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

October 12, 2011

Peter Scheer

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.


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23 Comments

  1. The Gimlet Eye says:

    Welcome to the POLICE STATE. Governor Moonbeam knows which side his bread is buttered on.

    (1) 3 Total Votes - 2 up - 1 down
  2. oto says:

    To Mr. Scheer:
    “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…..” ‘Case-specific issues!?’ What ‘case-specific issues!?’ The Patriot Act don’t need no ‘case-specific issues!’ Hell, Ruth Bader Ginsberg don’t need no ‘case-specific issues’ and after her recent vote in favor of cops being allowed to kick someone’s door in without a warrant OR KNOCKING AND ANNOUNCING THEMSELVES, the we-can-search-your-cell-phone-because-we-feel-like-it is “small change.”

    As for my opinion, Gerry’s father was “better suited” to be Governor, and “Regrettably, Linda Rondstat didn’t have the desired effect,” on Gerry, either. He should have held onto her, and given up politics. Maybe, become a plumber, or something….

    (4) 4 Total Votes - 4 up - 0 down
  3. Mr. Holly says:

    Paranoid. I have nothing in my cell phone that I’m afraid of or ashamed of. I do not fear getting arrested as I’m a law abiding citizen. I guess if you want to play the game pay the price,

    (-6) 14 Total Votes - 4 up - 10 down
    • The Gimlet Eye says:

      That’s not the point, Mr. Holly. It’s none of the gd business of the police what is on our cell phones. The police don’t give a gd about your hypotheticals. People have a right to privacy. If that’s not going to be respected by the police, then we can only conclude that we live in a POLICE STATE.

      (4) 6 Total Votes - 5 up - 1 down
      • AndyG says:

        Police have always had the right (given by law) to search for and sieze evidence on a person or within their reach at the time of an arrest. Usually when suspects are arrested they are in the commission of a crime and related perishable evidence is potentially there within their reach. Don’t you want these suspects to be punished if they are guilty? Evidence is needed to convict. Don’t you think the right to privacy is expecting a little too much if a police officer has sufficient probable cause for an arrest? I think you are pushing your idea of privacy a little too far. It sounds like you want to give more rights to the “criminals” than they already have.

        (-4) 4 Total Votes - 0 up - 4 down
  4. standup says:

    Well Jerry, I hope the special interest groups that love their members to violate our civil rights paid you well. What did they do, give your family 100 free get out of a traffic ticket vouchers? We need to revolt against these mfs.

    (11) 13 Total Votes - 12 up - 1 down
  5. shelworth says:

    Uh, Zaphod, it was the CALIFORNIA Supreme Court, not THE “Supreme Court”. Say it right.

    (1) 1 Total Votes - 1 up - 0 down
  6. slowtime says:

    WTF??? Do we just sit back and take this? What path is our society on anyway? Socialism, Marxism???? How in the world is the search of our personal documents, Electronic or not …reasonable. I need an explanation!

    (5) 7 Total Votes - 6 up - 1 down
    • MaryMalone says:

      I really don’t understand why Jerry Brown’s action is any worse than what GWBush and Obama have done.

      At least, with the bill Brown vetoed, one has to be arrested for the search to take place.

      With what GWBush inacted, and Obama has broadened, you don’t even have to be arrested. Agents no longer have to get an okay by the star-chamberesque court panel to enter your home whenever they want to, paw through your daughter’s underwear drawers, download whatever they want from your computer, pull up your history of movies you have rented….they can do whatever they damned well please, and you have NO recourse. NONE.

      In fact, in 99% of the cases, YOU WILL NEVER KNOW THIS PAWING THROUGH YOUR PRIVATE POSSESSIONS AND HISTORY has been done.

      I’m all for my Fourth Amendment rights, but I don’t understand folks pitching a fit about Brown vetoing this bill when the government can already do far, far worse than what this bill allows.

      Apply the outrage equally, and there will be more credibility to your complaints.

      In addition, “socialism” doesn’t have anything to do with the government taking personal information and contacts from you when you are arrested. Socialism is an economic theory, not a political theory. Fascism would describe what we are living in now–a fascist oligarchy would be more accurate.

      (8) 10 Total Votes - 9 up - 1 down
      • choprzrul says:

        They all need to be in jail for violations of 18 USC 241 and 18 USC 242.

        Reduce the size of state and federal government by about 3/4 and a lot of this kind of crap would go away.

        (-1) 3 Total Votes - 1 up - 2 down
    • The Gimlet Eye says:

      slowtime, an explanation: the power elite is panicking over all the newfangled electronic devices which have improved communications so much in recent years, internet, cell phones, etc. This is their way of trying to get out ahead of the curve again. It’s intimidation, an invasion of privacy. The fact that they can invade your turf any time they want will have somewhat of a chilling affect on us. But it will not stop us because there are far too many of us.

      (2) 2 Total Votes - 2 up - 0 down
  7. r0y says:

    “pressure of law enforcement special interest groups” – aka Unions.

    It’s always the unions with Jerry… always.

    (2) 10 Total Votes - 6 up - 4 down
    • MaryMalone says:

      For the love of god, where are your priorities?

      Both Mr. Scheer’s statements and your ditto reply are absurd, and there is zero evidence provided to show that the rightwinger knee-jerk boogeyman, “THE UNIONS!!!,” have anything to do with it.

      This is what Scheer wrote:

      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.

      REALLY? That’s “the most likely explanation”? And this vague invocation of the rightwinger “union” boogeyman “raises the question whether police wield too much political power in California”?

      The feds have been able to, since the Bush/Cheney administrations, enter your home, your car–anything they want–without getting a judge to okay it first, and without ever telling you. They can download your computer hard-drive and then use the evidence to convict you of whatever they want. They can take paw through your personal effects, and take pictures to show all their pals.

      And you and Scheer pitch a fit about your pretty little cell phones being taken and searched by the police? Priorities, man.

      In case you missed it–and since Mr. Scheer failed to include this pertinent fact in his opinion piece which is chock-full of scare tactics, and unsupported, vague, inflammatory assumptions and suppositions, so you may have missed it—Governor Brown also vetoed AB101, a bill that would have allowed child care workers, including family members, to unionize.

      In addition, in June of this year Brown vetoed a heavily pushed bill, SB104, that would have made it easier for farmworkers to organize, and for unions to bargain collectively for farmworkers.

      But–god forbid if they touch your cell phone! Sheesh.

      (1) 7 Total Votes - 4 up - 3 down
      • r0y says:

        Little evidence? Exactly WHICH special interest group was AGAINST this bill? Mr. Sheer wrote an OPINION piece and clearly stated “most likely” – as in a strong POSSIBILITY, not an absolute.

        For you to bring up a badly-written Card Check bill to show how Jerry isn’t in bed with the unions is silly! He vetoed it because most union members did NOT want it as written. Just wow.

        Or how about we throw up a bunch of red herrings and bash Bush because he did similar or worse things. Pointing out worse behavior to mask other bad behavior is something I expect my kids to do. No one ever said what Bush, Obama (and even Clinton) did regarding civil liberties was fine and dandy. You just jump in with that assumption, mixing in a little name-calling.

        You have HALF of a decent reply, it is just too bad it was lost in your over exuberance to criticize other people’s opinions.

        (2) 6 Total Votes - 4 up - 2 down
  8. racket says:

    I don’t like Jerry Brown. But I appreciate that he doesn’t mind pissing people off. He pisses off the lefties, he pisses off the righties. He acts on what he thinks is right, which is what he was elected to do. I heard him explain it once that he’s 70-something and not aspiring to higher office, therefore he is beholden to no one.

    (-6) 12 Total Votes - 3 up - 9 down
    • r0y says:

      I agree with this completely. Jerry Brown does have a knack for “pissing” everyone off and doing what HE thinks is best. It is also why I do not like him as Governor; I do not agree with what HE thinks is best.

      I like the man personally, but politically, I cannot agree with him.

      (2) 2 Total Votes - 2 up - 0 down
    • The Gimlet Eye says:

      BS. Jerry Brown is a puppet of the power elite, the same as the Governator. Don’t be naive. Nothin’ happens up in Sacramento that does not go through the strainer of what the special interests want. Defy them, and you take your life in your hands, the same as in D.C. All the machinery of government and debate over the issues is just for show.

      (1) 1 Total Votes - 1 up - 0 down
  9. shelworth says:

    Hello? Uh Jerry… ever heard of the Constitution?

    (10) 12 Total Votes - 11 up - 1 down
    • zaphod says:

      Hello! shelworth ever heard of the supreme court?

      (-5) 11 Total Votes - 3 up - 8 down
      • hotdog says:

        hello Zaphod, ever hear of the comma after the person you are referring to in order to express the slight pause?

        (0) 8 Total Votes - 4 up - 4 down
        • danika says:

          Hello, Hotdog. Ever hear of the “capitalization” of a letter beginning a sentence?” Such as in “hello Zaphoid, ever hear of the comma …”

          You knew what he meant. C’mon.

          I didn’t vote for Jerry Brown. But Whitman would not have been much better. Our choices are poor; their decisions are painfully clear: control. Bigger government, more intrusion and anything to make the appearance of “safety”. Do you all feel safer now?

          (4) 6 Total Votes - 5 up - 1 down
          • The Gimlet Eye says:

            When government speaks of “public safety,” watch out.

            (2) 2 Total Votes - 2 up - 0 down

Comments are closed.