Governor Brown Vetoes California Electronic Privacy Protection

no warrent

For the third straight year, California Governor Jerry Brown vetoed common sense electronic privacy legislation, ensuring that California remains behind the rest of the country when it comes to technology law and policy.

Gov. Brown vetoed SB 467, an EFF-sponsored bill that would have required state law enforcement officials to obtain a search warrant in order to get the contents of electronic communications from an Internet or online service provider. Federal electronic privacy legislation is woefully outdated and 1986’s Stored Communications Act (“SCA”) permits police to obtain the contents of electronic communications without a search warrant if it has been stored online for more than 180 days. Most states, including California, have adopted the SCA. Congress has considered proposals to update the statute, but as the effort stalls in DC, courts, companies and state legislatures stepped up instead.

In 2010, the US Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that people have a reasonable expectation of privacy in their email, and so to the extent the SCA permits warrantless access to emails, it violates the Fourth Amendment. Other courts have adopted Warshak and extended it to cover other forms of electronic communications, like Facebook messages. After Warshak, many of the biggest tech companies, most of which are based in California, began demanding a search warrant before disclosing the contents of electronic communications. Then state legislatures started getting in on the act too, with Texas becoming the first state to change its statute to require state and local police obtain a search warrant to access the contents of communications. With the writing clearly on the wall, the federal Department of Justice testified before Congress earlier this year that even they were OK with a warrant requirement.

SB 467 was an attempt to get California to jump on the bandwagon and make a warrant requirement state law and, although it passed with broad bipartisan support, Brown vetoed the bill anyway. In his veto message, he wrote that SB 467 “imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations,” which he felt would not be “wise.” That’s not entirely accurate. Federal law currently requires law enforcement give notice to a customer that it obtained their communications if the government wants to get the contents of those communications without a search warrant. The law also allows the government to ask a court to delay the notice in a number of circumstances, including if it would jeopardize an investigation.

Because SB 467 would have required the government to get a search warrant in all instances in which law enforcement wants the contents of communications, it necessarily would have required the government give notice in all instances. It also would have adopted the delayed notice provisions in federal law, allowing the government to delay notice for 90 days if it would impede a criminal investigation, and allowing the government to renew that notice as long as necessary.

Brown’s veto is disappointing but unsurprising given his track record on electronic privacy legislation. In 2011, he vetoed SB 914, a bill that would have overruled People v. Diaz, a California Supreme Court decision that allowed police to search an arrestee’s cell phone without a warrant incident to arrest. Courts across the country have split on the issue and California would have had a chance to be a privacy leader. The two most recent appellate court decisions reviewing the practice this yearfrom the federal First Circuit Court of Appeals and the Florida Supreme Courtdisagreed with Diaz and found the incident to arrest exception to the search warrant requirement didn’t apply. Unfortunately, California languishes behind, waiting to see if the US Supreme Court will grant review in a state case involving the exception.

In 2012, Governor Brown vetoed SB 1434, an EFF-co-sponsored location privacy bill that would have required law enforcement to obtain a search warrant to obtain evidence of a person’s location from an electronic device. Following the US Supreme Court’s decision in United States v. Jones, state courts and legislatures began clamping down on warrantless location tracking. The New Jersey Supreme Court ruled earlier this summer that police need a search warrant to obtain historical cell site records. Massachusetts‘ Supreme Judicial Council found that even a passenger in a car had standing to challenge GPS evidence used against him. And Maine and Montana both passed state laws requiring police to obtain a search warrant before tracking a person’s location through an electronic device. Again, rather than joining this growing chorus of concerned states, California remains on the sidelines.

Now with SB 467, Governor Brown has yet again held Californians back as other states step up to protect its citizens from growing electronic surveillance.

All three of these vetoed bills easily passed the California legislature with broad, bipartisan support. All three put in place strong privacy protection at a time of rapid technological change. And all three would have cemented California’s status as a leader when it comes to protecting its citizen’s electronic privacy. As the home of the largest and most innovative technological companies in the world, California should be at the forefront of ensuring technology works for the public benefit. That also means working to ensure technology doesn’t erode our hard earned privacy rights. But with these vetoes, it’s clear the “serpent’s egg’s already hatched.”

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Governor Brown Vetoes California Electronic Privacy Protection. Again.

Location privacy took a hit in California when Governor Jerry Brown vetoed SB 1434, an EFF- and ACLU-sponsored bill that would have required law enforcement to apply for a search warrant in order to obtain location tracking information. Despite the bill’s passing through the state legislature with overwhelming bipartisan support, despite local newspaper editorials in favor of the bill, and despite more than 1,300 concerned Californians using our action center to urge him to sign the bill into law, Governor Brown instead decided to sell out privacy rights to law enforcement.

It’s not the first time, either. Last year, he did the same thing with SB 914, a bill that would have required police to obtain a search warrant before searching an arrested individual’s cell phone incident to arrest.

In a short veto statement (PDF), Governor Brown recognized the need to update our privacy laws, but explained

It may be that legislative action is needed to keep the law current in our rapidly evolving electronic age. But I am not convinced that this bill strikes the right balance between the operational needs of law enforcement and individual expectations of privacy.

For Governor Brown, it appears the “right balance” is to tip the scales decisively in favor of law enforcement. Because while vetoing SB 1434, Governor Brown did sign AB 2055, a competing bill sponsored by the Los Angeles County District Attorney’s Office and supported by almost every state law enforcement agency, which claims to “require the issuance of a search warrant before a law enforcement agency could obtain GPS location information from any electronic tracking device.”

Skeptical about a law enforcement sponsored bill claiming to protect privacy? You should be. As we explained to Governor Brown, AB 2055 doesn’t do anything at all.

AB 2055 is a narrow response to the U.S. Supreme Court’s decision in United States v. Jones, which held the Fourth Amendment required law enforcement to obtain a search warrant before installing a GPS device on a car. In theory, AB 2055 changes California law to explicitly permit law enforcement to apply to a judge for a search warrant to install a GPS device. But in fact, it does not require police to obtain a search warrant. It just says they can apply for one. So to the extent it attempts to codify Jones, it fails. And, more basically, there’s no need to codify Jones: the Supreme Court’s decision is the law and California law enforcement officials have to follow it, regardless of what state law says.

That’s not the only problem with AB 2055. That law only applies to GPS devices, and not the other myriad ways law enforcement can obtain location information without installing a GPS device.  With increasing concern about law enforcement’s growing addiction to warrantless cell phone tracking — which a federal appeals court in New Orleans will be hearing argument about tomorrow — any legislative action needs to be forward-looking and future-proof. And while we might expect a state that boasts the world’s biggest technology companies and just legalized self-driving cars to move the law forward, Governor Brown has instead decided to maintain the status quo.

Ultimately law enforcement got exactly what it wanted with AB 2055, which is nothing at all. And while Governor Brown joins the chorus — which included Justice Alito in his concurring opinion in Jones — that solemnly speaks of the need to update our electronic privacy laws to reflect the changing technological landscape, his words ring hollow when he vetoes a bill that had bipartisan legislative support. Because in the end, all that’s been done since the first federal electronic privacy bill was passed in 1986 has been a steady diet of allowing law enforcement to gorge itself on as much data and information they can eat without a warrant. It’s no surprise that now they’re hooked, they’ll do whatever it takes to keep the information faucet on. Governor Brown’s veto of SB 1434 only continues this dangerous trend.

Brown

Here is what was requested of Gov. Brown’s consideration before his veto:

Introduction of HB2574 Privacy Protection Act and action is called upon for the people of State of California.

The Privacy Protection Act legislative is a state-level response to the forthcoming expansion of drone-use by law enforcement agencies within the United States. There are two versions of the legislation that are both ready for introduction in our state.

The first requires that a warrant be issued before any law enforcement agency uses a drone within the state.  The legislation is restrictive enough that drone use would be severely curtailed.

The second is a full ban on the use of drones by law enforcement, criminalizing their use.

Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this legislation in your state.

PRIVACY PROTECTION ACT V1: WARRANT REQUIREMENT FOR BOTH STATE AND FEDERAL LAW ENFORCEMENT AGENCIES PRIOR TO THE USE OF DRONES.

The Preserving Freedom from Unwarranted Surveillance Act of 2012 also:

1. Prohibits the use of drones by the government except when a warrant is issued for its use in accordance with the requirements of the Fourth Amendment.

2. Includes the following exceptions:

1) patrol of national borders;

2) when law enforcement possesses reasonable suspicion that under particular circumstances, swift drone action is necessary to prevent “imminent danger to life;”

3) high risk of a terrorist attack

3. Allows any person to sue the government for violating this Act.

4. Specifies that no evidence obtained or collected in violation of this Act can be used/admissible as evidence in a criminal, civil, or regulatory action.


PRIVACY PROTECTION ACT V2: BAN ON THE USE OF DRONES BY FEDERAL AND STATE AGENCIES

SECTION 1. CA. General Laws, Chapter ____ of Title _____ is hereby amended by adding thereto this section:

– Use of Unmanned Aerial Vehicle (UAV) by Law Enforcement Banned –

(a) The general assembly finds and declares the following:

(1) The right to privacy is fundamental in a free and civilized society.

(2) Persons within the State of CA. have a reasonable and justifiable expectation of privacy that they will not be monitored with UAVs by law enforcement agents of the United States or law enforcement agents of the State of CA..

(3) The potential benefit to law enforcement and criminal justice from the use of UAVs is far outweighed by the degradation to the fundamental right to privacy secured by the Constitution of the United States and the Constitution of the State of CA. that will result from law enforcement’s use of UAVs.

(4) The use of UAVs by law enforcement is repugnant to a free society.

      (b) Any law enforcement agent of the Federal Government that shall utilize a UAV for any purpose whatsoever within the airspace of the State of shall be guilty of a Class a Misdemeanor.

      (c) Any law enforcement agent of the State of CA. that shall utilize a UAV for any purpose whatsoever within the airspace of the State of CA. shall be guilty of a Class a Misdemeanor.

      (d) Any person that shall knowingly, or under facts where the person should know, assist any person or entity to violate section (b) or (c) of this chapter shall be guilty of a Class a Misdemeanor.

      (e) Any information gathered by a UAV, and any information gathered as a result of the use of a UAV, whether by said law enforcement agents, or otherwise, is declared inadmissible in any civil or criminal court of law in the State of CA..

      (f) As used in this section, “Unmanned Aerial Vehicle (UAV)” and “UAVs” are any aircraft without a human pilot on board.

      (g) As used in this section, “law enforcement agent of the United States” is any officer, employee or agent of the United States, or any officer employee or agent of a branch, department or agency of the United States, or any person or entity acting under contract with the United States or any branch, department or agency thereof, for the purpose of law enforcement or criminal justice.

      (h) As used in this section, “law enforcement agent of the State of CA.” is any officer, employee or agent of the State of CA., or any officer employee or agent of a branch, department or agency of the State of CA., or any person or entity acting under contract with the State of CA. or any branch, department or agency thereof, for the purpose of law enforcement or criminal justice.

      (i) This section shall be construed broadly to effect the legislative intent of banning the use of UAVs by law enforcement, and any information obtained as a result of the use of UAVs by law enforcement, within the State of CA..

      (j) Severability: If any provision, portion or subdivision of this Act is or becomes illegal, such illegality shall not affect the remainder of this Act.

SECTION 2: This act takes effect immediately upon approval by the Governor.


ACT V1: WARRANT REQUIREMENT FOR BOTH STATE AND FEDERAL LAW ENFORCEMENT AGENCIES PRIOR TO THE USE OF DRONES

SECTION 1. California General Laws, Chapter ____ of Title _____ is hereby amended by adding thereto this section:

– Warrant Required for the Use of Unmanned Aerial Vehicle (UAV) by Law Enforcement–

(a) The general assembly finds and declares the following:

(1) The right to privacy is fundamental in a free and civilized society;

(2) Persons within the State of California have a reasonable and justifiable expectation of privacy that they will not be monitored with UAVs by law enforcement agents of the United States or law enforcement agents of the State of CA. without a warrant based on probable cause first issuing;

(3) The potential benefit to law enforcement and criminal justice from the use of UAVs without a warrant first issuing is far outweighed by the degradation to the fundamental right to privacy secured by the Constitution of the United States and the Constitution of the State of CA. that will result from law enforcement use of UAVs without first obtaining a warrant;

(4) The use of UAVs by law enforcement without first obtaining a warrant is repugnant to a free society.

      (b) Any law enforcement agent of the United States that shall utilize a UAV for any purpose whatsoever within the airspace of the State of CA. without first obtaining a warrant shall be guilty of a Class a Misdemeanor.

     (c) Any law enforcement agent of the State of CA. that shall utilize a UAV for any purpose whatsoever within the airspace of the State of CA. without first obtaining a warrant shall be guilty of a Class a Misdemeanor.

     (d) Any person that shall knowingly, or under facts where the person should know, assist any person or entity to violate section (b) or (c) of this chapter shall be guilty of a Class a Misdemeanor.

     (e) Any information gathered by a UAV without a warrant, and any information gathered as a result of the use of a UAV without a warrant, is declared inadmissible in any civil or criminal court of law in the State of CA.

      (f) As used in this section, “Unmanned Aerial Vehicle (UAV)” and “UAVs” are any aircraft without a human pilot on board.

      (g) As used in this section, “law enforcement agent of the United States” is any officer, employee or agent of the United States, or any officer employee or agent of a branch, department or agency of the United States, or any person or entity acting under contract with the United States or any branch, department or agency thereof, for the purpose of law enforcement or criminal justice.

      (h) As used in this section, “law enforcement agent of the State of CA.” is any officer, employee or agent of the State of CA., or any officer employee or agent of a branch, department or agency of the State of CA., or any person or entity acting under contract with the State of CA. or any branch, department or agency thereof, for the purpose of law enforcement or criminal justice.

      (i) As used in this section, a “warrant” shall be issued by a duly authorized State magistrate or judge, or a Federal magistrate or judge, using the procedures established by applicable law. Any such warrant shall be based on probable cause established by oath or affirmation, shall be obtained prior to the use of a UAV, and shall expire twenty-four (24) hours after issuance.

      (j) This section shall be construed broadly to effect the legislative intent of requiring a warrant prior to the use of UAVs within the State of CA. by law enforcement, and requiring a warrant in order for any information obtained by a UAV, or as a result of the use of a UAV, to be admissible in a court of law.

     (k) Severability: If any provision, portion or subdivision of this Act is or becomes illegal, such illegality shall not affect the remainder of this Act.

SECTION 2: This act takes effect immediately upon approval by the Governor.

For Legislatures to restrict the use of this technology in law enforcement except where a search warrant “is required”, is “ridiculous!” What’s wrong with applying the same rules and procedures as the current full size copters?  As stated above, Homeland Surveillance & Electronics LLC Mission Statement is also to protect the privacy rights of the individuals and to work with government agencies, organizations and businesses to help insure that those rights are not infringed. ‘At HSE, the Constitutional Rights of the People come first. If law enforcement use a UAS like they already use helicopters for criminal pursuit, search and rescue, fire, public safety missions etc. is one thing, but if they start using them to spy on the general public without a warrant, then its a different story altogether.’

Resources:

Governor Brown Vetoes California Electronic Privacy Protection

HB2574 Privacy Protection Act

Another Year, Another Electronic Privacy Veto for California

UAV Law Enforcement and Privacy Protection

Drones: Privacy Protection Act

Privacy Protection Act

Mission StatementHomeland Surveillance Electronics Unmanned ..

National Defense Authoriation Act (NDAA) | lisaleaks

4 thoughts on “Governor Brown Vetoes California Electronic Privacy Protection

  1. Reblogged this on lisaleaks and commented:
    Gov. Brown vetoed SB 467, an EFF-sponsored bill that would have required state law enforcement officials to obtain a search warrant in order to get the contents of electronic communications from an Internet or online service provider. Federal electronic privacy legislation is woefully outdated and 1986′s Stored Communications Act (“SCA”) permits police to obtain the contents of electronic communications without a search warrant if it has been stored online for more than 180 days. Most states, including California, have adopted the SCA. Congress has considered proposals to update the statute, but as the effort stalls in DC, courts, companies and state legislatures stepped up instead.

    Like

  2. Pingback: Governor Brown Vetoes California Electronic Privacy Protection Patriotism today... | Patriotism today...

  3. Pingback: How These 5 Dirtbags Radically Advanced Your Digital Rights | Ben Mobley on Security

  4. Pingback: How These 5 Dirtbags Radically Advanced Your Digital Rights

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