In a bid to shield citizens from privacy invasions by rapidly advancing surveillance technologies, state and local lawmakers are updating antiquated laws to help ensure that Fourth Amendment protections are not discarded like e-waste in the digital age.
In the New York Assembly last week, a bill requiring law enforcement to obtain a warrant before gaining access to information in cellphones, computers and other digital devices advanced to the Rules Committee. And in New Hampshire, a conference committee is currently working to iron out differences among state lawmakers on a plan to regulate the use of drones in surveillance activities
Rashida Richardson, legislative counsel for the New York Civil Liberties Union, told AMI Newswire Monday that the New York privacy bill likely will not pass this year because the state's legislative session ends this week. Supporters, however, are moving to position the bill for passage next year.
"Our greatest hope is that it moves to the floor this week, which is still possible," Richardson said, adding that
other states, including New Jersey and Virginia, have introduced similar privacy bills.
The advance of privacy legislation comes as tech companies, civil liberties groups and libertarian-leaning advocacy groups form coalitions in support of such bills, and as local and state lawmakers seem uncertain about the prospect of Congress taking up surveillance protections.
On Thursday, one federal privacy protection measure hit a roadblock in the U.S. Senate after sailing through the House of Representatives with unanimous support.
Sen. Mike Lee (R-Utah) decided to withdraw the Email Privacy Act from consideration after senators on the Judiciary Committee attempted to add an amendment allowing the FBI access to electronic communications data without a judge’s intervention. The original bill would have eliminated the current federal rule allowing warrantless searches of emails older than six months.
“Unfortunately, some senators on the committee have decided late in the day that this bill should be a vehicle to move an unrelated and controversial expansion of the use of national security letters by the FBI,” Lee told the committee. “Such an expansion would swallow up the protections this bill offers to the American people.”
In the wake of the bill’s withdrawal, the chief executive officer of the free market-oriented advocacy group FreedomWorks, Adam Brandon, said in a prepared statement: “The House overwhelmingly approved these reforms, 419-0, to modernize the Fourth Amendment. … It’s unfortunate that these popular reforms have been jeopardized by those who are seeking to expand the reach of government rather than protect the constitutionally protected rights of Americans.”
Some local governments, meanwhile, have had more success at placing limitations on government investigative powers.
In Santa Clara, California, the board of supervisors last week unanimously approved provisions that will limit criminal justice agencies – such as the sheriff’s department and district attorney’s office – from acquiring surveillance technologies without first justifying their use to the elected board.
The new ordinance is aimed at ensuring privacy rights are protected from technologies, such as drones, cellphone trackers and car license plate readers. Among the technologies that have generated concern among civil liberties groups are so-called stingrays, which track suspects’ cellphones but also have the ability to gather information about nearby cellphone users.
Such policies, however, have received a cool reception from some law enforcement officials. Santa Clara Sheriff Laurie Smith told the board of supervisors prior to their vote on the surveillance technology ordinance that, “the policy is very, very broad and I think it’s onerous. I hope it doesn’t hurt our ability to get technology and utilize technology and share and communicate with other law enforcement entities, including getting their assistance on investigations.”
The senator who authored the controversial amendment to the federal Email Privacy Act, John Cornyn (R-Texas), argued that FBI Director James Comey’s No. 1 legislative priority has been to ensure that the agency continues to have the ability to secure national security letters, which are federal subpoenas issued without judicial approval to deal with national security threats.
Cornyn told the Senate Judiciary Committee that his amendment would only apply to access to metadata, such as email addresses, and not content. “The amendment enjoys the support of the majority of members of this committee,” he said.
One reason that local and state lawmakers are moving to strengthen privacy rights is that, historically, federal laws in the area of privacy and consumer protection have not stopped states from raising the bar.
According to the Electronic Privacy Information Center in Washington, D.C., “federal privacy laws have not pre-empted stronger state protections or enforcement efforts. Federal consumer protection and privacy laws, as a general matter, operate as regulatory baselines and do not prevent states from enacting and enforcing stronger state statutes.”
In New York, the Assembly Codes Committee on Wednesday passed the bill by Assemblyman Jeffrey Dinowitz (D-Bronx) on a 13-6 vote, advancing it to the Rules Committee.
“I’m proud to be standing up for the fundamental constitutional rights of New Yorkers,” Dinowitz said in a prepared statement. “Waiting for Congress to take action is simply not an option.”
The bill, which has the support of the New York Civil Liberties Union, would require that warrants be specific in describing the electronic data being sought and that law enforcement give notice to the target of the issued warrant.
Richardson, of the New York Civil Liberties Union, said during an online discussion on the Reddit website that a coalition of interests, including technology companies, was behind such privacy bills. “Consumer interest in privacy has definitely fueled this, but I also think tech companies understand that innovation will not be stunted by adequate privacy and civil liberties protections.”
The New Hampshire bill would require that public agencies within the state obtain a court order before using drones for surveillance activities and to gather evidence against suspected law breakers. Drones could be deployed without warrants by agencies during emergency situations, however, such as to help prevent the escape of a criminal suspect.