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On Monday, Utah became the first state to enact legislation simultaneously protecting location information and electronic communications content, regardless of age, from government access—ensuring that state and local law enforcement can only access that sensitive information when there is good reason to believe that it will reveal evidence of a crime, or in true emergencies.
This is notable for two reasons.
- First, these are the primary two reforms we seek to the outdated federal law that governs our privacy in the digital age, the Electronic Communications Privacy Act (ECPA). While Utah is not the first state to enact location protections (that was Montana followed by Maine) or protections for electronic communications content (that was Texas), Utah has shown that these reforms can pass as a package. Utah can now be a proving ground for ECPA reform, demonstrating that law enforcement can effectively do its job while simultaneously protecting privacy.
- Second, Utah’s new law is also remarkable because of its breadth. The law covers “location information, stored data, or transmitted data of an electronic device.” There is no question that this language provides protections for location information and for electronic communications content regardless of age. It’s also clear that the law covers the use of controversial StingRay technology. There is also every reason to believe that “stored and transmitted data” covers metadata. Ever since the NSA revelations began last summer, the sensitivity of metadata has been widely recognized, and what to do about it has been the million-dollar question. Utah’s new law demonstrates that, as the ACLU has recommended, requiring a warrant for law enforcement to access metadata is sensible and workable policy.
States in every region of the country are actively considering legislation protecting location information and electronic communications content, sometimes together in one package. We hope more states will follow Utah’s lead—and we’ll continue working with state legislators to make that happen.