Article by Hanni Fakhoury
The bill would require law enforcement to obtain a search warrant anytime it requests location information from an electronic device. It codifies the Supreme Court's decision from earlier this year in United States v. Jones, which ruled that the installation of a GPS device for purposes of law enforcement investigation requires a search warrant.
Having passed both chambers of the California legislature by a combined vote of 93-17, and assuming the Senate concurs with the version of the bill passed by the Assembly, the bill will soon land on the desk of Governor Jerry Brown.
The last EFF supported California privacy bill -- SB 914, which would have required police to obtain a search warrant before searching the contents of an arrested person's cell phone -- was vetoed by Governor Brown in 2011. In his opinion vetoing the bill (PDF), he wrote "courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections." But when it comes to location data, legislatures play an important part in protecting privacy for all of us.
Justice Alito made this exact point in his concurring opinion in Jones, writing "in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative." After all, as we saw just last week in the Sixth Circuit's disappointing decision upholding warrantless cell phone tracking, courts have been slow to recognize the privacy implications of allowing the government easy access to location information.
While we believe there is a role for courts to play in safeguarding privacy -- and we just filed an amicus brief explaining why a court must demand a search warrant for government access to cell site tracking data -- we also think legislatures need to be aggressive in enacting strong privacy protection laws.
We urge Governor Brown to have California take the lead on this issue and sign SB 1434. Requiring California law enforcement to obtain a search warrant for location data strikes a sensible balance between keeping the public safe and preserving our privacy.
Cross-posted from Electronic Frontier Foundation