With the recent passage of the California Electronic Communications Privacy Act (CalECPA), there have been a lot of questions amongst law enforcement personnel regarding the ramifications of this new law and what it means for law enforcement.
CalECPA has set several provisions in place that are geared to, among several things, guard the end users privacy, provide for a level of investigative notification to the targeted individual and a means to recover information and property legally seized.
For these reasons, I will discuss the new provisions of CalECPA as they were explained to me by legal experts in the field of privacy law. My hope is to expand on the provisions from an “Investigator” perspective and offer some insight into how this new law will affect you, the everyday police officer.
I am by no means a legal expert on the matter, but in subsequent articles, I will share with you my interview with a legal scholar on privacy law and offer a more in-depth analysis of what this law means for law enforcement.
Origins of the Electronic Communications Privacy Act
In 1986, the U.S. Congress passed the federal “Electronic Communication Privacy Act” also known as “ECPA”. Since then states generally followed federal ECPA guidelines granting law enforcement the authority to compel service providers to produce electronic information using subpoenas, court orders, and search warrants. For privacy rights activists, ECPA did not go far enough to protect the public’s right to privacy from a governmental request for electronic communication information (ECI).
In this era of unlimited on-line access to information and the “Internet of Things” (IoT) or connected devices, more and more crimes occurring today have a higher degree of a digital nexus than ever before. It’s becoming common nature for law enforcement investigators of all backgrounds to request digital information from electronic communication providers (ECP) for evidence, follow-up on leads or to solve crimes.
The great debate has been over striking a fair balance between the governments right-to-know, such as protecting it’s citizens from terrorist activity following 9/11, to justifiable court ordered information requests from ECP’s such as Facebook and Google. That debate has also spanned the legal access of digital devices in the recent U.S. Supreme Court decision in Riley v. California regarding the warrantless search of electronic devices.
The California legislatures have taken ECPA a step further. First introduced on February 2015 as California Senate Bil 178 (SB178), and now identified as the California Electronics Communication Privacy Act (CalECPA) seeks to add additional provisions to the federal ECPA statues.
So What is CalECPA
On January 1, 2016, the “California Electronic Communication Privacy Act” went into effect. CalECPA redefines the rules law enforcement have grown accustomed to. These new restrictions, limitations, and mandates are defined in California Penal Code sections 1546, 1546.1, 1546.2 and 1546.4. Collectively, these Penal Codes make up CalECPA.
Although CalECPA statutes determine the authority with which California Law Enforcement agencies can request Electronic communications from electronic communication providers, it would benefit other state law enforcement agencies to be aware of the new California provisions.
All California law enforcement personnel who author search warrants for electronic information from electronic communication providers or search warrants for electronic devices must know, fully understand and be in compliance with CalECPA beginning January 1, 2016.
Due to the abundant nature of CalECPA provisions, I will cover them over several blog posts. Topics to include:
- What CalECPA means for Law Enforcement investigators?
- The important aspects of the law, such as new provisions and requirements for law enforcement.
- How does this affect exigent circumstance situations?
- What are the new notification requirements and how will this affect my case?
- Offer actionable resources for investigators moving forward.
For now, you can read the full text of SB178 here.
In preparation for this and future blog postings, I relied on the 2016 California Criminal Investigation Manual from the Alameda County District Attorney’s Officer as well as information from the California Attorney General’s eCrime Unit training videos regarding CalECPA.
Please keep in mind, this article is to enlighten you to the changes in California statutes regarding the law enforcement request for electronic information. I encourage you to consult with your State Attorney General, local District Attorney or legal authority for your agency for best information regarding electronic communication Privacy Act information for your jurisdiction.