The dream of hack-proof communication just got a little closer to reality. On August 16, 2016, China launched the world’s first “quantum satellite,” a project the Chinese government hopes will enable it to build a communication system incapable of being hacked. Such a system, if perfected, would allow for encrypted communications between any two devices with absolute certainty that the encryption could not be broken, and with a built-in mechanism for alerting the sender/receiver if someone tried.
The average American today generates more media than they did at any other point in history, and the ease with which our communications, photos, and videos are sent and stored digitally means most of us have more media stored in the cloud or on a single digital device than previous generations would have created in an entire lifetime. However, even as the amount of media we create and store has increased, the laws governing its search and seizure have failed to keep up. Under federal law and the laws of most states, the same information may be subject to different levels of protection from government authorities depending on whether that information is in the form of an e-mail stored in the cloud or a letter stored in a desk drawer.
California is attempting to change that equation. On October 8, 2015, Governor Jerry Brown signed into law the California Electronic Communications Privacy Act (CalECPA, SB 178), a sweeping bill
In City of Los Angeles v. Patel, the Supreme Court invalidated a Los Angeles law that allowed law enforcement officials to inspect hotel and motel guest registries at any time, without a warrant or administrative subpoena. The Court ruled that the law violated hotel owners’ Fourth Amendment rights because it “penalizes them for declining to turn over their records without affording them any opportunity for pre-compliance review.”
In reaching its decision, the Court also announced two findings with implications for future lawsuits brought under the Fourth Amendment:
- Facial challenges to statutes are permitted under the Fourth Amendment
- Hotels and motels do not fall under the “pervasively regulated” exception to the warrant requirement
On June 25, 2014, the Supreme Court unanimously ruled that police must first obtain a warrant before searching the cell phones of arrested individuals, except in “exigent circumstances.” Chief Justice John Roberts authored the opinion, which held that an individual’s Fourth Amendment right to privacy outweighs the interest of law enforcement in conducting searches of cell phones without a warrant. The decision resolved a split among state and federal courts on the search incident to arrest doctrine (which permits police to search an arrested individual without a warrant) as it applies to cell phones.
The case of Riley v. California as heard before the Supreme Court combined two cases, one involving a smartphone and the other involving a flip phone. In the first case, Riley v. California, the police arrested David Leon Riley, searched his smartphone, and found photographs and videos potentially connecting him to gang activity and an earlier shooting. In the second case, United States v. Wurie, Brima Wurie was arrested for allegedly dealing drugs, and incoming calls on his flip phone helped lead the police to a house used to store drugs and guns.
The U.S. Supreme Court heard arguments last month in Clapper v. Amnesty International, a case that asks the Court to determine whether a group of lawyers, journalists, and human rights workers have standing to challenge the federal government’s international electronic surveillance program under the Foreign Intelligence Surveillance Act. The plaintiffs alleged Fourth Amendment privacy violations among other things, and injury from the likelihood that the government was recording their conversations with clients and sources overseas. But the plaintiffs could not say with certainty whether any eavesdropping occurred, giving rise to the standing issue before the Court.
Clapper involves standing in the context of constitutional privacy, but the same general standing requirements apply in consumer privacy actions. Standing is one of the initial hurdles of any would-be plaintiff, and the first element of standing is injury-in-fact. In the developing area of consumer privacy litigation, recent cases reflect uncertainty in the federal courts as to what constitutes injury-in-fact sufficient to confer standing.
On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee. Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was “immediately associated with [defendant’s] person at the time of his arrest” and was therefore “properly subjected to a delayed warrantless search.”
In People v. Diaz, filed on January 3, the Court considered whether the trial court properly denied Diaz’s motion to suppress evidence gathered during a search of his cell phone, which occurred approximately 90 minutes after he was arrested for being a coconspirator in the sale of drugs. Diaz denied knowledge of the sales. A deputy sheriff accessed Diaz’s cell phone, which had been seized from Diaz’s person, and found a coded text message that, based on the deputy’s training and experience, indicated Diaz knew of the transaction.
The California Supreme Court’s ruling hinged on its finding that the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” People v. Diaz, S1666000, slip op. Majority Op. at 8 (Cal. Jan. 1, 2011). As such, the case was controlled by the United States Supreme Court’s holdings in United States v. Edwards, 415 U.S. 800, 802-803 (1974) and United States v. Robinson, 414 U.S. 218, 224 (1973), in which the High Court affirmed seizures of paint chips from clothing and a cigarette package containing heroin from a coat pocket (respectively).
According to a federal court in the Northern District of California, United States border agents may not search a laptop without a warrant several months after the agents seized the laptop.
The June 18, 2008 Ninth Circuit panel decision in Quon et al. v. Arch Wireless et al., No. 07-55282 (9th Cir. June 18, 2008) has sparked a flurry of news reports and speculation regarding employers’ ability to monitor employees’ e-mails and text messages. In fact, the decision appears to change very little for private employers who wish to review employee communications stored on, or sent through, their own servers and computers. However, Quon does limit employers’ ability to request from third-party providers the contents of employees’ electronic communications.