Friday, January 11, 2013

First MSM coverage of push to require warrants for GPS tracking by law enforcement

The Dallas News today has coverage ("Texas civil liberties advocates  seek limits on law enforcement tracking cell phones," Jan. 10) of Grits' efforts to seek legislation requiring a warrant for police to access cell-phone location data, a topic with which regular readers will be familiar. The article opens:
Smartphones and certain apps can help you find where your kid is hanging out, check on the whereabouts of an absent co-worker or spy on your spouse.

But the satellite navigation that allows for such tasks also helps police track a phone user’s exact location, and Texas civil liberties advocates say that kind of surveillance without court approval goes too far.

They want to update state law to require a court-ordered warrant for cellphone GPS tracking by law officers, with some exceptions. Police can currently track someone’s whereabouts by requesting cellphone company records, said Scott Henson, whose Austin-based is influential among criminal-justice policy watchers.

“The law has not kept up with the technology,” said Henson, who is circulating proposed legislation to modernize the state Code of Criminal Procedure. No lawmaker has agreed to sponsor the measure yet, he said, but “folks really seem to intuitively understand that it’s a big deal.”

The American Civil Liberties Union of Texas and EFF-Austin, a “cyber liberties” organization, are also working on the effort, part of a national movement toward tightening up privacy for mobile device users.

Texas law officers currently have to get a court warrant for a wiretap, Henson said, and a court order is required before police can attach an electronic tracking device to someone’s vehicle. But he said the rise of smartphones equipped with GPS navigation means police can simply subpoena tracking records from cellphone companies, which received 1.3 million such requests in 2011.
Working with EFF-Austin, the ACLU (both state and national) and volunteers from among Grits readers, my wife and I put together a draft version of legislation we'd like to see filed and this week began making the rounds to seek out potential sponsors. Nobody has bitten yet, but I've been gratified at the reception in the Lege offices we've visited so far and suspect we'll soon find someone to carry it.

The Dallas News story quoted a police union rep who seemed surprisingly sanguine, if grouchy, about the bill's prospects:
While police respect privacy rights, law enforcement uses technology to combat crime, just as criminals use it for their purposes, said Charley Wilkison, public affairs director for the Combined Law Enforcement Associations of Texas.

“It’s a balance between the freedom of the individual … and the right of law enforcement to try to get at the bad actors,” he said.

Wilkison said accusations that GPS data is used broadly by police to spy on regular citizens are “a damn lie.” But he acknowledged that civil liberties advocates have a receptive audience among many lawmakers because of the “strong libertine, independent streak” in Texas.
To be clear, nobody said that "GPS data is used broadly by police to spy on regular citizens," so that's a red herring (Charley's a master at concocting them). But it's also true that, because requests by police for GPS data are sealed forever, nobody can know for sure what they're doing with the information. Similarly, nobody is saying that law enforcement shouldn't access GPS tracking data to fight crime, only that the tactic in most cases should require judicial oversight and, eventually, the public should get to know how those methods are being used.

That said, there is some evidence that requests for cell-phone location data are being used quite broadly by the feds, including in thousands of cases where charges are never filed, but nobody knows how frequently Texas agencies use the tactic. Federal Magistrate Judge Stephen Smith in Houston has pointed out that, when “Asked to furnish … cases brought against individuals who had been subject to warrantless cell phone tracking since 2001, the Department of Justice identified…about 38 cases a year. Given that the federal government obtains tens of thousands of these orders every year, this data suggests that the government is spending more time chasing the innocent than the black sheep and ne’er do wells.”

My guess would be that how and how often Texas law enforcement agencies access GPS tracking data varies widely. Some may misuse the privilege, while others may be more circumspect. If this bill passes, we'll get to find out. However, we know for certain that any possible abuses can never be uncovered under the current system, where not just the public but even Texas judges can be kept in the dark when law enforcement accesses those records, which require only a subpoena to obtain.

Unreported in the Dallas News story, but importantly, the version of the bill we're shopping includes exceptions to the warrant requirement during immediate, life-threatening emergencies and when the owner of an electronic device has reported it stolen. Also, to clarify, the bill includes not just smart phones but also regular cell phones (which are used by 88% of American adults) and other personal electronic devices that generate location data.

See a fact sheet regarding the proposed legislation that we're distributing as we look for bill sponsors. If you're a lege staffer and think your boss might be interested in carrying this bill, or if you live in Austin and are interested in volunteering for the effort, please shoot me an email.


Thomas R. Griffith said...

Hey Grits, first and foremost -Congrats!, you are in print even if they (the reporter's name seems to always be "DMN") decided 'Not' to use the last paragraph to include the most important portion of your Team's "exceptions" that you've taken time to clarify here.

Second, Charlie knows damn well that cops have & will utilize the loophole (secrete tool) to spy on people. Why wouldn't you check up on the wife, the ex and that Mofo that turned you and / or your partner into the I.A. 5 years ago? Exactly. Especially, if you can do it like it never even happened. Then, now that I think about it, how many of them (Legs) have cop buddies that they use to check up on their targets of interest on the sly? Cheaper than a P. I.

Third, the reason you are running into brick walls is simply tied to the fact that CLEAT and the multitudes of Texas L.E. clicks' are in these folks back pocket in the form on campaign contributions. Don't believe it, then prior to showing your hand; consider asking the next Leg monkey if he supports CLEAT? Or you can look at his back window for the decal or on the wall behind them for the framed certificate.

Fourth, what would it take to get you to ask the Leg to consider filling a bill to "Stop the Cherry Picking for Justice". Do you need a draft version or do you get the drift? Thanks.

Gritsforbreakfast said...

No "brick walls" yet, Tom. We've really only just begun seeking bill sponsors.

Anonymous said...

This really is crazy to hear... I had a friend tell me about this not to long ago... I feel it is against our rights & our liberties... I can't believe this has been allowed for so long... its wrong 4 them to be able to basically spy on anyone with little to no effort... I can c it to b ok to get these real criminals who threaten good honest peoples well being... I sure pray that they will get someone to sponsor this bill very soon so people r being protected... thumbs up to u all 4 doing this 4 the rest of us....

Thomas R. Griffith said...

Hey Grits, is there anything that we the friggin people can do (from the compfort of our homes / work places) to assist?

*Sounds like it'll take a Petition or two along with an email, phone call blitz and published testimony of those affected by the negative side effects of being tracked with-out a real legal cause. Then there's the whole burn phone thing to consider. Thanks.

Gritsforbreakfast said...

TRG: For now we're trying to find bill sponsors, but soon enough we'll be asking folks to contact their members, etc., after the bill is filed. For now, I suppose it wouldn't hurt to contact your rep and senator (find out who they are here), send them a link to the DMN article and the fact sheet, and tell them you really want to see the Lege do something on this this session.

Don't necessarily ask them to carry it - we don't just want any sponsor but the right sponsor, somebody who will be passionate about the issue and have the clout to take it on. But anything you can do to put it on their radar screen would be great, and if they want more information, send them my way at shenson[at]

Thomas R. Griffith said...

Hey Grits, you got it, said & done.

After the email, phone and snail mail blitz they just went through, they'll dream about GFB and be ready for a visit.

On behalf of the public at large Thanks.