Revelations about the National Security Administration’s warrantless searches of electronic communications raised more than a few concerns from the public.
There’s an expectation of privacy people have, defined and protected in part by the Fourth Amendment. However, there’s also often a legitimate need for law enforcement to use searches and electronic surveillance as part of an investigation.
It’s these interests, along with those of news media and journalists, that a bill authored by Indiana State Rep. Eric Koch, R-Bedford, hopes to balance in Indiana.
The bill would prohibit warrantless searches of electronic communications and devices, and limit surveillance, tracking devices and drones by law enforcement, with some exceptions. The bill has gained support from law enforcement agencies as well as a statewide media organization.
Koch’s bill has passed the House and now is before the Senate Judiciary Committee, where it is scheduled to be considered Wednesday.
It not only addresses specific problems related to privacy — for example, it states that a law enforcement officer cannot compel a person to provide a password to a cellphone without a search warrant — it also provides updated language for the Indiana Code to cover changes in technology in recent years. The first five pages lay out new definitions for different types of technology that are addressed by the bill.
“When our founding fathers were writing the Fourth Amendment, regarding search and seizures, they could not have any idea of what exists today,” Koch said.
The bill also updates protections afforded the media. Indiana has a shield law for journalists, meaning they may not be compelled to disclose sources of information in legal or other proceedings.
Steve Key, executive director and general counsel for the Hoosier State Press Association, brought an amendment to Koch’s attention as the bill moved through the House committee. Though state law offers privacy and protection for journalists, the shield law contains a loophole: The phone records of a news organization can be obtained through a search warrant without knowledge of the organization, potentially putting anonymous sources in danger.
It happened to the Star-Press in Muncie, Key said. A police officer had been giving the paper information, which was often critical, of the handling of a homicide investigation, under the promise that he would remain an anonymous source. Later, a reporter attending a meeting of the police merit board discovered the officer was being fired, and part of the reason was the information he gave the newspaper.
A deputy prosecutor got a judge’s order to obtain the newspaper’s phone records, without the paper’s knowledge, and the police department used the information to discover the anonymous source and end his employment.
“We wanted to close the door on that so law enforcement couldn’t go around the shield law,” Key said.
There are other potential privacy problems that the bill would protect against. There are things called a “Stingray,” he said, that are basically virtual cellphone towers that can track movements and record numbers from calls or text messages from nearby cellphone users. Indiana State Police have at least one of the devices, Key said.
“Stingrays” can be used to collect data that could aid law enforcement officers; however, there are more nefarious uses, too. In the Ukraine, government officials used the technology to discourage protesters outside of a government building, Key said, by gathering the phone numbers of the protesters and sending them text messages.
Issues with this type of surveillance have become increasingly concerning to the public, especially after it was revealed that federal agencies have been using it to gather mass amounts of data on individuals, unrelated to law enforcement investigations.
“I think that hit a nerve because of people’s expectation of privacy,” Key said. “They’re concerned the government’s interests have crossed a line.”
There’s a good chance the bill will pass into law this legislative session, and Koch said he’s optimistic because of the support it has gained. The bill is co-authored by state Rep. Matt Pierce, D-Bloomington, and state Sen. Brent Steele, R-Bedford.
“I talk about it a lot, and the heads in the room start nodding,” Koch said. “It’s always really well received. It’s something that generates a lot of interest.”
Even if the bill is passed, it is not the end of the issue because technology is always changing. However, the bill addresses this, asking the legislative council to assign a committee to study digital privacy this summer.
“As technology evolves, the law will have to evolve,” Koch said. “This isn’t the end, it’s the beginning.”
The Fourth Amendment
“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.”
©2014 the Herald-Times (Bloomington, Ind.)