Location privacy took a hit in California yesterday when Governor Jerry Brown vetoed SB 1434, an EFF- and ACLU-sponsored bill that would have required law enforcement to apply for a search warrant in order to obtain location tracking information. Despite the bill's passing through the state legislature with overwhelming bipartisan support, despite local newspaper editorials in favor of the bill, and despite more than 1,300 concerned Californians using our action center to urge him to sign the bill into law, Governor Brown instead decided to sell out privacy rights to law enforcement.
It's not the first time, either. Last year, he did the same thing with SB 914, a bill that would have required police to obtain a search warrant before searching an arrested individual’s cell phone incident to arrest.
It may be that legislative action is needed to keep the law current in our rapidly evolving electronic age. But I am not convinced that this bill strikes the right balance between the operational needs of law enforcement and individual expectations of privacy.
Skeptical about a law enforcement sponsored bill claiming to protect privacy? You should be. As we explained to Governor Brown, AB 2055 doesn’t do anything at all.
AB 2055 is a narrow response to the U.S. Supreme Court’s decision in United States v. Jones, which held the Fourth Amendment required law enforcement to obtain a search warrant before installing a GPS device on a car. In theory, AB 2055 changes California law to explicitly permit law enforcement to apply to a judge for a search warrant to install a GPS device. But in fact, it does not require police to obtain a search warrant. It just says they can apply for one. So to the extent it attempts to codify Jones, it fails. And, more basically, there’s no need to codify Jones: the Supreme Court’s decision is the law and California law enforcement officials have to follow it, regardless of what state law says.
That’s not the only problem with AB 2055. That law only applies to GPS devices, and not the other myriad ways law enforcement can obtain location information without installing a GPS device. With increasing concern about law enforcement’s growing addiction to warrantless cell phone tracking — which a federal appeals court in New Orleans will be hearing argument about tomorrow — any legislative action needs to be forward-looking and future-proof. And while we might expect a state that boasts the world's biggest technology companies and just legalized self-driving cars to move the law forward, Governor Brown has instead decided to maintain the status quo.
Ultimately law enforcement got exactly what it wanted with AB 2055, which is nothing at all. And while Governor Brown joins the chorus — which included Justice Alito in his concurring opinion in Jones — that solemnly speaks of the need to update our electronic privacy laws to reflect the changing technological landscape, his words ring hollow when he vetoes a bill that had bipartisan legislative support. Because in the end, all that's been done since the first federal electronic privacy bill was passed in 1986 has been a steady diet of allowing law enforcement to gorge itself on as much data and information they can eat without a warrant. It's no surprise that now they're hooked, they'll do whatever it takes to keep the information faucet on. Governor Brown's veto of SB 1434 only continues this dangerous trend.