Can States Do A Better Job Of Protecting Online Privacy?

    March 7, 2013
    Zach Walton
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In cyberlaw, 2012 was defined by the federal government attempting to pass laws that either broke the Internet, or helped protect it. Neither side was successful, however, and the year was marked by a number of defeated laws on both side. Now a new force is attempting to pass similar laws, and it just might have a chance.

It was reported this week that at least one state is throwing its hat into the digital privacy legislation arena. The move could trigger more states moving forward with their own digital privacy laws to counter any attempts by the federal government to destroy online privacy. Now only one question remains – will it work?

Do you think the states can succeed where the federal government has failed? Let us know in the comments.

One of the major threats facing digital privacy is the practice of warrantless location tracking. In essence, a government agency, usually law enforcement, can request your location data through a smartphone without a warrant. This was put to the test last year in a case involving a drug trafficker that was tracked via location data on his cellphone. This data was procured without a warrant, and the defense argued that this was a violation of his Fourth Amendment rights. The Sixth Circuit Court of Appeals rejected this reasoning in a 2-1 decision that said there was no violation:

“There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.”

In other words, the court said that data stored by third parties is not protected by the Fourth Amendment. Under this logic, any information that we own, but is stored by a third party, is open to warrantless search and seizure. This goes beyond location tracking, and into stored digital communication that is transported via third party services like email, cloud storage, etc.

This is where the federal lawmakers come in. Rep. Zoe Lofgren has been a major proponent of online privacy for many years, and even introduced an email privacy bill last year to amend the decades old ECPA. She unfortunately failed last year, but it back at it again this year with a greatly expanded bill that covers email and location data – The Online Communications and Geolocation Protection Act.

“Fourth Amendment protections don’t stop at the Internet. Americans expect Constitutional protections to extend to their online communications and location data,” Rep. Lofgren said. “Establishing a warrant standard for government access to cloud and geolocation provides Americans with the privacy protections they expect, and would enable service providers to foster greater trust with their users and international trading partners.”

As its name implies, Lofgren’s bill contains a number of protections for digital communications and location data. Here’s a breakdown of its core tenets:

  • Require the government to obtain a warrant to access to wire or electronic communications content;
  • Require the government to obtain a warrant to intercept or force service providers to disclose geolocation data;
  • Preserve exceptions for emergency situations, foreign intelligence surveillance, individual consent, public information, and emergency assistance;
  • Prohibit service providers from disclosing a user’s geolocation information to the government in the absence of a warrant or exception;
  • Prohibit the use of unlawfully obtained geolocation information as evidence;
  • Provide for administrative discipline and a civil cause of action if geolocation information is unlawfully intercepted or disclosed.
  • There are a number of factors in Lofgren’s favor this time around that could see this particular bill being passed. There are unfortunately an equal number of factors that could easily see this bill defeated, just like all the other ones.

    Do you think Lofgren’s bill can succeed where other proposed federal law has failed? Let us know in the comments.

    Lofgren’s bill aims to change federal law, and as such, has many obstacles on its way to becoming law. There has to be an easier way to enact change, right? That’s what lawmakers in Texas are betting on as it’s become the first state to propose a digital privacy bill.

    It was revealed this week that both the Texas Senate and House have introduced bills that would require a warrant when requesting location data from in-state cellular carriers. The bill also would require these in-state carriers to submit annual transparency reports revealing how many requests for data were made, and from which agencies the requests came from.

    Unlike Lofgren’s sweeping bill, the Texas bills only target geolocation tracking. The bills don’t introduce any kind of digital communication protection clause as that would be too difficult to enforce on the state level. As is the case with state laws, it wouldn’t have any effect on federal agencies’ ability to request data without a warrant. It would only be good enough to protect citizens from data requests coming from in-state agencies and law enforcement.

    So, what’s the big deal then? Why is this so important when the protections are so weak? In this case, it’s all about the idea, and what it represents. A successful passage of this bill would send a message to other states that it can protect their citizens’ digital privacy in a small way. If enough states pass similar bills, it would also send a strong message to the federal government to enact similar laws on the national level.

    The beauty of our government is how the states can influence national decision making. It’s happened in the past, and is still happening today in various other legal arenas. Digital privacy is an important topic, but the toxic environment in Washington has prevented any meaningful reform. We now have a chance to enact change, no matter how small, across the country one state at a time.

    Do you think the states could kickstart a push for federal law reform? Or are the potential protections offered by states enough? Let us know in the comments.

    [Image: jmtimages/flickr]
    • http://inoutside.biz Imelda Ortega Suzara

      If a person is suspected of criminal activities or has been guilty in the past, the authorities want to prevent that person from continuing criminal activities in the present and future. What is so difficult about obtaining a warrant to search suspects? and ‘quo warranto’ http://en.wikipedia.org/wiki/Quo_warranto if each State makes its own laws that differ from the Federal. Protecting the privacy is for innocent citizens, not those who are suspicious and guilty of crimes that can harm the innocent.

    • Concerned Human

      Why does the higher powers want to take our privacies away? This question should be on everyone’s mind.

      As a child I had parents that controlled my life and restricted me from things. I grew up and became a responsible adult. Now as an adult I have people in power that are trying to be my parents and restrict me from things once again. I understand we need some structure but when will all this big brother activity stop and when will the masses stand up to the false sense of fear we are being fed just so the higher powers can take more of our freedoms away, while at the same time telling us it is for security and for our protection. This is becoming modern slavery and FREE is a dying word.

      I look at the world as a whole and find it odd that the powers that may be say they want the world to come together but are always creating conflict to over take the lesser just to gain control of their economy or at least have a say in what happens with their economy. One oddity is the United States not liking CUBA and will not do business with them but has Guantanamo, which is an American Military Jail and is known to house supposed terrorists and is a place in which the United States conducts violent crimes against humanity such as torture techniques on alleged criminals. I thought torture is illegal and inhumane? Sounds like there is a big hypocrite game going on and those with the money and power get to make the rules and choose which ones to follow. There is no where for a new world to take place on this planet as has happened in the past. We cannot move to a new isle and start over like our ancestors once did. We are now slaves and trying to find our way to freedom once again. Money has bought our planet and even the indigenous people have a limited time of freedom left. They are being pushed to live a life of slavery, away from their traditions and FREE way of life in harmony with earth and nature.

      This new approached to invade our privacy is just another attempt of trying to gain control. The big brother mentality will never end as long as we are all just a monetary figure and those making the profit will keep trying over and over using a different wrapper and a different name.

      Oil, money and weapons that’s what our current planet is focused on but at the same time saying we need a new future. A new future is impossible if they never want to really change. It is easy to preach clean and safe energy but if the higher powers are making more money from oil and controlling us through it, why would they ever want to change something that would give them less control. Nikola Tesla had a vision to give people the basics for free, to use what is around us but his vision was crushed due to greed and the fact they could not control us through the control and billing of electricity, communications, etc.

      It sickens me to know we have been lied to for the benefit of greed and the facts of the lies have been presented but we still move forward listening to more lies and let the same type of people rule over us.

      Our slavery is nothing like what our past ancestors went through, with whips and chains… we are in a new era where bills, work, laws, the mindless security force we call police and military keeps us in line and if all this starts to slip away there is always some form of foreign/domestic invader that will cast fear which will make the masses think twice about questioning our masters. How many more invaders from this planet do we have left before the powers that may be use some entity outside this planet to cast their fear upon us. Living on this planet is becoming more of a privilege than a right…. we should have a right to free life and humanity……… basic human rights.

      Education should be free, food should be fee, water should be free, energy should be free, communication should be free…but all this has been programmed into us at a small age we have to pay for these things…….. What a world we would have if we could focus more on the things in life that make us happy (family, friends, creating better and newer things, more energy put towards curing disease/viruses) making the planet a better place for all of us. FREE thinking would be much more prominent and would help in creation instead of secrecy and deceit due to the money that could be made from an idea. Why would people need to steal if they where given the basics of what makes our society. We are currently in a system that is meant to cause grief and chaos so the greedy can benefit from it. Do you ever think to yourselves why is it we have not really made any major changes to the way we live? Is it because we can’t do it or it’s not possible… it is because there is no profit. Take profit out of the scenario and we have the ability to prosper greater than ever before. The more control that will be inflicted on the human race is going to create more ways people are going to go around the system to survive. Do you ever wonder why pharma meds are being pushed on us and the herbal natural medicines are being hidden, buried, destroyed or even made illegal? More control over us…… Even our food is being tampered with. We are not safe from any of the current bought out leaders that are in it for profit but they say they are there for us. If they were really there for us there would be full transparency and they would not work for the banks/big business, they would work for us. They make us believe they are there for us and most of the masses eat it up and stay in line.

      It’s odd that the thing that comes up the most over and over is money. I believe money is our biggest issue on this planet and until we come up with a better plan, we will never get away from the path we are currently on. This path will only last for so long before it collapses and we will need to start over again but when we start over again will there be true change or will the same evil come back to plague our planet and all the inhabitants again? or will the masses take back true freedom and live a life prosperity on this planet and others to come.

      Currently us humans are the worst creatures on this planet and we do not live in harmony with the planet, we try to make the planet do what we want but soon we will find the planet will take back what is it’s own as well. We are destroying this planet for the profit and the greed fuels the want for more profit.

      Why are people not waking up to the pattern? Do people forget so quickly? Why is it anyone that wants true change and has the ability to offer it gets killed or ridiculed to the poverty house and made a public spectacle.

      True change is not more laws and restrictions against our freedoms, true change is taking what we have and not doing the same thing again and changing to something entirely different.

      All of what I have mentioned above all falls together in respect to our leaders growing need to parent us and look out for us….. This is what I have to say to our current leaders…. ” I had parents and they taught me well. I have had my ups and downs but over all I became a decent human like many have. So why is it that now I need another set of parents telling me what I can and can’t do, after I have already been taught about life.”
      I grew up where our neighbors would say something to us if we were doing something bad but due to the years of governments changing our mentality that is slipping away and now neighbors are afraid to say anything or just do not care or defend their guilty child. Is this the direction you want our future children to follow. We fought for freedom not to give it to the highest bidder but for all of us on the planet to live equal and prosperous lives in harmony with each other and with the planets we reside.

      My dream is one day people will stand up and rise against the evil that is plaguing our earth and I’m not talking about the fabricated lies from the ones that make great financial gains…. I’m talking about standing up to the banksters, the current leaders that do not represent us. We are the the workers, the families that make the world run they should work for us, not us working for them. I believe many of our ancestors left that type of tyranny behind to start a new FREE life, which has now been corrupted again.

      Where can we go now to get away from this new modern slavery?

    • http://www.pakistan66.com/ Ahsan Raza

      why they will do? they like spying on public.

    • Rick

      Yes. The states will always manage things better than the Federal government.

    • Kevin

      I don trust the government at all.

    • John

      It is very important that all Americans protect their freedom. And the government MUST learn to perform to the will of the people. That is Democracy. America unfortunately gives lip service to democracy, but it is a dictatorship, it is elected on giving certain promises which in the main are not kept. And then makes laws that were not part of any election campaign.

      The American people are having their freedom eroded, not only that they are having the means of protecting their freedom systematically removed too. See this discussion on YouTube.


      The people need to stand together, and demand sanctity for their privacy.

      The United Nation has created The Universal Declaration of Human Rights – it’s Article 12 states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

      It’s worth fighting for.

    • http://www.usdaloansdirect.com Usda Requirements

      Part of the problem in control on-line privacy is that the speed of technological innovation. even as it becomes remarkably simple for U.S.A. to share our info with others, it conjointly becomes cheaper and easier to crunch and analyze that info — and store it forever, if necessary.

    • http://www.cbonlinepvtltd.com/blog/ Lucy

      Well it is no surprise that either side failed. On the other hand, only time will tell how successful, the new initiative of the States is