Most Californians carry some form of tracking device, like a smartphone or a tablet, but California law currently does not address whether police need a warrant to track a suspect through electronic devices.
That could soon change.
The Electronic Frontier Foundation (EFF) has announced that the California Location Privacy Act (SB 1434), written by Senator Mark Leno (D-San Francisco), is currently awaiting Gov. Jerry Brown's signature. The bill passed both the California Assembly and Senate earlier this summer.
Warrantless GPS tracking has been a hot topic this year. In January, the Supreme Court concluded that physically placing a GPS tracker on a vehicle without a warrant constituted an unreasonable search. In that case, U.S. v. Jones, police attached a GPS tracker to the undercarriage of a car to track a suspect.
While all nine justices agreed in Jones that the cops illegally tracked the suspect, the Court was split as to why the search was improper. The majority found the physical trespass to be problematic, while concurring justices noted that GPS tracking is unlikely to involve physically placing a tracker on a car these days. The concurring justices' point was highlighted by a Sixth Circuit ruling in August, when that court ruled that cops don't need a warrant to track a cell phone GPS signal.
If Gov. Brown signs the Act, it would prevent similar courts battles in California. The ACLU of Northern California, which co-sponsored the bill with the EFF, explains:
SB 1434 makes the necessary updates to California law to protect sensitive location information consistent with the express right to privacy in the California Constitution. Under SB 1434, no government entity shall obtain the location information of an electronic device without a warrant issued by an officer of the court. SB 1434 also guards against abuses of long-term monitoring of an electronic device by limiting search warrants for location information to a timeframe no longer than is necessary, and not to exceed 30 days.
But not everyone supports the measure. In April, CNET reported that CTIA, a wireless provider trade group, sent a letter to Leno explaining that requiring a warrant to track California residents would "create greater confusion for wireless providers when responding to legitimate law enforcement requests."
What do you think, defense attorneys? Do you want the governor to sign the bill? Let us know what you think.
- How the Supreme Court Botched U.S. v. Jones (FindLaw's Supreme Court Blog)
- California Location Privacy Act of 2012 (EFF)
- Warrantless GPS Tracking OK Under Good Faith Exception (FindLaw's Eighth Circuit Blog)