CA Legislators Pass Warrant Requirement For Phone Searches, Gut Transparency Stipulations To Appease Law Enforcement

from the for-some-reason,-a-law-is-needed-to-force-4th-Amendment-compliance dept

The California Senate has passed a bill that creates a warrant requirement for searches of cellphones, tablets and electronic devices. This would be slightly different than the recent Supreme Court decision, which only creates a warrant requirement for searches incident to arrest. In terms of this legislation, the proposed law would forbid warrantless access to personal electronic devices (whether or not “incident to arrest”), as well as data stored at third-parties but accessible through these devices. (via Boing Boing)

The state Senate on Wednesday approved a bill that would require law enforcement in California to obtain a search warrant or wiretap order before searching a person’s smartphone, laptop or other electronic device or accessing information stored on remote servers.

The bill, by Sen. Mark Leno (D-San Francisco), also would protect locational information stored on smartphones and other devices unless police officers show probable cause to a judge.

Good news for California residents, most of whom routinely abduct and abuse children — at least according to those opposed to the legislation.

The bill is opposed by the California District Attorneys Assn., the California Police Chiefs Assn. and the California State Sheriffs Assn. as unnecessary and a burden to investigations.

By proposing new procedures, the bill “undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution,” the prosecutors’ group said in a letter to lawmakers.

This “argument” has become so threadbare, it’s hardly worth addressing. The addition of a warrant requirement doesn’t make law enforcement efforts any less effective. All it does is require them to conform to the Fourth Amendment. The legislation — like every other similar law — contains exigent circumstances exceptions, so Amber Alerts, etc. will still allow officers to access data without warrants and still have a chance at saving All The Children™.

What’s more depressing about the bill (other than the usual Appeal To Pedophilic Behavior fallacy) is the transparency language that’s been stripped from it to appease law enforcement agencies, prosecutors and the state’s governor.

There will be no forthcoming “transparency reports” from the state’s DOJ detailing law enforcement demands for data and communications. The following stipulation has been removed from the bill:

The bill would also require a government entity that obtains electronic information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.

Another section routes around citizens whose data and communications are obtained by law enforcement, delaying notice from 72 hours to 90 days — and only if the affected person happens to stumble across the presumably-heavily redacted report posted at the state DOJ website. (And then somehow manages to figure out that the posted info is about them despite all personal information being presumably withheld…)

If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, wiretap order, or emergency request or access, to all individuals about whom information was disclosed or obtained. submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.

Finally, the bill has also had a mandated annual report to the state’s Attorney General removed from it, limiting reporting to only the periodic dispersal of information by the DOJ. So, it’s basically no transparency and there’s no hint that this new requirement will result in any additional oversight of questionable searches.

Given these removals, it must be sheer “principle” that compelled the Sheriffs’ Association to make this statement:

The sheriffs’ group added that “it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the 4th Amendment.”

These deletions may convince the governor to pass the bill, after rejecting last year’s version in part for reporting requirements (mainly the notification of those affected by demands for content and data) that would supposedly “harm criminal investigations.” What’s good about the bill is that it extends Fourth Amendment protections to areas not normally considered covered by it, like cell site location info. Both the governor and law enforcement seem opposed to expansions of citizens’ rights, so even in its stripped-down state, it may see another veto.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “CA Legislators Pass Warrant Requirement For Phone Searches, Gut Transparency Stipulations To Appease Law Enforcement”

Subscribe: RSS Leave a comment
Uriel-238 (profile) says:

Re: California

It’s a struggling economy, but still a sizable one. We have the Enron power-fleecing scam to thank for a considerable chunk of our assets slipping down the drain to Texas. (And still, Texas is still a sinkhole). California still pays more into the Federal fund than it takes.

And in the meantime, most of the US is a now a squalid shithole (though still in the first world). And police overreach and disregard of the forth amendment is epidemic across the nation.

So where do you live now, given you had the choice to move to greener pastures?

Uriel-238 (profile) says:

Re: Re: Re:2 San Francisco isn't bad.

The police here do misstep, but the neighbors are quick to make a stink about it so they’re relatively careful. And in my few encounters with the SFPD (granted, the last one was in the 90s) have been particularly professional.

But then again, I’m pale as alabaster and present as sane. Mostly it’s the homeless and crazies who get all the grief.

And Oakland has racial tensions that compare to Ferguson, and Berkeley has students who distrust authority. Both of those regions are a hotbed for badge abuse.

John Fenderson (profile) says:

Re: Re: Re:3 San Francisco isn't bad.

And here we see the problem with determining “good places to live” — it’s entirely subjective. I’ve spent a lot of time in San Francisco, but I wouldn’t want to live there. There are certainly worse places to be, but SF isn’t anywhere near my top 10.

To each his own!

John Fenderson (profile) says:

Re: Re: Re:5 Well most people are turned away by a crowded metropolitan zone with no parking anywhere.

Personally, I consider the weather to be the single worst aspect of SF. Rent-controlled apartments aren’t a selling point. They just point out that rents are so insane that rent control is necessary.

You have a very good point about ISPs. SF does have some good things going for it! I didn’t mean to imply otherwise. The social clime is one of those things — but where I live now is very similar in that respect anyway.

mdegreffe (profile) says:

USA Freedom Act To Kill Privacy?

Both privacy advocates and the NSA are celebrating the USA
Freedom Act that passed the Senate on June 2. The act
legalized and simplified the collecting of phone metadata
for the NSA. Meanwhile Skype continues to collect voice,
chat, video and other data, and deliver it to the Five Eyes
international spy coalition.

“What no one wants to say out loud is that this is a big win
for the NSA, and a huge nothing burger for the privacy community.”

That One Guy (profile) says:

Re: see no evil indeed

I am shocked, shocked I say, that you don’t think the police would respect the rights of the public without some way to make sure that they do in place. Have not their past actions shown without a doubt that the police care deeply about the rights of the public, and fight tirelessly to protect them?

For shame online commentor, for doubting such paragons of virtue and defenders of the public and their rights.

That One Guy (profile) says:

An important distinction

Both the governor and law enforcement seem opposed to expansions of citizens’ rights, so even in its stripped-down state, it may see another veto.

This is not an ‘expansion’ of citizen rights, it’s an attempt to protect rights that they already had, but which were/are being ignored by police as just ‘too difficult to follow’.

This is an important point to be kept in mind, and something that needs to be brought up anytime the police start whining about how laws like this make their jobs ‘too difficult’; this is not ‘giving’ the citizens anything they didn’t have before, what it is doing is forcing(theoretically) the police to respect the rights people already had.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...