Saturday, March 16, 2013

Lege shouldn't needlessly expand wiretapping authority

Legislation expanding the authority of local law enforcement in Texas cities with more than 500,000 people to perform wiretaps passed out of the Senate Criminal Justice Committee this week. The bill is SB 188 by state Sen. Joan Huffman; its companion, HB 530 by Fletcher, has been referred to the House Criminal Jurisprudence Committee. Sen. Huffman suggested the legislation would allow for "more efficient" investigations but the bill amounts to a solution in search of a problem and should be roundly rejected. As Grits reported last summer, local prosecutors in Texas rarely seek wiretaps, which right now under state law must be conducted by the Department of Public Safety, so there's no pressing need to expand the number of agencies who perform them.
According to The Crime Report, nationally "Wiretap applications were far more likely to go through state courts than federal courts in 2011." In Texas, though, the opposite is true: State judges approved just two wiretaps in Texas in 2011, according to the most recent data reported in the United States Courts 2011 Wiretapping Report: Both were in Travis County involving drug cases. (See here, p. 298, large pdf.) One of the two wiretaps in Travis cost $104,934 and resulted in 14 arrests. Costs for the other, which lasted 30 days, were not reported and no arrests attributed to it.
You can watch the brief public hearing here (beginning at the 3:06:53 mark), though the discussion barely scratched the surface of the issue since nobody testified against it. This legislation is a repeater: It's something the Texas Legislature has rejected session after session but which local police departments and prosecutors inexplicably continue to push, despite the fact that local agencies have never employed the tactic often. None of the senators asked at the hearing how often wiretaps are used and law enforcement didn't offer up the information, but Texas must report to the feds how often wiretap orders are approved by state district judges. Here's how often Texas judges issued such orders in recent years:

Wiretap orders issued by Texas judges: 1997-2011
2011: 2
2010: 1
2009: 0
2008: 2
2007: 4
2006: 2
2005: 4
2004: 0
2003: 4
2002: 2
2001: 1
2000: 0
1999: 4
1998: 5
1997: 0
So somebody please explain why there's a pressing need to take Texas wiretapping out of the hands of DPS, which has successfully performed this function for years, if prosecutors seek wiretapping authority so infrequently? Certainly that question wasn't answered, or even broached, at the hearing.

Detective Jimmy Taylor from Houston PD argued that law enforcement technology lagged behind that used by criminals but that's an absurd statement given the rise of Stingrays and other invasive surveillance devices. It would be foolhardy to approve wider wiretapping authority before the Legislature finds ways to regulate such new, invasive technologies.

Taylor's main concern appeared to be that, when the feds engage in wiretapping (which happens much more frequently), they don't always share the information. That implied to me that Houston PD wants to engage in duplicative, redundant wiretapping because of turf battles with the feds. For my part, though, Grits doesn't care who gets credit for a bust as long as the crimes are being investigated. If the full Senate doesn't vote against SB 188, hopefully the House will find itself less disposed to needlessly expand the scope of police surveillance.

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