Thursday, October 13, 2011

A Near Privacy Sweep in California…With One BIG Exception

It was a near legislative sweep for privacy advocates this year as Governor Brown signed all but one of the key privacy bills that reached his desk. These include: 

SB 602 (Yee) will ensure that government and third parties cannot access private reading records without proper justification. This is no small victory being that digital books will store data that can include books browsed, how long a page is viewed, and even the electronic notes written in the margins. It's not hard to see the detailed portrait of your life such information could paint.

AB 22 (Mendoza) will prohibit a prospective employer from using consumer credit reports in the hiring process unless it’s directly related to the job. This bill was one of our top priorities this year for a number of reasons, including: credit reports do not have predictive value in determining a worker’s ability to perform job duties, while a bad credit report might unfairly influence a hiring employer’s attitude toward a job applicant; a significant percentage of credit reports are inaccurate, and correcting such information in a credit report is a tedious, time consuming affair; and millions of peoples credit scores have been decimated by a Great Recession that was no fault of their own, but in fact due to the actions of some of the very interests that then arbitrarily determine ones credit rating. For all of those reasons and more this legislation was a victory for both privacy and economic justice.

SB 24 (Simitian) will provide an important upgrade to California's landmark breach notification law. It spells out which key details must be included in that notification letter, and would make sure the Attorney General hears about the breach. SB 24 will help consumers make sense of these notices, and help arm us to stop identity theft. Sony, Citibank, and the Bay Area Rapid Transit District are recent examples of businesses and government agencies whose customers’ records were stolen by hackers.

And just a few weeks ago it was revealed that 300,000 Californians’ intimate medical records, along with their social security numbers, were viewable for months to anyone with an internet connection, owing to an insurance processing business’ failure to safeguard its electronic data files. This massive medical records data breach leads us to another privacy related legislative victory: SB 850 (Leno), which will expand the Confidentiality of Medical Information Act to both written and electronic health records.

Also of note, but not a high priority for CFC this year, was the signing of SB 208 (Alquist), which will authorize restitution to an identity theft victim for expenses to monitor a credit report and for the costs to repair a credit rating, and SB 636 (Corbett), which will provide further protection to individuals participating in the Safe at Home Program by prohibiting their addresses and telephone numbers from being posted on the Internet, and establishing crimes for publishing or failing to remove their identifying information.

The Big Disappointment: Governor Vetoes SB 914 (Leno) - Police Search of Smart Phones

Currently police can seize and search an individual’s smart phone or android without a warrant, just like a traditional cell phone. SB 914 would have clarified that an arrestee’s cell phone can only be accessed with a warrant, except in circumstances where there is an immediate threat to public safety or the arresting officer. It acknowledges that accessing information on a cell phone is fundamentally different than searching an arrested person’s wallet, cigarette pack or jeans pockets.

Being that modern cell phones are becoming more like all purpose computers, and therefore contain ALL KINDS of personal, private information, the authorities should not be granted the right to that information without a warrant.

Unfortunately, in 2007, California's Supreme Court ruled against such a distinction, arguing, "The cell phone was an item (of personal property) on the person at the time of his arrest and during the administrative processing at the police station. Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant." 

But these justices went even further - comparing the cell phone to personal effects like clothing. Worse, it argued that it wasn't because the police had a particular right in this particular case, or there was some special exception that allowed such a search, but rather, that no exception was even necessary. In other words, this case was not an exception, but rather the NEW rule: cell phone records are now of little difference than the shirt on your back if you've been arrested.

Dissenting Justice Kathryn Werdegar raised similar concerns we have in her opinion: "The majority’s holding ... (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person...The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

In response to the ruling, Jonathan Turley, a Constitutional law expert at George Washington University, seconded Justice’s fourth amendment related concerns, "The Court has left the Fourth Amendment in tatters and this ruling is the natural extension of that trend. While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cell phone files — the modern equivalent of letter and personal messages.”

In light of increasing economic injustice and income inequality, and the likewise growth in number and size in protests across the country, granting authorities such powers should be viewed with great skepticism and caution. As State Senator Mark Leno noted, "If you like to attend political rallies, parades, protests or sit-ins, you might consider leaving your cell phone at home in the unlikely event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails. This warrantless search is now legal in California, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.”

This fight isn’t over. Senator Mark Leno has indicated he will bring this legislation back next year in another effort to overturn the state Supreme Court’s ruling. Clearly, in this case and many others like it in the age of the Patriot Act and the War on Terror, Governor Brown was mistaken in his veto message when he said the courts are "better suited" than legislators to decide when a search is legal. Perhaps in most cases this is true...but not when they are so clearly in conflict with something as fundamental to our basic rights as the Fourth Amendment. Let’s hope we can change the Governors mind next year.

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