In a recent news release, Gov. Gavin Newsom’s office indicated he signed Assembly Bill 904 from Assemblymember Ed Chau, D-Monterey Park, a member of the California Legislative Technology and Innovation Caucus. The bill expands the current definition of what constitutes a tracking device from an “electronic or mechanical device that permits the tracking of the movement of a person or object” to include “any software that permits the tracking of the movement of a person or object.” Here are the takeaways:
• AB 904, which would take effect Jan. 1, clarifies that “the provisions for obtaining a tracking device search warrant apply” if a law enforcement agency uses software to track a person’s movements, “whether in conjunction with a third party or by interacting with a person’s electronic device.” This follows a U.S. Supreme Court ruling that “the use of cell phone location information by law enforcement is an invasion of personal privacy, which requires the granting of a search warrant,” per AB 904. Its author wrote that “with the rest of the country following suit, it is important that California continues to look ahead at the changing landscape of technology and maintains the lead in protecting our residents against unlawful search and seizure,” and pointed out that only “wireless access, not physical contact, with a device, person or vehicle” is needed to install tracking.
• In an email to Techwire, Chau described the bill as closing a loophole that could let law enforcement track people without a warrant by installing software on their electronic devices.
“Recent incidents highlight the use of software-based tracking by federal agencies, so it is not farfetched for local government entities to use this as a tool, as well. By making clear that government entities may not engage in real-time surveillance of individuals through their devices without a warrant, this strikes the right balance between privacy and public safety,” Chau said.
• At its passage, the bill had no known fiscal impact or opposition, and was supported by a group that, at more than 2,000 members, may be the nation’s largest statewide organization of criminal defense lawyers and “allied professionals.” In a state Senate Public Safety Analysis, the California Attorneys for Criminal Justice agreed the bill “closes a loophole in the law,” adding: “Search warrants protect the public from unreasonable searches and seizures, a constitutional right that CACJ supports and believes should be expanded in the face of new technology.”
• Earlier in the session, two civil liberties groups including the American Civil Liberties Union had been concerned that the bill would “authorize software-based tracking by law enforcement.”
“For example, if spyware were installed on an individual’s phone, that software could not only allow law enforcement to track that person’s location but also to access the phone’s camera, listen in on conversations, see the person’s activity on the phone, and collect other sensitive information,” the ACLU wrote, calling for clarification. Chau offered an amendment specifically indicating that “the reference to ‘software’ is not intended to expand the authority of a government entity to use software for surveillance purposes under this chapter or any other law.” The bill as passed specified “(n)othing in this section shall be construed to authorize the use of any device or software for the purpose of tracking the movement of a person or object.”
