Tom Offer-Westort (Photo credit: avatar-1)
In a pending lawsuit that can set precedent in the state of California, a man arrested at a public protest in January 2012 in San Francisco has filed suit against the state on grounds that the search of his cell phone and text messages therein violated his First Amendment rights of free speech and free association protections. The case filed last week is the latest to challenge the burgeoning law around cell phone searches.
Robert Offer-Westort, an undomiciled activist who previously worked for the San Francisco Coalition for the Homeless from 2006-2012, was peacefully protesting an ordinance banning the homeless from camping and, at certain hours, sleeping in public locations, according to the ACLU court filing. To protest the new law, Offer-Westort pitched a tent in a park on the evening of January 27, 2012, placed a sleeping bag inside and was arrested soon thereafter. At Mission Station, Offer-Westort’s phone was seized and text messages searched.
California’s Supreme Court, the highest court in that state, already ruled that warrantless searches of cell phones post arrest do not violate the Fourth Amendment to the Constitution, the amendment that deals with unreasonable searches and seizures. Offer-Westort is filing under a theory of First Amendment protection that when police read his conversations with friends and family, they violated his rights to free speech and free association.
“I was the person who was arrested, but it’s dozens of people’s conversations that were affected,” Offer-Westort said to the Huffington Post. “It’s important that when police are going into very private parts of our lives that they obtain warrants. Our right to privacy is not so unimportant that it’s unfair to ask some discretion on the part of the police department.”
Offer-Westort is also filing under privacy provisions of the California state Constitution.
With the shift from filing a suit under the Fourth Amendment to the First Amendment to the U.S. Constitution, those interested in the area of technology and privacy will be very curious to hear the court’s decision in this most recent challenge to the developing law around cell phone seizes and searches. With suit only filed last week, however, it will take probably another incarnation to the iPhone 6 to get a decision.
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