Lately, most of the ideas we‚??ve gotten from California have been a bit kooky. But the California legislature has done one good deed in recent weeks and passed an updated version of its state Electronic Communications Privacy Act.
The new law, signed last month by Gov. Jerry Brown (D), prohibits California government entities from looking at electronic communications or phone data without a search warrant, wiretap order, order for electronic reader records or subpoena, which itself must meet certain conditions. It allows exceptions for emergencies and for citizens who voluntarily turn over their records.
It is called the most progressive law of its kind in the nation, and it received bipartisan support and outside backing that ran the gamut from the American Civil Liberties Union to the Electronic Frontiers Foundation to the California Newspaper Publishers‚?? Association.
It garnered such support because lawmakers in California ‚?? and increasingly in Washington ‚?? have come to realize current laws haven‚??t kept up with technology and no longer meet modern needs.
The federal Electronic Communications Privacy Act, commonly referred to as ECPA, dates to the dawn of the Internet age ‚?? 1986. It was the year the ball rolled through Buckner‚??s legs and Mike Tyson became the youngest-ever heavyweight champion. It was the year of mad cow disease, Iran-Contra and Chernobyl.
Back then, no one contemplated that people would save emails beyond a few days because, at that time, they were stored on the computer and took up computer memory. Some presidential candidates wish it had stayed that way.
Today, virtually everything is stored in a cloud. Courts have ruled that if you allow your cell phone provider to know your location ‚?? a prerequisite for delivery of some services ‚?? you forfeited at least some of your right to privacy. Emails are kept for years or even decades. Little is ever truly erased.
And if an email is not erased within six months, it is assumed under the current Electronic Communications Privacy Act to have been abandoned and thus available for government perusal with no warrant obtained. Obviously, that is not practical today for a variety of reasons.
Legislation introduced in the Senate would end the 180-day rule and require government to get a warrant or similar approval to read any electronic communications. The Law Enforcement Access to Data Stored Abroad (LEADS) Act also has bipartisan support. It was introduced by Sens. Orrin Hatch, R-Utah, Dean Heller, R-Nev., and Chris Coons, D-Del., and companies such as Google, Dropbox, Twitter and other leading tech firms have announced support.
‚??Law enforcement agencies wishing to access Americans‚?? data in the cloud ought to get a warrant,‚?Ě Coons said. ‚??And just like warrants for physical evidence, warrants for content under ECPA shouldn‚??t authorize seizure of communications that are located in a foreign country.‚?Ě
The California law includes a variety of provisions the federal law could adopt. It specifically includes emails, digital documents, text messages, location information and any other information stored in the cloud. It limits law enforcement‚??s ability to obtain information directly from a smartphone or similar device.
It disallows any evidence that emerges from electronic information obtained without a warrant and requires government to inform people if it is looking at their social media posts. It allows exceptions for when citizens give permission to access their phones, for emergencies and for law enforcement to help determine how to return lost or stolen phones.
These protections are popular. According to a survey conducted by the American Civil Liberties Union of Northern California, 82 percent support requiring a warrant prior to access to email or Internet activity, 79 percent support requiring a warrant for tracking cell phone, and 77 percent support requiring a warrant for accessing text messages.
No one denies law enforcement has a tough job, particularly these days. No one denies it will, at times, need access to emails to thwart terror and other attacks. No one wants to impede the cops from accessing the information they need to keep us safe.
But the Internet will not reach its potential until people can trust their emails, texts and other communications will remain between sender and recipient under most circumstances. We could not have anticipated the technological breakthroughs we‚??ve witnessed in the last 20 years, and we thus could not have crafted appropriate laws.
But we know now roughly what the parameters will be for the near future, and it‚??s time to adjust the laws to reflect our rights to privacy even in the digital age and to allow law enforcement the protections it needs to do its job.