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Bill requiring search warrants for electronic communications sent to Jerry Brown

As reported by the Sacramento Bee:

Will Gov. Jerry Brown finally sign legislation shielding personal digital information from police searches?

The California Senate on Wednesday sent the governor Senate Bill 178, which would require officers to obtain a warrant before accessing electronic devices and the e-mails, text messages and geolocation data found on them, except in instances where a loss of life or evidence is imminent.

Despite a late push by law enforcement groups that nearly held up the measure in the Assembly over concerns about its effect on child pornography investigations, SB 178 passed the Senate with little objection on a 32-4 bipartisan vote.

Click here to read the full story

Drone Bill Will Stifle Innovation, Fail to Protect Privacy

DronePrivacy matters. Giving consumers control of their personal information is central to many pieces of good legislation in California. Unfortunately, SB142 (Jackson) – which is intended to provide privacy protections related to small, Unmanned Aerial Vehicles (UAVs) – will instead stifle innovation without providing real privacy protections. AB856 (Calderon), on the other hand, does afford meaningful privacy protections. The juxtaposition between these two bills, both of which are currently on Governor Brown’s desk, is clear. A veto of SB142 paired with a signing of AB856 demonstrates a willingness to stand against hollow messaging legislation while supporting meaningful protections of privacy.

If an irresponsible operator spies on your family by flying a small UAV in his or her own yard, you have no recourse under SB142. However, if a delivery drone with no recording mechanism flies over your property without your express permission to deliver a package of medical supplies to your neighbor, SB142 considers it an invasion of privacy. If this doesn’t make sense to you from a privacy perspective, you are right. SB142 doesn’t address behaviors that constitute privacy breaches – it creates arbitrary guidelines, including a 350 foot altitude limit that is inconsistent with limits set by the Federal Aviation Administration, that are impractical and unworkable.

Ironically, the author explains, “When we’re in our backyards, with our families, we have an expectation that we have a right to privacy.” SB142 simply doesn’t ensure that is the case. Instead, it restricts UAVs that pose no threat to privacy and provides no recourse if an operator were actually spying on you.

According to the Assembly Judiciary Committee synopsis, SB142 “establishes a new and unusual definition of trespass.” Even if done so unintentionally, legislation that creates new definitions and standards of harm that allow for more litigation should be reconsidered so that California businesses are not subject to repeated frivolous, yet costly, lawsuits.

As an alternative to SB142, AB856 addresses privacy in a straightforward manner by creating a right of action against anyone who uses a UAV to take images (still photos or video) of a person engaging in personal, familial, or private activities on his or her property. By tailoring the offense to this conduct, AB856 is at the core of what the right to privacy is all about.

Privacy protection is worthy goal, but SB142 is unfortunately a step in the wrong direction. Governor Brown should veto SB142 and sign into law AB856.

Executive Director of the Small UAV Coalition

Originally published by Fox and Hounds Daily

Oakland council to vote on surveillance camera limits

As reported by the San Francisco Chronicle:

The Oakland City Council will vote Tuesday on a set of rules to ensure that surveillance cameras at the Port of Oakland could not become — as was once planned across the city — an Orwellian spy system intruding on the privacy of people in and around the port.

The camera network known as the Domain Awareness Center has been controversial since 2013, when it was envisioned as a way to help police and first responders keep watch over the entire city, aggregating footage from traffic cameras, license-plate readers and the city’s gunshot detection system, ShotSpotter, along with data from police records.

That idea was abandoned last year after activists disrupted and even shut down City Council meetings, accusing the city of trampling on their First Amendment rights. …

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Should citizens be allowed to videotape police in action?

Faced with mounting criticism over civil liberties abuses, lawmakers in Sacramento greenlit a so-called clarification of Californians’ right to videotape and photograph police officers on the job.

Senate Bill 411, introduced by state Sen. Ricardo Lara, D-Bell Gardens, protects the practice so long as active bystanders are “not interfering with official duties,” the Los Angeles Times noted.

videotaping policeAccording to the bill’s language, “the fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, is not, in and of itself, a violation[.]”

What’s more, Lara’s bill set out that photographing or videotaping police in that matter would not “constitute reasonable suspicion to detain the person or probable cause to arrest the person.”

Setting a trend

Passing 31-3 in the state Senate, SB411 headed to the Assembly, setting up California to become a possible trendsetter in the way citizen monitoring of police could be treated. Currently, no national consensus has formed around the issue, leaving legislative momentum up for grabs at the state level.

Although settled constitutional law has recognized both a right to videotape and a right to prevent interference with policing, widespread departures from that standard have prompted state lawmakers to intervene. In Colorado, for instance, a recent bill “proposed making it a crime for police to stop citizens from filming,” as the Daily Beast observed.

But, across the country, pieces of legislation have run into trouble regardless of which side of the debate they favor. In Connecticut, for instance, a bill permitting “lawsuits against police officers who interfere with those photographing or videotaping them during the performance of their duties was blocked Monday by Republicans in the judiciary committee,”according to the Hartford Courant.

In Texas, meanwhile, a police-friendly “cop-watcher” bill drew fire from legal observers, journalists, gun owners and others:

Dallas-area House representative Jason Villalba introduced HB 2918, which would make it a misdemeanor to photograph police within 25 feet — raising serious concerns that the bill, if passed, would violate the First Amendment and prevent individuals from holding police accountable. For Texans legally carrying a firearm, the buffer zone required would be 100 feet under Villalba’s proposal.

Halting progress

As Calwatchdog.com previously reported, Sacramento has labored to keep up with changing technology, police tactics and public opinion. In January, several Democratic lawmakers introduced legislation around the use of on-cop bodycams. By videotaping situations police entered into, the logic ran, misconduct would decrease at the same time that police gained clear evidence of proper conduct that could help prevent lawsuits or help resolve them to the departments’ benefit.

police-body-cameraAttorney General Kamala Harris, for her part, has long considered police abuses to be an important part of her political and legal agenda — a stance that could gain prominence as her bid to replace Sen. Barbara Boxer draws more potent challengers.

Despite widespread support for bodycams among Democrats, along with many libertarians and some Republicans, the policy has attracted its share of problems. In Los Angeles, where Democratic Mayor Eric Garcetti blazed a path toward standardizing the equipment, concern has persisted over the use of cloud storage, as Southern California Public Radio reported:

“Los Angeles Mayor Eric Garcetti will present this month his proposed city budget for the coming year. It’s expected to include money for body cameras for all Los Angeles Police Department officers. But some security analysts argue the LAPD’s plan to store body camera video in the cloud could make the images more vulnerable to attack than if the department placed them on its local servers.”

As yet, the question of cloud storage for recordings of police has not yet threatened to stall the progress of SB411  in Sacramento.

Originally published by CalWatchdog.com

Should Sex Offenders Have Rights Too?

The California Supreme Court recently ruled that the residency restrictions against sex offenders go against their constitutional rights.

“Blanket enforcement of the residency restrictions against these parolees has severely restricted the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees,” wrote Justice Marvin R. Baxter, on behalf of the court.

I’m sorry, but whenever these sexual predators decided to act in an inappropriate manner, they gave up any kind of privacy or “constitutional rights” they had. Whenever child molesters violated a young child, they sealed their fate. Whenever a rapist decided his needs were more important than his victims, he lost any ounce of “rights” he once had.

If any sort of medical treatment is being withheld from sex offenders because it takes place at a school or park, then the simple answer would be to move the location to a place that is all inclusive. That would open up these services to everyone without placing our children at risk.

I’ve come to feel very strong about the topic of sexual assault. One of my very first protests was when I was 13. My dad and I stood across the street from a high-risk sex offender who was placed in a halfway house just up the road from an elementary school. Members of the community were outraged – and rightfully so – because this man had committed heinous acts with young children. For weeks, John and Ken from KFI AM640 held live remotes in the dirt with protestors. And there I was, along side them.

I have had numerous friends and family members who have been sexually assaulted and their number one wish is always the same: they want to try and keep the same thing from happening to someone else. They want to become advocates for others before those other people become victims.

Allowing these sex offenders to be placed near schools and parks where young children gather is like dangling a live worm in front of a fish. At some point, the fish is going to bite.

Cellphone Surveillance Pursued by Silicon Valley Sheriffs

It’s not just the immense amount of information collected by such tech giants as Apple, Google and Facebook that is riling privacy advocates. Now the Santa Clara County Sheriff’s Department is seeking new cellphone surveillance technology — paid for by federal funds from the U.S. Department of Homeland Security.

With time running short on the availability of DHS grant money, and bipartisan support in the U.S. Congress for advancing new phone protections, critics accused Santa Clara County officials of haste and overreach.

Santa Clara County Sheriff Laurie Smith found herself at the center of the dispute, which revolves around her request to the county’s Board of Supervisors for a portable surveillance system commonly known as “Stingray” (pictured above).

According to Ars Technica, “The same company that exclusively manufacturers the Stingray — Florida-based Harris Corporation — has for years been selling government agencies an entire range of secretive mobile phone surveillance technologies from a catalogue that it conceals from the public on national security grounds.”

For the Silicon Valley situation, the San Francisco Chronicle explained, “The device is said to mimic a cell tower, allowing authorities to track cellphones and pinpoint their location.” Stingray equipment ran a tab of over $500,000 — costs that could be covered by Homeland Security grants acquired by the county two years ago.

Skepticism on the Board of Supervisors has contributed to cops’ sense of urgency. Supervisor Sen. Joe Simitian, a former state senator, told the Contra Costa Times he knew about the potential Stingray deal since December. “I’m a little disappointed if they’re trying to hurry this up because the grant is going to expire,” he said. “It would have been nice to have been told about this a year ago.”

Stingray technology is already used in Alameda County and the cities of San Jose and San Francisco, with agencies around the San Diego and Los Angeles areas also getting into the act. But Simitian has spoken out about the value of more internal deliberation and resident input, criticizing Santa Clara sheriffs for holding a single, brief public meeting on the matter.

Legal questions

Challenges to Santa Clara’s plans haven’t just focused on the technology itself. Although some federal legislators have recently reintroduced a bill designed to bring some constraints to how cellphones can be monitored, for now police departments have enjoyed wide latitude in choosing how to proceed.

In Congress, the Geolocation Privacy and Surveillance Act was recently rolled out by a bipartisan group including Sen. Ron Wyden, D-Ore., and Sen. Mark Kirk, R-Ill. Designed to protect individuals’ cellphones from excessive intrusion by law enforcement or others, the act would require a warrant from police before using technology like Stingray to track locations.

“GPS data can be a valuable tool for law enforcement,” said Wyden in a statement, “but our laws need to keep up with technology and set out exactly when and how the government can collect Americans’ electronic location data.”

Santa Clara sheriffs, meanwhile, have tried to frame their broader approach in reasonable terms. The sheriff’s office announced its intended use of stingray technology “triangulates on a mobile phone only, and does not monitor, eavesdrop, or intercept conversations or data such as texts,” Ars Technica reported.

According to the Chronicle, Sheriff Smith tried to emphasize the potential benefits to allowing her office to set limits on its own:

“Smith … said the device will be used only ‘to acquire criminal-activity data to aid in apprehension and prosecution,’ and not to ‘observe community members.’ She said the device could help her deputies — and officers from other nearby agencies — find missing people and victims of human trafficking.

“But the department has no finalized policy for using the technology, and officials do not plan to seek public approval of a policy when it is completed.”

Changing expectations

That put California’s longstanding privacy and civil liberty advocates up in arms. “Because Stingrays are capable of dragnet secretive surveillance, they raise serious privacy issues and necessitate robust oversight by citizens, elected leaders and the judiciary,” wrote Matt Cagle of the American Civil Liberties Union. “The ‘just trust us’ approach to surveillance doesn’t cut it, especially when the surveillance is close to home. Yet the public’s ability to learn about and debate surveillance technology should not depend on the good will of law enforcement agencies – it should be incorporated into our democratic processes.”

Pending legislation, however, expectations for change have been blunted by events at the federal level.

As the Wall Street Journal reported, for years the U.S. Department of Justice has been using Stingray technology in a once-secret airborne surveillance program.

Originally published by CalWatchdog.com

Bill Seeks to Give DNA Collection Powers Back to Police

As reported by the Sacramento Bee:

Police officers would regain powers to collect DNA that a voter-approved initiative stripped away under legislation announced Thursday by Assemblyman Jim Cooper, D-Elk Grove, with the backing of district attorneys and lawmakers from both parties.

“Forensic DNA is the greatest tool ever given to law enforcement to find the guilty and to exonerate the innocent,” Sacramento District Attorney Anne Marie Schubert said at an event announcing Assembly Bill 390.

In overwhelmingly approving Proposition 47 in November, Californians endorsed more lenient sentences for crimes like theft and drug possession, reducing them from felonies to misdemeanors. That reduced the reach of a program allowing officers to take the genetic information of suspects arrested for felonies. The Department of Justice estimates Proposition 47 has already diminished the rate of DNA collection by 10 to 20 percent. …

 

Tech giants back privacy bill

Bolstered by crucial support from industry leaders and Republicans across the aisle, Sacramento’s most prominent privacy-rights proponent took another stab at restricting the state’s access to personal information.

State Sen. Mark Leno, D-San Francisco, repackaged some of his long-cherished plans for law enforcement reform in Senate Bill 178, the California Electronic Communications Privacy Act, or Cal-ECPA. In a press release, Leno’s officedescribed SB178 as a prudent piece of legislation with enough exceptions to ensure public safety and effective policing:

“Cal-ECPA protects all electronic communications, including personal messages, passwords and PIN numbers, GPS data, photos, medical and financial information, contacts and metadata. Exceptions to the warrant requirement are included in the legislation so that law enforcement officers can continue to effectively and efficiently protect public safety in the event of an emergency.”

A string of failures

Leno has tried and failed to enact similar legislation in the recent past.

His troubles emerged in the wake of a controversial California Supreme Court ruling in 2007. The plaintiff, Gregory Diaz, was incriminated after an arrest when an officer with the Ventura County Sheriff’s Department scrolled through the text messages on Diaz’s cellphone. The justices sided against Diaz, and the U.S. Supreme Court refused to hear Diaz’ case.

So in 2011, Leno’s attempt to require warrants for cellphone searches fell prey to a veto from Gov. Jerry Brown — even though it passed the Assembly unanimously. As CNN reported, Brown warned that “courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

Then in 2012, as the Sacramento Bee reported, state district attorneys and Brown sank a bill Leno introduced that would have required warrants for any search of location data. And in 2013, they did the same to a related bill that mandated a warrant for emails requested from Internet service providers.

New Allies

But this time, political attitudes have shifted enough that Leno has reasoned he stands a better chance at success. He found a co-author for SB178 in State Sen. Joel Anderson, R-Alpine, known for introducing privacy-related bills that would haveshielded Covered California data and prohibited state cooperation with the NSA in unwarranted surveillance activities.

What’s more, Leno was able to marshal the support of Silicon Valley luminaries, whose endorsement was key to building credibility and challenging California’s district attorneys. His bill, KQED reported, received the okay from titans like Google and Microsoft to social media heavyweights like Twitter and Facebook.

And it was backed by smaller startups like Dropbox, which offers secure online data storage.

In a statement released by Mufaddal Ezzy, California manager of public policy and government relations for Google, SB178 was portrayed as a natural extension of current Fourth Amendment protections against searchs and seizures:

“Law enforcement needs a search warrant to enter your house or seize letters from your filing cabinet — the same sorts of protections should apply to electronic data stored with Internet companies. California’s electronic surveillance laws need to be brought in line with how people use the Internet today and provide them with the privacy they reasonably should expect.”

Clarity in the courts

Most importantly of all, Leno finally has the U.S. Supreme Court in his corner. As Ars Technica reported, the court ruled unanimously in a 2014 case, Riley v. California, that warrants must be required to search a cellphone.

Instead of posing an awkward challenge to the courts, as Brown feared years ago, Leno’s desired protections would instead officially square California law with the holding in Riley.

While SB178 makes its way through Sacramento, Californians interested in privacy issues will also keep an eye on Washington, D.C. There, Congress will consider the Online Communications and Geolocation Protection Act, introduced by a bipartisan group of three lawmakers, including Rep. Zoe Lofgren, D-Calif.

Ending the DNA Storing and Tracking CA Kids

A new bill seeks to eliminate the California “biobank” created last year over strenuous objections from privacy advocates and some judges.

Assembly Bill 170, introduced by Assemblyman Mike Gatto, D-Glendale, aims to curb the broad and longstanding practice of acquiring and storing the DNA of children born here. The bill, California Newswire reports:

“would strengthen the notice requirements when dried blood spot (DBS) samples are taken from newborns to screen for diseases.

“Gatto’s proposal would require that parents be provided information regarding the retention of DBS samples, including the parents’ right to request the destruction of their child’s DBS. The bill would further permit children to request the destruction of their DBS when they reach adulthood.”

In a press release, Gatto cast AB170 as a defense of Californians’ fundamental privacy interests. “Whenever data is stored, data can fall into the wrong hands. Imagine the discrimination a person might face if their HIV status, or genetic predisposition to a mental disorder, were revealed to the public,” he said. “Parents should have the right to protect their children and people should have the right to control how their personal medical records are used once they reach adulthood.”

Courting controversy

With the bill, Gatto has stepped squarely into a major debate over a rights issue that reaches to the highest levels of the U.S. courts. In Maryland v. King, a 2013 case, the U.S. Supreme Court narrowly upheld a Maryland law that permitted cops to sample DNA in the course of arrest for serious crimes.

As the Washington Post summarized the decision, the justices “ruled 5 to 4 that government has a legitimate interest in collecting DNA from arrestees, just as it takes photographs and collects fingerprints. Rejecting the view that the practice constitutes an unlawful search, the majority said it was justified to establish the identity of the person in custody.”

But that was not the end to legal challenges of DNA takings. In Haskell v. Harris, in March 2014 the 9th Circuit Court of Appeal confronted a class action lawsuit claiming California’s genetic swab policy amounted to an unconstitutional search and seizure. The law authorizing cops to swab after a felony arrest dated to 1998, when the DNA and Forensic Identification Database and Data Bank Act was approved by voters for inclusion in the criminal code.

But the 9th Circuit ruled strongly in favor of the law in light of Maryland v. King.

The plaintiffs had argued “that California’s law is broader than Maryland’s and threatens privacy rights more,” as the San Jose Mercury News reported. But the 9th Circuit rejected that reasoning.

To the frustration of civil liberties advocates, both the Obama administration and California Attorney General Kamala Harris sided with the state of California and against the plaintiff, “citing the national importance of DNA collection laws that 28 states have enacted.”

Despite these setbacks for civil libertarians, the matter was still not settled. In Dec. 2014, a panel of the First Appellate District Court in San Francisco ruled 3-0 that the collection of DNA in the course of an arrest was unconstitutional. The trial court in the case had authorized police to use “reasonable force” to obtain a sample of the plaintiff’s DNA.

So the matter of DNA collection still is not entirely settled.

Security vs. choice

Similar claims to take DNA samples based on the public good have come into play in the brewing fight over Gatto’s legislation. California’s biobank, the Los Angeles Times notes, “holds blood taken with the prick of a heel from almost every baby born in California for the last three decades. It is used to screen for 80 health disorders, such as cystic fibrosis and sickle cell anemia. Unlike most states, California keeps the frozen samples indefinitely and shares them with genetic researchers, for a fee.”

Supporters of the procedure, including state officials, argue “the samples are secure and are used to save lives,” supplying researchers with an adequate supply of genetic material to conduct important tests and work toward advancing public health.

In that way, the fight over AB170 pits two big public policy objectives against one another: security versus choice. This creates yet another uncomfortable cleavage between Democrats.

While one wing of the party has fully embraced a role for government in the details of everyday life, another wing has bridled against what it perceives to be invasive violations of individual rights. For the former, the debate over DNA comes down to the importance of security; for the latter, it comes down to the primacy of informed choice.

Originally published on CalWatchdog.com