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To the Governor’s Desk: Oregon Bill Taking on Warrantless Collection of Cellphone Data

SALEM, Ore. – The Oregon state Senate gave final approval to a bill that would prohibit law enforcement from obtaining information from electronic devices without a warrant in most cases, sending it to the Governor’s desk. The proposed bill would not only protect privacy in Oregon, but would also address a practical effect of federal spying.

Sen. Chip Shields (D-Portland), Rep. Jennifer Williamson (D-Portland), Sen. Tim Knopp (R – Bend) and Rep. John Huffman (R-The Dalles) introduced Senate Bill 641 (SB641) in February. The bill prohibits state and local law enforcement officers from using forensic imaging to obtain information contained in a portable electronic device except with a warrant, or by consent. “Forensic imaging” means “using an electronic device to download or transfer raw data from a portable electronic device onto another medium of digital storage,” but does not include photographing or transcribing information “observable from the portable electronic device by normal unaided human senses.”

SB641 stipulates that any information “obtained” in violation of the law:

(a) Is not admissible in and may not be disclosed in a judicial proceeding, administrative proceeding, arbitration proceeding or other adjudicatory proceeding; and

(b) May not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.

The House passed the bill with amendments on June 11 by a 44-4 vote. The amendment exempts jails, state hospitals, and parole and probation officers from the law, and includes some clarifying language. The Senate approved the amended version of the bill on June 18 by a 26-2 vote. SB641 will now go to Gov. Kate Brown’s desk where she will have the opportunity to sign the bill into law.

As originally introduced, SB641 prohibited any search of an electronic device without a warrant. While the version passed by the Senate allows police to search a phone and look at information readily observable, the legislation still prohibits electronic surveillance and bulk collection of data.

IMPACT ON FEDERAL PROGRAMS

SB641 would not only limit the actions of state and local law enforcement in Oregon, it would also end one practical effect of federal, warrantless spying. By making any information “obtained” in violation of the law inadmissible in court, it would stop state and local law enforcement from using such information shared with them by federal agencies like the NSA.

Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions (SOD). The report revealed the cases “rarely involve national security issues.” Almost all of the information sharing involves regular criminal investigations.

According to the documents obtained by Reuters, after the SOD passes data along to state or local law enforcement, it then works with them to “create” an investigation, working backward to obscure the origin of the information in a process known as “parallel construction.” In other words, not only does the NSA collect and store bulk data and information collected without a warrant, the spy agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in day-to-day investigations.

Former NSA Chief Technical Director William Binney called this process country’s “greatest threat since the Civil War.”

If it is signed into law by Gov. Brown, SB641 would make information and obtained by third parties like the NSA in violation of state law inadmissible in court, ending parallel construction.

Mike Maharrey contributed to this report

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