New California law requires search warrant for certain digital data

In October of last year, California legislators passed a law mandating that law enforcement agencies secure a search warrant before gaining access to a host of certain digital data. According to the Los Angeles Times, over the last five years, Google has reported a 180 percent increase in the number of requests from police for consumer data.

Sen. Mark Leno, who sponsored the measure, asserts that consumers' digital property had been subject to warrantless searches for too long. Now, thanks to this new law, personal information has an added level of security.

What the law says

Under the statute, if law enforcement officers want to seize any of the following assets, they will need a search warrant:

  • Text messages
  • Private email messages
  • GPS data stored in laptops, the cloud or smartphones

Law enforcement officers will not be permitted to compel a service provider or anyone other than the owner of the device to produce information. However, voluntarily giving that information is permitted. The law points out existing requirements that that the search warrant only be issued if there is probable cause that a crime has occurred and specifically describes the items or place that will be searched.

In case of emergency

Opponents to the law stated that having to secure a search warrant could delay investigations into cases in which someone's life or wellbeing is at stake. However, the law provides for exceptions in case of emergency.

The statute points out that if there is the danger of either serious injury or death, a government entity may access the information without a search warrant. Within three days of doing so, the entity must file an application for a warrant or order with the appropriate court. If the court finds that there was no emergency present, the information obtained must be immediately destroyed.

In emergency situations, the law also enables government entities to request a delay in the notification to the subject of a search. A court could grant up to 90 days in delayed notification. This rule can prohibit anyone who has provided information from telling any other party that there is a search taking place. For example, if law enforcement officers are looking into child prostitution charges that involve a number of people, one party subject to a search may be prohibited from alerting others that he or she has provided information.

This law gives important Fourth Amendment protection to people who would otherwise fall victim to an illegal search of personal property in California. Anyone who has questions about this matter should consult with an attorney.

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