Privacy SOS

Governor Brown once again vetoes privacy legislation, siding with law enforcement

California governor democrat Jerry Brown has vetoed drone privacy legislation—a bill that had landed on his desk after passing the state legislature with broad bipartisan support. The measure, which would have required police to obtain a warrant in order to deploy a drone, except in emergencies, was too restrictive of law enforcement, Brown said.

Reuters reports that Brown’s veto message argued “the bill could have imposed standards on law enforcement beyond what is required by both the U.S. and California Constitutions.” But that’s precisely the point of legislating on fast developing questions at the intersection of privacy and technology.

One of the reasons legislatures must step up to the plate on tech and privacy is that it often takes the courts a very long time to reach final verdicts on the constitutionality of warrantless law enforcement searches when new technologies are implicated. In 2014 the Supreme Court ruled in Riley that cops must get a warrant to search our phones after we are arrested. But by the time the court ruled on this issue, people in the United States had been widely using cell phones for at least fifteen years—and cops had been warrantlessly searching them for as long.

Jerry Brown fails to recognize that our state and federal constitutions are floors, not ceilings. Courts cannot be the sole venue for deciding every Fourth Amendment issue as they relate to technology and privacy. Legislatures can and must play a role in shaping the contours of a 21st century right to privacy in the digital age.

Other states have recognized as much. But thanks to its democratic governor, California isn't one of them. His veto of the drone privacy bill in September 2014 isn’t the first time Governor Brown has sided with the cops on privacy questions. In recent years Brown has also vetoed legislation that would have required police to get warrants to track cell phones, and another bill that would have required cops get a warrant before searching a phone incident to arrest.

The Supreme Court corrected Brown’s error on the latter veto when it ruled in Riley. California could have been ahead of the curve if it had passed legislation doing the same back in 2011. Thanks to Governor Brown's veto, it didn't, and it wasn't. Perhaps in another fifteen years the Supreme Court will rule that police must obtain a warrant to deploy a drone, rendering Brown's view of privacy rights in the digital age moot once again.

UPDATE: Relevant:

© 2021 ACLU of Massachusetts.