A bill that would require law enforcement agencies to obtain a search warrant when they want to collect location information from electronic devices, such as data from GPS devices and GPS on cellphones, was passed by the California Assembly this week.
"Location privacy scored a victory," wrote Hanni Fakhoury of the Electronic Frontier Foundation which, along with the ACLU of Northern California, sponsored the bill, SB 1434. The bill, Fakhoury said, also "codifies" the U.S. Supreme Court decision last January that police must get a search warrant before using GPS technology to track criminal suspects.
As the EFF, a civil liberties organization, noted when it backed the California bill:
GPS vehicle tracking isn’t the only way to collect details on where you are and when. Our cell phones create a location data trail throughout the day as they ping nearby cell towers. Many other devices — like tablets — do the same, while mobile apps and other tools can collect even more detailed location information.
The information "should be available to police when it's appropriate," the EFF said. "But this information is extraordinarily sensitive, revealing things like your place of worship, if you are visiting a medical clinic, and who you visit and meet with. We can’t have police making decisions about who to track without any oversight — yet that’s exactly what’s happening."
Data from the ACLU has shown that "law enforcement agencies across the country are collecting location data without a warrant or any court approval," said the EFF.
"We shouldn't have to choose between using our smartphone and protecting our privacy," said Chris Conley, technology and civil liberties policy attorney for the ACLU of Northern California, in a blog posting after the Assembly's vote.
State Sen. Mark Leno, D-San Francisco, who authored the bill, said in a statement to NBC News that California consumers "are rightfully concerned about mobile privacy and the rate at which their location information is being shared with law enforcement."
As privacy advocates cheer the Assembly's decision, it's not all smooth sailing ahead. For one thing, California Gov. Jerry Brown still has to approve the legislation. He vetoed a privacy bill last year, SB 914, that would have required police to get a search warrant before searching the contents of an arrested person's cellphone.
In his rejection of that bill, the governor said he believed it would overturn a state Supreme Court decision "that held that police officers can lawfully search the cell phones of people they arrest," and that the courts "are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections."
(NBC News asked for comment from Brown on SB 1434. A spokesman for the governor said in an email: "Generally, we do not comment on legislation prior to action from the governor. All signings/vetoes are announced via press release and posted on our website.")
And just last week, in a case involving a drug trafficker who was using a pre-paid cellphone, the 6th U.S. Circuit Court of Appeals ruled that law enforcement officials didn't need a warrant to track suspects via cellphones.
"There is no Fourth Amendment violation because (the trafficker) did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone," wrote Judge John Rogers in the appellate court's majority opinion.
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