South Carolina House members, such as House Speaker Bobby Harrel and leaders of both Democratic and Republican caucuses announced of their intentions to introduce the legislature on digital privacy this coming year.
This privacy law would assure that your mobile phone is seen as it were your own home meaning that law enforcement agencies would not be able to search your phone if they do not first obtain a search warrant from a judge.
Nowadays, cellular devices store a person’s bank records, GPS data, text or email messages and any other sensitive data using different online file storage systems available today. Thus, now the issue of securing and protecting our private digital data has become the priority especially since the South Carolina State Department of Revenue data breach in 2012, when the private information of more than 6.4 million customers were revealed to the public. Furthermore, Mr. Harrell stated that after Target hacking incident and the Department of Revenue data breach, the protection of privacy is a rising concern.
Passing a digital privacy act would help to protect people’ private digital information. However, such an act could also negatively affect the safety of the community. Back in 2008 Willie Gracie broke into a convenience store and robbed it. Right after the robbery Gracie texted to his friend and told him about the robbery. This text message was later used as an evidence against Gracie. And, according to the South Carolina Law Enforcement Division spokeswoman, if a digital privacy act would be passed it would have a direct effect on the police capability to catch criminals. The Digital Privacy Act would require a search warrant before checking a cell phone, and while obtaining such a warrant, a suspect would have plenty of time to get rid of incriminating evidence.
Currently in South Carolina police is required to get a search warrant prior to a search of any mobile device as long as there are not any certain urgent situations, such as a fear of evidence destruction and/or an officer’s life is in danger. Additionally, the law enforcement agencies can perform a search that is incident to arrest under the 4th Amendment.
Mr. Harrell, however, believes that this issue needs to be discussed with the law enforcement authorities and he is positive that the compromise can be found and reached.
A criminal defense attorney and democrat Rutherford added that they must be doing the right thing by trying to pass the law since the law enforcement agencies seem to be concerned about the passing the privacy act.
To the contrary, courts of several states have a different opinion on searching a cell phone without a warrant. For instance, the 1st Circuit Court of Appeals and state courts in Ohio and Florida have held that law enforcement agencies have to obtain a search warrant prior to performing a search of a cellular phone. On the other hand, the 4th Circuit, which South Carolina is the part of, and also states like Alabama and Georgia, ruled that a search warrant for cell phones is not required.
Usually, by courts’ decisions the police can do a search through “closed containers” without getting a search warrant in order to protect their officers’ safety. The Alabama Supreme Court held that a cellular phone is considered a closed container due to holding a relevant information to the police, which allows phones to be a subject of search without a warrant.
However, this issue was not heard in the courts of South Carolina. The State Court of Appeals only held that the North Charleston Police Department should have gotten a search warrant prior to placing a GPS tracking device on a suspected offender’s vehicle. However, the Court stated that not obtaining a warrant still was not a reason enough to eliminate evidence.
North Carolina State Representative and Republican Garry Smith said that this issue needs to be examined by Congress and Legislature and not by the state courts.
Needless to say that if a digital privacy act will be passed, passing the law that will prohibit texting while driving won’t wait too long to follow. Currently, the law that bans texting and driving cannot be passed due to the privacy issues.