California Governor Fails to Protect Privacy Interests

This month, Governor Jerry Brown balked at the opportunity to pass a bill that would shield Californians from invasive searches of cellphones. Citing a reluctance to overrule the decision made by the California Supreme Court in January - that determined a warrant was not necessary before searching a cellphone collected during an individual's arrest - the governor left the door open to police invasion into the private lives of Californians.

The Supreme Court case, People v. Diaz, drew an outrage from civil rights advocates and criminal defense attorneys who argued that smartphones, unlike other pieces of personal property such as cigarette packages and clothing, can hold vast amounts of information. The court reasoned that the cellphone's immediate association with the defendant made the police search of the cellphone valid.

Lawmakers agreed with privacy advocates and introduced legislation that would require a warrant before searching a cellphone seized during an arrest. The bill swept through the legislature with unanimous approval before being stomped on by the governor.

Courts Interpret the Law - They Do Not Create It

The governor gave a weak statement to CNN justifying his decision, "The courts are better suited to resolve complex and case-specific issues relating to constitutional search-and-seizure protections." The governor's response relays a fundamental misunderstanding of the origins of legal protections.

Courts have always existed to uphold the law, but they do not create it. While individual states are not at liberty to strip federal constitutional protections, they may enact legislation to provide greater protections to its people. Where there is ambiguity in the law, courts interpret it as it is written.

Legislators were simply trying to provide the teeth necessary to protect Californians from broad and sweeping searches into their personal lives. The veto permits police to search all of the information contained within a cellphone, including search history, chat logs, all application data, address books and call logs.

The United States Supreme Court rejected a petition to hear the Diaz case on October 3rd. California legislators must wait a year before introducing the legislation for a second time.

Source: www.cnn.com, "California Governor Allows Warrantless Searches of Cellphones," 11 October 2011, Amy Gahran