The law is starting to catch up to an undeniable reality of modern technology — recognizing that smartphones are not just devices unto themselves but rather portals to a much larger world.

Reacting to a decision of the state’s Supreme Court, the California legislature passed a bill that will require police to get a warrant before searching “information in a portable electronic device” carried by a person who’s been arrested.

Old phone new phones

The bill states that it does not mean to curtail the ability of law enforcement to rely upon “established exceptions to the warrant requirement.”

Instead, the legislation is intended to trump the California Supreme Court’s decision in People v. Diaz. I wrote about that case in an earlier guest post on GeekWire. Purporting to interpret the US Constitution, the court had found a warrantless search of a suspect’s phone was permitted because it fell under an exception to the normal warrant requirement — the exception for searches “incident to a lawful custodial arrest.”

Amazingly, the bill rebuffing the court is short and easy to understand. And it pinpoints exactly the issue California’s high court missed: cell phones are not “incidental” to a person, like a pack of cigarettes or items you might carry in your jeans or a shirt pocket. Rather, as the legislation states, phones can be a link to a potentially unlimited trove of personal information about a suspect:

“These devices are capable of and encourage the storing of an almost limitless amount of personal and private information. Commonly linked to the Internet, these devices are used to access personal and business information and databases that reside in computers and servers located anywhere in the world.”

That’s exactly up to date. Maybe the justices on the California high court need to buy new phones!

Attorney William Carleton is a member of McNaul Ebel Nawrot & Helgren PLLC, a Seattle law firm. He works with startups and emerging tech companies, their founders and investors.

He posts regularly about tech-related legal issues on his blog.

Also By William Carleton

Image sources: Oracio Alvarado and Osman Kalkavan.

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  • Truthinrock

    Judges today are so far out of touch with todays technology, we need a special panel of judges to hear these cases that have have been thoroughly educated in this new and constant world of developing technology.  Some judges are so removed from todays tech, they REFUSE to get educated and end up having almost all those cases overturned by the appeals process.  What a HUGE waste of taxpayer dollars!

  • Anonymous

    Yes, today’s judges are woefully behind the technology curve.  I’ve seen this several times in civil proceedings that I’ve been peripherally involved in.  The whole “cache entry is a copy” that music business tried to foist on the industry is a perfect example.  I’ve heard excuses like “their clerks are usually pretty up to speed on tech” but it’s clear than isn’t working.  Since most judgeships are lifetime appointments, the average age is up there and their complete lack of understanding is a real problem. 

    I’m glad to see at least one legislative body has taken steps to make our data part of our “castle”.  It bothers me no end that there seems to be approval of fishing expeditions with our data.  I hope this gets picked up by the feds, too.

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