Regulate GPS tracking of cell phones, electronic devices by law enforcement

The Dallas Morning News on Friday ran an editorial I authored on the need for legislative action to provide greater oversight and transparency regarding law enforcement's access to GPS tracking data from cell phones and other electronic devices. The column appeared behind their paywall, but I've reprinted it below the jump. 

Scott Henson: Austin, end unregulated GPS tracking by police
In an era of smartphones and near-ubiquitous GPS tracking of our cars and electronic devices, Texas statutes protecting its citizens’ privacy have failed to keep up with rapidly changing technology, allowing government access to personal location data from cellphones and other electronic devices without any judicial oversight. Those records are sealed permanently in Texas, without even aggregate data reported, as has long been required when police use old-fashioned wiretaps or trap-and-trace devices.

Mobile-phone carriers told Congress last year that law enforcement accessed their customers’ location data more than 1.3 million times in 2011. Because of outdated surveillance statutes and diminished open-records laws, Texans can’t know how often, nor for what purpose, police gather citizens’ cellphone location data. There’s no way to tell how many of those 1.3-plus million incidents occurred in Texas, nor which agencies most frequently gather location data, much less how often that sort of tracking led to arrests or indictments.

Are such data gathered by “fusion centers” or other intelligence-gathering divisions of law enforcement? Are they used to track political protesters, whether from the Occupy movement or at anti-abortion rallies? Have they ever been misused in ways that resulted in disciplinary actions against officers? Under current statutes, there’s no way to know.

Privacy advocates are asking the Legislature to consider a bill requiring a warrant for law enforcement to access cellphone-location data, with exceptions for emergencies and when the owner of an electronic device reports it stolen. It would also eventually unseal information about law enforcement’s use of those records after the investigation is complete, making such transactions subject to Texas open-records laws. It would require aggregate reporting about GPS tracking comparable to what’s required for old-fashioned (and now rarely used) wiretaps and trap-and-trace devices, giving the public a window onto how frequently law enforcement tracks them.

What little we do know about cases in which location data is gathered raises questions about whether it has been used too broadly. Federal Magistrate Judge Stephen Smith in Houston has written: “Asked to furnish … cases brought against individuals who had been subject to warrantless cellphone 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.”

How state and local jurisdictions in Texas use such data probably varies widely. For the most part, such decisions are made in a murky realm beyond judicial or public oversight that lends itself at a minimum to the appearance of overuse and, potentially, abuse.

Courts have typically been slow to extend constitutional protections to new technologies. The telephone was invented in the 1870s but the Supreme Court did not require a warrant to wiretap a telephone conversation until 1967. There’s no reason to wait that long to install protections for location data emanating from our personal electronic devices.

When the Supreme Court said in U.S. vs. Jones (2012) that placing a physical tracking device on a personal vehicle was a search, Texas law already required a court order, though not a full-blown search warrant, for police to use that tactic. But if police want to request your physical location data over, say, the last six months from your cellphone provider, they need only issue a subpoena. No judge need ever know about it unless they later decide to submit the location data as evidence (which, from the numbers Judge Smith presented from the federal system, doesn’t seem to happen all that often).

These are simple, logical updates to Texas’ criminal law that the Legislature could enact during the 83rd session, without waiting for Congress or the Supreme Court to finally get to the problem many years down the line. Why wait? Texas should act to protect public privacy now and place reasonable limits on location tracking by law enforcement.