by Larry Magid
Update Sept 9, 2015: The bill passed the State Senate and Assembly and is now waiting for the governor’s signature.
The United States has a long-standing tradition of protecting the rights of all of its citizens, including those that authorities believe may have information related to possible crimes. That protection is an essential part of our democracy and what makes us different from police states and oppressive regimes.
For the most part, those protections have served us well, except in the digital world where most of our information is now stored. When it comes to our digital data, law enforcement often has a great deal of flexibility. In most U.S. jurisdictions, including California, it is possible to compel someone to turn over digital information without a search warrant or wiretap order. In other words, the protections we enjoy for our physical property – including our letters and other papers, does not fully extend to our digital property. Why should a drawer of paper correspondence have more protection than a server full of email?
The California Electronic Communications Privacy Act (CalECPA) would fix that. The bill (SB-178), which has been passed by the California Senate and numerous committees with bi-partisan support, “would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant under specified conditions, except for emergency situations.”
Early versions of the bill drew opposition from some in law enforcement, but the bill was amended to provide exceptions for undercover investigations and safeguard all investigations and help prevent destruction with or tampering of evidence. The bill has always had an exception for cases where there is danger to life or the physical safety of an individual.
Despite these provisions, which were worked out with law enforcement agencies, there remains opposition to the bill from one group, which argues that the bill would hamper law enforcement investigation of child pornography cases.
As a longtime proponent of Internet safety for children I am deeply committed to providing the men and women in law enforcement with the tools they need to track down and prosecute child pornographers and protect children against sexual abuse and other crimes both on and offline. But it is possible to protect children as well as all of our digital rights.
I believe that SB-178 has the necessary provisions to assure that law enforcement can vigorously protect children and access the necessary information to investigate crime while at the same time extending basic constitutional protections to our digital information.
We do need to be vigilant when it comes to child exploitation, terrorism, sexual abuse and other crimes but we also have to protect our constitutional rights. The right to protect children and the right to protect free speech and freedom from unlawful search and seizure are not in conflict.
Larry Magid is CEO of ConnectSafely.org, founder of SafeKids.com and a member of the National Center for Missing & Exploited Children’s board of directors (though he does not speak for the organization). He is also author of Child Safety on the Information Highway, NCMEC’s first Internet safety booklet.