Cell Phone Privacy Is First Amendment Right, Claims Lawsuit Against San Francisco Police

03/22/2013 01:58 pm ET | Updated Mar 22, 2013

NEW YORK -- If a San Francisco man wins a lawsuit filed Wednesday, keeping your cell phone conversations private could could become a First Amendment right in the state of California.

The man, Bob Offer-Westort, was arrested for pitching a tent in a public plaza during a January 2012 protest against new regulations in San Francisco that he argued would make life harder on the homeless. It was a peaceful act of civil disobedience -- but he said that when police took him back to the station house, their actions were invasive. One police officer, Offer-Westort claims, took his phone and started reading through the text messages on it.

At the time, Offer-Westort felt violated but powerless. Now he is launching a civil lawsuit that could test whether our cellphones are now so central to our lives that they are covered by the First Amendment's free speech and free association protections. The case is one of a handful at the forefront of the developing law around cell phone searches.

"We carry our cell phones everywhere we go. We have our whole life in our cell phones: where we go, who we know and what we do," said one of Offer-Westort's lawyers, Marley Degner. "And as our client shows, it's easy to get swept up in an arrest simply by attending a political protest."

California's Supreme Court has already ruled that phones carried in a pocket are fair game for police under the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure. California Gov. Jerry Brown vetoed a 2011 bill that would have overturned that decision, saying the matter was best left to the courts.

Now, with Offer-Westort's lawsuit, the ACLU of Northern California is taking Brown up on that offer, arguing that when police read their client's conversations with friends and family, they violated his rights to free speech and free association.

"The compelled disclosure of information about individuals' communications or association risks chilling the exercise of these rights," the lawsuit says.

Sgt. Michael Andraychak, a spokesman for the San Francisco Police Department, told HuffPost the department does not comment on civil lawsuits.

For Offer-Westort, the intrusion into his communications and associations was very real.

"It felt like somebody was going into parts of my life that they didn't have a right to go into," he told HuffPost. "Like lots of people, I had conversations with family members, I had conversations with coworkers, I had conversations about coworkers -- all these things that you tend to think are everyday conversations ... they suddenly became visible to someone else."

Offer-Westort and the ACLU of Northern California are also suing under provisions of the California state Constitution that protect privacy.

"I was the person who was arrested, but it's dozens of people's conversations that were affected," Offer-Westort said. "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."

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