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California adopts landmark law protecting digital privacy

New California state legislation aims to ensure digital data has the same kinds of protection applied to non-digital communications

The US state of California has adopted landmark legislation aimed at protecting businesses’ digital privacy.  

The legislation is aimed at ensuring that digital data such as email has the same kinds of protection that are applied to non-digital communications, such as handwritten letters.

The Electronic Communications Privacy Act prevents law enforcement agencies from compelling a business to turn over any metadata or digital communications without a warrant.

The legislation requires a warrant to access emails, texts and documents stored in the cloud or to search and track the location of electronic devices such as mobile phones, reports

According to the American Civil Liberties Union (ACLU), the legislation is the most comprehensive of its kind in the US.

“This is a landmark win for digital privacy and all Californians,” said Nicole Ozer, technology and civil liberties policy director at the ACLU of California.

“We hope this is a model for the rest of the nation in protecting our digital privacy rights,” she added.

Although California is now one of six US states that require a warrant to access electronic content and one of 10 states that have warrant protection for location tracking, the ACLU said it is the first state to enact a comprehensive law protecting location data, content, metadata and device searches.

 “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,” said Democrat state senator Mark Leno in a statement.

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Leno said the legislation protects the personal information of all Californians and ensures that law enforcement officials have the tools they need to continue to fight crime in the digital age.

Observers said the law puts California at the forefront of protecting digital privacy among states and ahead of the federal government, where such efforts have stalled.

However, the law applies only to California law enforcement entities, which means law enforcement agencies in other states would be compelled by the laws in their jurisdictions.

For this reason, the ACLU said it is important to have similar comprehensive laws passed in all other US states.

Federal law-makers are under pressure to update the US Electronic Communications Privacy Act to offer such protection across the country.

A proposed amendment to that law is under consideration, but the proposal is less comprehensive than the new California law and focuses on digital content.

In September 2015, the US Department of Justice  announced new rules requiring US federal agencies to obtain search warrants to use military-grade mobile phone tracking and surveillance technology.

The move was in response to concerns about invasion of privacy through the unsupervised use of cell site simulators known as stingrays.

The ACLU said that after “decades of secrecy” in which the US government had hidden the technology, the new rules were “a positive first step” but do not go far enough.

“Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices,” said Nathan Freed Wessler, staff attorney at the ACLU.

“In addition, the guidance leaves the door open to warrantless use of stingrays in undefined ‘exceptional circumstances’, while permitting retention of innocent bystander data for up to 30 days in certain cases,” he said.

The ACLU has called on the Department of Justice to close these loopholes, as well as the US Congress to pass more comprehensive legislation to ensure citizens’ privacy is protected from these devices and other location tracking technologies.

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