Thursday, November 07, 2013

Appellate court: no warrant needed to access personal cell-phone location data from telcos

In an opinion that closely tracked and relied heavily on the US 5th Circuit Court of Appeals case this summer authorizing cell-phone location tracking without a warrant, the Texas 14th Court of Appeals recently said in Barfield v. State that law enforcement needn't secure a warrant for cell-phone tracking data obtained from a phone company. Not a surprising ruling given the Fifth Circuit's stance and Texas courts' acceptance of the spurious "third-party doctrine" - a US Supreme Court-created loophole to the Fourth Amendment manufactured in the '70s. (In New Jersey, where courts have never accepted the third-party doctrine, their state Supreme Court recently found a warrant is required in such cases.) But the opinion shows why the Texas Legislature needs to step in to protect Texans' privacy, since neither federal nor state courts so far seem willing to do so.

Regular readers know state Rep. Bryan Hughes and state Sen. Juan "Chuy" Hinojosa came very close to passing such a bill in the 83rd Texas legislative session (2013); in 2015, let's hope the Lege can push the idea through to the finish line.


Anonymous said...

Those who go against the U.S. Constitution and the people of America, hang them high!

Gritsforbreakfast said...

In truth, I don't begrudge the 14th Court following the 5th Circuit on this. I think both are wrong, but their job is not to follow the will of the people. That's what legislatures are for.

For my part, I'm more unhappy with Carona and Frullo for stripping the amendment off (and the House leadership for stalling Hughes' bill in Calendars). You can make a case that the courts are following US Supreme Court precedent from Smith v. Maryland. I may (and do) disagree because I think this application expands the exception to swallow the rule, but reasonable minds can disagree on how broadly courts should interpret the third-party doctrine. Legislators aren't bound by those precedents so they don't have that excuse and could have already fixed the problem had they chosen to do so. Next time.