This week’s question comes from Joel F. in Berkeley, who asks:
Q: “I read your article last week on Apple’s objection to the FBI demanding they build a back door into 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 police officer demands I unlock my phone and show it to him?”
A: 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, “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 protects us from oppressive government interference with our rights to privacy and security.
The Fourth Amendment has been reinterpreted 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, in which evidence was obtained without a warrant, the District Attorney 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 seeks to preclude the police or District Attorney from using that evidence to obtain a conviction. Ultimately, the U.S. Supreme Court ruled warrantless searches violated the Fourth Amendment. So, before the police can pursue a wiretap or 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 Sen. Leland Yee. Yee ultimately pleaded guilty to participating in racketeering conspiracy and was sentenced to five years in prison. Chow was convicted on all charges in a 162-count indictment that included racketeering, money laundering and murder for hire.
As the cellphone 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 Sen. Mark Leno 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 two-thirds vote of the Legislature to become law. Such a “super majority” was obtained, and Gov. Jerry Brown signed the bill into law on Oct. 8, 2015.
The bill reads: “…a government entity shall not do any of the following: 1) Compel the production of or access to electronic communication information from a service provider. 2) Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device or 3) 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 it to a government entity.
There are exceptions allowing the government access to such information under certain circumstances, 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: 1) Do not commit crimes and 2) Put a pass code on your cellphone 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.