e-Discovery California: ‘In Toto’, We’re not in California Anymore…

MP900439362 They laughed at the academy…

Do you remember when I said I maintain a password on my PDA?  Do you remember how I said it sucks having a password on my PDA, but I felt it was extremely necessary?  Fine – you don't remember.  Here's what I said this past February:

"My PDA is password-protected.  It's an incredible pain.  I hate it.  It makes things cumbersome.  For all I know, it isn't even that effective.  But you know what?  At least I'm doing everything within my power to protect my client information."

Well, it just became a great decision.  Why?  Because the Supreme Court of California recently ruled that if arrested, the government is entitled to search your cellular device!  The Court seems to be basing the opinion on the concept, misguided as it may be, that a cell phone is akin to a closed container, like a pack of cigarettes (prior 4th Amendment decisions hold that authorities may search containers under these circumstances).  Meanwhile, a warrant is still required to search a briefcase!

Think about it for a moment.  If this trend continues, how long do you think it'll be before this right is extended to portable devices in general?  My next thought is, what if you happen to be driving your desktop PC to the local repairman at the time of your arrest?

As to the issue of password-protection, there's no case law controlling at the moment, so here's my 'ruling'; you have the right to remain silent.  I don't care if I'm threatened with bodily harm – nobody will compel me to give them the password to my PDA (until the day arrives that a court of competent jurisdiction rules otherwise).

The Federal 9th Circuit already allows for warrantless tracking devices, but now this?  So much for "liberal" California.  Try your luck with the Ohio Supreme Court, among others, who disagree with this ruling.

But don't push your luck with the Supreme Court of the United States.  With the current makeup of that body favoring government intrusion over individual protections, there's no Emerald City at the end of that yellow brick road.

Then again, a lot of powerful people carry cell phones – including Supreme Court justices.  Maybe now's not the time for that vacation in wine country…

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