Tech firms including Facebook, Google, Mozilla and Twitter are supporting new legislation to protect Californians against warrantless government searches of their smartphones and laptops for private emails, text messages and GPS data.
State Sen. Mark Leno (D-San Francisco) is proposing the California Electronic Communications Privacy Act to require that law enforcement officers obtain a warrant before accessing a person’s digital information, including emails and other data stored off the smartphone on remote servers or cloud services.
“When it comes to digital privacy protections, California is in the Dark Ages,” Leno said in a statement. “The personal files in your desk drawer at home cannot be seized without warrant, but the digital files on your smartphone and tablet, no matter how sensitive, do not have the same protection."
A similar but narrower bill by Leno was vetoed by Gov. Jerry Brown in 2013 amid concern that it required law enforcement to notify people whose data was searched shortly afterward.
In his veto message, Brown said federal law requires a search warrant, subpoena or court order to access information and in the vast majority of cases, law enforcement agencies obtain a warrant.
“The bill, however, imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations,” Brown wrote of the 2013 bill. “I do not think that is wise.”
Leno said the new bill seeks to strike a balance between safeguarding Californians’ privacy right and the need of law enforcement to use technology to solve crimes.
The new bill contains a broad exception to the notice requirements in instances where notifying the affected person would impede an ongoing law enforcement investigation or result in any “adverse result.”
The 2013 measure, which was approved by both houses of the Legislature, was opposed by the California District Attorneys Assn., which objected that it would have created “an unnecessary and duplicative state requirement.”
A representative of the association said it would review the bill once it is available to determine whether to take a position.
Supporters of the measure, including Hanni Fakhoury, a senior attorney for the Electronic Frontier Foundation, said Leno’s bill goes beyond federal law to apply to metadata, locational information from GPS functions, and data stored electronically beyond 180 days.
Leno said he thinks the new bill will do better with the governor because it has strong support from the tech industry, comes after major data breaches involving the National Security Agency and other organizations and follows the lead of several other states that have since adopted privacy laws.
“Law enforcement needs a search warrant to enter your house or seize letters from your filing cabinet. The same sorts of protections should apply to electronic data stored with Internet companies,” said Mufaddal Ezzy, Google’s California manager of public policy and government relations.
Leno said that similar laws protecting digital communications already exist in five states, including Utah and Hawaii. Nine states have laws protecting location information from GPS devices.
The new legislation is co-authored by Republican state Sen. Joel Anderson of San Diego, who said the measure “protects Californians’ basic civil liberties as the 4th amendment of our Constitution intended.”