Thursday, March 21, 2013

86 92 Texas House members have endorsed warrants for personal cell-phone tracking

State Rep. Bryan Hughes, R-Mineola
Check out the updated list of joint and co-authors from state Rep. Bryan Hughes' HB 1608 requiring warrants for police to access location tracking data from cell phones. His four "joint" authors are Reps Lois Kolkhorst, Jon Stickland, Lon Burnam (who like Hughes and three more co-authors, is on the committee that will hear the bill), and, signing on yesterday, Senfronia Thompson, the grand dame of the Texas House. Plus, as of Wednesday, the bill had 81 (!) additional "co-athors," meaning 86 members total have signed onto the bill out of a House chamber of 150.

So a majority of the nine-member House Criminal Jurisprudence Committee has already endorsed the legislation, as have numerous Calendars Committee members, and an enviable bipartisan majority of the House has become co-authors, which (knock wood) should mean the bill, if and when it gets to the floor, will enjoy a welcoming reception. Couple that with bipartisan support for a warrant requirement in the Senate and this idea looks like it has legs. (See earlier Texas Tribune coverage.)

To me, the nascent popularity of this bill speaks to an emerging bipartisan consensus that 20th Century notions of privacy are inadequate to protect personal privacy in the digital age. The Obama Administration may oppose requiring warrants for location data and some of the law enforcement agencies aren't happy about the application of the Fourth Amendment to this purpose. But aside from special interests that actually want to engage in warrantless invasions of privacy, most people consider the idea a no-brainer. Indeed, perhaps the most common response from legislative staffers when the Texas Electronic Privacy Coalition was talking with potential co-authors was, "You mean that doesn't require a warrant already?" Most people carry cell phones or smart phones (which bleed more personal information, even, than older models) and have what to them seems like an eminently "reasonable expectation" that they won't be tracked or monitored without probable cause, even if the courts and the executive branch haven't caught up to them on these questions. That's exactly the sort of situation that requires a legislative solution and it's good to see Texas legislators stepping up to the plate.

UPDATE: As of the end of the day, 3/21, we're up to 87 co-authors, meaning 92 out of 150 House members have already endorsed the bill. MORE: This bill was posted for a hearing in the House Criminal Jurisprudence Committee on Tuesday, March 26. Also on the same committee calendar, HB 912 regulating drones, bills on reciprocal discovery, and a pair of bills adjusting quantities and sentencing categories for low-level drug possession offenses. AND MORE: Apparently this issue crosses party lines nationally, too, with anti-tax maven Grover Norquist teaming up with the ACLU and the Center for Democracy and Technology for a campaign to require warrants for location data. See his essay published March 20. Federal legislation was filed yesterday on the subject but who knows at this stage what are its chances. NUTHER UPDATE: As of April 5, there were 103 co-authors, along with the four "joint" authors and the primary author Rep. Bryan Hughes.

See prior, related Grits posts:


Robert Langham said...


Anonymous said...

I've been following these posts closely and have yet to read--or maybe I missed it---real life examples (much less on a large-scale basis) of ordinary citizens being tracked through their phones for no reason. Based on all of the local MSM stories about the dearth of officers and investigators, it seems unlikely that anybody has the time or inclination to indulge in the surveillance described within all these posts. Not that this means increased privacy is a bad thing (I'm a fan!), it just seems like a popular cause de jure that both sides of the legislature can agree upon before slipping back into divisive politics. The fight for increased court oversight over cell phone tracking seems akin to demanding better A/C units in Alaska. It would be nice to have if needed, but it's not really needed all that much, and there are better things on which to focus our time and energy. That being said, I support your tireless work, I just think the issue has been a bit overblown for what is actually taking place. Yes, I'm aware of the large increase in subpoena requests for tracking information, but it does not necessarily follow that these requests were not justified or appropriate.

Gritsforbreakfast said...

Well, 7:22, nobody can know if they're justified without more transparency. When it's all kept secret, we're both speculating whether the authority has been abused or not. Pass the bill with the reporting requirements intact and down the line, when warrants are unsealed and data is reported, we'll have a clearer picture of what's going on.

That said, when the US Supreme Court said in US v. Jones that mobile trackers are a 4th Amdt search, DOJ had to uninstall 3,000 of them. (Nobody knows the comparable number for locals.) In the case of Mr. Jones himself, DOJ got the same data from his cell phone provider and tried to prosecute him again. His jury hung 6-6 earlier this month.

So cell phones are just a substitute for physical trackers and when courts restricted one they shifted to the next. The technology, though, is moving faster than the courts can regulate it.

Finally, if this is the "popular cause de jure that both sides of the legislature can agree upon," then I'm happy for once - the first time in my lifetime, certainly - to see the Fourth Amendment become the flavor of the month. I can think of worse things.

Anonymous said...

This is 7:22 again.

The transparency aspect is a fantastic, well-made point, and something I had not previously considered. I like it.

I agree the legislature's momentary focus (or is it a glance) on the 4th Amendment is not the worse thing that could happen. However, at the end of the day, this new law, the passing of which seems inevitable, will likely have little to no impact on the day-to-day lives of ordinary citizens (like me and other readers of this blog), though criminals (like Mr. Jones) and defense attorneys will surely rejoice.

It is axiomatic, at least in the US, that more privacy is always a good thing, but it's all relative: the Government will be no more or less likely to track my cell phone once this law passes because I will give them no reason to do so and there are plenty of people like Mr. Jones to keep them busy. Sadly, the biggest effect this law will likely have is less criminals will be arrested because law enforcement will not have the time or resources (namely, a detective pecking away at a keyboard) to procure as many warrants as subpoenas (which are most certainly boilerplate templates). Oh well, a small price to pay for more freedom and liberty.

Anonymous said...

I know Bryan Hughes personally, and have supported his tenure in the Texas HOR without reservation since Bryan first ran for office. I can say without reservation that Bryan holds a strong belief in limited government.

The Fishing Physicist

Gritsforbreakfast said...

10:30, we can all agree this bill won't end world hunger. But this is one (or really three, I guess counting Hinojosa's and Estes' in the senate) out of 6,000 bills filed in the 83rd Legislature. They don't all have to solve every problem. A few of them can be about propping up the poor, sagging, debilitated Fourth Amendment. If it seems overemphasized it's just because it's something I'm working on. Don't take support for one bill as ignoring all others - some of which I support, some oppose, and many of which I just haven't read. There's room, typically, for around 1,000 bills to pass. If you had a good idea for a legislative change that helped 'ordinary citizens' I hope you shared it with the Legislature before bill filing deadline. And I hope you're right that passage of this one is "inevitable." The odds are still mathematically against it, but one can spy a potential path.