State Lawmakers Take Another Shot at Protecting Digital Privacy from Cops

Wednesday, February 11, 2015

Maybe the fourth time’s a charm.

California lawmakers have passed legislation three times in the past four years to protect personal data by requiring law enforcement to get warrants for digital access to smartphones, laptops and other devices. Each time, Governor Jerry Brown vetoed the bills.

State Senator Mark Leno (D-San Francisco) took another stab at it this week when he introduced Senate Bill 178, otherwise known as the California Electronic Communications Privacy Act (Cal-ECPA). The bill “protects all electronic communications, including personal messages, passwords and PIN numbers, GPS data, photos, medical and financial information, contacts and metadata.”

That includes individuals and service providers. No warrant, no data unless there is an emergency condition or extenuating circumstances already addressed in existing law. The bill does include a broad exception to the bill’s notification requirements, which allows law enforcement to delay telling people their data has been accessed if it would result in an “adverse result.”  

Five states already have similar legislation and nine have passed laws restricting law enforcement’s use of GPS data to track individuals.

Leno called Brown’s veto message (pdf) in 2011 “incoherent,” after the governor rejected a bill overwhelmingly passed by the Legislature that would have required a warrant for police to search a smartphone. “The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections,” Brown wrote.

Since then, they have. 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.

“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Justice Roberts wrote, his point being:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ 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. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”  

The high court encouraged states to revise their own privacy laws accordingly.

Leno’s bill has the broad backing of technology companies, including Google, Twitter, Facebook, Dropbox and Microsoft. Needless to say, it has the support of civil liberties advocates and is opposed by law enforcement.

–Ken Broder


To Learn More:

Tech Industry Backs New California Plan to Ban Warrantless Digital Searches (by Marisa Lagos, KQED)

It's Time to Protect Digital Privacy in California (American Civil Liberties Union)

California Lawmaker Proposes Warrant Requirement for Digital Data Access (by Cyrus Fariva, Ars Technica)

Bill Would Require Police to Get Warrant for Electronic Data (by Bob Egelko, San Francisco Chronicle)

Tech Industry Stands with Sen. Leno to Modernize Digital Privacy Protections (Office of state Senator Mark Leno)

Police Would Need Warrants for Personal Data Under California Bill (by Jeremy B. White, Sacramento Bee)

U.S. Supreme Court to Cops Wanting to Search Cellphones: “Get a Warrant” (by Ken Broder, AllGov California)

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