California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays

from the strong-nod-towards-long-ignored-rights dept

Good news from California: a bill requiring warrants for Stingray device usage (among other things) has passed out of a Senate committee and is headed for an assembly vote.
Among other sweeping new requirements to enhance digital privacy, the bill notably imposes a warrant requirement before police can access nearly any type of digital data produced by or contained within a device or service.

In other words, that would include any use of a stingray, also known as a cell-site simulator, which can not only used to determine a phone’s location, but can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone.
Despite similar bills being killed by governor vetoes in 2012 and 2013, California legislators are still looking to reform the state's privacy laws. For one thing, this new bill would put the state's Electronic Communication Privacy Act in compliance with the Supreme Court's recent Riley v. California decision (warrant requirement for cell phone searches incident to arrest), as Cyrus Farivar points out.

The committee passed it with a 6-1 vote, suggesting there's broader support for privacy and Fourth Amendment protections now than there were in the pre-Snowden days. Of course, the usual opposition was on hand to portray those pushing for a warrant requirement as being in favor of sexually abusing children.
[Marty] Vranicar [California District Attorneys Association] told the committee that the bill would "undermine efforts to find child exploitation," specifically child pornography.

"SB 178 threatens law enforcement’s ability to conduct undercover child porn investigation. the so-called peer-to-peer investigations," he said. "Officers, after creating online profiles—these e-mails provide metadata that is the key to providing information. This would effectively end online undercover investigations in California."
Vranicar failed to explain how an officer conducting an ongoing investigation would be unable to obtain a warrant for PTP user data… unless, of course, the "investigation" was nothing more than unfocused trolling or a sting running dangerously low on probable cause. Nothing in the bill forbids officers from using other methods -- Fourth Amendment-respecting methods -- to pursue those suspected of child exploitation. What it does do is make it more difficult to run stings and honeypots, both of which are already on shaky ground in terms of legality.

Additionally, the bill demands extensive reporting requirements pertaining to government requests for data, and makes an effort to strip away the secrecy surrounding search warrants.
1546.2 (a) Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues an emergency request pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.

(b) If there is no identified target of a warrant, wiretap order, or emergency request 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, to all individuals about whom information was disclosed or obtained.
This isn't blanket coverage or without exceptions. Officers can still offer sworn affidavits in support of sealing to the court, which may then seal warrants on a rolling 90-day basis at its discretion.

Law enforcement will continue to fight this bill, but its opposition seemingly had no effect on the Public Safety Committee. This bill brings the government into a much tighter alignment with the wording and the intent of the Fourth Amendment. The arguments against it demonstrate that the law enforcement community continues to prize efficient policing over the public's (supposedly) guaranteed rights.
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Filed Under: california, imsi catchers, stingrays, warrants


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  1. icon
    Nicci Stevens (profile), 27 Mar 2015 @ 6:51am

    As cases involving child pornography have been getting thrown out of courts due to improper, inadequate, or non-existent warrants or probable cause documents, one really has to wonder about the counter claim used by LEOs and others who say that imposing the safeguards of the Bill of Rights means those who do so are in favor of sexual abuse or exploitation of children. When courts throw these cases out the usual "think of the children" bs is thrown about, however it is those who usurp the law and the rights of everyone else to impose their idea of justice on the perpetrators.

    Anyone with any degree of sense believes that sexual exploitation of children is repugnant but, as we have seen over and over, law enforcement and overzealous prosecutors can and do fabricate probable cause and even evidence in an effort to convince the public who trust them that they are taking down these dangerous criminals when, as we have seen lately, they're simply putting the public on notice that they cannot prosecute because they cannot uphold and abide the laws and rights they have sworn to do so.

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