CA Legislators Pass Warrant Requirement For Phone Searches, Gut Transparency Stipulations To Appease Law Enforcement

The California Senate has passed a bill that creates a warrant requirement for searches of cellphones, tablets and electronic devices. This would be slightly different than the recent Supreme Court decision, which only creates a warrant requirement for searches incident to arrest. In terms of this legislation, the proposed law would forbid warrantless access to personal electronic devices (whether or not "incident to arrest"), as well as data stored at third-parties but accessible through these devices. (via Boing Boing)

The state Senate on Wednesday approved a bill that would require law enforcement in California to obtain a search warrant or wiretap order before searching a person’s smartphone, laptop or other electronic device or accessing information stored on remote servers.

The bill, by Sen. Mark Leno (D-San Francisco), also would protect locational information stored on smartphones and other devices unless police officers show probable cause to a judge.

Good news for California residents, most of whom routinely abduct and abuse children -- at least according to those opposed to the legislation.

The bill is opposed by the California District Attorneys Assn., the California Police Chiefs Assn. and the California State Sheriffs Assn. as unnecessary and a burden to investigations.

By proposing new procedures, the bill “undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution,” the prosecutors’ group said in a letter to lawmakers.

This "argument" has become so threadbare, it's hardly worth addressing. The addition of a warrant requirement doesn't make law enforcement efforts any less effective. All it does is require them to conform to the Fourth Amendment. The legislation -- like every other similar law -- contains exigent circumstances exceptions, so Amber Alerts, etc. will still allow officers to access data without warrants and still have a chance at saving All The Children™.

What's more depressing about the bill (other than the usual Appeal To Pedophilic Behavior fallacy) is the transparency language that's been stripped from it to appease law enforcement agencies, prosecutors and the state's governor.

There will be no forthcoming "transparency reports" from the state's DOJ detailing law enforcement demands for data and communications. The following stipulation has been removed from the bill:

The bill would also require a government entity that obtains electronic information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.

Another section routes around citizens whose data and communications are obtained by law enforcement, delaying notice from 72 hours to 90 days -- and only if the affected person happens to stumble across the presumably-heavily redacted report posted at the state DOJ website. (And then somehow manages to figure out that the posted info is about them despite all personal information being presumably withheld...)

If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, wiretap order, or emergency request or access, to all individuals about whom information was disclosed or obtained. submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.

Finally, the bill has also had a mandated annual report to the state's Attorney General removed from it, limiting reporting to only the periodic dispersal of information by the DOJ. So, it's basically no transparency and there's no hint that this new requirement will result in any additional oversight of questionable searches.

Given these removals, it must be sheer "principle" that compelled the Sheriffs' Association to make this statement:

The sheriffs' group added that “it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the 4th Amendment.”

These deletions may convince the governor to pass the bill, after rejecting last year's version in part for reporting requirements (mainly the notification of those affected by demands for content and data) that would supposedly "harm criminal investigations." What's good about the bill is that it extends Fourth Amendment protections to areas not normally considered covered by it, like cell site location info. Both the governor and law enforcement seem opposed to expansions of citizens' rights, so even in its stripped-down state, it may see another veto.

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