New California Laws Target Technology, Digital Privacy

This is KPBS Midday Edition. I am Maureen Cavanaugh. Among the bills Governor Jerry Brown signed into law last week are several and have protecting privacy. Including one that is being touted as the nations West digital privacy law. Since computers and smart phone technology have revolutionized how people store information advocates say privacy laws have had a hard time keeping up. That means much of the digital information either compiled by business or stored in our phones, have been subject to warrantless searches by law enforcement. The new law seeks to stop that another newly signed laws are aimed at stopping drones from taking pictures of your home and alerting consumers to the fact that your Smart TV might be watching you. Joining me is Art Neill he is director of California Western School of Law's New Media Rights Program. Dave Moss -- Dave Maass is Electronic Frontier Foundation formerly a journalist right here in San Diego. It's always good to be back on the day. Dave, your organization pushed for the governor to sign the electronic communications bill. It is known as CALECPA. When you think Islam was needed? Becca our digital privacy law, particularly in the federal law, were grafted in the 80s when the apple tree was the main computer. Before people's phones contain all of the email and photos and everything that we keep on our smartphones. Those laws don't really protect us in 2015. You have -- you need a war to search through my cabinets, through my filings and my whole, but the same things don't apply when it comes to digital records. The things that are on my phone or the things I store in the cloud, this law brings those up-to-date. It requires a warrant for emails and other types of content whether they are on your phone or in the cloud it also requires a warrant for locational trekking. You may have heard a lot of debate about stingray and how that might be used indiscriminately in jurisdictions. This requires law enforcement to get a warrant before they start deploying the kind of technology that tracks your phone. Just go over this one more time for me. Before these laws -- this law was enacted, if I have a journal in my desk and a smart phone next to it, how could law enforcement deal with the two items differently? They can search your cell phone without a war. There may be other types of processes that they need to go through, but there has been a lot of inconsistency in the laws from jurisdiction to jurisdiction and from court ruling to court ruling. This law actually says once and for all, you do require a warrant to go after this information. San Diego police officers Association were one of the groups that endorses bill particularly because the process for obtaining digital information has not been clear. And having it in law that this is exactly what you need to do makes it easier for public safety. And to clarify, you use the term stingray, what is that? Stingray is a term for an IMCI catcher which is a difficult term. These are devices that emulate cell phone towers. If a police agency deploys one of these, every phone in the area connects to it. That allows police departments to track cell phones and potentially even grab content that is in traffic between the cell phone towers. Now they would need a warm for that? Yes that is correct So are the electronic communications privacy act changes things for the information stored by businesses, doesn't it. That is correct. I was directing met to our. Absolutely. Service providers and your online service providers, Facebook, Google, etc., law enforcement and government entities are required to search warrant to get that information. There is the opportunity for service providers to still provide some of this information voluntarily but there are some new restrictions also where if the government entity obtains information with some exceptions, if they obtain it in a voluntary release from the social media provider, they have to go ahead and delete that within 90 days. I see. Art, there was a recent case at the US Supreme Court that originated in San Diego about law enforcement's right to search cell phones. Remind us about that case. You are talking about the Riley case that started here in San Diego. The basic outcome of the Riley case that the Supreme Court said, and I believe it was nine to nothing that they said cell phone searches, searching the data on cell phones incident to an arrest, is simply not okay without a war. That's a big change from what had been before. In a way, obviously this is -- this is great as establishing a broad set of electronic communications of devices but particularly with the Riley case, the Supreme Court really had said, look with regard to cell phone search incident to arrest, law enforcement and government entities have to have more. This kind of codifies that from Riley. It makes it clear that this is the law in California. Although law enforcement should have following it already. Although as they say, there is email communications, communications via of online service providers are also covered by this law. Riley was really important to be fair, California was not doing very well on the front in terms of cell phones data searches. You had cases like people versus DS before the Riley case that but very few restrictions on the way the government entities in law enforcement could search data on the phone. It was important that the Supreme Court came down that way. On the other hand, they talked about all the inconsistencies in California. In addition to the inconsistencies on cell phone data, because there were other jurisdictions unlike California who are much more recent directive on their law, it was actually kind of the flipside for location data. California was resistant to give out location data. But they were -- there was location data in federal review is that it should be easier. Is a lot of clarity lacking this provides clarity for citizens and law enforcement work And Dave, law enforcement can still access digital information in an emergency, isn't that right Yes. When there's a threat to someone's life or bodily injury, they can go ahead and get it without a war. They do need to come back to a court later and explain what the emergency was. That is a nice transparency counterbalance. But it does not stop them from protecting lives. Whether it is a terrorist situation or hostage situation, they can get information without a warrant. Date, this was a bipartisan bill in California legislation cosponsored by an El Cajon Congressman a Republican. Republicans and Democrats kind of agreed. Did get the support law forcing community? Yes and no. What ended up happening was San Diego police officers Association, they did get full throated behind the bill. Originally there were four major law enforcement agencies, therefore major law enforcement associations in California. Originally they all posed -- up was the bill. But after meeting with the author's offices they all went neutral audit. Even though they were neutral they each gave positive statements about the bill saying it did strike the proper balance between privacy. Do you have any concerns about this new legislation? One of the things that got dropped out during negotiations was the applicability to civil investigations. It is something we would like to see expanded in future legislative sessions. Art, I want to move onto another bill that the governor signed. It's called the paparazzi draw law. What does it outline? The paparazzi draw law, there are already quite a few laws on the books in California regarding physical invasions of privacy. In this particular case, what happens is that the law is being expanded from discovery land based invasions of privacy is also covering airspace. What that really means is that in the past, you might have had somebody from the third story of a building taking a photo of somebody that is private, personal in their backyard with a high-powered telephoto lens. But what he says now, if you fly a drone over somebody's airspace, UK private personal photos of them, that is not okay either. It really is taking our personal privacy laws and making sure, in a very narrow sense, covering the kinds of personal and private invasions that can happen with drones with unmanned aerial vehicles. I have seen a lot of things written about this. It is primarily for celebrities and people who would be the subject of people wanting to fly drones over your property and take Xers of you. But meanwhile the governor vetoed other drone laws that would have outlawed drones over fires, or flying over schools. Was his rationale for outlawing these but going ahead with the paparazzi draw law. He was adverse to creating new crimes related to drones. He was protective of allowing drones as new technology to the extent they can to allow them to flourish. He did not assign that he did not sign, the vetoed bills for drones flying over schools, fires, the difference is this was a more clever bill. This did not create a new crime. This did not create a whole new section of statutes that was his problem with the other bills. It took the existing physical trespass laws and physical invasion of privacy laws and extended them and nature was clear that those extended to drones as well. And not only that, the law is pretty narrowly targeted. The law is targeting, the law he did target, it has to be a personal, private invasion. It's not just, you're flying a drone in the backyard and it happens to encroach on somebody's airspace slightly. It has to be that you are going to collect something that is personal and private. This was a much more limited law in terms of creating new statutes and new law. It also is much more limited and focused in terms of the types of behavior that covered. I want to move on to the other new California law. It is aimed at preventing the frightening prospect of your TV watching and listening to you. Can you tell us about that? Absolutely. In this case, you have an assembly Bill 1116, it's all about manufacturers of Smart TV, earlier this year, Samsung had a television that had a privacy policy that says something about the fact that your conversations when you're sitting in your living room, your speech can be collected and recorded. In the end, Samsung's answer to that was, it's in our privacy policy but what we were doing, yes we said were sharing it with their parties but all we were trying to do was share the audio changes to text. The language of the privacy policy was we can share your voice recording with third parties was a bit creepy to some individuals and legislators. This is actually a very narrow response to that. It really focuses on manufacturers of Smart TV. Smart TV that have a voice activated capacity. You can basically tell your TV what you want to do. It has to listen to you in a sense. What they found out, the TV wasn't the only one listening. It could definitely have been used, and as you say transport with third party. Now Now they're saying if your TV shapes and it has this capability you have to let them know that the voice recognition capability is there. And you cannot transfer that for advertising purposes to third parties. There is a flat restriction on the -- on that. It's a very appropriate discussion in terms of how it is so focused on manufacturers of Smart TV's, but there are so many other devices that connect to our televisions. What other devices? Do they not fall under the law? There are so many devices that do not fall under the law. They just think about all the things that connect to your television, Google Chrome Casper Apple TV, videogame consoles, a DVR, all of those devices are created by other manufacturers and are not really covered by this law. What we're really talking about here is connected televisions and it is very narrowly defined in the statute. At one level, you wonder is the state the right place to be legislating this? And is is the right way to be doing this? Maybe it should be more about folks putting out manufacturers as well as manufacturers need to be putting out very clear privacy policies. They need to tell people when the device or service is collecting information, and how that information is going to be used or transferred. And they, finally, many digital privacy advocates say California's new law is great. But what we really need is a national law protecting the privacy of digital information. Do you agree? Yes with deftly been behind a federal electronic communication privacy act reform bill for quite sometime. The San Diego police officer Association based on the local level endorse a federal bill as well. What is the timeline on that text has it been introduced? Does it have a lot of momentum X It is like best it is out there. But like all things congressional it will be a slow fight. I want to thank both of my guess. Art Neill, California Western School of Law's New Media Rights Program . Dave Maass, Electronic Frontier Foundation thank you both very much. Thank you. Thank you.