California Senator Tries Again to Require Warrants for Access to Electronic Information

By Laura Mahoney

Feb. 9 — A California state senator said Feb. 9 he will try again to enact a bill (S.B. 178) that would require law enforcement officials to obtain a warrant before accessing a person's digital information, such as social networking content, messages, passwords and photos.

Sen. Mark Leno (D) authored three bills that passed since 2011 addressing separate elements of the new bill, but they were vetoed by Gov. Jerry Brown (D). The measure combines the three previous bills and goes further, Leno told Bloomberg BNA.

“All ideas have their time,” he said. “Maybe we were a bit ahead of the curve with the other bills. Now is the time.”

The bill, the California Electronic Communications Privacy Act (Cal-ECPA), would require warrants to obtain electronic information from individuals or service providers, with exceptions when necessary to protect public safety, as well as risk of evidence tampering or flight from prosecution, according to Leno. The bill is broader than the previous bills, adding location information and some forms of metadata to the categories of protected information. Also protected are photos, medical and financial information, contacts, social networking content and Web browsing history.

Broad Support From Tech Industry 

The bill has support from several advocacy groups, including the American Civil Liberties Union and Electronic Frontier Foundation (EFF), as well as broad support from technology companies including Apple Inc., Google Inc., Facebook Inc., Microsoft Corp., Twitter Inc., Engine Inc. and Mozilla Corp. Leno also has a bipartisan group of legislative co-authors that includes Sen. Joel Anderson (R).

In the years since Brown vetoed the earlier bills, 15 other states including Texas, Maine, Utah and Hawaii have enacted laws protecting digital communications or location information, Leno said.

In his veto messages, Brown has said the previous bills would have impeded ongoing criminal investigations, gone beyond federal law and addressed issues best left to the courts.

Leno and other supporters said a recent Supreme Court case, Riley v. California, 134 S.Ct. 2473 (2014) , put the issue into the hands of state lawmakers. In the case, the court said arrestees' phones can't be searched without a warrant. The ruling put Brown “on the wrong side of history,” EFF Senior Staff Attorney Hanni Fakhoury told Bloomberg BNA in a Feb. 9 e-mail.

‘Right Side of History.'

“Hopefully he'll be on the right side of history when it comes to building upon Riley and heeding Justice Alito's call in both Riley and Jones that legislatures are in the best position to deal with technology privacy issues,” Fakhoury said. In United States v. Jones, 132 S.Ct. 945 (2012) , the high court applied Fourth Amendment protections to GPS tracking information.

The California Police Chiefs Association and other law enforcement groups opposed Leno's previous bills. A CPCA spokeswoman told Bloomberg BNA Feb. 9 the group hasn't seen the new bill yet and can't comment on it.

Leno introduced the bill five days after four members of Congress introduced amendments to the federal Electronic Communications Privacy Act to tighten rules for law enforcement seeking e-mails and other electronic communications.

Fakhoury said S.B. 178 goes further than Congress is considering, specifically by imposing a warrant requirement for location information and some metadata.

“And while I hope Congress can pass reform at the federal level, states—especially those like California that interpret their state constitution as providing stronger privacy protection than the Fourth Amendment—shouldn't have to wait for Congress to act to take steps to safeguard its citizens,” Fakhoury said.

Specifics Required 

Under the California bill, warrants or wiretaps obtained for electronic communications would be required to specify the individuals, applications accounts, and types of information target, as well as the time period covered.

Law enforcement officials would be required to execute a warrant or wiretap within 10 days of approval and delete information they obtain within 90 days unless they have consent from the sender or recipient of the information or unless a court issues a retention order. They also would be required to notify individuals whose information was obtained and provide a summary of the information.

S.B. 178 can be considered in legislative committees 30 days after introduction.

To contact the reporter on this story: Laura Mahoney in Sacramento, Calif., at lmahoney@bna.com

To contact the editor responsible for this story: Joseph Wright at jwright@bna.com