by Larry Magid
updated and adapted from a post that first published September 17, 2015
Governor Brown just signed a law that says ‘no’ to warrantless government snooping in our digital information. This is a landmark win for digital privacy and all Californians,” said Nicole Ozer in a press release, Technology & Civil Liberties Policy Director at the ACLU of California. “We hope this is a model for the rest of the nation in protecting our digital privacy rights.”
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) will fix that. The bill (SB-178), which has been passed by the California Senate and Assembly and, on October 8, 2015, was signed into law by California Governor Jerry Brown, “prohibit(s) 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.”
ConnectSafely was part of a broad coalition of groups and companies (scroll down for list) that supported the bill.
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.
Sponsors and Supporters
CalECPA was co-sponsored by the ACLU of California, California Newspaper Publishers Association, and Electronic Frontier Foundation and supported by Adobe,Airbnb, American Library Association, Apple, Asian Americans Advancing Justice, Bay Area Council, California Chamber of Commerce Association, California Attorneys for Criminal Justice (CACJ), California Public Defenders Association, Center for Democracy and Technology, Center for Media Justice, Centro Legal de la Raza,Citizens for Criminal Justice Reform, Civil Justice Association of California, Color of Change, Common Sense Kids Action, ConnectSafely, Consumer Action,Consumer Federation, Council on American-Islamic Relations (CAIR), Dropbox, Engine,Facebook, Foursquare, Google, Internet Archive, Legal Services for Prisoners with Children, LinkedIn, Media Alliance, Microsoft, Mozilla, NameCheap, National Center for Youth Law, National Center for Lesbian Rights,New America: Open Technology Institute, Privacy Rights Clearinghouse, reddit, Restore the 4th,San Diego Police Officers Association, Small Business California, TechNet, Tech Freedom, The Internet Association, and dozens of legal scholars from throughout the nation. The California District Attorneys Association, California Police Chiefs Association, California Sheriffs Association, and the California Statewide Law Enforcement Association were also neutral on the bill (Source: ACLU of Northern California)