'Superheroes value their privacy': Warrants for cell-phone tracking bill could get House floor vote late in day

(UPDATE 5/10: They did not get to this bill before the deadline expired.) The Texas House rolled through scores of bills yesterday, increasing the possibility that Rep. Bryan Hughes' HB 1608 could get a House floor vote. The legislation was theoretically placed as the second item on Thursday's calendar, i.e., today, which is the last day for the House to vote out House bills. But capitol wags have been calling that the "consolation calendar" because it seemed so unlikely the House would ever get through all the bills scheduled ahead of it. But as of this morning there are around 100 bills still unheard in front of it on today's general state calendar - not an impossible number to get through if they continue at yesterday's clip. If it happens, it will likely be sometime approaching midnight, at which point if they haven't reached HB 1608, it and scores of other bills on the calendar behind it all turn into pumpkins.

Work fast, House members, and please for heaven's sake no chubbing! See a Texas Tribune item published today previewing the bill's nail bitingly precarious circumstances.

Anticipating the remote possibility the House might reach this bill, yesterday volunteer Claire James and I (but mostly her, thanks Claire!) distributed flyers promoting HB 1608 stapled to thank you notes featuring Spiderman - because "superheroes value their privacy" - on behalf of the Texas Electronic Privacy Coalition to most of the 100+ joint and co-authors who've signed onto the bill (if you didn't get yours, Representative, we're coming by today). More volunteers from TXEPC coalition member Texans for Accountable Government (thanks guys!) distributed flyers to all the members who weren't co-authors. (At least the ones who hadn't already expressed opposition to the bill.)

"Superheroes value their privacy." I wish we'd thought of that slogan earlier! After all, who guards their privacy more closely than superheroes? Batman, Superman, Spiderman, Captain America - all the great ones employ closely guarded secret identities, not to perpetrate evil but to enable their work for good. One of the items on Batman's utility belt in 2013 surely must be a smart-phone. But we may be certain the Caped Crusader doesn't want his cell-service provider handing out his historical location records. There are some secrets even Commissioner Gordon needn't know, at least without demonstrating probable cause to a judge.

Whether or not the House can whip through its calendar faster than a speeding bullet (cross your fingers), win or lose those 107 joint and co-authors deserve thanks for championing Fourth Amendment rights in an era when they've been consistently trampled. Here's the note we gave them:

 

Superheroes value their privacy

In other House floor news, HB 1790 (discussed here) passed on second reading last night. This was one of the good bills Grits had urged the Calendars Committee to give a floor vote in these final days and one of the few, along with Senfronia Thompson's HB 990, where they agreed with the recommendation. Of course, as Ross Ramsey at the Texas Tribune recently noted, until the Legislature leaves town, nothing is truly, finally dead.

RELATED: Disparate courts which can't figure out how to uniformly interpret the law are an excellent argument for legislative action. From the Volokh Conspiracy's Orin Kerr, see "District judges divided on long-term cell-phone tracking under the Fourth Amendment."

LESS, BUT STILL SORT OF RELATED: At least on the subject of electronic surveillance ... Texas federal Magistrate Judge Stephen Smith - an early voice in the wilderness regarding cell -phone tracking and a judicial superhero in his own right - made related news recently with a written opinion denying a warrant to the FBI "to hack a computer suspected of criminal use" that is likely outside his jurisdiction by installing some mysterious software about which the state would not elaborate. Wrote Smith, the feds wanted to "activate the Target Computer's built-in-camera and snap photographs sufficient to identify the person using the computer. The Government couches its description of this technique as 'photo monitoring' as opposed to video surveillance, but this is a distinction without a difference. In between snapping photographs, the Government will have real-time access to the camera's video feed. That access amounts to video surveillance." Smith concluded that, "This is not to say that such a potent investigative technique could never be authorized under rule 41. And there may well be a good reason to update the territorial limits of that rule in light of advancing computer search technology. But the extremely intrusive nature of such a search requires careful adherence to the strictures of Rule 41 as currently written, not to mention the binding precedent for video surveillance in this (5th) circuit." Judicial oversight of surveillance is important and Judge Smith, and his fellow superhero and Magistrate Judge in Texas' Southern District, Brian Owsley, are shining examples why. Nobody in the legislative or executive branches seems to be asking those questions. But somebody should be. Those guys are performing a great mitzvah by demanding as much transparency as possible around the use of 21st century surveillance technology. (See Grits' writeups of panels Smith and Owsley participated in here and here, respectively.)