Explanation of the California Electronic Communications Privacy Act (CalECPA)

January 21, 2023

The California Electronic Communications Privacy Act (CalECPA) is a California state law that regulates the collection, use, and disclosure of electronic communication and location information by state and local law enforcement agencies.

The main goal of CalECPA is to protect the privacy of California residents by requiring law enforcement agencies to obtain a warrant, based on probable cause, before accessing electronic communications or location information. The law applies to electronic communications such as email, text messages, and social media posts, as well as location information from devices such as cell phones, GPS devices, and smartwatches.

CalECPA also requires law enforcement agencies to provide notice to individuals whose electronic communications or location information has been accessed and to provide annual reports to the legislature on the use of electronic communications and location information.

CalECPA was passed in 2015, it is considered one of the most comprehensive state-level privacy laws in the United States, and it serves as a model for other states looking to pass similar legislation. The law applies to California state and local law enforcement agencies and government entities and it’s not binding to federal agencies.

When Does CalECPA Apply to Law Enforcement?

CalECPA applies to all state and local law enforcement agencies and government entities within California, including, but not limited to, local police departments, sheriff’s offices, district attorney’s offices, and the California Highway Patrol. It also applies to the California National Guard when in a state status.

CalECPA applies to electronic communication and location information that is stored, accessed, or transmitted by electronic communication service providers, including, but not limited to, internet service providers, cellular phone companies, and social media companies.

It’s important to note that CalECPA does not apply to federal agencies and that it does not affect the ability of federal agencies to access electronic communication and location information under federal law.

Additionally, CalECPA does not apply to private parties, such as employers, landlords, or insurance companies, unless the private party is acting as an agent of a government entity.

A Search Warrant Must Comply with CalECPA


CalECPA applies to the search and seizure of electronic devices and information, including electronic communications and data stored on electronic devices. So, if a California search involves the search and seizure of electronic devices or electronic information, it would need to comply with CalECPA. This includes obtaining a warrant or consent before conducting the search and following any other requirements specified in the law.

Can a Defendant Move to Suppress Evidence Discovered in Violation of CalECPA?


A defendant can move to suppress evidence discovered in violation of the California Electronic Communications Privacy Act (CalECPA). If the prosecution obtained electronic communication or location information without a warrant or without one of the specific exceptions provided by CalECPA, the defense can file a motion to suppress the evidence.

A motion to suppress evidence is a legal request asking the court to exclude evidence that was obtained illegally. If the court finds that the prosecution obtained the evidence in violation of CalECPA, it will suppress the evidence and it will not be allowed to be presented at trial.

It’s important to note that the prosecution bears the burden of proving that the evidence was obtained in compliance with CalECPA, if the defendant files a motion to suppress the evidence.

Additionally, if the evidence was obtained illegally, it may also be in violation of the Fourth Amendment of the United States Constitution which also protects citizens against unreasonable searches and seizures. Therefore, the defense can argue that the evidence should be suppressed under both, CalECPA and the Fourth Amendment.

In any case, the exclusion of evidence obtained illegally can greatly impact the prosecution’s case and can lead to the dismissal of charges or a reduction of charges or penalties.

What are the Exceptions to CalECPA?


CalECPA sets out specific exceptions under which law enforcement agencies can access electronic communication and location information without a warrant. These exceptions include:

  1. Emergency situations: Law enforcement agencies can access electronic communication and location information without a warrant if they have a good faith belief that an emergency situation exists and that the information is necessary to prevent death or serious bodily injury.
  2. Consent: Law enforcement agencies can access electronic communication and location information if the individual whose information is being sought has given consent.
  3. Publicly available information: Law enforcement agencies can access electronic communication and location information that is publicly available without a warrant.
  4. Pen register or trap and trace device: Law enforcement agencies can use a pen register or trap and trace device without a warrant to track the origin and destination of electronic communication.
  5. Stored communications: Law enforcement agencies can access stored electronic communications without a warrant if the communication is more than 180 days old or if the sender or recipient of the communication has given consent.
  6. Foreign intelligence: Law enforcement agencies can access electronic communication and location information without a warrant if they are conducting a foreign intelligence investigation and if the information is necessary to protect against international terrorism or clandestine intelligence activities.
  7. National security letters: Law enforcement agencies can use national security letters to obtain electronic communication and location information without a warrant if they are conducting a foreign intelligence or international terrorism investigation.

It’s worth noting that the exceptions are narrowly defined and that law enforcement agencies have to comply with strict rules when using them.

Who Has Standing to Challenge a CalECPA Violation?


In California, standing to challenge a violation of CalECPA generally belongs to the person whose electronic communication or location information was searched or seized.

Under CalECPA, any person whose electronic communication or location information has been searched or seized in violation of the act can file a motion to suppress evidence or can bring a civil action against the law enforcement agency or government entity responsible for the violation.

Additionally, the person whose electronic communication or location information was searched or seized may also have standing to sue if it can be shown that their privacy rights were violated as a result of the violation of the act.

It’s worth noting that CalECPA does not grant standing to challenge the act to third parties, such as family members or friends of the person whose information was searched or seized. Additionally, CalECPA does not grant standing to challenge the act to an organization or association.

It’s also important to note that in order to have standing to challenge CalECPA violation, the person has to show that they have suffered a concrete injury. In other words, that they have been actually affected by the violation of the act in a way that can be proven.

In any case, the outcome of a CalECPA violation challenge will depend on the specific facts and circumstances of each case, as well as the interpretation of the court.

Contact Us for Help with Your Criminal Case


If you have been charged with a crime, then contact an experienced Orange County criminal defense attorney at the Law Offices of John D. Rogers. Our office provides free consultations – contact us today to schedule your case evaluation.

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