Governor Brown Signs Privacy Bills

CCLA | October 10, 2015

SACRAMENTO — A great victory has been clinched by civil liberties and privacy advocates in California! Governor Brown has signed three bills that will help California residents ensure that their private information is not being arbitrarily intruded upon by government agencies or that their private information is not being misused.


SB 178 (Leno-D)

Senate Bill 178—the California Electronic Communications Privacy Act (dubbed “CalECPA”)—is California’s solution to the outrageously obsolete

security with mobile phone and lock

federal Electronic Communications Privacy Act, which was first passed in 1986 and practically obsolete at its inception. The CalECPA will greatly enhance those outdated protections by preventing law enforcement and other government entities from accessing private data, which is normally carried out by compelling production from service providers, third parties, or by physically or electronically interacting with the device. Under SB 178, in order to gain access to such data, government entities will now be forced to seek a warrant, wiretap order, or subpoena in accord with existing state laws — something that many people believed law enforcement was already required to do. Alternatively, access can be gained by seeking the consent of the device’s owner; thus, citizens must be vigilant in enforcing their personal rights to avoid deception or coercion into giving up their private information. The only other exception would be if the device (such as a cell phone) is believed to be lost or stolen, or in “good faith” emergency situations.

SB 741 (Hill-D)

Not many people have heard of the device known as Stingray, which allows law enforcement to mimic cellular towers and scoop up data from the private cell phones of citizens. In addition to metadata, Stingray devices are capable of acquiring the contents of private text messages and vocal conversations. While it is the CCLA’s position that SB 741 is far from comprehensive, it is somewhat of a springboard for regulating data collected by Stingray devices. Overall, SB 741 requires government agencies to adopt and maintain security procedures to protect such data from unauthorized access, use, and dissemination. Agencies will also be required to implement a usage and privacy policy that complies with the law and is consistent with upholding individuals’ privacy and civil liberties. This usage and privacy policy will add some transparency as it is required to be posted on the given agency’s website. SB 741 also prevents local agencies from acquiring cellular data without first passing an ordinance at a regularly scheduled meeting. Unfortunately, the bill falls a little short in that county sheriffs will be exempt from this restriction, though they too must adopt a privacy and usage policy that must be conspicuously posted on their website. Where this bill grows teeth is in establishing a cause of action for anyone harmed by the misuse of data. The CCLA looks forward to (and will work hard at) seeing this language expanded in the future.

SB 34 (Hill-D)

Like Stingray technology, many citizens are unaware of automated license plate readers (“ALPR”). ALPR devices are able to “see” in total darkness, read license plate numbers, check against a database, and store the number, date, time, and location of the vehicle. This practice effectively allows the government to track the travel and movements of anyone. SB 34 is similar to SB 741 by requiring local agencies to adopt ordinances outlining usage and privacy policies at regularly scheduled meetings. SB 34 also requires security procedures to be adopted that ensure the privacy and civil liberties of individuals. Unfortunately, SB 34 also lacks the restrictions on law enforcement that are typically necessary to protect the public from abuse of government power. The bill does, at least, establish a cause of action for anyone harmed as a result of an operator’s misuse of data. Like SB 741, the CCLA looks to the future with the hope that the provisions of this bill will be expanded. The CCLA will work hard to ensure it will.