State lawmakers have been trying for four years to provide Californians with more protection against warrantless snooping into their Internet-connected lives. The Legislature is about to take up the issue again, voting on a bill, SB 178, that would require state and local law enforcement agencies to obtain warrants before hoovering up a person’s emails and text messages, as well as location information and other digital “metadata.” These safeguards are overdue in an increasingly interconnected world, as broadband providers and online services become repositories for an enormous amount of data about their customers.
Under the 4th Amendment, law enforcement agents must obtain a warrant before conducting a search that would violate a person’s reasonable expectation of privacy. In the days of rotary phones, there was a clear distinction between recording what people uttered over a phone line, which required a warrant, and collecting the line’s billing records, which did not.
Today, however, the records collected and stored by service providers can be almost as revealing as the words and pictures that people exchange in real time. For example, a smartphone acts almost like a tracking device because it continually reveals its location to the mobile phone network it’s on, as well as to any number of apps that demand that data. The U.S. Supreme Court has ruled that police can’t attach a tracking device to a suspect’s car without a warrant, but it has put no such hurdle in the way of officers demanding a person’s location data from mobile networks and app developers.
And location data is just the tip of the iceberg when it comes to the personal information collected in the digital realm. It’s one thing for people to give up their data to third parties in exchange for a valuable service, such as electronic traffic guides. But it’s something else entirely when law enforcement agencies can then grab it without a judge’s supervision.
SB 178 by Sens. Mark Leno (D-San Francisco) and Joel Anderson (R-Alpine) would require state and local law enforcement agents — federal ones are beyond the Legislature’s reach — to obtain a warrant before demanding “electronic communication information” such as stored emails or metadata from a service provider, or reading the contents of a seized mobile phone. The sponsors adjusted the bill to satisfy California sheriffs, police chiefs and district attorneys, all of whom dropped the opposition that had stymied similar bills in the past. The remaining opposition comes mainly from a national organization focused on child sexual abuse, but the group’s legitimate concerns appear to have been addressed by the earlier amendments. Californians need the protections offered by SB 178, and the bill deserves the Legislature’s support.