California SB 178 Seeks to Apply Warrant Requirement to Electronic Devices and Online Data

Gavel-onKeyboard_iStk-11481160_300x200px (2)The California Senate is currently reviewing the proposed California Electronic Communications Privacy Act (SB 178), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. The purpose of the bill is to codify and expand on existing case law pertaining to electronic devices and online privacy. SB 178 is co-sponsored by the Electronic Frontier Foundation and the California Newspaper Publishers Association.

Among other things, the bill requires the issuance of a search warrant or wiretap order before a government entity can (1) compel the production of or access to electronic communication information from a service provider, (2) compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device, and (3) access electronic device information by means of physical interaction or electronic communication with the device.

The Electronic Frontier Foundation, co-sponsor of this bill, writes: “SB 178 … extends the warrant requirement to a wealth of digital information that reveals personal and sensitive details about who we are, whom we communicate and associate with, and where we’ve been. While law enforcement will still be able to obtain this information and utilize it to solve crimes, SB 178 provides needed oversight by requiring law enforcement to obtain a search warrant in order to access this wealth of information.”

Google, another supporter of the bill, has commented that “SB 178 would update California law to ensure that online communications are afforded comparable privacy protections to those that exist for offline communications … SB 178 will better align California’s laws with how people use the Internet today and provide them with important protections they should reasonably expect.” Other supporters of SB 178 include Apple, the California Chamber of Commerce, Facebook, Dropbox, LinkedIn, Twitter and Microsoft.

Opponents of SB 178 suggest that the bill conflicts with already existing laws and creates impediments that will hamper law enforcement efforts. The California District Attorneys Association (CDAA) argues that SB 178 “creates conflicts with existing laws regarding the execution of search warrants and the lawful use of wiretaps, and mandates the destruction of evidence by law enforcement.” Additionally, in suggesting that SB 178 is unnecessary, the CDAA argues, “…Under current law, California prosecutors cannot get any electronic evidence – neither content, nor information about the subscriber – without judicial review.”

The California Police Chiefs Association expressed its concern that SB 178 will hamper law enforcement efforts. “One of the most effective techniques to identify and arrest child predators or to combat the trade of child pornography is through undercover investigations where police officers create online profiles.… The emails that offenders voluntarily send to police officers contain information (‘metadata’) that is invaluable in locating and identifying these dangerous criminals. The proposed prohibition on electronic communication that reveals device information (along with the restrictive definition of ‘specific consent’) would effectively end online undercover investigations in California.”

Wilson Elser will continue to monitor developments with regard to SB 178.