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SIgn Of the Times: Calif. Privacy Protections Signed Into Law
The EFF reports a spot of bright news from California: Governor Jerry Brown today signed into law the California Electronic Communications Privacy Act. CalECPA, says the organization, "protects Californians by requiring a warrant for digital records, including emails and texts, as well as a user's geographical location. These protections apply not only to your devices, but to online services that store your data. Only two other states have so far offered these protections: Maine and Utah." The ACLU provides a fact sheet (PDF) about what the bill entails, which says:
SB 178 will ensure that, in most cases, the police must obtain a warrant from a judge before accessing a person's private information, including data from personal electronic devices, email, digital documents, text messages, and location information. The bill also includes thoughtful exceptions to ensure that law enforcement can continue to effectively and efficiently protect public safety in emergency situations. Notice and enforcement provisions in the bill provide proper transparency and judicial oversight to ensure that the law is followed.
You should still encrypt your cell phone and if you're going to put anything online you don't want public you should encrypt it before putting it there.
The most interesting thing about this news item is we have both blue Democratic as well as Red Republican states enacting electronic privacy laws. So here is at least one issue that apparently cuts across the usual liberal - conservative boundaries.
The state passes a law requiring law enforcement to obtain a warrant before collecting electronic evidence against you, so what happens if an agent of the federal government violates that law? As I understand our federal system even federal agents cannot break state law. Realistically though I doubt heavily that any federal agent is going to get arrested under this law.
Curious though, states seem quite willing to break federal law by passing laws legalizing the trade and consumption of marijuana. The federal government has chosen to yield to state laws on this part of law. Perhaps the feds will also recognize state authority on the search and seizure of electronic evidence?
Right, I don't think so either.
I am armed because I am free. I am free because I am armed.
Placing limits on law enforcement with regard to digital snooping doesn't work when police both at the individual and agency level do not ever suffer consequences for violating the law.
In the case of the individual officer, the only limits on them are technical ones, such as in the case of an encrypted device. After detaining a person, the individual LEO might ask to see the suspect's phone. The LEO will state or imply that the detained person will be in a world of shit if they don't comply. A witness could be recording the entire encounter and every single human on earth could be in agreement that it is an illegal search of the suspect's phone. The agency that the LEO belongs to will not punish that individual cop. Even if such an illegal search is proven in court proceedings, it doesn't harm the prosecution's case. The prosecution and police have already engaged in any number of underhanded things such as parallel reconstruction, bringing hundreds of charges to act as bargaining chips in plea deals or have just flat out colluded to lie about events. Hell, the prosecution could walk up to the judge and admit that an illegal search was performed. The worst that's going to happen is that some small piece of evidence will no longer be allowed in the trial. The dozens or hundreds of charges that the prosecution brought based on the content of the illegal search won't be dismissed. I've never even heard of a court that has ruled that the illegal nature of the search of a phone both significantly improves the defendant's position and will result in a punishment for the cops involved and the prosecution.
tl;dr - cops do not follow the existing laws, passing new laws to limit their overreach is a farce
As long as federal law trumps state law, you aren't protected.
BeauHD. Worst editor since kdawson.
Does this also include an exemption for the ubiquitous NSA/DHS hovering up of metadata, arguably the bigger problem here. If not how does CA expect to enforce its rules over data that leaves or enters CA soil, which is substantial?
Thank you! I would prefer this enshrined as a constitutional right rather than a legislative one, but it's a start.
Ideally, have an amendment stating one's papers w r t the 4th Amendment, shall include but not be limited to electronic records, data storage, and transmissions wherever they may occur.
This could conceivably happen via Supreme Court decision as they love "evolving standards and expectations" to alter what is and is not constitutional for the government to do. Current warrantless invasiveness is based on an ancient ruling about phone records, being in the business, are not something a reasonable person expects privacy over. Now they do.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
The fact that California thinks it necessary to pass a law for this at all indicates that things need to be done which I can't say for fear that our all-powerful masters in the government might do bad things to me. Thinks about it; we can't even criticize the government for violating the rights that we already had.
"To learn who rules over you, simply find out who you are not allowed to criticise" - Voltaire
Think not "Oh, how wonderful that California is now requiring warrants!" that's like thinking "Oh, how wonderful that California has now made murder illegal!"
Think instead: "How shall we punish the dogs, the traitors, that violate our rights and undermine liberty? How shall we punish them to deter the other curs from doing the same? How shall we give them reason to fear the rightful rulers of our country-- the individual people themselves?"