SB 178 Protects Californians Against Warrantless Government Access to Private Electronic Data on Smartphones, Tablets and other Digital Devices
SACRAMENTO – Senator Mark Leno has joined forces with numerous tech companies, including Engine, Facebook, Google, Mozilla and Twitter, to announce new legislation that modernizes California’s privacy laws to keep up with emerging technologies. Senate Bill 178 protects Californians against warrantless government access to private electronic communications such as emails, text messages and GPS data that are held on smartphones, tablets, laptops and other digital devices.
“When it comes to digital privacy protections, California is in the dark ages,” said Senator Leno. “The personal files in your desk drawer at home cannot be seized without a warrant, but the digital files on your smartphone and tablet, no matter how sensitive, do not have the same protection. This bill strikes the right balance between safeguarding Californians against improper government intrusion of their electronic data and protecting the right of law enforcement to use technology when it is needed to protect public safety.”
SB 178, also known as the California Electronic Communications Privacy Act (Cal-ECPA), ensures that law enforcement officials obtain a warrant before accessing a person’s digital information. Cal-ECPA protects all electronic communications, including personal messages, passwords and PIN numbers, GPS data, photos, medical and financial information, contacts and metadata. Exceptions to the warrant requirement are included in the legislation so that law enforcement officers can continue to effectively and efficiently protect public safety in the event of an emergency.
Cal-ECPA is jointly authored by Republican Senator Joel Anderson and supported by more than a dozen technology businesses, national and statewide consumer groups and numerous civil rights and privacy advocates. The diverse coalition of supporters includes American Civil Liberties Union of California, Apple, California Newspaper Publishers Association, Center for Democracy and Technology, Consumer Federation, Dropbox, Electronic Frontier Foundation, Microsoft, Privacy Rights Clearinghouse and Reddit.
“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. “California’s electronic surveillance laws need to be brought in line with how people use the Internet today and provide them with the privacy they reasonably should expect.”
“Californians shouldn’t be forced to choose between using smartphones, email, social networks or any new technology and keeping their personal lives private, said Nicole Ozer,” Technology and Civil Liberties Policy Director for the ACLU of California. “Especially after revelations of warrantless surveillance by the NSA, it is time for California to catch up with other states across the nation, including Texas and Maine, which have already updated their privacy laws for the modern digital world.”
Five states, including Utah and Hawaii, have already enacted laws protecting the privacy of digital communications, and nine states, including Indiana, Montana and Tennessee, have laws safeguarding an individual’s location (GPS) information.
“Senator Leno and I bridge the gap between progressives and conservatives to put Californians first and reinforce our constitutional protections,” said Senator Anderson, R-Alpine. “Our bipartisan bill protects Californians’ basic civil liberties as the fourth amendment of our Constitution intended.”
“Since data plays an increasingly important role for many startups, any uncertainty over compliance with outdated regulations puts them in a difficult position,” said Evan Engstrom, Policy Director for Engine, a San Francisco-based nonprofit advocacy and research organization supporting startups. “Startups may be forced to choose between spending valuable time and resources complying with complex requests for data from law enforcement or facing fines and legal action for protecting their users' privacy rights. These small companies simply don't have the bandwidth to respond to voluminous requests for information, so having a clear set of protocols could make it much easier to comply with the law.”
Senator Leno has authored three previous bills related to digital privacy in California. Those measures, introduced between 2011 and 2013, would have protected against warrantless government searches of cell phones during an arrest, an individual’s emails and other electronic messages, and a person’s whereabouts as tracked by GPS on a smartphone or other device. All three of Senator Leno’s previous bills passed the Legislature with overwhelming bipartisan support, but were vetoed by Gov. Jerry Brown. The U.S. Supreme Court has since issued a unanimous ruling requiring law enforcement to secure a warrant before accessing data on a person’s mobile phone following an arrest. In other rulings, the Court has also urged state legislatures to update their warrant requirements for the modern age.
SB 178 will be heard in policy committees in the Senate this spring.
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