Can States Do A Better Job Of Protecting Online Privacy?

    March 7, 2013

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]