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The legality of probation conditions that allow searches of electronic devices

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Technology creep is an unavoidable phenomenon. These days, technology is impacting just about every aspect of our lives, and its effects are unavoidable. The criminal justice system certainly isn’t immune from this trend, with evidence of this fact cropping up on a near daily basis.

One situation I’ve covered in the past is the ways that technology intersects with the conditions of probation and parole. For example, in 2015, I wrote about Hector Salvador Lopez, a young man in California whose probation term included a condition requiring that he provide his probation officer with the passwords to any “social media sites” that he participated on. Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites. The Court rejected his assertion and the condition remained in effect.

More recently, on August 15th of this year, the Supreme Court of California considered a similar issue: whether a probation term properly included the requirement that the probationer be required to submit to an electronics search. Specifically, in Ricardo B, S230923 (online: https://tinyurl.com/InReRicardoP), the Court was asked “to decide whether an electronics search condition like the one at issue here is ‘reasonably related to future criminality.’”

Specifically, the probation condition at issue required that the probationer submit to a search of “electronics including passwords under [his] control…at any time of day or night.”

At the outset, the court noted the sweeping nature of this condition: “The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles.”

The Court also acknowledged the invasiveness of the provision and the privacy implications that it triggered: “The warrantless search of a juvenile’s electronic devices by a probation officer, a government official, plainly raises privacy concerns of a different order than parents checking their children’s cell phones.”

Next the Court turned to the specifics of Ricardo’s case, noting that there was no correlation between any crimes he’d committed in the past and probationary search provision. The Court explained that “nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that Ricardo had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’”

Accordingly, the Court concluded that after balancing the invasive nature of the probation requirement against the purported reasons for its imposition by the sentencing court, the clause should be removed from his probationary conditions. The Court held that because “the record here…contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity…(and) is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid…”

A just result if I’ve ever seen one. As the Court noted, the data stored on electronic devices often includes some of the most personal and intimate information available about a person and those they love. For that reason, sentencing courts should tread lightly and refrain from allowing probation officers unfettered access to this data absent strong evidence that doing so would forward the goals of probation in light of the probationer’s history and crime.

This is because governmental access to electronic data should always be carefully and thoughtfully considered and should be permitted only in very limited circumstances. Privacy rights should always trump law enforcement interests, especially where technology is concerned. While that doesn’t always happen, it’s heartening to see that privacy concerns prevailed in this case.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.