Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
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.
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.
“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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Joseph Wright at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)