Electronic Communication Privacy Act

by Charles Gillingham

The California Legislature passed SB 178, California's equivalent to the Electronic Communication Privacy Act. For those officers who are in high tech units or Internet Crimes Against Children Units there are many new rules that deal with Search Warrants, access to Electronic Devices, Notice requirements and remedies for violations of the act that are too numerous for this article. The Legal update page HIGHLY recommends you contact the California District Attorney's Association for information on the act and access to a webinar that CDAA produced detailing the changes in the law that were enacted on January 1, 2016.

This legal update will address only a confusing new term and potential ramifications when you deal with arrestees/parolees who have cell phones or other electronic devices. The statute also limits your access to electronic devices that are abandoned, lost, or stolen.


"Electronic Device"

The new statute defines an electronic device as one that stores, generates or transmits information in electronic form. (Penal Code section 1546(f).)

The new statute provides that the government may only physically or electronically access data on an electronic device in the following manner:
1. Search Warrant
2. Wiretap order
3. With the Specific Consent of the authorized possessor of the device
4. With the Specific Consent of the OWNER when the device has been reported as lost or stolen
5. An exigent circumstance involving death or great bodily injury
6. If the device is believed to be lost, stolen or abandoned the government may only access the device to attempt to identify, verify, or contact the owner or actual possessor of the device (you may not look for evidence of a crime of the fruits or instrumentality of a crime - this is a BIG change)


There are clearly a few new problems for you as an officer. What is "specific consent" and the legislature has provided standing to move to suppress evidence in lost, stolen, or abandoned property.

"Specific Consent"

Specific Consent means consent provided directly to the governmental entity seeking information. This applies whether the governmental entity was an intended recipient of the information or not and fortunately the suspect doesn't have to know a recipient of information was a governmental agent. This means you have to get consent to search for the authorized possessor of an electronic device or the owner directly.

Problem?

Going forward your best bet now with any electronic device search is to get a warrant. The courts are going to take years to flesh this section out. A couple of problems that may arise is does a parolee or a person released on PRCS specifically consent to search? They are mandated to have search conditions but unlike probationers they don't specifically agree to their search condition. When you come in contact with a parolee with an electronic device try to get consent or a warrant before you search. Your evidence may get suppressed if you don't because a court may find that a parolee did not specifically consent to their parole condition and therefore your search may be invalid. This section is going to be interesting going forward. Good Luck.

Thanks to Robert Morgester Senior Assistant Attorney General for disseminating timely effective training in this area.