Secrecy, wiretapping turns homeland security bill into Big Brother

Anyone who watches national politics knows that a lot of crappy legislation gets passed in the name of "homeland security," and the same is true at the Texas Legislature. On Tuesday the House Defense Affairs Committee will consider bills pitched as homeland security provisions that extend well beyond protecting us from terrorists, the most significant of which will be Chairman Frank Corte's HB 3642, an omnibus homeland security bill that branches out to odd and surprising areas that risk possible unintended consequences.

A big chunk of the bill addresses the ins and outs of Texas political subdivisions entering into mutual aid agreements in the event of disasters or other emergencies. Not much to complain about here from a civil liberties or criminal justice perspective, though I'm sure agencies involved would have something to say about the logistics and reimburesement regimens. But then the legislation takes some odd and unfortunate turns.

HB 3642 imposes new restricitions on sales of prepaid mobile phones that are essentially similar to the restrictions on pseudoephedrine products aimed at reducing meth manufacturing. Phones must be displayed behind counters where only salespeople can reach them, and purchasers must be 18 years or older, show photo ID, sign a log, and cannot buy more than two phones at a time. The pseudoephedrine restriction has reduced illicit sales but suffers from numerous shortcomings. E.g., many smaller vendors don't abide by registration restrictions, there's nothing to stop use of fake IDs for purchases, and law enforcement has no resources to check signatures in the logs. According to the most recent interim report of the Senate Criminal Justice Committee:

there is risk that the success of recent legislation will be short-lived if enforcement is not improved. While pharmacies and drug stores that sell cold medicines containing pseudoephedrine have complied with the law requiring the products to be moved behind the counter and purchases logged, no authority checks or monitors these logbooks. Currently the books are only used occasionally for investigations usually triggered by other circumstances. Though the logbooks seem to act as a deterrent for users, that alone is not sweeping or permanent enough to be a solution.

The same would certainly be true of restrictions on prepaid cell phones. Yet this bill would re-create the pseudoephedrine regimen even though it hasn't worked well.

It's anyway unclear that this provision relates to terrorism at all. As any watcher of the TV show The Wire are aware, prepaid cell phones or "burners" are more a staple of those engaged in illegal drug sales, which is almost certainly where most uses of such investigative resources would occur. There may or may not be legitimate reason for restricting such phones on that basis, but there is little reason to think of this as a homeland security measure.

Besides, there's no inherent justification I can see for banning anonymous cell phone speech, which is the crux of the issue behind the desire to document cell phone purchases. I'm not an attorney, but it seems to me there are likely quite a few Constitutional free speech concerns with placing such restrictions on cell phones that wouldn't apply to pharmaceuticals.

Another section of the bill allows government agencies to go into closed sessions to discuss security audits and emergency plans. This idea was proposed after 9/11 in Texas and rejected for very good reasons: Emergency plans benefit from public vetting and input, and those created in secret tend to ignore problems that would surface if exposed to the light of day before a catastrophic event.

Computer security experts like Bruce Schneier preach incessantly that "open source" approaches - or making public security problems instead of concealing them - over time enhance security. The same is true for things like evacuations or responses to bioterrorism incidents. Keeping emergency plans secret will only mean that in crunch time the public doesn't understand the plan or what they're supposed to do. Keeping security audits secret means that when security problems are identified, politicians will experience no public pressure to fix the problems, so they may not. Secrecy in these contexts isn't just unnecessary, it's counterproductive - harmful to the goal of ensuring public safety.

The final section of the bill would expand the range of crimes for which the state can engage in wiretapping to include kidnapping, human tafficking and money laundering. Once again, these seem to be tools aimed at drug and immigration enforcement dressed up in the garb of homeland security. Because wiretapping is such a serious breach of privacy, current law restricts its use to the most serious types of crimes. Expanding it further should be debated and discussed in the law enforcement context in which it would most often be used, not under the pretense of protection from terrorists.

It would also expand state wiretapping powers in ways essentially similar to some of the provisions in the federal PATRIOT Act, in particular allowing judges to decide that "exigent circumstances" exist that justify wiretaps that don't specify specific locations where phones will be tapped, but to tap any phone used by an individual. This creates a circumstance where phones may be monitored because an individual might use them, but other people's privacy is invaded as a side effect of the investigation, which is why the restrictions are there in the first place.

These provisions were considered after 9/11 by the Texas Homeland Security Task Force, but then task force chair now-Lt Governor Dewhurst scuttled the idea, declaring that Texas shouldn't react to 9/11 by reducing civil liberties. As far as I can tell, nothing has changed since then to make one think Texas needs to do this now.

This bill contains too many troublesome provisions to pass in its current form. Hopefully the Defense Affairs Committee will simply reject the idea, or else approve the portion of the bill involving mutual aid agreements and dump these other parts.