Why Were Prosecutors Demanding Defendants’ Passwords For I-Phones and PDA’s?

San Diego Defenders- Dan Smith

Why Were Prosecutors Demanding Defendants’ Passwords For I-Phones and PDA’s?

What most people never get is that all of our rights, for law abiding people are protected when criminals’ rights are fought for and protected. By setting up rules for what can and cannot be done to people accused of crimes, those rules exist to protect everyone. 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.

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 the private 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.