Texas at forefront of national debates on electronic privacy

A couple of national stories have implication for electronic privacy legislation presently moving through both chambers of the US Congress:

Law enforcement as computer hackers
Texan Jennifer Valentino-DeVries broke the story for the Wall Street Journal,, but since her article is behind their paywall see a summary from Slate by Ryan Gallagher about a decision by Houston Magistrate Judge Stephen Smith this week to deny "an FBI request to install a spy Trojan on a computer in an unknown location in order to track down a suspected fraudster. The order rejecting the request revealed that the FBI wanted to use the surveillance tool to covertly infiltrate the computer and take photographs of its user through his or her webcam. The plan also included recording Internet activity, user location, email contents, chat messaging logs, photographs, documents, and passwords."

Grits was privileged to meet Judge Smith and hear him talk on related Fourth Amendment topics at a conference at the Yale Law School earlier this year, so I'm not surprised to learn he's requiring more information from prosecutors before allowing the use of this sort of spyware. Wrote Gallagher, "Back in 2007, the bureau was revealed to be using a spyware that could infect computers and gather IP addresses, the last visited website address, and a range of other metadata. But the spy Trojan disclosed in the Houston documents is far more advanced, capable of copying content and turning a person’s webcam effectively into a surveillance camera."

Federal electronic privacy legislation moving
Relatedly, yesterday the Senate Judiciary Committee approved legislation requiring a warrant to access emails held by third parties more than 180 days old, a bill that mirrors Texas legislation by freshman state Rep. Jon Stickland to require warrants for state and local law enforcement in Texas to access old email. Meanwhile, in the US House a congressional subcommittee heard testimony yesterday related to regulating law enforcement access to cell phone location data. See their press release. DOJ declined to testify at the hearing. The chair said he was tempted to leave an empty chair at the witness table in case they changed their mind. Go here to access the congressional webcast and written testimony from invited experts. See more from the Blog of Legal Times and ACLU's Free Future Blog. Texas' HB 1608 by Hughes requiring law enforcement to obtain a warrant for cell-phone location data was recently reported favorably out of committee and now needs the House Calendars committee to set it as soon as possible for a vote.

More on location tracking and biometrics conference
Finally, the Connecticut Law Tribune this month published a story about the conference Grits attended in early March at the Yale Law School on Location Tracking and Biometrics. Thanks again to readers who generously paid for that trip; I learned a lot there. Here's my own blow-by-blow coverage of each of the panels at that event.