Understanding the Ramifications of Senate Bill 71

With the news that this bill has now passed the full South Dakota Senate, we are looking at a stronger possibility that it will become law. I would hope that the House is not so nearsighted as the Senate, but I would not stake much on the possibility at this time. SB 71 is the sort of thing which appeals to folks on both sides of the aisle who do not think further than the “Of course, it is dangerous to drive while texting. There oughta be a law.” With that in mind, here is a detailed look at the issue of privacy with respect to our mobile devices:

Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

California’s opinion in Diaz is the latest of several recent court rulings upholding warrantless searches of mobile phones incident to arrest. While this precedent is troubling for civil liberties, it’s not a death knell for mobile phone privacy. If you follow a few basic guidelines, you can protect your mobile device from unreasonable search and seizure, even in the event of arrest. In this article, we will discuss the rationale for allowing police to conduct warrantless searches of arrestees, your right to remain silent during police interrogation, and the state of mobile phone security.

After reading the article, I continue to wonder at the burden which this law (leaving aside any perceived benefit) may prove for law enforcement. Will an officer be permitted to forcibly secure the driver’s phone to determine if it has been impermissibly used or not? If the phone is encrypted, will the officer request the passcode? In the event that the driver is not forthcoming with the passcode, will the officer be permitted to detain the individual for failure to comply?

I’m sure I could come up with more (and you no doubt are aware of others which I’ve not even touched on). I am reminded by all this concern over texting while driving of something which my mother said repeatedly during my growing-up years: “Major on the major and minor on the minor.” Poor English? No doubt. Good advice? Absolutely.

With SB 71, I firmly believe we are majoring on the minor–with the distinct probability that the results will lead to a much greater incursion of privacy than the current advocates of the bill either understand or admit.