Can Prosecutors Demanding Defendants’ Passwords to Computers and Cell Phones?

San Diego Defenders- Dan Smith

Can Prosecutors Demanding Defendants’ Passwords to Computers and Cell Phones?

Constitutional rights, for law abiding people are protected when lawyers fight tooth and nail for criminals’ rights. Those battles are hard fought for and protected by the pesky Constitutional lawyers almost every time you hear a sensational news story like the current standoff between the FBI and Tim Cook of Apple.

By setting up rules for what can and cannot be done to people accused of crimes, those rules exist to protect everyone. And it is confusing to understand which side of the argument you may be on!

California recently passed a law, the Electronic Communications Privacy Act, that made it illegal for police and prosecutors from digging through defendant’s emails and other electronic personal accounts without a warrant.  This was passed in response to several court cases that said culling through that type of information without a warrant was a violation of the Constitution’s guarantee of protection against unreasonable searches and seizures, even on cell phones.

So, the San Diego District Attorney’s Office started requiring defendant’s to waive that protection and give up their passwords and access codes.  In fact, they were doing this in cases where the crimes involved had nothing to do with any of the technology they wanted to be able to look through.

They claimed it was akin to similar waivers defendant’s are subjected to in many cases.  What they are referring to is what are called Fourth Waivers.  When someone is put on probation or parole, they sometimes have this waiver of their right against unreasonable searches and seizures.  In practical terms, it means that whenever the police, probation or parole authorities wanted to, they could search the person, their home, their car or where they work without a warrant and without any reason to believe they would find anything.

By making these waivers a condition of probation or parole, basically the defendant has no choice but to agree.  If they don’t, they are denied probation or parole and thrown in jail or prison.

For people who have been convicted of thefts or drug cases, this kind of waiver makes sense so that a probation officer or someone else in law enforcement could make sure the person wasn’t committing the same type of crime again.The same could be arguably true with the waivers the D.A. was seeking for access codes and passwords.  But, only if the crime was something like possession of child pornography or identity theft where the electronics involved might hold evidence of further crimes.

The San Diego District Attorney was requiring these waivers for all sorts of crimes that had nothing to do with the electronics involved in the waivers.  Kudos to the Public Defender and theprivate attorneys who fought this new policy.  There is no reason for the D.A. to be setting up fishing trips with absolutely no reason to think something illegal had gone on.  It is invasive and a waste of limited law enforcement resources. Thankfully, the District Attorney has announced they are backing off asking for these waivers and will only do so when the crime warrants it.  Predictably, they are not willing to acknowledge that their blanket policy was unwarranted. You can read the article at San Diego Union Tribune.

The next test is now in the headlines. What will Apple do and how hard will the FBI push? When it is a question of national security, Congress may jump in with a new law on a temporary basis like the Patriot Act to gain access is the Courts side with Apple.

Although the I-phone controversy does not involve an individual’s rights, the issue of privacy is at the center of the argument. Same question, just a different way of looking at it. This time we will feel our patriotism pulling us against protecting individual privacy rights. It is a difficult decision. We are curious what you think. So please weigh in and “Like” our Facebook page and feel free to share. Leave us a comment on what you think. To tell you the truth, I could argue it both ways... and that bothers me! What do you think?