Thirty years ago, it was impossible to imagine changes in technology that would become available, quite literally, at our fingertips. Back in the 1980s, the latest advancements in consumer electronics included the fax machine, cable television, Walkman and VCR. The savvy among us were “phoning home” on brick cell phones that were almost as big as the hairstyles in fashion at the time.
Fast-forward to today and we find ourselves immersed in a sea of technology. Grandparents are using tablets to video chat with their grandchildren, digital cameras have created a new class of citizen journalists and our smartphones have become the epicenter of our lives, managing our schedules, finances, contacts and entertainment. Our lives have certainly been enriched with technology, but with our reliance on electronic communication come new privacy challenges. Currently, there is a glaring hole in our digital privacy rights that I am addressing legislatively.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) that governs how law enforcement can access our personal electronic communications, which are stored online by service providers such as Google, Microsoft, Facebook and Twitter. As it stands today, law enforcement can obtain the content of all opened email and unopened email 180 days or older without letting the user know or obtaining a search warrant. When ECPA was drafted, the internet was still in its infancy – personal computers were not yet widely used and we still predominately communicated using landline telephones. At the time, ECPA may have made sense, but our current technology has far outpaced the law. Just as we have evolved to keep up with advances in technology, so too must our privacy laws adapt to accurately reflect our modern electronic age.
This year I introduced digital privacy legislation, Senate Bill 467, that will fill some of the existing holes in ECPA and protect the privacy rights of Californians. SB 467 will require government agencies to obtain a search warrant before accessing all email communications and personal data stored by online service providers. This means that our email and other messages and records stored online will have the same level of privacy protection as communications and other documents stored physically in our home or office.
This simple standard will uniformly apply to all California law enforcement agencies and service providers. In fact, SB 467, which is sponsored by the Electronic Frontier Foundation, would codify the existing consumer protection policies of many of the biggest service providers, including Google, Facebook, Microsoft and Yahoo!, allowing them to comply with law enforcement requests faster, with greater ease and at a lower cost.
SB 467 will not hinder the ability of law enforcement to investigate and solve crimes. The contents of electronic communications may still be obtained without a warrant by asking for user permission. Furthermore, in cases of emergency, law enforcement may access information without a warrant if doing so would help prevent death or serious injury.
Today, email has become a universally accepted form of communication in our work and personal lives. Many aspects of our lives now center around the web, with years of conversations, financial transactions and personal history stored online. This sensitive information should be protected in a manner consistent with the Fourth Amendment, which guards against unreasonable search and seizure. Even the U.S. Department of Justice has stated that it supports requiring a warrant to gain access to stored emails.
California, the home of many of the world’s top technology companies, should be a leader in safeguarding people’s electronic communications. We should not have to choose between using modern technology and protecting our privacy.
Senator Mark Leno
If you would like more information about SB 467 or our legislative work, please contact our San Francisco office by phone at (415) 557-1300 or by email at Senator.Leno@senate.ca.gov.
Senator Mark Leno represents the 11th Senate District of California, which includes San Francisco, Broadmoor, Colma, Daly City, and portions of South San Francisco.