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Legislatures Trying to Protect Privacy

A recent issue for Congress and State legislatures to evaluate is whether police need a warrant before searching a cellphone. Efforts have been made by State legislatures to say, “yes,” the police need a warrant. However, efforts have been denied by the governors of certain states.

A U.S. Senate committee is set to consider changing federal law which allows warrantless surveillance of cellphone data. The amendment would require the police to obtain a warrant to search e-mail, no matter how old. This would change current law which allows warrantless searches of e-mail more than 180 days old.

This change to federal law synchs with changes already proposed in Delaware, Maryland, and Oklahoma which require a warrant for police to obtainlocation records from cellphone companies. The California legislature passed a similar law, but it was overturned by Governor Jerry Brown.

The Rhode Island legislature also passed a law that required a warrant before police can search a cellphone. The bill was overturned by Governor Lincoln Chafee who thought the law was stepping on the powers of the courts. Yet, there have been courts which say this issue can only be dealt with in the legislature.

While there is a need to strike the right balance between privacy and the needs of the police, a rule does need to be made. The courts are all over the map on this issue, and that is because there is no guidance from the legislatures across the country. Even when a law is made in the legislature, there is no guarantee it will stick, as was the case in Rhode Island and California.

We must not forget that the legislature of a state is “the people’s voice,” and it is for the courts to decide whether the law is constitutional. It is encouraging though, that Congress and the State legislatures have begun to give this cellphone issue a hard look, and are looking to protect our privacy.

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Mark C. Cogan, P.C., of Portland, Oregon, represents individuals charged with crimes throughout Oregon, including central Oregon, northern Oregon, Pacific Coast communities and the Willamette River valley, including Clackamas County, Washington County, Multnomah County, Columbia County, Marion County, Tillamook County, Clatsop County, Lincoln County, Lane County, Linn County and Benton County and the cities of Salem, Lake Oswego, Gresham, Oregon City, Tigard, Beaverton, Hillsboro, Tualatin, Milwaukie, West Linn, The Dalles and Clackamas.

© Mark C. Cogan, P.C., 2016 - 2017.