Another Year, Another Electronic Privacy Veto for California Governor Brown
Close your eyes, can't happen here
Big bro' on white horse is near
The hippies won't come back you say
Mellow out or you will pay
Mellow out or you will pay!
Now it's 1984
Knock-knock at your front door
It's the suede denim secret police
They have come for your uncool niece
- "California Über Alles," Dead Kennedys
For the third straight year, California Governor Jerry Brown vetoed common sense electronic privacy legislation, ensuring that California remains behind the rest of the country when it comes to technology law and policy.
On Saturday he vetoed SB 467, an EFF-sponsored bill that would have required state law enforcement officials to obtain a search warrant in order to get the contents of electronic communications from an Internet or online service provider. Federal electronic privacy legislation is woefully outdated and 1986's Stored Communications Act ("SCA") permits police to obtain the contents of electronic communications without a search warrant if it has been stored online for more than 180 days. Most states, including California, have adopted the SCA. Congress has considered proposals to update the statute, but as the effort stalls in DC, courts, companies and state legislatures stepped up instead.
In 2010, the US Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that people have a reasonable expectation of privacy in their email, and so to the extent the SCA permits warrantless access to emails, it violates the Fourth Amendment. Other courts have adopted Warshak and extended it to cover other forms of electronic communications, like Facebook messages. After Warshak, many of the biggest tech companies, most of which are based in California, began demanding a search warrant before disclosing the contents of electronic communications. Then state legislatures started getting in on the act too, with Texas becoming the first state to change its statute to require state and local police obtain a search warrant to access the contents of communications. With the writing clearly on the wall, the federal Department of Justice testified before Congress earlier this year that even they were OK with a warrant requirement.
SB 467 was an attempt to get California to jump on the bandwagon and make a warrant requirement state law and, although it passed with broad bipartisan support, Brown vetoed the bill anyway. In his veto message, he wrote that SB 467 "imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations," which he felt would not be "wise." That's not entirely accurate. Federal law currently requires law enforcement give notice to a customer that it obtained their communications if the government wants to get the contents of those communications without a search warrant. The law also allows the government to ask a court to delay the notice in a number of circumstances, including if it would jeopardize an investigation.
Because SB 467 would have required the government to get a search warrant in all instances in which law enforcement wants the contents of communications, it necessarily would have required the government give notice in all instances. It also would have adopted the delayed notice provisions in federal law, allowing the government to delay notice for 90 days if it would impede a criminal investigation, and allowing the government to renew that notice as long as necessary.
Brown's veto is disappointing but unsurprising given his track record on electronic privacy legislation. In 2011, he vetoed SB 914, a bill that would have overruled People v. Diaz, a California Supreme Court decision that allowed police to search an arrestee's cell phone without a warrant incident to arrest. Courts across the country have split on the issue and California would have had a chance to be a privacy leader. The two most recent appellate court decisions reviewing the practice this year—from the federal First Circuit Court of Appeals and the Florida Supreme Court—disagreed with Diaz and found the incident to arrest exception to the search warrant requirement didn't apply. Unfortunately, California languishes behind, waiting to see if the US Supreme Court will grant review in a state case involving the exception.
In 2012, Governor Brown vetoed SB 1434, an EFF-co-sponsored location privacy bill that would have required law enforcement to obtain a search warrant to obtain evidence of a person's location from an electronic device. Following the US Supreme Court's decision in United States v. Jones, state courts and legislatures began clamping down on warrantless location tracking. The New Jersey Supreme Court ruled earlier this summer that police need a search warrant to obtain historical cell site records. Massachusetts' Supreme Judicial Council found that even a passenger in a car had standing to challenge GPS evidence used against him. And Maine and Montana both passed state laws requiring police to obtain a search warrant before tracking a person's location through an electronic device. Again, rather than joining this growing chorus of concerned states, California remains on the sidelines.
Now with SB 467, Governor Brown has yet again held Californians back as other states step up to protect its citizens from growing electronic surveillance.
All three of these vetoed bills easily passed the California legislature with broad, bipartisan support. All three put in place strong privacy protection at a time of rapid technological change. And all three would have cemented California's status as a leader when it comes to protecting its citizen's electronic privacy. As the home of the largest and most innovative technological companies in the world, California should be at the forefront of ensuring technology works for the public benefit. That also means working to ensure technology doesn't erode our hard earned privacy rights. But with these vetoes, it's clear the "serpent's egg's already hatched."