Ending the DNA Storing and Tracking CA Kids

A new bill seeks to eliminate the California “biobank” created last year over strenuous objections from privacy advocates and some judges.

Assembly Bill 170, introduced by Assemblyman Mike Gatto, D-Glendale, aims to curb the broad and longstanding practice of acquiring and storing the DNA of children born here. The bill, California Newswire reports:

“would strengthen the notice requirements when dried blood spot (DBS) samples are taken from newborns to screen for diseases.

“Gatto’s proposal would require that parents be provided information regarding the retention of DBS samples, including the parents’ right to request the destruction of their child’s DBS. The bill would further permit children to request the destruction of their DBS when they reach adulthood.”

In a press release, Gatto cast AB170 as a defense of Californians’ fundamental privacy interests. “Whenever data is stored, data can fall into the wrong hands. Imagine the discrimination a person might face if their HIV status, or genetic predisposition to a mental disorder, were revealed to the public,” he said. “Parents should have the right to protect their children and people should have the right to control how their personal medical records are used once they reach adulthood.”

Courting controversy

With the bill, Gatto has stepped squarely into a major debate over a rights issue that reaches to the highest levels of the U.S. courts. In Maryland v. King, a 2013 case, the U.S. Supreme Court narrowly upheld a Maryland law that permitted cops to sample DNA in the course of arrest for serious crimes.

As the Washington Post summarized the decision, the justices “ruled 5 to 4 that government has a legitimate interest in collecting DNA from arrestees, just as it takes photographs and collects fingerprints. Rejecting the view that the practice constitutes an unlawful search, the majority said it was justified to establish the identity of the person in custody.”

But that was not the end to legal challenges of DNA takings. In Haskell v. Harris, in March 2014 the 9th Circuit Court of Appeal confronted a class action lawsuit claiming California’s genetic swab policy amounted to an unconstitutional search and seizure. The law authorizing cops to swab after a felony arrest dated to 1998, when the DNA and Forensic Identification Database and Data Bank Act was approved by voters for inclusion in the criminal code.

But the 9th Circuit ruled strongly in favor of the law in light of Maryland v. King.

The plaintiffs had argued “that California’s law is broader than Maryland’s and threatens privacy rights more,” as the San Jose Mercury News reported. But the 9th Circuit rejected that reasoning.

To the frustration of civil liberties advocates, both the Obama administration and California Attorney General Kamala Harris sided with the state of California and against the plaintiff, “citing the national importance of DNA collection laws that 28 states have enacted.”

Despite these setbacks for civil libertarians, the matter was still not settled. In Dec. 2014, a panel of the First Appellate District Court in San Francisco ruled 3-0 that the collection of DNA in the course of an arrest was unconstitutional. The trial court in the case had authorized police to use “reasonable force” to obtain a sample of the plaintiff’s DNA.

So the matter of DNA collection still is not entirely settled.

Security vs. choice

Similar claims to take DNA samples based on the public good have come into play in the brewing fight over Gatto’s legislation. California’s biobank, the Los Angeles Times notes, “holds blood taken with the prick of a heel from almost every baby born in California for the last three decades. It is used to screen for 80 health disorders, such as cystic fibrosis and sickle cell anemia. Unlike most states, California keeps the frozen samples indefinitely and shares them with genetic researchers, for a fee.”

Supporters of the procedure, including state officials, argue “the samples are secure and are used to save lives,” supplying researchers with an adequate supply of genetic material to conduct important tests and work toward advancing public health.

In that way, the fight over AB170 pits two big public policy objectives against one another: security versus choice. This creates yet another uncomfortable cleavage between Democrats.

While one wing of the party has fully embraced a role for government in the details of everyday life, another wing has bridled against what it perceives to be invasive violations of individual rights. For the former, the debate over DNA comes down to the importance of security; for the latter, it comes down to the primacy of informed choice.

Originally published on CalWatchdog.com

CHiPS pass around stolen nude photos of suspects

 

 

chipsCalifornia has come a long way from the innocent days of the “CHiPS” TV series of more than 30 years ago, starring Larry Wilcox and the heartthrob of teenage girls of that time, Eric Estrada, as state motorcycle cops.

Here’s latest, from the Contra-Costa Times:

MARTINEZ — The California Highway Patrol officer accused of stealing nude photos from a DUI suspect’s phone told investigators that he and his fellow officers have been trading such images for years, in a practice that stretches from its Los Angeles office to his own Dublin station, according to court documents obtained by this newspaper Friday.

CHP Officer Sean Harrington, 35, of Martinez, also confessed to stealing explicit photos from the cellphone of a second Contra Costa County DUI suspect in August and forwarding those images to at least two CHP colleagues. The five-year CHP veteran called it a “game” among officers, according to an Oct. 14 search warrant affidavit.

Harrington told investigators he had done the same thing to female arrestees a “half dozen times in the last several years,” according to the court records, which included leering text messages between Harrington and his Dublin CHP colleague, Officer Robert Hazelwood.

Contra Costa County prosecutors are investigating and say the conduct of the officers — none of whom has been charged so far — could compromise any criminal cases in which they are witnesses.

It also makes you wonder about the intelligence of the officers hired nowadays as CHiPS. Didn’t they know that, if they could leer into the digital lives of suspects, somebody eventually also could uncover their digital leering?

This also is another reason to cheer the recent decision by Apple to automatically encrypt all the communications on its devices — and to reject the FBI’s objections about the action supposedly compromising national security. Wired wrote:

At issue is the improved iPhone encryption built into iOS 8. For the first time, all the important data on your phone—photos, messages, contacts, reminders, call history—are encrypted by default. Nobody but you can access the iPhone’s contents, unless your passcode is compromised, something you can make nearly impossible by changing your settings to replace your four-digit PIN with an alphanumeric password.

Rather than welcome this sea change, which makes consumers more secure, top law enforcement officials, including US Attorney General Eric Holder and FBI director James Comey, are leading a charge to maintain the insecure status quo. They warn that without the ability to crack the security on seized smartphones, police will be hamstrung in critical investigations. John Escalante, chief of detectives for Chicago’s police department, predicts the iPhone will become “the phone of choice for the pedophile.”

But what if the perverts are in the government?

This article was originally published on CalWatchdog.com

CA bans state cooperation with warrantless spying

From new regulations on ride-sharing to a ban on plastic bags, Californians lost plenty of liberty this legislative session. But freedom in the Golden State scored at least one small victory in 2014.

Gov. Jerry Brown recently signed into law a bipartisan bill that would ban the state from cooperating with warrantless spying by the federal government.

Senate Bill 828, co-authored by Sens. Ted Lieu, D-Torrance, and Joel Anderson, R-Alpine, would ban state officials from complying with a federal agency’s request for electronic data if the state knows that request is illegal or unconstitutional. The bill is a response to the National Security Agency’s massive surveillance programs that collected phone and electronic data on millions of American citizens.

Lieu stands up for 4th Amendment

Dubbed the 4th Amendment Protection Act, the bill sailed through both houses of the Legislature without opposition.

“I commend Gov. Brown for recognizing that the National Security Agency’s massive and indiscriminate collecting of phone and electronic data on all Americans, including more than 38 million Californians, is a threat to our liberty and freedom,” Lieu said. “We can only hope the feds halt this illegal and unconstitutional practice nationally.”

Supporters of the bill, which include the American Civil Liberties Union of California, the Bill of Rights Defense Committee, California Attorneys for Criminal Justice and the Consumer Federation of California, say that the new law is a symbolic victory for constitutional principles.

“The federal government’s dragnet collection of millions of phone records and metadata is very troubling,” said CAIR-Sacramento Valley Executive Director Basim Elkarra. “We are happy to see California leading the way in pushing back against the unconstitutional data collection by the NSA and ensuring the observance of the Fourth Amendment, as a basic principle of this nation’s founding and democratic values.”

Orwellian technology exposed by Snowden

As CalWatchdog.com first reported in January, Lieu’s legislation comes in response to last summer’s revelations by former defense contractor and government whistleblower Edward Snowden that the NSA has been collecting phone data on millions of Americans. In December, a federal judge ruled that the bulk collection of Americans’ phone records is likely unconstitutional.

“The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Judge Richard Leon wrote in his December ruling.

California’s new law covers “electronically stored information,” which is any data stored in a digital form, as well as the metadata surrounding any communication. Metadata is the “data about data” and can include the time, date, location, duration, origin or identity of the persons. In many cases, such information can be as revealing as the content of a call or email itself.

“New technology is demonstrating just how sensitive metadata can be: how friend lists can reveal a person’s sexual orientation, purchase histories can identify a pregnancy before any visible signs appear, and location information can expose individuals to harassment for unpopular political views or even theft and physical harm,” the American Civil Liberties Union of California explained in its February 2014 white paper, “Metadata: Piecing Together a Privacy Solution.”

Feds occasionally rely on state for data

According to the legislative analysis, federal agencies occasionally rely “upon services provided by the state and/or private entities that provide services on behalf of the state” in order to illegally collect data.

“SB 828 makes clear that the state of California will continue to uphold the Fourth Amendment rights of its citizens, even under pressure from the federal government,” said Anderson, the Republican coauthor of the bill. “Our nation is unequivocally dedicated to stopping terrorism, yet we must be ever vigilant that our desire for safety does not come at the expense of the freedoms and liberty our enemies seek to destroy.”

The new law, which is less than 200 words in length, is scheduled to take effect on Jan. 1, 2015. Here’s the text of the bill:

Senate Bill 828: 4th Amendment Protection Act

The state shall not provide material support, participation, or assistance in response to a request from a federal agency or an employee of a federal agency to collect the electronically stored information or metadata of any person if the state has actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information or metadata.

This article originally appeared on CalWatchdog.com

Millennials & Privacy – An Opportunity for Conservatives

It is well documented that the Republican brand has had a difficult time connecting with millennial voters.  In part, the sophistication of the Obama campaign in both 2008 and 2012 enabled the Left’s message to resonate within the ether of social media, a medium dominated by America’s youth ever since its inception.  Seen as aging and uncool, the Republican image can trace some of its ineffectiveness in the last few elections to their inability to connect with younger voters, particularly in urban and campus environments.  Pew Research polls indicate that millennials (roughly defined as those aged 18-34) are the most liberal of any voting block, and approximately half of those in the category identify with the Democratic Party, while only a third label themselves Republicans.

This could soon change, however.

Not because the Republicans have ascertained the best method for connecting with millennials, but rather because there is an issue upon which conservatives and millennials are increasingly in sync: privacy.  The voting block is increasingly becoming more concerned about the government’s intrusion into their daily lives, both with respect to increased drone surveillance and cyber-spying.  This is especially true when millennials become parents themselves, something occurring with greater frequency over the next several years as millennials age into parenthood.  Research by FutureCast, an organization with expertise in marketing to millennials, notes that, once they have children, the group is three times more likely to have significant concerns over internet privacy when compared to millennials without children.  And as their privacy concerns increase, so does their likelihood to identify with conservatives.

Democrats have long been seen as continuing to increase the government’s reach in the average American’s daily life, and this is equally true over basic privacy matters.  California, historically a good barometer of national trends in politics, recently saw its governor veto legislation that would have curtailed the use of unmanned drones by law enforcement personnel for aerial surveillance.   The bill, sponsored by Republican Assemblyman Jeff Gorrell, would have required agencies to obtain warrants prior to utilizing the technology.  The thought of unmanned drones spying upon Americans going about their daily activities is something that troubles privacy advocates and millennials alike.  Combined with the permanence of digital footprints allowing the government to track an individual’s daily habits, the increasingly advanced “Big Brother” nature of government is starting to become a reality.  As such, millennials tend to look more favorably on the conservative message of caution with respect to big government.

Republicans, inherently skeptical of the effectiveness of expanded government, have an opportunity to connect with millennials over the issue.  As the government’s power to police the skies expands, freedom and liberty for average Americans is infringed.  The issue matters to the next generation of America’s leaders, and conservatives and millennials can increasingly find common ground upon it.

Ben Everard is an attorney and producer based in Los Angeles.

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