States Defend Privacy, Not Congress

EFF Looks Back on 2013:                             States, Not Congress, Stepped Up To Protect Individuals’ Privacy

 Electronic Frontier Foundation
January 2, 2014 | By Hanni Fakhoury

As the outcry against NSA spying and electronic surveillance has grown, the need to protect privacy through legislation has never been higher. With law enforcement itching to use aggressive new surveillance techniques from drones to facial recognition to fight crime, privacy is often discarded by the wayside as collateral damage. Ideally it would be Congress that would take the lead in passing privacy legislation, creating uniform standards that protect privacy across the country. And while there were a number of Congressional proposals, none went anywhere in 2013. So while Congress continues to drag its feet, State courts and Legislatures have stepped up to protect their citizens’ electronic privacy.

This summer, the Massachusetts Supreme Judicial Court ruled, in a case that we filed an amicus brief in, that passengers in a car have an expectation of privacy to be free from persistent GPS location monitoring. Montana and Maine passed legislation that required police to obtain a search warrant before tracking any electronic device. And Texas passed a bill that requires state law enforcement to obtain a search warrant before accessing electronic communications like emails from a service provider.

As States placed an emphasis on protecting privacy, we (EFF.org) stepped up our efforts to get involved at the State level. We filed numerous amicus briefs in state courts across the country on a whole host of privacy issues. We argued to the Supreme Courts of Rhode Island and Washington that your text messages stored on someone else’s cell phone were protected by the Fourth Amendment.

We urged courts in Connecticut and Massachusetts to follow New Jersey’s lead, and require police to obtain a search warrant before getting cell phone tower information.

We explained to the Texas high court that unlike a pair of pants, police can’t search an arrestee’s cell phone without a warrant.

And again before the Massachusetts high court, we explained why the Fifth Amendment prohibited a suspect from being forced to decrypt a computer.

We got involved in State legislation too, sponsoring an email privacy bill in California that passed the legislature, but was vetoed by Governor Jerry Brown.

We also opposed a Massachusetts bill that aimed to expand the State’s wiretapping statute.

Early indication suggests 2014 will see more States getting involved to pass privacy legislation. Wisconsin is considering a location privacy bill that would prohibit police tracking a cell phone without a search warrant. Lawmakers in Montana are planning to introduce an initiative to amend the State constitution to protect digital privacy. And we’ll be there too, working to convince State courts and Legislatures to make privacy conscious decisions, in addition to our Federal work.

Hopefully 2014 will be the year Congress catches up to the States.