What limits should exist on police use of personal cell-phone records without a warrant?

Grits was admittedly surprised at how few wiretaps were being approved in Texas state courts, but I'll bet this news explains where Texas agencies are going for detailed information about suspect phone records. The story in the New York Times (July 8) opened:

In the first public accounting of its kind, cellphone carriers reported they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The data, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the past five years, with wireless carriers turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

"I never expected it to be this massive," said Rep. Edward J. Markey, a Massachusetts Democrat who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement's expanded use of cell tracking. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers' responses available to The Times.

Though the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

AT&T now responds to 230 emergency requests a day nationwide — triple the number it fielded in 2007, the company told Markey. Law enforcement requests of all kinds have been rising quickly among the other carriers as well, with annual increases of between 12 percent and 16 percent in the past five years. Sprint led the way last year, reporting more than 500,000 law enforcement requests for data.

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough. Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data — particularly the use of GPS systems to identify the location of cellphones.

The Wall Street Journal mentioned the particular concern regarding "cell tower dumps," which are "requests that carriers provide all the phone numbers of cell users that connect with a tower during a specific period of time. Those phone numbers could include suspects as well as ordinary people making calls in the same area."

At a minimum, Grits thinks cell phone users should be notified when law enforcement access their personal data without probable cause. And given their ubiquity and the amount of personal information on them, searches of seized smart phones should require a warrant. I've not thoroughly thought through, though, every nuance of what that would entail or what other protections may be necessary. Lately it seems like privacy advocates have been playing defense more often than not, fighting intrusive legislation instead of proposing new protections. There's been less discussion, that I hear, anyway, about what new protections are needed.

Written in the 18th century prior to the existence of municipal police forces, much less modern technology, the Fourth Amendment to the US Constitution offers flimsy protection at best from governmental (much less corporate) intrusions into personal privacy, which can be breached by technology much more rapidly, it seems, than the law can react to protect it.

The federal courts have all but abandoned the Fourth Amendment as a legal doctrine that meaningfully constrains government, which means in the near term we must rely - God help us - on the legislative branches, national and state, to limit abuses which would have seemed in the realm of science fiction back when today's Supreme Court justices were in law school. Unfortunately, legislative trends lately have run the other direction. (As the Journal reminded us, "In August 2007, Congress revised national-security surveillance statutes to allow the government to wiretap electronic communications without a warrant as long as one party is overseas.")

That puts the ball in state government's court, and leaves this writer wondering what legislation  might (or should ) be filed at the Texas Legislature to restrict or at least document the nature and scope of law enforcement monitoring of personal phone records.