Scaled-back Big Brother bill still pushes license plate readers, GPS tracking w/o warrants

Besides a brief update to a blog post from Karen Brooks at the Dallas News, Forrest Wilder at the Texas Observer seems to be the only journalist who covered yesterday afternoon's hearing in the Senate Transportation and Homeland Security on SB 9 - Chairman Tommy Williams' Big-Brotherish, prosecutor-wish list legislation couched as a border security effort - reporting that the bill became "(Somehwat) Less Big-Brotherish" over the course of the hearing. (On Monday, Grits called the legislation "Big Brother on steroids.") In particular, the idea of using checkpoints for immigration checks or nabbing asset-forfeiture income basically ran aground on the rocky shores of reality:

A long parade of witnesses, including the El Paso District Attorney and DPS Director Steve McCraw, pointed out specific ways that drivers license checkpoints can run afoul of the 4th Amendment.

"I don't think it can be the policy that we're going to use driver license checkpoints to boostrap our way into massive amounts of border searchers," said Robert Kepple, the executive director of the Texas District & County Attorneys Association.

Williams asked Kepple if he thought it would be "problematic" if a cop at a state-run checkpoint asked if someone was in the country legally.

"I think it is," said Kepple. "I'm not sure one follows the other."

That should pretty much nip that idea in the bud.

Another Big Brotherish item removed from the bill: Williams said language eliminating the requirement of an "overt act" for prosecution of conspiracy was a drafting error and wouldn't be included in the final version. It later turned out it wasn't a "drafting error" per se but a recommendation from some unnamed Texas prosecutor - just one which wasn't supported by the state association.

There's still a lot of other unpleasant stuff left in the bill, though: Particularly the expansion of license-plate readers, a topic that Wilder wrote about at length last year. Wilder did add that, "The good news for civil liberties and privacy advocates is that Williams seemed amenable to inserting a prohibition on storage of the data into Senate Bill 9." That may help a little, though it's clearly not going to satisfy the folks who showed up in Nazi regalia to give out satirical "Tyranny Awards" (see a YouTube video of an office visit) to Williams and SB 9 supporters. And while I generally disapprove whenever someone proves Godwin's Law in a public debate, it doesn't satisfy me, either.

A vendor representative testified at the hearing that license plate readers scanning thousands of plates per hour don't violate the Fourth Amendment under existing court rulings, and I'm sure that's true. However, what that tells you isn't that license-plate readers are hence automatically a good thing, but that the 222-year old Fourth Amendment never anticipated that technology might allow such sweeping government tracking of the citizenry's movements. That's why some modern courts have extrapolated  a "right to privacy" from the "penumbra" of the Fourth Amendment: It's clear the Constitution's drafters intended the public to enjoy a measure of security from government intrusion regarding personal information and property, even if technological advances have rendered antiquated language about keeping safe one's "papers and effects."

But the item in the bill I personally hate the most is authorization for law enforcement, without a warrant or other court order, to place a GPS tracking device on your car and track you wherever you go. That makes concerns about the license plate readers appear quaint! Wrote Wilder:

Another dodgy part of Williams' bill allows cops in Texas to install GPS tracking devices on people's cars without a court order. Williams said the provision is needed to help Texas law enforcement "track and combat gang activity."

Currently, under Texas law, law enforcement must get a judge to approve the use of a mobile tracking device.

Senate Bill 9 would give Texas law enforcement the same expansive authority as the FBI or DEA, who are free to install GPS devices on cars so long as it's on public property and is part of a criminal investigation.

In the latest version of the bill, Williams has set the provision to expire after two years.

"Dodgy" indeed! Here again, I don't doubt that federal courts have allowed this. The drafters of the Fourth Amendment could never have conceived that such a thing might even be possible, so how can that poor, overwhelmed, one-sentence 18th-century commandment be expected to cover every possible technological nuance in the 21st century? It can't. There are going to be government intrusions that do not technically violate the Fourth Amendment but which still breach the same personal privacy rights the Founders were aiming to protect. This is just such an instance.

Unfortunately, to extend those old protections into new areas - at least if one doesn't want courts finding new "rights" in the Constitution's "penumbra" - we must rely on legislators' good judgment and respect for personal liberty, neither of which seem to be in nearly as great supply today as in post-revolutionary America when the Fourth Amendment was penned. There's absolutely no demonstrated need for this bill so let's hope somewhere in the process, for whatever reason, it just dies.

See related Grits posts:

• More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges
• Big Brother on steroids: License plate readers, checkpoints, and tracking cars w/o a court order up Wednesday
• Making the same old mistakes on asset forfeiture: Profit motive has no place in law-enforcement strategy