Good News in California on Electronic Privacy Front

Despite past vetoes, Jerry Brown OKs law that requires a warrant

One of my pet peeves involves legislators who routinely cite the rights protected in the U.S. Constitution during their news conferences and floor speeches, yet who can't manage to support bills that do little more than protect some clearly enumerated right. It's always easier to use rhetoric than display courage at the Capitol.

Not long ago, after some muscle-flexing by police organizations, the Assembly killed a bill that would simply have required cops to secure a conviction before seizing homes, cars and personal property. It's a basic matter of the Fifth Amendment, which says no one should be "deprived of life, liberty, or property, without due process of law."

I instantly thought of one Republican assemblywoman who invokes the Constitution (in opposing vaccine mandates for school kids, for instance), yet who was AWOL on this due-process issue. So were too many legislators from both parties, including ones who have sponsored nonbinding resolutions denouncing "rights" abuses from federal security agencies.

Although legislators weren't too kind to the Fifth Amendment this session, it was heartening they—and now Gov. Jerry Brown (D-Calif.)—gave the Fourth Amendment a boost. Brown on Thursday signed the California Electronic Communications Privacy Act (SB 178), or CalECPA. It updates California's aged privacy law—penned long before the cellphone era—by requiring law enforcement to show probable cause before tracking our cellphone calls, reading our emails and using GPS to track us. It puts an end to fishing expeditions.

The law seems like a straightforward echoing of the Fourth Amendment, which states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause … ." The new law offers a simple edict to the government: "Searching our databases isn't any different than searching our house. Get a warrant first."

For a few years now, the courts have been weighing in on these evolving electronic-privacy issues. In one California Supreme Court case (Diaz), the justices ruled a cellphone is not materially different than a cigarette pack. Because police are allowed to, say, search that pack for drugs they also are free to search a cellphone for incriminating information. Fortunately, a U.S. Supreme Court decision (Riley) overturned that one. The courts have urged states to craft some legislative protections. The new law is California's effort to do so.

"It stops the government from eavesdropping on innocent people. They'll have to have probable cause," said Joel Anderson, (R-El Cajon), a joint author of the bill. "Some law enforcement have abused their powers and tried to spy on innocent people." Given that hand-held phones are now full-on computers that store endless personal information and data, this is a crucial protection.

According to the bill's sponsors, government demands for information from third-party technology companies such as Google and Verizon have expanded exponentially in recent years. Most of these firms backed the law, as they realized that the current situation undermines the public's confidence in their products and services.

"We worked as hard as we could to address some of the legitimate issues law enforcement raised and made several adjustments that allow law enforcement to go warrantless when exigent circumstances are present," said Jim Ewert, general counsel for the California Newspaper Publishers Association. He was pleasantly surprised the governor signed the bill given Brown had vetoed similar past measures—and has a spotty record on transparency.

The law not only protects against cellphone searches, but protects against government searches of any electronic device—and anything stored in the "Cloud." It also requires notification of the individual whose information is being sought, and not just to the Internet or cellphone provider.

The law lets Californians use modern technologies "without sacrificing their constitutionally protected rights to privacy, free expression and free association," according to a letter sent to Brown from many prominent law professors and academics. That's pretty simple. It restores protections enumerated in the Fourth Amendment. Maybe next session, legislators will have the courage to protect the simple words of the Fifth Amendment as well.