Monday, May 06, 2013

Texas House votes to require warrants for old emails stored with third parties

Great news! This afternoon, Rep. Jon Stickland successfully attached a version of his HB 3164, requiring police to obtain warrants for emails stored with third parties (think cloud computing) older than 180 days, to legislation by Rep. John Frullo, HB 2268. Here's how the Dallas News' Karen Brooks Harper described the action, which Grits observed from the gallery:
Frullo briefly tried to fend off an amendment by Bedford GOP Rep. Jonathan Stickland that requires law enforcement to get a warrant before they can get emails from an ISP that are over 180 days old. Currently law says that after an email has existed for 6 months, police no longer need a warrant to get it from the ISP – gmail or what have you.

But that law was written in the 80s, Stickland pointed out – and a lot has changed since then.
“At that time in our state’s history, no one imagined we would have the storage capacity and ability that we have today,” he said. “No one ever thought we’d keep an email for more than 180 days.”

But we do, and after six months they become open season, and so Stickland and a handful of other reps pushed for a change that would require police to get warrants for that stuff no matter how old it is.

Frullo tried to keep it off his bill simply because the language had already been agreed to by stakeholders and he wanted to keep it clean. But, sensing a revolt on the floor and bipartisan support for the amendment, he dropped his opposition and let it onto his bill to keep it from blowing up on the floor – a common tactic employed by this much-friendlier House.
For more background, see a guest column Grits wrote supporting the bill that was published in the Dallas News back in March. The legislation was a key priority of the Texas Electronic Privacy Coalition, with which Grits has been working closely. Though I'm thankful Rep. Frullo accepted the amendment, part of me would have liked to have seen which members would have voted on the record to say police can read your email without a warrant. Apparently  Frullo, like me, suspected their number would be few.

In the era of cloud computing, Stickland's amendment makes a lot of sense. Both it and the bill that mirrors it primarily delete and simplify the text of the search warrant section of the Code of Criminal Procedure on stored electronic communications, getting rid of an array of various, antiquated loopholes. Current Texas law (see CCP 18.21, Sec. 4) says police need only a subpoena to access emails older than six months if the target is notified, or if they don't want to notify the target they can get the information under a very permissive standard in federal law - "material" and "relevant." There's similar legislation moving at the federal level to require a warrant for old emails, though with Congress so dysfunctional there's no telling if it will pass. So Stickland's amendment is timely and may even help influence the national debate on the topic. In the modern era, it's ridiculous to let police access old emails without demonstrating probable cause just because they're stored with Gmail instead of on my hard drive.

The senate companion to Frullo's bill has already passed in the upper chamber and been referred to the House Criminal Jurisprudence Committee, but without Stickland's amendment. So there are still some i's to be dotted and t's crossed before the amendment is on the final, passed bill. And then the senate author, John Carona, must decide wither to concur. You never know, but my bet is that he spares his colleagues a vote that would put them on record saying police can read people's old email without a warrant and lets the amendment stay on.

Congrats to Rep. Stickland and his staff. That's a nice achievement for a freshman legislator. I hope it stays on the bill.

See related Grits posts:

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