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Prosecutorial practice of requesting privacy waivers raises issues under new CA law

Privacy issues can be important, even critical, in building a strong criminal defense case. This is why California criminal defense attorneys have raised serious concerns about a new California law that could allow law enforcement to search certain individuals and their property at any time.

The law, the California Electronic Communications Privacy Act, requires law enforcement to acquire a warrant before searching electronic devices, but the language of the law could allow for unconditional authorization to search those on probation or other forms of supervised release such as parole who have signed a form of privacy release known as a Fourth waiver. The new law does not specifically address such waivers, but only says that, in the absence of a warrant, the government is required to obtain “specific consent” of the owner of electronic devices before searching them. 

Shortly after the law took effect prosecutors and judges in San Diego County began requesting that defendants eligible for probation sign “specific consent” forms to allow the collection of information that the new law would otherwise protect. The question is whether such a waiver is valid under the new law, or whether it is a violation of the privacy rights of criminal defendants.

The exact relationship between Fourth waivers and the new privacy law is bound to be an issue going forward, though it remains to be seen how quickly it will be tackled head on in the courts. For criminal defendants facing the prospect of signing one of these agreements, it is yet another reason to work with an experienced criminal defense attorney who can help navigate any associated legal issues, as well as any other privacy-related issues that come up in the course of criminal defense. 

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Prosecutorial practice of requesting privacy waivers raises issues under new CA law | Fisher Law Office