Tag Archives: Warrantless Surveillance

Calif. Gov. Jerry Brown Signs Digital Privacy Bill Blocking Warrantless Spying

Democratic California Governor Jerry Brown signed two bills into law on Thursday that strengthen Californians’ digital privacy protections.

Senate Bill 178, the California Electronic Privacy Act (CalEPCA), prevents state-level investigators from obtaining a suspect’s digital communications without first securing a warrant. The law also mandates that California law enforcement agencies procure a warrant before compelling tech companies, many of which are headquartered in the state, to turn over metadata and other records.

The technology-focused publication Wired, which characterized the California Electronic Privacy Act as “the nation’s best digital privacy law,” quoted ACLU of California technology and civil liberties policy director Nicole Ozer as saying, “This is a landmark win for digital privacy and all Californians. We hope this is a model for the rest of the nation in protecting our digital privacy rights. This is really a comprehensive update for the modern digital age.

[RELATED: California Governor Signs Assisted Suicide Bill Into Law]

Electronic Frontier Foundation’s Dave Maass wrote, “CalECPA protects Californians by requiring a warrant for digital records, including emails and texts, as well as a user’s geographical location. These protections apply not only to your devices, but to online services that store your data. Only two other states have so far offered these protections: Maine and Utah.

According to the Tenth Amendment Center, “The law also stipulates that law enforcement gather no more information than is necessary to achieve the objective of the search, and imposes other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure requirements. Information obtained in violation of these provisions would be inadmissible in criminal, civil, or administrative proceedings.

Gov. Brown also signed a second bill, Senate Bill 741, which prohibits local governments in the state from acquiring stingray technology unless a bill passes through the locality in question’s legislature and requires that members of the public be given an opportunity to comment in advance of the vote. Tenth Amendment Center communications director
Mike Maharrey explained, “Cell site simulators, known as ‘stingrays,’ spoof cell phone towers. Any device within range is essentially tricked into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.” He added, “Since local police generally receive these devices directly from the FBI, or through grant money provided to them by the FBI, passage of SB741 allows local communities to interpose themselves in this process and block the FBI’s programs from coming to fruition.

Under Senate Bill 741, county sheriffs can purchase stingray technology without legislative approval, but must make a public announcement if they do. The bill requires that law enforcement “maintain a usage and privacy policy in order to ensure that the collection, use, maintenance, sharing, and dissemination of information and data gathered through the use of cellular communications interception technology is consistent with respect for an individual’s privacy and civil liberties.

Federal Trade Commission Seeks Warrantless Access To Americans’ Emails

On Wednesday, September 16th, members of the Federal Trade Commission (FTC) told Congress that the agency needs power to access emails of Americans without a warrant approved by a judge.

The comments came at a Senate Judiciary Committee hearing on electronic privacy reform related to the Electronic Communications Privacy Act of 2015 (ECPA), a bill with bipartisan support which would require government agencies to get warrants before accessing emails and chats, regardless of how old the content is. The EPCA was first passed in 1986 to help the FTC investigate fraudulent businesses. As of right now, the government can use a process known as administrative subpoena to access messages older than 180 days without a warrant.

The Daily Dot reported:

“The agency said in prepared testimony that it was “concerned that its robust anti-fraud program will suffer if copies of previously public commercial content that advertises or promotes a product or service cannot be obtained directly from the service provider.”

“Without further clarification to recent legislative proposals,” the agency said, “updates to ECPA would appear to prevent the FTC from compelling ECPA service providers to produce such previously public material.”

The U.S. Securities and Exchange Commission also testified against the EPCA. Andrew Ceresney, director of the SEC’s enforcement division, stated, “because the SEC and other civil law enforcement agencies cannot obtain criminal warrants, we would effectively not be able to gather evidence, including communications such as emails, directly from an [Internet Service Provider], regardless of the circumstances.”

The FTC is essentially arguing that without warrantless access to emails and chats, it might not be able to fully execute its mission. Despite the warnings from the FTC, the agency has been unable to list specific cases where warrantless surveillance was vital to an investigation. At the hearing Daniel Salsburg, an attorney with the FTC, said, “I can’t necessarily say it would produce emails that would dramatically further the investigation.”

FTC Commissioner Julie Brill was also critical of the agency’s request to be exempted from the EPCA. In a written statement Brill wrote:

“I am concerned that a judicial mechanism for civil law enforcement agencies to obtain content from ECPA providers could entrench authority that has the potential to lead to invasions of individuals’ privacy and, under some circumstances, may be unconstitutional in practice.”

The FTC was also concerned that under provisions of the EPCA it would not have the ability to access customers information even if they give consent. The FTC argued that:

“A defendant may want to authorize the FTC to obtain documents directly from its cloud computing account, if the records are voluminous, or the defendant’s only copies of the records are maintained on that service.”

The agency said the EPCA 2015 would impede this ability. However, Senator Richard Blumenthal was skeptical of the imagine scenario and asked Salsburg if the situation was common.

“There have been a couple of instances where this has occurred,” Salsburg said, “but it’s not common.”

Google was also critical of the FTC’s arguments. Richard Salgado, Google Inc.’s law enforcement and information security director, told the National Law Journal, “This committee is being asked by some today to jettison precisely the type of categorical rules that the Supreme Court held were imperative.” Salgado is referring to the a unanimous 2014 Supreme Court decision requiring police to obtain a warrant before searching the contents of a cell phone during an arrest.

Thankfully the claims made by the FTC are being met with skepticism and disdain. Unfortunately, the agency is only one of many agencies that are seeking surveillance abilities or already in possession of surveillance tools. Americans who value privacy and freedom should take notice and work to beat back the maneuvers of an increasingly oppressive government.