California Governor Vetoes Landmark Location-Privacy Law

Tracking a Sprint Nextel cellphone. Image: U.S. District Court — Southern District of Ohio

California Gov. Jerry Brown has vetoed legislation that would have required the state’s authorities to get a probable-cause warrant signed by a judge to obtain location information from electronic devices such as tablets, mobile phones and laptops.

The measure passed the state Senate in May and the Assembly approved the plan in August.

The veto of the first-of-its-kind legislation was no surprise.

Brown, a Democrat, last year vetoed a measure requiring police officers to obtain a warrant before searching someone’s cellphone after arresting them. That leaves California police officers free to search through the mobile phones of persons arrested for any crime.

California Gov. Jerry Brown. Credit: Phil Konstantin

This year, Brown again caved to law enforcement.

“It may be that legislative action is needed to keep the law current in our rapidly evolving electronic age,” Brown wrote in his veto message Sunday. “But I am not convinced that this bill strikes the right balance between the operational needs of law enforcement and the individual expectation of privacy.”

The legislation said that, if there was insufficient time to obtain a warrant due to a threat of serious danger or bodily harm — for example, in the case of a missing child — no warrant would be required.

The veto comes as prosecutors are increasingly using warrantless cell-tower locational tracking of suspects in the wake of a Supreme Court ruling that law enforcement should acquire probable-cause warrants from judges to affix GPS devices to vehicles and monitor their every move, according to court records.

Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, which helped craft the legislation along with the American Civil Liberties Union, said the governor’s veto continues a “dangerous trend” of “allowing law enforcement to gorge itself on as much data and information they can eat without a warrant.”

The package was intended to clear up the legal mess surrounding police acquiring location information that can be used to track citizens. Sometimes warrants are required and sometimes the signature of a law enforcement officer is all that is needed to obtain sensitive data of somebody’s whereabouts.

The California District Attorneys Association and the California State Sheriff’s Association opposed the measure, saying it was preempted by federal law.

The Obama administration maintains that Americans have no privacy in their public movements, and that their locational data from their mobile phone, for example, can be obtained without a warrant since it is held by a third party.

The California legislation would have only affected non-federal law enforcement officials conducting business in California.

Similar federal legislation has been stalled for more than a year, and is likely dead.

Meanwhile, the nation’s major cellphone companies objected to the bill because it would have forced them to publicly report the number of times they turn over cellphone location information to police and federal agents. They argued that it would be too burdensome, and would take time away from the important work of sharing customer data with cops “day and night.”

That part of the bill was subsequently deleted.

As it turns out, mobile carriers responded to 1.3 million law enforcement requests, by the states and federal government, for customer data last year alone for everything from text messages to location data to calling records, according to the carriers’ responses to a congressional inquiry. The data did not break down how many of those requests included a court warrant.