Next up for SC Legislature: Whether to safeguard your cellphone

abeam@thestate.comJanuary 11, 2014 

— When Willie Gracie robbed a convenience store in 2008, he texted a friend to brag about it.

“I just made so much money,” Gracie texted, in part.

After Gracie was arrested, a police officer took Gracie’s cellphone and found the text message, using it as evidence against him – a search the Alabama Supreme Court later upheld.

Cases like Gracie’s worry South Carolina lawmakers.

House members – including House Speaker Bobby Harrell, R-Charleston, and leaders of the Republican and Democratic caucuses – say they plan to pass a digital privacy law this year that would ensure your cellphone is treated as if it were as private as your house. That means police could not search it unless they have a search warrant signed by a judge.

“(Your phone) is more important than (your) house right now,” said House Minority Leader Todd Rutherford, D-Richland. “A fire breaks out in your house, the first thing you are going to grab is your cellphone.”

Cellphones today contain text and email messages, bank records, calendar items, GPS data and all kinds of sensitive documents once locked in safes that now reside in computing “clouds.” Harrell says the issue of protecting South Carolinians’ digital privacy is gaining momentum, partly because South Carolinians are spooked about privacy issues following the 2012 data breach at the state Department of Revenue that exposed the personal information of 6.4 million S.C. consumers.

“There is a growing concern with what’s happened to our Department of Revenue and what’s happened to Target, about privacy and protection of people’s information,” Harrell said. “In today’s society, privacy is becoming a harder and harder thing to protect.”

And, lawmakers say, passing a digital privacy act could open the door for lawmakers to pass a ban on texting while driving – a bill that usually dies because of privacy concerns.

But state law enforcement officials warn that protecting South Carolinians’ digital privacy could harm public safety.

The State Law Enforcement Division says a digital privacy law “would affect our ability to get violent offenders off the streets,” according to a spokeswoman. And the S.C. Law Enforcement Officers Association says waiting for a search warrant would give suspected criminals time to destroy evidence.

“Law enforcement agencies across South Carolina obtain warrants before they search any cellphone unless there is exigent circumstances,” said Ryan Alphin, executive director of the Law Enforcement Officers’ Association. “There are certain circumstances that you are not able to get a warrant (because) the law enforcement officer out in the field feels their life is in danger or evidence can be destroyed. If the search is incident to arrest, they have authority under the 4th Amendment to conduct that search.”

House Speaker Harrell said he wants to discuss the issue with law enforcement, adding, “There has to be middle ground somewhere.”

Asked if he thought law enforcement would object to a digital privacy law, Democrat Rutherford said: “I hope so.”

“If we’re not stepping on anybody’s toes with law enforcement, we’re not doing something right. That’s the whole point,” said Rutherford, a criminal defense attorney.

Courts are split on the issue.

The 1st Circuit Court of Appeals has ruled police officers must get a warrant before searching a cellphone. The 4th Circuit, which includes South Carolina, says a warrant is not needed. State courts in Alabama and Georgia have said warrants are not necessary. State courts in Ohio and Florida say they are.

“A search of an electronic device that operates as a cellphone incident to an arrest could evolve into a search of the interior of an arrestee’s home depending on the technological capabilities of the particular piece of equipment,” the Florida Supreme Court.

Generally, the courts have ruled officers can search “closed containers” without a warrant because officers need to protect their safety. The Alabama Supreme Court ruled that a cellphone is a closed container because it contains pertinent information hidden from law enforcement, meaning it can be searched without a warrant.

The issue has not come up in S.C. courts. But the state Court of Appeals did rule that the North Charleston Police Department should have obtained a search warrant to attach a GPS monitoring device to a suspect’s car. The court added that mistake was not enough to throw out evidence.

“This is something that should be dealt with by Legislature and by Congress and not by the courts,” said state Rep. Garry Smith, R-Greenville. “It’s an issue that needs to be dealt with more in depth than the courts will.”

If lawmakers pass a digital privacy law, it could open the door for a ban on texting while driving.

The texting bill usually is defeated because lawmakers say they cannot pass something that would allow law enforcement officers to take people’s cellphones.

But if the digital privacy law passes, “we’re going to start talking more seriously about a texting-and-driving ban,” said House Majority Leader Bruce Bannister, R-Greenville.

As South Carolina’s 2014 legislative session kicks off Tuesday, five people to watch:

Gov. Nikki Haley

The Republican governor has two goals in the final legislative session of her first term: sign both a Department of Administration bill and an ethics reform bill. The Department of Administration bill is a campaign promise from Haley’s 2010 election. The ethics bill could blunt attacks that the former Lexington state representative is unethical. Look for Haley to pressure lawmakers via news conferences and Facebook posts.

Sen. Vincent Sheheen

The likely Democratic nominee for governor will try to steal Haley’s spotlight. Sheheen is the primary sponsor of the Department of Administration bill. He has held news conferences, proposed amendments and written letters about his support for ethics reform. Look for Sheheen to take to the Senate floor and paint Haley as incompetent, citing the Revenue Department data breach and the Greenwood County tuberculosis outbreak.

Sen. Lee Bright

The Spartanburg Republican, a member of the ultra-conservative William Wallace Caucus, is the leading challenger to incumbent U.S. Sen. Lindsey Graham, R-Seneca, according to the polls. Bright will spend lots of time on the Senate floor talking about what is wrong with the federal government, which could furnish clips to include in campaign ads leading up to the June Republican primary.

Rep. Bakari Sellers

The Democratic lawmaker from Bamberg raised some eyebrows last month when he touted a bill that he said would “lesson the burden of Obamacare.” Sellers is running for lieutenant governor, so it makes sense to distance himself from an unpopular law. But Sellers supported Medicaid expansion under the Affordable Care Act. Look for Sellers to talk a lot about domestic violence. He has filed a bill that would toughen penalties for offenders.

Rep. Mike Anthony

The last time a Democrat held statewide office was 2011, when Jim Rex was leaving office as state superintendent of education. Anthony’s candidacy for superintendent could give Democrats a good chance to regain that spot. The Union County Democrat coached Union High School to three state championships in football while teaching biology. Look for him to tout his popularity and conservative voting record.

3 key issues facing state lawmakers in 2014

Taxes

House Republicans passed every item on their 2013 agenda except one: tax reform. A House bill would cut personal income taxes by nearly $80 million a year, a savings of $86 for the average taxpayer. Other bills would eliminate the corporate income tax and reduce the state’s 10.5 percent property tax on manufacturers – the highest such tax in the country. Most big manufacturers don’t pay the tax – they have special exemptions – so they don’t push for the tax cut. Local governments, however, will fight hard to kill the tax cut. It would mean they would lose $1 billion in revenue by 2021.

Roads

South Carolina needs $48.3 billion for road repairs over the next 20 years. But it only has $19.3 billion to pay for those repairs, leaving a $29 billion deficit. In 2013, lawmakers agreed to borrow $550 million to widen interstates. And they transferred car sales taxes – $80 million a year – to the Transportation Department to repair secondary roads. As business leaders continue to opine on the condition of S.C. roads, more and more lawmakers are warming to the idea of increasing the state’s 16.5-cent-a-gallon gas tax, third-lowest in the country. But that won’t happen in an election year.

Education

The governor’s race is pushing education to the top of the priority list. Democratic state Sen. Vincent Sheheen wants to increase teacher salaries to the national average and expand the state’s 4-year-old kindergarten program to all 46 counties. Republican Gov. Nikki Haley wants to spend $60 million on technology and reading programs, and tweak the state’s education-funding formula to send $97 million to students in poor school districts. Haley says reforming education makes sense now after her work to bring more jobs to the state. Sheheen calls Haley’s proposals election-year pandering.

8 more issues to watch as lawmakers return to Columbia for the 2014 legislative session

Trash

In 2009, Horry County passed a law saying all solid waste generated in that county had to be disposed of in landfills owned by the county. That angered the business community, which complained it was forced to pay higher prices to dispose of trash. In response, the House of Representatives passed H.3290, banning counties from requiring use of county-owned landfills. Thirty-eight of the state’s 46 counties oppose the law. Also, the Don't Dump on SC Coalition has run TV ads against it, saying it would open the state up to more out-of-state trash. The bill is now in the Senate.

Ethics

Scandal after scandal has embroiled S.C. politicos in recent years, pushing ethics reform to the top of the Legislature’s to-do list. Lawmakers agree on most changes – making lawmakers say who pays them, limiting contributions to political action committees, clarifying conflicts of interests – but they can’t agree on who should investigate lawmakers. Gov. Nikki Haley and her likely November re-election opponent, state Sen. Vincent Sheheen, say an independent Ethics Commission should do it. But some lawmakers insist the state constitution says only lawmakers can investigate and punish lawmakers.

Department of Administration

S.22 would eliminate the state Budget and Control Board and move most of the state’s administrative functions to the governor’s office. It would give the governor unprecedented power in a state dominated by the Legislature, which is why the bill has been so hard to pass. The biggest remaining fight: who will control state procurement. The House wants to give the governor control; the Senate wants a nine-member commission to do that job. A version of the restructuring bill has passed both bodies. Now, it is up to a conference committee to work out the differences.

Border lines

The N.C.-S.C. border is more than 200 years old, but no one knew exactly where it was – until last year. That’s when officials from both states finished up 15 years of research to clarify the border’s exact location. Establishing the border is important to avoid costly disputes between the two states about taxes and development. But the S.C. Legislature must still OK the lines. The clarified line would force at least one business to close and could cause some homeowners to change states – issues not easily resolved.

Hospital regulation

S.C. law requires hospitals and nursing homes to get a “certificate of need” before they can open or expand. But the Department of Health and Environmental Control suspended its certificate of need program in 2013 after Gov. Haley vetoed its funding. Critics liken that to requiring everyone to have a driver’s license while closing the Department of Motor Vehicles. Hospitals and nursing homes have sued, and some lawmakers have vowed to restore the program’s money. Haley most likely would veto that restoration, arguing that free markets should determine where hospitals can operate.

Obamacare

The federal Affordable Care Act requires everyone to have insurance or pay a tax. In 2013, the S.C. House passed a bill that would offer a state tax deduction to offset that tax – effectively nullifying the federal law. State Sen. Tom Davis, R-Beaufort, is preparing an amendment to remove that tax deduction, saying South Carolina cannot nullify federal law. Instead, Davis is proposing eight things that would make it difficult for Obamacare to succeed in South Carolina – including banning state agencies or any agency that receives state money from helping people sign up for health insurance.

Supreme Court

S.C. lawmakers elect Supreme Court justices and, for the first time in as long as anyone can remember, there is a contested race for chief justice. Jean Toal, chief justice since 1999, is running for another 10-year term despite the fact that she would be forced to retire on Dec. 31, 2015, after she turns 72. Associate Justice Costa Pleicones – stung by Toal’s decision to run and deny him the chief’s chair – is running against her. Pleicones is making the court’s backlog of cases an issue. Toal is touting the court system’s technological gains.

Guns in bars

S.308 would let people carry concealed weapons in bars and restaurants – unless the business posted a sign saying guns were not allowed. If nothing else, the bill would be a boon for the sign-making industry. But, more than that, it is a sure-fire way for legislators to boost their conservative credentials in an election year. A House-amended version of the bill will be back before the state Senate.

Reach Beam at (803) 386-7038.

The State is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service