Electronic privacy battles taking place in 20 states

By Josh Peterson | Watchdog.org

State lawmakers are pushing back against the surveillance alliance between the executive branch and law enforcement agencies at all levels of society.

According to data published by the privacy advocacy group, OffNow.org, lawmakers in 20 states battled over electronic privacy and the Fourth Amendment this past legislative session.

The privacy debate, while not new, gained further momentum after former National Security Agency contractor Edward Snowden fled the U.S. nearly a year ago and leaked thousands of agency documents detailing the federal government’s electronic spying apparatus.

OffNow.org, for example, created model legislation taken up for debate by seven states, banning states from providing material support and resources to federal agents engaged in warrantless electronic surveillance.

While the organization’s efforts first focused on starving a new National Security Agency facility in Utah of its water supply, lawmakers in Alaska, Arizona, California, Michigan, Oklahoma, South Carolina and Vermont chose to tackle the issue at a legislative level.

Lawmakers in Minnesota, Missouri, New Hampshire, and Utah, in addition to the seven aforementioned states, looked at banning the use of warrantless data in court. Missouri voters also now have a chance to choose in the fall whether to codify electronic privacy protections into their state’s constitutions.

Lawmakers in those three states — in addition to Illinois, Maine, Montana, Pennsylvania, Rhode Island, Tennessee, Virginia, West Virginia and Wisconsin — also debated legislation banning law enforcement agencies from tracking the location of cell phones without a warrant.

In Utah, Gov. Gary Herbert signed into law such a bill at the end of March; Minnesota Gov. Mark Dayton signed a similar bill May 16.

The American Civil Liberties Union has worked with the American Legislative Exchange Council to promote model legislation at the state level designed to prevent law enforcement from searching the contents of a mobile phone or accessing its geolocation data without a warrant.

“All 50 states have different rules — and some basically have no rules, it’s up to the police to decide how they want to do it — as far as tracking people, their location, using their cell phones,” ALEC Director of Special Projects Michael Hough told Watchdog.org.

While Hough conceded that addressing the protection of the Internet and regulating drones made more sense at the federal level, there was a clear role for the states to address privacy and law enforcement concerns.

“You really need a balance in the states for law enforcement and for civil liberties,” said Hough, “and right now, quite frankly, some of the states are out of balance.”

The Supreme Court is also weighing in on whether law enforcement should seek a warrant to collect the data on a cellphone.

Nongovernmental organizations such as the Digital 4th Coalition, TechFreedom and the Electronic Frontier Foundation are working with tech corporations to persuade Washington to update the Electronic Communications Privacy Act of 1986.

ECPA allows government investigators the ability to demand, without a warrant, from a private company a suspect’s private emails and text messages older than 180 days.

Consumers’ use of email technology has changed since the law was originally passed, storing more data online. Privacy advocates want Congress to change the law to reflect this change in people’s behavior.

A recent White House privacy report, authored by President Obama adviser John Podesta, recommended Congress amend ECPA “to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world— including by removing archaic distinctions between email left unread or over a certain age.”

The White House report was published nine days after a Watchdog.org report highlighted the Obama administration’s choice to respond to a petition calling for the deportation of Canadian pop star Justin Bieber, but still had yet to respond to a petition calling for ECPA reform.

Katie McAullife, federal affairs manager and executive director for Digital Liberty at Americans for Tax Reform, is skeptical state level privacy reform would be sufficient to protect citizens’ privacy.

“When states choose their laws, federal laws don’t always follow suit,” McAullife told Watchdog.org, citing how the Drug Enforcement Administration shut down medicinal marijuana dispensaries in California, despite the dispensaries being legal under state law.

“I think it’s great that states are working to protect their citizens’ privacy, and I think that’s a really good thing, and it demonstrates that more and more people are aware of the issues with privacy and what’s going on,” said McAullife. “But I think that there needs to be a federal law because federal agencies, I don’t think, this is my personal opinion, will necessarily abide by state laws.”

Contact Josh Peterson at jpeterson@watchdog.org. Follow Josh on Twitter at @jdpeterson