California Can Teach The Rest Of Us An Important Lesson In Digital Privacy

The state's landmark new law could show Washington how to protect civil liberties online.

California Gov. Jerry Brown on Thursday signed the nation's strongest digital privacy law yet, codifying a simple principle: All of our existing rights should apply online, too.

The California Electronic Communications Privacy Act (CalECPA) passed the state legislature with overwhelming majorities earlier this week before going to the governor's desk. As a result of the legislation, law enforcement agencies in California now have to get a warrant from a judge before they can force a business to disclose or provide access to electronic information, including metadata, email, text messages or documents stored online in the cloud. (For more on the law, read Kim Zetter's report at Wired.)

The law advances the principles upheld in Riley vs. California, a historic 2014 decision in which the U.S. Supreme Court applied the Fourth Amendment to the digital domain, holding that "the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested."

CalECPA adds to those constitutional protections by requiring a warrant  to access not only the data on people's mobile devices, but also the rest of their online communications and documents, from Gmail to Dropbox. 

"This is a landmark win for digital privacy and all Californians,” said Nicole Ozer, policy director for technology and civil liberties at the ACLU of California, in a statement. “We hope this is a model for the rest of the nation in protecting our digital privacy rights.”

"For too long, California’s digital privacy laws have been stuck in the Dark Ages, leaving our personal emails, text messages, photos and smartphones increasingly vulnerable to warrantless searches," California state Sen. Mark Leno (D-San Francisco), a co-author of the bill, said in a statement Thursday. "That ends today with the Governor’s signature of CalECPA, a carefully crafted law that protects personal information of all Californians. The bill also ensures that law enforcement officials have the tools they need to continue to fight crime in the digital age."

"Senator Leno and I helped bridge the gap between progressives and conservatives to make the privacy of Californians a top priority this year," said state Sen. Joel Anderson (R-Alpine), the bill's other author. "This bipartisan bill protects Californians’ basic civil liberties as the Fourth Amendment and the California Constitution intended."

While 39 million Californians now have more comprehensive constitutional protections when they go online or move around their state, hundreds of millions of their fellow Americans do not. An extraordinarily broad coalition and hundreds of members of Congress support two bills that would reform the federal Electronic Communications Privacy Act to require law enforcement officials to get a warrant before accessing email or data stored online. However, Speaker of the House John Boehner (R-Ohio) and Senate Majority Leader Mitch McConnell (R-Ky.) have yet to bring either bill to a vote.