First MSM coverage of push to require warrants for GPS tracking by law enforcement

The Dallas News today has coverage ("Texas civil liberties advocates  seek limits on law enforcement tracking cell phones," Jan. 10) of Grits' efforts to seek legislation requiring a warrant for police to access cell-phone location data, a topic with which regular readers will be familiar. The article opens:

Smartphones and certain apps can help you find where your kid is hanging out, check on the whereabouts of an absent co-worker or spy on your spouse.

But the satellite navigation that allows for such tasks also helps police track a phone user’s exact location, and Texas civil liberties advocates say that kind of surveillance without court approval goes too far.

They want to update state law to require a court-ordered warrant for cellphone GPS tracking by law officers, with some exceptions. Police can currently track someone’s whereabouts by requesting cellphone company records, said Scott Henson, whose Austin-based gritsforbreakfast.org is influential among criminal-justice policy watchers.

“The law has not kept up with the technology,” said Henson, who is circulating proposed legislation to modernize the state Code of Criminal Procedure. No lawmaker has agreed to sponsor the measure yet, he said, but “folks really seem to intuitively understand that it’s a big deal.”

The American Civil Liberties Union of Texas and EFF-Austin, a “cyber liberties” organization, are also working on the effort, part of a national movement toward tightening up privacy for mobile device users.

Texas law officers currently have to get a court warrant for a wiretap, Henson said, and a court order is required before police can attach an electronic tracking device to someone’s vehicle. But he said the rise of smartphones equipped with GPS navigation means police can simply subpoena tracking records from cellphone companies, which received 1.3 million such requests in 2011.

Working with EFF-Austin, the ACLU (both state and national) and volunteers from among Grits readers, my wife and I put together a draft version of legislation we'd like to see filed and this week began making the rounds to seek out potential sponsors. Nobody has bitten yet, but I've been gratified at the reception in the Lege offices we've visited so far and suspect we'll soon find someone to carry it.

The Dallas News story quoted a police union rep who seemed surprisingly sanguine, if grouchy, about the bill's prospects:

While police respect privacy rights, law enforcement uses technology to combat crime, just as criminals use it for their purposes, said Charley Wilkison, public affairs director for the Combined Law Enforcement Associations of Texas.

“It’s a balance between the freedom of the individual … and the right of law enforcement to try to get at the bad actors,” he said.

Wilkison said accusations that GPS data is used broadly by police to spy on regular citizens are “a damn lie.” But he acknowledged that civil liberties advocates have a receptive audience among many lawmakers because of the “strong libertine, independent streak” in Texas.

To be clear, nobody said that "GPS data is used broadly by police to spy on regular citizens," so that's a red herring (Charley's a master at concocting them). But it's also true that, because requests by police for GPS data are sealed forever, nobody can know for sure what they're doing with the information. Similarly, nobody is saying that law enforcement shouldn't access GPS tracking data to fight crime, only that the tactic in most cases should require judicial oversight and, eventually, the public should get to know how those methods are being used.

That said, there is some evidence that requests for cell-phone location data are being used quite broadly by the feds, including in thousands of cases where charges are never filed, but nobody knows how frequently Texas agencies use the tactic. Federal Magistrate Judge Stephen Smith in Houston has pointed out that, when “Asked to furnish … cases brought against individuals who had been subject to warrantless cell phone tracking since 2001, the Department of Justice identified…about 38 cases a year. Given that the federal government obtains tens of thousands of these orders every year, this data suggests that the government is spending more time chasing the innocent than the black sheep and ne’er do wells.”

My guess would be that how and how often Texas law enforcement agencies access GPS tracking data varies widely. Some may misuse the privilege, while others may be more circumspect. If this bill passes, we'll get to find out. However, we know for certain that any possible abuses can never be uncovered under the current system, where not just the public but even Texas judges can be kept in the dark when law enforcement accesses those records, which require only a subpoena to obtain.

Unreported in the Dallas News story, but importantly, the version of the bill we're shopping includes exceptions to the warrant requirement during immediate, life-threatening emergencies and when the owner of an electronic device has reported it stolen. Also, to clarify, the bill includes not just smart phones but also regular cell phones (which are used by 88% of American adults) and other personal electronic devices that generate location data.

See a fact sheet regarding the proposed legislation that we're distributing as we look for bill sponsors. If you're a lege staffer and think your boss might be interested in carrying this bill, or if you live in Austin and are interested in volunteering for the effort, please shoot me an email.