Worthwhile California Initiative

Your Digital Papers and Effects

This once, I’m not being facetious saying something positive about the Tarnished State. Cyrus Farivar has the story for Ars Technica:

Mark Leno, a state lawmaker who represents San Francisco, is set to introduce a new bill, called the Electronic Communications Privacy Act (CalECPA).

If passed, it would not just impose a warrant requirement to access e-mail, but would also require that law enforcement officials not interact with any electronic device in the possession of a citizen—to put the law in formal compliance with the unanimous 2014 Supreme Court decision Riley v. California, which required a warrant to search a cellphone.

“Californians lives are relying evermore on digital information and following the NSA debacle, more Californians recognize the risk to their privacy and their Fourth Amendment constitutional rights,” Leno told Ars.

“Other states have moved ahead, bypassing California. Texas, Maine, Utah, are among 15 states that have put into law similar protections and the Supreme Court of the United States has urged state legislatures to update their warrant requirements for the digital age. This time, different from before, we have near universal support from the tech industry.”

Here’s the relevant text from the bill quoted in the article:

1546.1. Except as provided in this section, a government entity shall not do any of the following:

(1) Compel the production of or access to electronic communication information from a service provider.

(2) Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.

(3) Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized possessor of the device.

The phrase “except as provided” is always worrisome, so I pulled up the PDF containing the entire language. The provisions are:

A government entity may compel the production of or access to electronic communication information or electronic device information, or access electronic device information by means of physical interaction or electronic communication with the device, subject to subdivision (0) and only pursuant to a Iwiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.

I don’t see any big loopholes here, do you?

Let’s applaud Assemblyman Leno and hope his bill becomes law — and that other states follow suit. Ideally though we’d get national legislation out of Congress, and a definitive ruling from the Supreme Court in favor of digital Fourth Amendment protections.

I’m not holding my breath for those last two items, however.