California Assembly passes digital privacy bill, but will it become law?

Ray Walsh

Ray Walsh

September 17, 2015

Last month, Joseph Cannataci (the new UN privacy chief) said that the world needs a Geneva convention style digital privacy law, and who can blame him? The post-Snowden world was supposed to be one where, with the truth out, digital surveillance oversights could be rectified, and blanket surveillance stamped out in favour of reasonable privacy for the Average Joe.  In his comments, Cannataci said that the current level of surveillance is a ‘joke’ and that the situation is by far worse than what Orwell foresaw.  

Now the state of California is once more attempting to fight back against the type of unjustified surveillance that Cannataci was talking about. Last week the California State Assembly passed new legislation that would mean that government agencies like the FBI would not be allowed access to electronic communications without the corresponding warrant from a judge. The California Electronic Privacy Act (CalECPA) SB 178, is sponsored by a number of pro-privacy organisations. These include Electronic Frontier Foundation, American Civil Liberties Union, California Newspaper Publishers Association, and even tech giants such as Apple, Google, Twitter and Facebook.

The bill passed by the assembly ‘would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant under specified conditions, except for emergency situations, as defined.’

Unfortunately, the Assembly is only the first stage for the law. From here on, the legislation must first pass through the California State Senate. Then finally into the hands of Governor Jerry Brown who must enshrine it into law – and this is where the fairytale starts to run into trouble. Governor Brown has in the past vetoed three digital privacy laws (between 2011 and 2013), and he may well do it again. However, since those laws were vetoed, the US Supreme Court ruled that police in California must get a warrant before accessing mobile phone data (Riley vs. California) – a step in the right direction.

Co-author of the new legislation, Mark Leno, believes that the time may be right for this digital privacy law,

‘Current laws are behind the times and do not represent the advances that have been made in technology. This is the right step for California, our residents and the privacy they deserve on a daily basis.’

Leno feels it is vital to make sure that ‘the personal information of Californians is adequately protected, and law enforcement have the tools to fight crime in the digital age.’ Also commenting that he has high hopes for the bill, which he thinks will produce ‘the right balance to protect privacy, spur innovation and safeguard public safety.’

Another one of the legislation’s co-authors State Senator Joel Anderson said in a statement that,

‘Senator Leno and I bridge the gap between progressives and conservatives to put Californians first and reinforce our constitutional protections. Our bipartisan bill protects Californians’ basic civil liberties as the Fourth Amendment and the California Constitution intended.’

According to the version of the bill passed by the Assembly, law enforcement agents would still be able to access electronic communications in times of emergency ‘involving danger of death or serious physical injury to a person.’  For this reason, law enforcement would not face being put in a situation where available information that could save a life was out of their grasp.

The law would only come into effect during times deemed to be ‘standard investigations’. During these inquiries, law enforcement agencies would need to seek the approval of a court before being allowed to utilize any available electronic communications. If the court, however, did not grant this approval for some reason, the judge could order copies of the communications to be eradicated.

Whether the legislation becomes law is anybodies guess, and only time will tell. If it does get passed, however, California will become the 5th place in America to have passed stricter digital privacy laws, joining Maine, Texas, Virginia and Utah.  According to Lee Tien at Electronic Frontier Foundation that would be the right move for California, who he says ‘has led the nation in technological innovation for decades.’

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