Digital Privacy Bill Drags California Out of the “Dark Ages”

Friday, October 09, 2015

In 2011, Governor Brown vetoed a bill overwhelmingly passed by the Legislature that would have required a warrant for police to search a smartphone. He argued, “The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

State Senator Mark Leno (D-San Francisco) kept introducing variations of the bill and this week the governor signed Senate Bill 178, the California Electronic Communications Privacy Act (CalECPA). It requires the authorities to obtain a search warrant before rummaging through someone’s private emails, text messages and GPS data whether it’s stored on a smartphone, a computer or a remote server.

The authorities must also alert the subject of such a warrant within 90 days that it has been issued.

“For too long, California's digital privacy laws have been stuck in the Dark Ages,” Leno said. “That ends today.” The senator told the Sacramento Bee, “Tell me how a letter in your mailbox should have more protection than an e-mail in the cloud. It doesn't make sense.”

The bill was supported by a long list of major Silicon Valley companies, including Twitter, Facebook, Apple, Adobe, LinkedIn, Dropbox and Google. The California Newspaper Publishers Association sponsored the bill with the Electronic Frontier Foundation (EFF) and the ACLU. And, in the end, some law enforcement organizations supported it.

It was opposed by other law enforcement groups and the National Association to Protect Children. The Tennessee-based group argued that the law will make it more difficult to fight child pornography and abuse, in part, because it requires that subjects of a warrant be notified.

The bill’s authors said law enforcement and the courts have leeway to delay alerting parties if notification endangers an investigation. The delay has a 90-day termination, but can be extended. The measure also includes exemptions for “when the government in good faith believes that an emergency involving imminent danger of death or serious physical injury requires access to the electronic device information or the entity reasonably believes the device is stolen.”

The EFF said only two states, Maine and Utah, offer the privacy protections contained in California’s law.

After Governor Brown pronounced it the court’s responsibility, in 2011, to protect people’s privacy from modern, electronic snooping by law enforcement, they did just that. In June 2014, the U.S. Supreme Court unanimously reversed a ruling (pdf) by the California Supreme Court and tossed aside one of its own precedents from 1973 to establish that times have changed.

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice John Roberts wrote. The high court encouraged states to revise their own privacy laws accordingly.

–Ken Broder


To Learn More:

California Requires Warrants to Access Emails (by Patrick McGreevy, Los Angeles Times)

California New Laws: Police Need Warrant Now to Search Cell Phones (by Jessica Calefati and Katy Murphy, Contra Costa Times)

Jerry Brown Signs Electronic Search Warrant Law (by Alexei Koseff, Sacramento Bee)

In Landmark Victory for Digital Privacy, Gov. Brown Signs California Electronic Communications Privacy Act into Law (American Civil Liberties Union of Northern California)

Victory in California! Gov. Brown Signs CalECPA, Requiring Police to Get a Warrant Before Accessing Your Data (Electronic Frontier Foundation)

State Lawmakers Take Another Shot at Protecting Digital Privacy from Cops

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