On July 14, 2015, the California Electronic Communications Privacy Act (“Cal-ECPA”) unanimously passed the California State Assembly’s public safety committee.  The bill would forbid warrantless cellular “stingrays” as well as searches of documents and data stored online.  Digital privacy activists are optimistic that the full State Assembly will approve the bill soon.  

State Senator Mark Leno (D-San Francisco) introduced the current version of Cal-ECPA in February 2015 and the California State Senate passed the bill unanimously in June.  Even if the bill passes the full State Assembly, however, enactment is not guaranteed, because Governor Jerry Brown twice vetoed Cal-ECPA’s predecessors, in 2012 and 2013.

If Cal-ECPA is indeed enacted, it would be the most comprehensive state law on digital searches and seizures in the United States.  The bill would codify in California the U.S. Supreme Court’s 2014 holding in Riley v. California, 134 S. Ct. 2473 (2014), that a physical search of an arrestee’s cell phone requires a warrant.  However, Cal-ECPA would go further than the Supreme Court’s decision by also outlawing warrantless remote searches using so-called “stingrays,” devices that mimic a cell phone tower in order to locate and track the device’s user.  

Cal-ECPA would also apply to communications and metadata stored in the cloud. This prohibition would restrict police requests for information from cloud providers themselves, as well as intermediaries that transmit communications between providers and their users.  Because California is home to so many technology companies (and their datacenters), Cal-ECPA could effectively set the standard for law enforcement requests far outside its own borders.  The bill would not, however, prohibit service providers from disclosing requested information voluntarily, nor would it limit requests made under the federal Electronic Communications Privacy Act or other federal law.

Privacy advocates such as the Electronic Frontier Foundation have long favored legislation like Cal-ECPA, and the bill has also garnered the support of technology firms like Google, Facebook and Twitter.  State law enforcement organizations—including the California District Attorney’s Association—oppose Cal-ECPA on the grounds that it will interfere with valid law enforcement techniques.  The bill will next pass to the State Assembly’s Committee on Appropriations.

Reporter, Daniel Ray, Silicon Valley, +1 650 422 6715, dray@kslaw.com.