Monday, February 03, 2014

State Senate Committee Blocks Legislation Barring Law Enforcement Agencies From Electronic Gathering Of Metadata Because State Police Opposes It

It's not surprising that the Indiana State Police would oppose Sen. Mike Delph's SB 231, which requires law enforcement agencies to obtain a valid search warrant before using electronic surveillance equipment to capture metadata transmitted by electronic devices. The Indianapolis Star reported recently about the purchase of Stingray software by the State Police and the Indianapolis Department of Public Safety which makes possible the gathering of such personal data in violation of individual's privacy rights under the constitution. Gov. Pence defended the use of the software, claiming that the agency only uses it pursuant to a valid search warrant; however, it is undisputed that law enforcement agencies in the past have allowed private investigators in their employ to use police-owned surveillance equipment to spy on private citizens as a way of skirting the law. I suspect that this practice continues to this day.

The Star reported yesterday in its "Behind Closed Doors" column that the Senate Corrections and Criminal Law Committee blocked Delph's SB 231 on a 5-5 vote. SB 231 would make it a Level 5 felony for a law enforcement agent to gather electronic communications data without a valid search warrant based on probable cause. The bill also prohibits Indiana law enforcement agencies from assisting federal agencies that gather electronic data on private citizens without a warrant or from using information that was gathered by a federal agency without a warrant for a criminal investigation or prosecution. Disturbingly, lawmakers on the panel who voted against Delph's legislation did so because of the Indiana State Police's opposition to the bill.

Meanwhile, the House passed a much weaker bill than Delph's, HB 1384, which is sponsored by State Rep. Mike Speedy, on an 87-3 vote. It pertains only to preventing a law enforcement officer from extracting data from a person's cell phone device who has been detained for an infraction or ordinance violation by a law enforcement officer based on reasonable cause that the device was used in the commission of a crime unless the law enforcement officer first obtains a search warrant. Not surprisingly, State Rep. Ed DeLaney, one of the only members of the General Assembly who is known to have worked for a U.S. intelligence agency, opposed the bill. “We’re disarming law enforcement in advance,” Rep. Delaney is quoted by the Journal-Gazette as saying during debate on the bill's passage. “No one has claimed our cops are over the top or courts or incapable of carrying out the law on privacy or search warrants.
“We’re fighting a problem that doesn’t exist.”

UPDATE: I omitted a separate bill passed by the House, HB 1009, which has more teeth than Speedy's HB 1384. HB 1009 is sponsored by State Rep. Eric Koch. It requires law enforcement to obtain a search warrant to use unmanned drones, with some exceptions. It also would prevent law enforcement from using a real time tracking instrument that is capable of obtaining geolocation information concerning a cellular device or a device connected to a cellular network without first obtaining a search warrant, unless exigent circumstances exist for doing so without first obtaining a court ordered search warrant. HB 1009 passed the House on an 85-11 vote. Rep. DeLaney was among the 11 Democratic lawmakers voting against the bill.


Anonymous said...

Indiana Law IC 5-2-4-5: Political, religious, or social views; associations or activities restricted
Sec. 5. No criminal justice agency shall collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, corporation, limited liability company, business, or partnership unless such information directly relates to an investigation of past or threatened criminal acts or activities and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal acts or activities.

The State MUST put some teeth to enforce that law...or our Constitution and laws just don't apply.

Gary R. Welsh said...

I agree, but when we elect lawmakers, including lawyers, to the state legislature who are totally ignorant of the law, that's a real challenge.

Marycatherine Barton said...

I am glad to read here that only three representatives voted against HB 1384, and I am sorry to know that at least one of those is positioned to be the next mayor of Indianapolis. And applause for Sen. Delph's efforts and I hope that next time round, SB231 will become law.