California Requires Warrants to Search Emails

There’s no denying that we live in a digital era, a time where people prefer email and text messaging to telephone and in-person communication.

In the past, government agents were able to search people’s text messages, emails, and GPS data without a warrant. That all changed on October 8, 2015, when Governor Jerry Brown signed the Electronic Communications Privacy Act (S.B. 178), which requires law enforcement to obtain a search warrant before looking at private emails, text messages and GPS data stored in smartphones, laptops and the cloud. It also requires that whenever a warrant is executed, notice must be served upon the targets of the warrant.

California is the only state in the nation that requires warrants to access this type of information.

What is the Basis of Search Warrants?

The Fourth Amendment guarantees people’s right to be free from unreasonable searches and seizures. This often means that government agents must have a warrant to search and seize your person and property. Search warrants may be issued where a person has a reasonable expectation of privacy.

So where does one have a reasonable expectation of privacy? The Supreme Court established that law enforcement must obtain a search warrant to search a suspect’s home where one has the greatest and most reasonable expectation of privacy. Conversely, one does not have an expectation of privacy over things left out in public, like trash in the garbage.

The California Constitution gives each citizen an “inalienable right” to pursue and obtain privacy. A judge can only issue a search warrant if there is probable cause.

Is Requiring Search Warrants a Good Idea?

People depend on technology like they never did before. A recent study showed that 86% of people aged 18 to 29 and 84% of individuals between the ages of 30 and 49 have a smartphone. Smartphones equip consumers with access to emails and text messages at all hours of the day with just the click of a button. People nowadays prefer to email or text personal, private messages to one another because of the convenience. With the invention of the smartphone, people believe all their emails, text messages, and GPS data will remain private so long as their phone remains in their possession. Most businesses also use emails and text messages to sustain their business.

Because so much private information is transmitted electronically and people reasonably believe such information will remain private, law enforcement should not be able a search it without first obtaining a warrant. With the accessibility of emails and text messaging to the average person and its increased use over the past several years, search warrants for such information is necessary to protect Californian’s heightened right to privacy.

Will Search Warrants Make it Harder to Combat Child Exploitation and Human Trafficking?

The Electronic Communications Privacy Act has its fair share of critics. The National Association to Protect Children contends that requiring government agents to notify targets of criminal investigation when they obtain warrants could put children in danger or result in destruction of evidence. Their main concern is child sexual exploitation and human trafficking.

Their fears are well founded. S.B. 178 requires that notice must be served upon or delivered to the targets of the warrant whenever a warrant is issued. The notice must be provided to the target at the same time the warrant is issued. For example, police must notify child pornography suspects they are coming and will conduct a search. The notification requirement may be delayed if law enforcement proves destruction of evidence is likely, but it is not assumed and must be demonstrated through additional court proceedings.

In special emergency cases, notice can be postponed until three days after the data is collected. A situation is considered an emergency if law enforcement can prove a child is in danger of death or “serious physical injury.” The problem is that California distinguishes between rape or sexual abuse and serious physical injury, as rape or sexual abuse rarely cause “serious physical injury.” If law enforcement cannot prove the child was in danger of serious physical injury after obtaining digital data without first notifying the target, all evidence obtained therefrom may be destroyed, essentially ending the case.

Although S.B. 178 is a major advance for privacy, it must be amended to help California combat child sexual exploitation.

Seeking Legal Help

If you believe you been searched illegally, a qualified criminal lawyer can help evaluate the legality of the search.