your personal and professional (digital) files as intrusive as a police search of  your office desk or bedroom. Although the desk and bedroom searches require judicial supervision (sworn affidavits, a finding of probable cause, issuance of a warrant), searches of cellphones, thanks to Brown’s veto, require nothing.

Thanks to Senator Leno (D-San Francisco), who introduced SB 914 and fought for it, and co-sponsors and supporters the California Newspaper Publishers Association, ACLU, Electronic Frontier Foundation and Calaware. They and others will be discussing strategies for resurrecting SB 914. Stay tuned.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). The views expressed here are his own, and do not necessarily reflect the views of the FAC Board of Directors.