Digital Privacy, Security Battle Lines Being Drawn Over California Assembly Bill 165

March 22, 2017 |  

In what could be considered a California version of a battle that is as old as the American republic between security and privacy interests, the battle lines are being drawn over a bill from California Assemblymember Jim Cooper (D - Elk Grove)

The legislation, Assembly Bill 165, seeks to modify the California Electronic Communications Privacy Act (CalECPA). Currently, the CalECPA says electronic devices such as cell phones cannot be accessed without a search warrant, a wiretap order, or an order for electronic reader records, or subpoena issued pursuant to specified conditions, except for emergency situations  

In the text of the bill, the California Legislative Counsel's Digest states "This bill would end the application of the Electronic Communications Privacy Act to a local educational agency, as defined, or an individual acting for or on behalf of a local educational agency." If passed, the legislation would modify Section 49052 of the state Education Code and would apply to charter schools, county offices of education and school districts. 

Over 50 groups led by the American Civil Liberties Union (ACLU) are organizing opposition to the proposed legislation saying it would strip students and others at California schools of digital privacy and amount to warrant-less searches. The ACLU also argues that anyone visiting a school campus could be subjected to the rule and it "would return us to those digital privacy dark ages." 

Cooper, who has a law enforcement background having retired from the Sacramento County Sheriff's Department as a Captain in 2014 following a 30-year career, has defended the bill saying it will help protect students from activities such a cyber-bullying. Now in his second term representing California's 9th Assembly District, Cooper has become a leading advocate for school security issues and victim's rights legislation. 

“The goal of AB 165 is to protect students and provide a safe learning environment. It is important to note and understand that school districts have always had the authority to view both personal and district issued electronic devices, as well as notebooks and lockers while on school grounds when school staff establishes reasonable suspicion," Cooper's Director of Communications Skyler Wonnacott said. "AB 165 simply returns the schools' authority they had prior to CalEPCA."

Citing the increased awareness of cyber-bullying incidents that has led to several high-profile teenage suicides, Wonacott added "AB 165 would allow school administrators and teachers the tools necessary to do their job, protect our students and potentially save students’ lives.”

Passed in 2015 with a broad support from Democrats, Republicans, civil libertarians and tech companies, and signed into law by Gov. Jerry Brown, CalEPCA has been praised as model legislation in the evolving field of digital privacy. 

“This is a landmark win for digital privacy and all Californians,” Nicole A. Ozer, technology and civil liberties policy director at the ACLU of California, said in a statement at the time the legislation was signed by Brown. “We hope this is a model for the rest of the nation in protecting our digital privacy rights.”

Along with the ACLU and the Electronic Frontier Foundation, the coalition of groups opposed to the legislation includes civil rights groups such as the Dolores Huerta Foundation to associations like the American Library Association. Ozer said given the current political climate, the preservation of CalEPCA unadulterated is crucial to at-risk communities. 

"California's leaders have pledged to protect families and make sure schools remain safe havens for students of all backgrounds," Ozer told EGN. "Yet AB 165 does the opposite - it rips away current  legal protections when it is more important than ever for local families to be able to communicate safely and privately about immigration, religion, health, and political and social protest." is a due pay member of the First Amendment Coalition which opposes AB 165 and has joined the the ACLU coalition.  


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Amber Enderton said...

It is incredible to me that Assemblyman Cooper can say with a straight face that bill protects students from bullying. This bill puts at risk the students who are most vulnerable to abuse and bullying at school. By allowing schools to demand access and passwords to students phones, laptops, and social media; this allows school to learn about the private lives of students and who they share contact with. It can even potentially out queer students. Putting students in a position to either out themselves or face suspension, even expulsion, is reprehensible.

Don't be fooled into thinking this is merely about schools, either. Law enforcement will be able to have schools access student's devices and social media accounts to search for illegal activity like theft or drugs. This provides and easy workaround from getting a warrant as students would have no protections at schools. That is what this bill is all about. Students being bullied and harassed online have tools readily available to screenshot and show receipts of the harassment they received; and if needed can offer up access to their accounts to show school officials what they've received. This law is completely unnecessary to combat bullying; it's goal is a work around to getting search warrants.

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