Texas House approves electronic privacy legislation

Great news!

A pair of bills backed by the Texas Electronic Privacy Coalition were amended onto a Senate bill in the Texas House of Representatives (SB 1052) - one requiring warrants for police to access cell-phone location data and another instituting a warrant requirement for emails stored with a third party.

Rep. John Frullo accepted Rep. Bryan Hughes' HB 1608 (requiring warrants for law enforcement to access cell-phone location data) as an amendment to SB 1052, though not until after after his motion to table Hughes' amendment failed by a whopping 126-4 margin.  Frullo also accepted an amendment to require warrants for email stored with third parties - legislation originally filed as HB 3164 by Jon Stickland. Now, the Texas Senate must decide whether to concur in the amendments or send the bill to conference committee.

Find below the jump a copy of a press release from the Texas Electronic Privacy Coalition lauding the passage of the two amendments.

Texas House says "Get a warrant!"

May 20, 2013 -- Today the Texas House of Representatives voted to improve privacy protections for email and cell phone location data. SB 1052 by Carona was amended on the House floor to require government to secure a probable cause warrant before it can collect detailed cell-phone location data or the contents of email messages from cell-phone or internet companies.

"Most people are shocked when they learn that law enforcement or government agencies like the Department of Insurance can get the contents of email or find out everywhere you've been for the past two months by going directly to your service provider," said Greg Foster, EFF Austin. Under the current legal framework, crafted before cell phones or email existed, government can get data directly from "third parties" like Verizon or Yahoo, and people are deemed to have "no reasonable expectation of privacy" in that data.

"I can't remember the last time I wrote a paper letter to someone," said Heather Fazio, Texans for Accountable Government. "Technology has now made letter writing easier, and delivery instantaneous. That's a good thing. But how is it possible that my electronic letters don't have the same level of protection from government intrusion that my paper letters have?"

It is possible, because the laws were written before the technology was invented. In the 1980s, no one thought people would store data more than six months. Older data was considered "abandoned" and that is still the basic framework today. Texas law requires agencies to get a warrant for the content of email that is less than 180 days old, but agencies can review older email and unsent draft email with a simple request to the email provider. Historic location data works basically the same way.

"If I record my daily activities in a diary, and keep it in a drawer in my house, government needs a warrant to come in and read it," said Claire James, volunteer for the Texas Electronic Privacy Coalition. "But the much more detailed record of my day created by constant transmissions from my smart phone to my cell company are readily available, and that's just wrong."

Some agencies testified that they do get a judicial order for location data under a lower standard than a warrant requires, but since most of this activity occurs in secret, the public has no idea whether such  invasions of privacy actually result in criminal convictions.

EFF Austin, Texans for Accountable Government, the ACLU of Texas, the Texas Civil Rights Project and others this year joined together to create the Texas Electronic Privacy Coalition, determined to reinstate 4th Amendment rights for the smart-phone age.

"That means government needs a warrant based on probable cause to read a person's digital content or track a person's location, regardless of where the data is stored or in what format," said Coalition volunteer Scott Henson. "Today, the Texas House took a major step forward."

UPDATE (May 23): Hope you enjoyed that pyrrhic victory while it lasted! The Texas Senate passed the House companion HB 2268 without the language about warrants for cell-phone location data, though it includes Rep. Jonathon Stickland's language from HB 3164 regarding warrants for cloud-based email stored longer than 180 days. It's now up to the bill authors - Rep. John Frullo and Sen. John Carona - to decide with which version they'll move forward.

NUTHER UPDATE.