Again seeking to restrict the government’s access to personal data after a string of failed attempts, Sen. Mark Leno, D-San Francisco, plans to introduce legislation that would require law enforcement agencies to get warrants before obtaining various types of electronic information.
The bill would require police officers to obtain a warrant from a judge before getting access to the torrents of personal information generated through text messages, emails, geolocation data and other electronic communications. It makes exceptions for emergency situations that could include people trying to destroy evidence or situations in which physical danger is imminent.
“Our lives become more digital every day. The need for this only grows,” said Leno, who plans to formally announce the legislation on Monday. “People are getting more and more concerned about their Fourth Amendment protections.”
Leno’s prior attempts to shield digital data have been unsuccessful. In 2012, he carried a bill mandating warrants before government searches of location data. With the state’s district attorneys association opposed, Gov. Jerry Brown vetoed it.
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The next year, Brown vetoed a bill that would have required a warrant when law enforcement asked service providers for emails, saying in his veto message that federal law already mandates a warrant in those situations and that “in the vast majority of cases, law enforcement agencies obtain a search warrant.”
In both cases, the California District Attorneys Association argued that federal privacy protections rendered a state law unnecessary. The group cautioned that Leno’s attempt to limit access to location information would bar certain types of subpoenas. An industry group representing wireless providers warned in a 2012 letter to Leno that the bill reining in geolocation data requests “may create confusion for wireless providers and hamper their response to legitimate law enforcement investigations.”
Criticisms from law enforcement groups resonated with the governor, who wrote in a 2013 veto message that the legislation requiring warrants for access to email “ could impede ongoing criminal investigations.”
“I do not think that is wise,” Brown wrote.
Despite those stumbles, Leno said this year’s bill would fare better, because of U.S. Supreme Court decisions and what he called a bipartisan consensus around the need for updated privacy laws. Several Republicans have signed on in support of his bill.
“The issue of privacy is one of those precious few in Sacramento which is not a partisan issue,” Leno said.
Constitutional safeguards against unlawful search and seizure that were drafted long before the advent of smartphones and GPS have left a gap in privacy protections, the law’s supporters argue.
“The privacy laws in California are incredibly outdated,” said Nicole Ozer, director of technology and civil liberties policy for the American Civil Liberties Union of California. “They haven’t been updated as this technology has advanced, and law enforcement is increasingly taking advantage of this outdated privacy law to access really sensitive information about who we are, what we do, where we go and who we know.”
Leno and his supporters say searches in California are continuing despite a pair of recent U.S. Supreme Court decisions barring police officers from searching the contents of a cellphone or installing a GPS device on a vehicle without warrants.
Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543.