Amid lingering criticism and doubts about the feasibility of enforcement, Californians braced for new legislation taking effect in January that will ban almost all handling of cellphones behind the wheel.

Beginning Sunday, law enforcement will be authorized to punish drivers using the devices in accordance with Assembly Bill 1785, authored by Assemblyman Bill Quirk, D-Hayward. “The whole idea is you don’t have the phone in your hand, period,” he told the Sacramento Bee.  

Quirk’s bill, AB1785, plugged what safety officials called a major loophole in the state’s groundbreaking hands-free cellphone laws. Those laws ban talking and texting on handheld phones while driving. But any other handheld use of a phone, such as shooting videos or scanning Facebook, has been technically legal.

Growing risk

Statistics have shown that smartphones make life on the road more dangerous. “The California Department of Motor Vehicles statistics show that in 2015 cellphone distractions while driving caused 12 fatal crashes, 500 injuries and 700 instances of property damage,” Rare observed. Even more recent information has painted a picture of Californians drifting steadily into risky routines. “In a study conducted by the California Office of Traffic Safety in April 2016, at least 12.8 percent of California drivers were observed using a mobile device during the day, up from 9.2 percent in 2015 and eclipsing the previous high of 10.8 percent in 2013,” according to the Turlock Journal. “Due to the difficulty of observing mobile device use in a vehicle, these figures are considered minimums, with actual usage likely several points higher.”

“The OTS study also found that the observed usage rates appear to confirm previous studies, which show more drivers admit to using mobile devices “sometimes” or “regularly” and that fewer drivers believe that talking or texting on a cellphone is a major safety problem. Meanwhile, the percentage of those who say they have been hit or nearly hit by a driver using a cellphone remains steady at nearly 60 percent.”

Although a culture of keeping one eye on the phone and one eye on the road has spread, drivers have not embraced the trend simply for the sake of travel entertainment. Even with GPS, apps have not eliminated the need for basic interactive tasks like following directions, leaving Golden State drivers at risk of citation simply for using their phones as if they were maps. “If you are using your cellphone for directions, it must be placed on the dashboard or windshield of your car,” as the Kern Golden Empire warned. 

Judgment calls

The fines promised to sting multiple industries reliant on drivers legally monitoring and interacting with their smartphones over the course of their daily drives. AB1785 did leave a carveout with affected businesses in mind, allowing motorists to “activate or deactivate a feature or function” of their devices “with the motion of a single swipe or tap of the driver’s finger.” But the narrow rule left many puzzled as to what possible constituency would find the carveout sufficient. “How does a cop distinguish between texting, which you can’t do, and activating or deactivating a feature or function, which you can?” asked the LA Weekly’s Dennis Romero. “Judges will love this law.” Ironically, the number of citations being dismissed in court under the old rules provided an argument in favor of passing AB1785.

Perhaps the gray area surrounding enforcement contributed to the relatively modest size of the fines imposed by the law. “Violators will be subject to a $20 fine for the first offense, with fines going up for additional offenses,” CBS San Francisco reported. But California Highway Patrol Officer Rodney Fitzhugh told ABC 10 “the cost of the ticket is up to the courts and local jurisdictions.”

Although the act is simple, and the reasoning behind the bill seemingly commonsensical, nationwide controversy over the proposal has flared in the Golden State. Senate Bill 962 was introduced earlier this year by state Sen. Mark Leno, D-San Francisco. At first, it was voted down; now, after a frenetic wave of lobbying, it’s back.

Strange bedfellows

That doesn’t mean the battle lines that have reformed around the bill are neat and tidy. Along with the big smartphone makers and marketers, from Apple to Verizon, the Wireless Association (CTIA) strenuously opposed the first iteration of SB962. Now, however, the companies have dropped their opposition, while the CTIA continues to campaign against the bill.

They have been joined in the fight by the libertarian Electronic Frontier Foundation, which raised two key objections to kill-switch legislation. First, mandating one particular technology freezes innovation and prevents new solutions from free adoption and dissemination in the marketplace. “Locking in” technology in this manner becomes especially perverse from an economic standpoint if different state legislatures adopt different rules.

Second, and more important, EFF claimed that kill switch legislation makes it easier for government officials to shut off cell phones regardless of whether their owners want them “killed.”

SB962, EFF alleged, would begin “legitimizing a technical means” to switch phones on and off in an abusive, coercive fashion. EFF noted the bill is “not explicit about who can activate” kill switches. EFF grew concerned about this issue, it wrote, “after wireless service was shut off during the 2011 BART protests. In response, California passed what became Public Utilities Code § 7908, which took great steps to prevent law enforcement from cutting off communications services, though it sunsets at the end of this decade. PUC § 7908, however, also legitimized a legal process for law enforcement to interrupt communications. SB 962, by mandating kill switches in every phone, would legitimize a technical means.”

A broader agenda

Critics have been apt to view that argument as unduly paranoid. But in Minnesota, where the first kill switch bill was voted into law, an additional provision not present in SB962 has raised questions about why legislators nationwide might want to push kill switch mandates. As The Verge reported, the Minnesota law doesn’t just apply to new smartphones. “The law criminalizes buying and selling phones between people without documentation, so the state can track where phones are going.”

Meanwhile, U.S. Sen. Amy Klobuchar, D-Minn., has teamed with four other Democrats to introduce the Smartphone Theft Protection Act, which would impose a single federal mandate for kill-switch technology. The Senate bill wouldn’t go as far as the Minnesota law in regulating used smartphones. But its sponsors haven’t spoken to the possibility of kill-switch abuse, whether by government officials or malicious hackers.

Industry initiative

Complicating the picture even further, the big smartphone companies have worked quickly to get out ahead of legislatures by voluntarily adopting sophisticated cellphone anti-theft protections. As the Washington Post reported, the new CTIA standard ensures users can “remotely wipe data and disable a device with the ability to restore service and data once it’s back in the authorized user’s hands.”

Signatories embracing the initiative included Apple, Asurion, AT&T, Google, HTC, Huawei, LG, Motorola Mobility, Microsoft, Nokia, Samsung, Sprint, T-Mobile, U.S. Cellular and Verizon Wireless.

From a business standpoint, the companies’ efforts make bills like SB962 largely redundant. From a political standpoint, however, the California, Minnesota, and U.S. Senate bills have created an additional opportunity for near-term abuse — and more restrictive, arbitrary regulation in the not-so-distant future.

Now the U.S. Supreme Court has ruled that’s unconstitutional. According to the story, “Justices even said police cannot check a cellphone’s call log, saying even those contain more information that just phone numbers, and so perusing them is a violation of privacy that can only be justified with a warrant.”

Chief Justice John Roberts wrote for the unanimous court:

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Right. The Fourth Amendment is clear:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Since 9/11, and even before, the Supreme Court has been too lax in protecting the Bill of Rights. Maybe things now are turning in a new direction, and away from the slippery slope toward a Stasi police state.

]]> https://calwatchdog.com/2014/06/25/no-more-cop-cell-phone-snooping/feed/ 19 65172 https://calwatchdog.com/2012/07/13/bill-would-protect-cell-phone-privacy/ Fri, 13 Jul 2012 16:27:42 +0000 http://www.calwatchdog.com/?p=30282 July 13, 2012

By Joseph Perkins

Is one of every 186 cell phone users a criminal suspect?

One might think so in the wake of the revelation this week, in a congressional report,  that law enforcement requested data last year from Verizon, AT&T, Sprint, T-Mobile and other carriers on the calls, text messages and, perhaps most ominously, location of more  than 1.3 million of the nation’s 234 million cellular customers.

The growing threat to privacy rights posed by increased police use of secret and, in many cases, warrantless cell phone surveillance underscores the importance of legislation, the California Location Privacy Act, that would require law enforcement to secure a search warrant before accessing location information from any electronic device.

The measure, SB 1434, was approved last week by the Assembly Committee on Public Safety, which followed its approval back in May on the Senate floor. Particularly noteworthy is that the bill, authored by Sen. Mark Leno, the San Francisco liberal, won the support of not only his fellow Democrats, but also Republicans.

That may be attributable in part to questions that remain after the U.S. Supreme Court ruled this past January that law enforcement’s secret attachment of a GPS device on a vehicle constitutes a “search” and therefore requires a search warrant; but it left unsettled whether the same ruling applies to GPS location tracking by way of cell phone.

The U.S. Justice Department maintains that the high court’s ruling, United States v. Jones, does not apply to mobile devices “because there is no trespass or physical intrusion on a customer’s cell phone,” thus no need for law enforcement to obtain a warrant before asking wireless carriers to turn over customer data.

State action

Lawmakers in Sacramento see things differently. The majority believe that the constitutional protection against warrantless searches applies not only to cases of trespass or intrusion, but also to secret cell phone surveillance.

And they have codified that in the proposed California Location Privacy Act, which makes it clear to both “government entities” and wireless service providers that a probable cause warrant must be obtained before compromising a cell phone user’s privacy.

The measure would allow exceptions to be made in cases in which a cell phone user has requested emergency services or law enforcement reasonably believes there is immediate danger of death or serious injury to a person or persons.

The one major shortcoming of Leno’s otherwise laudable legislation is that imposes no requirement on cell phone carriers here in California to provide annual reports on the number of law enforcement requests the receive to spy on their cell phone customers.

CTIA-The Wireless Association, a trade group representing the wireless telecommunications industry, sent a letter to Leno this past April opposing such a requirement, arguing that it would “unduly burden wireless providers,” and that it was doubtful that compliance “would best serve wireless customers.”

Yet, the industry already keeps copious records on data requests for purposes of billing law enforcement for those requests. It could easily compile those records into an annual report to the state.

And as to what best serves wireless customers, reporting or not reporting annual law enforcement requests for cell phone records, most of us almost certainly would prefer transparency.

For while we understand that law enforcement needs certain latitude to apprehend criminals, including use of secret cell phone surveillance, safeguards must be in place to ensure that our privacy rights are not routinely trampled upon.

Thanks to a little-discussed state Supreme Court decision in January, the U.S. Constitution’s Fourth Amendment protections against “unreasonable searches and seizures” don’t necessarily apply in California anymore.

Yet few of our fellow citizens have been upset about this sad loss of our liberties, the state’s law enforcement officials have been happy about the new latitude they’ve been granted to search our most personal information without limits, and efforts to roll back the decision are facing uncertainty — including a governor so closely allied with police unions that he might veto a bill restoring lost civil liberties.

It’s understandable why the case, involving a run-of-the-mill arrest of a low-level drug dealer in Ventura County, hasn’t garnered much attention. But the result of the decision is that if you are ever arrested for any reason, police can rummage through your cellphone and gather every piece of personal information and data available through that phone. Your most secret information — passwords, medical information, finances, love letters, photographs, Web searching history, etc. — are available for police inspection with no limits beyond the curiosity of the police, a real threat given that a smart phone really is a sophisticated computer.

The state high court found in People vs. Diaz that police officials had every right to search, without a warrant, the personal effects of a person who has been arrested, including that person’s cellphone.

A deputy sheriff arrested Gregory Diaz after he drove a drug dealer to a site where the dealer sold Ecstasy to a police informant. Diaz denied involvement in the deal. So after he was taken to the sheriff’s station officials searched his cellphone and found text messages that confirmed his involvement. Diaz sued to throw out the evidence found from the cellphone, arguing that the search was in violation of the Constitution.

Court Ruling

The state Supreme Court found otherwise. California justices cited the U.S. Supreme Court, which has long allowed warrantless searches of people who have been arrested and taken into police custody because the arrested person might have a weapon that could be used against the officer or have evidence that would be quickly destroyed.

“We hold that the cellphone was ‘immediately associated with (the defendant’s) person’ and that the warrantless search of the cellphone therefore was valid,” the court ruled, noting that a cellphone is a form of personal property no different than a cigarette package found in a defendant’s pocket.

The latter point turns an otherwise ho-hum case about a low-level drug dealer into a blockbuster assault on Californians’ most basic freedoms. The justices made no distinctions between items police find on an arrested person. How can justices construe that a cigarette box is no different from a smart phone, which contains unlimited files, photographs, voice recordings, contacts and even offsite file servers that are accessed through these hand-held computers?

The pre-Diaz rules didn’t impose any undue burden on police. If certain cellphone information was relevant to the case, then police were required to do what is typically done in free societies. They would ask a judge for a warrant. But post-Diaz, if you are, say, arrested for public drunkenness, then the police can take your smart phone and just rifle through all the files looking for any information that could implicate you in any crime or simply embarrass you.

“(A) search of a modern mobile device is more like a search of an arrested person’s home or business than it is like a pack of cigarettes, or wallet,” explained an analysis of the decision by Sen. Mark Leno, D-San Francisco, who introduced SB 914 to roll back the Diaz ruling.

Leno’s bill, slated to come before the full Senate after the Legislature’s recess, includes amendments to protect police, who are allowed to search a cellphone without a warrant in a case of imminent danger.

Police unions and their allies argue that defendants will quickly destroy evidence from their phones. But police can take the phones and then get a warrant. They just can’t go on fishing expeditions.

Basically, the unions and their supporters don’t want to give up new powers they’ve been granted. The law-and-order crowd wants us to blindly trust government officials. But we know from reading news stories that governments abuse their power.

Police State

Police officials often misbehave. Government agencies do not have an exemplary record with protecting personal information. I’m tired of this “If you’ve done nothing wrong, you have nothing to fear” mentality, which is the mentality of a police state.

The decision allows police agencies to evade the state’s journalistic Shield Law, which protects disclosures of sensitive information. So now if a sheriff arrests a reporter for any reason, his office has access to all the files and newsroom servers available on the reporter’s smart phone. But anyone with a smart phone — not just journalists — should support the Leno bill.

The Fourth Amendment assures us: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause. … ”

This was a fundamental concern to America’s founders. In her dissent, Justice Kathryn Werdegar (then-Justice Carlos Moreno concurred) decried the decision that allows “police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information. … The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment.”

When this comes to the floor next month, California legislators, and the governor, will have a chance to restore the Fourth Amendment in California. How can this even be controversial?

— Steven Greenhut