'Protect cell phone data from Big Brother'

The title of this post is the headline of an Austin Statesman editorial today endorsing legislation to require a warrant for cell-phone location data. Here's how it opens:

Sophisticated cellphone technology has made it easier than ever before for companies to track our every purchase and advertisers our every mood. And for police departments and other law enforcement agencies to track our every move. As our phones become smarter, our privacy becomes more vulnerable.

Texas lawmakers are considering two bills whose time is past due. They would clarify the application of the Fourth Amendment to cellphone data by requiring police to demonstrate probable cause to obtain a search warrant for cellphone records. The proposed legislation would help limit potential abuses of cellphone data by placing limits on the easy shortcuts such data allows law enforcement to take.

Republican state Rep. Bryan Hughes of Mineola and Democratic state Sen. Juan Hinojosa of McAllen are the primary authors of the proposed legislation, which addresses an issue that has divided the courts. A hearing on Hughes’ House bill was held last month. The bill was left pending in committee. ...

Most of us realize on some level that we give up a degree of privacy when we use our cellphones and other electronic devices. But most of us probably fail to appreciate how easily our electronic actions can be tracked, and what it potentially means. The privacy implications are profound.

One clarification: The editorial says police now access this information under a "reasonable suspicion" standard but the situation is not nearly so clear. By my count, various law-enforcement sources have cited four different standards presently used to access this data - a function of vagueness and confusion created by state and federal laws. Let's quickly run through them.

At the House Criminal Jurisprudence Committee, a representative from the Texas Department of Insurance testified that they routinely obtain cell-phone data with no judicial oversight through administrative subpoenas under Art. 18.21 Sec. 15 of the Texas Code of Criminal Procedure (CCP), which is what one would assume from a plain reading of the Texas statute. Under federal law - 18 USC 2703(d) - the standard is "relevant and material," which is roughly mirrored under Art. 18.21 Sec. 5 of the Texas CCP (though Sec. 5 does not specifically discuss cell-phone data). Some agencies say they use the "reasonable suspicion" standard referenced in the editorial, but there's no statutory basis for it. (They appear to be applying the same standard that's presently required under CCP 18.21 Sec. 14 for the sort of "mobile tracking devices" that SCOTUS addressed in US v. Jones.) And finally, some prosecutors just get a full-blown probable cause warrant already because the law is so unclear: An example would be the investigation of the Kaufman County prosecutor murders, where prosecutors obtained cell-phone data under a probable cause warrant. The truth is, nobody knows for sure what the standard is right now under Texas law, though there are many strong opinions on the topic.

Such confusion occurs because the Lege wrote the statute before cell-phone tracking was common, or at least commonly understood. (It's apparently been going on since the '90s but was first reported publicly in 2005.) Twentieth century law simply did not contemplate this 21st century police tactic so nothing in the statute is precisely on point. The lack of clarity in CCP 18.21 surrounding such a widely used investigative tool is perhaps the strongest argument for the bill. Indeed, this is the 8th session I've been coming to the Texas capitol and IMO CCP 18.21 is the probably the worst-written, most confusing statute Grits has ever personally laid eyes on - state or federal - which is saying something. It's a complete mess, probably deserving of a page-one rewrite. Much of the core terminology dates from the 1960s and '70s when the only computers were mainframes with "dumb" terminals and cell phones, the internet and the world wide web weren't yet twinkles in their inventors' eyes. Indeed, though there was strong disagreement at the House hearing last month, the undeniable shortcomings of CCP 18.21 were the one thing on which everybody - reformers, cops and prosecutors - could readily agree. The federal Electronic Communications Privacy Act, written in 1986, is nearly as bad.

Rep. Hughes has been revising his bill to address specific law-enforcement concerns and I understand it will be ready to vote out of committee Thursday. The legislation should receive a welcoming reception on the House floor, where a total of 107 out of 150 members have signed on as supporters. Sen. Hinojosa has already had a hearing on SB 786 and is waiting for the House bill to come over.

See also an item from the Texas Insider published on Friday discussing the legislation.