New California law requires warrants for searching digital data

Police in California will soon need a warrant signed by a judge to search through any digital documents of people under investigation, under a new law that civil liberties advocates hope will be a model for other states and the federal government. 

"Hopefully it sends an important message that these laws really need to be updated for all Americans at a federal level," said Nicole Ozer, technology and civil liberties policy director for the American Civil Liberties Union of California, which lobbied for the bill. 

The California Electronic Communications Privacy Act (CalECPA) eliminates a loophole in the state’s older electronic privacy statute, which allowed law enforcement officials to obtain information about users and their data by submitting a subpoena to technology companies. Judges don't need to sign off on subpoenas, but for warrants, they must. Under the new law, officers will have to convince a judge that there is enough probable cause to justify a search.

“These older laws could not anticipate how much of our lives are now digital," Ozer said. Before this law was passed, information in a letter stored in your desk had warrant protection, but an email or a Twitter direct message didn’t have comprehensive warrant protection.”

Passed in September and signed by California Gov. Jerry Brown on Thursday, the law had widespread support. It was sponsored by both Republican and Democratic state lawmakers, and backed by some of California’s biggest technology companies, including Twitter and Google, which say they have seen sharp increases in recent years in the number of police requests for information. 

According to Twitter's transparency report, it has received 52 percent more requests for information from governments this year compared to the same period last year. About half of these 4,363 requests worldwide came from U.S. law enforcement agencies, the Twitter report said. 

The Electronic Frontier Foundation, a group advocating for the rights of technology users, said Apple, Facebook, Dropbox, Google and Twitter supported the group’s efforts to get the new law passed.

“Tech corporations also recognized that, following two years of government spying scandals, consumers have lost trust in the companies' ability to protect their digital information,” EFF spokesman David Maass said in a news release. Former National Security Agency contractor Edward Snowden revealed in 2013 that the agency was collecting massive amounts of data about communications in the United States and around the world. 

The law will take effect on Jan. 1, 2016.

Law enforcement groups had opposed the law when it was initially proposed. In a statement analyzing the impact of the bill, the California District Attorneys Association said the bill "undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution."

In the same document, the California State Sheriffs' Association added that the law "includes burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the Fourth Amendment."

Neither group responded to requests for comment Friday. 

California law enforcement officials lent their support to the bill, Ozer said, after an agreement to include a provision that protects police officers’ ability to get basic subscriber information from telecommunications companies and online networks. They also pushed for a provision that protects the legality of undercover work online. Police officers often work undercover online to investigate people accused of fraud or child abuse.

A similar bill at the federal level, updating the 1986 Electronic Communications Privacy Act, is making its way through Congress. Under the 1986 law, emails older than six months don’t get warrant protection in federal cases, but Congress could extend that with the new law.