Timely panel on online privacy: Assessing prospects for Texas legislation

One wouldn't fancy Grits would be asked to address a roomful of computer geeks, but I'm headed later today to participate on a panel at Texas Linux Fest dubbed an "Online Privacy Discussion" along with Ron Yokubaitis, Co-CEO of Golden Frog, attorney Scott McCollough, and Brian Hauss, a Legal Fellow from the national ACLU.

Very timely topic, considering all that's going on in the world. The federal Eleventh Circuit Court of Appeals this week ruled a warrant is required to access historic cell-phone location data, a ruling which contradicted the Fifth Circuit (which includes Texas) and frustrated Orin Kerr to no end. (A pretty obvious pickup for SCOTUS, one would think, with blatantly conflicting circuit rulings.) The governor of Tennessee recently signed legislation requiring state and local law enforcement to gets warrants for cell-phone location data in that state, joining Montana, Maine, Utah, and Virginia in the club of states who did so through the legislative process. Supreme Courts in New Jersey and Massachusetts have implemented state-level warrant requirements in those states.

Everywhere you turn, electronic privacy is a hot button issue. Motherboard has a story this morning about stingrays or "IMSI catchers" (see prior Grits coverage) titled "Stealing cell phone data is so easy, even police departments can do it."

Grits knows little about Linux beyond some inept and so far fruitless fumbling with a Raspberry Pi. I'm joining the LinuxFest panel on behalf of the Texas Electronic Privacy Coalition (whose website is in woeful need of updating!) to talk about why Texas' legislation requiring warrants for cell-phone location data didn't pass, why an amendment requiring warrants for email and other cloud-based content did, interim charges on the topic prescribed by Lt. Gov. David Dewhurst in the senate, and prospects for electronic privacy gains in the 84th Texas Legislature next spring.

The main difference between 2013 and 2015 is that, when Texas' bills protecting location data and cloud-based content were filed and heard in committee in early 2013, Edward Snowden hadn't changed the world yet. If his revelations had come two months earlier, legislation by Rep. Bryan Hughes in the House and/or bills by Senators Juan Hinojosa and Craig Estes in the Senate would have easily passed, I've little doubt. Nobody in the political class had ever heard of "metadata." The issue was (relatively) new to everyone whose name was not Christopher Soghoian; it had to be explained, repeatedly, often laboriously. Once legislators understood the bill, it was popular (107 joint and co-authors in the House). An amendment containing the bill language passed 126-4 in the House, but was left off the final version of the bill to which it was amended thanks to a legislative maneuver by the senate author (who incidentally was defeated in a primary and is not coming back - Adios, John Carona!).

The interim charges on electronic privacy in the Texas Senate State Affairs Committee that looked so promising when David Dewhurst announced them are now in limbo and nobody knows when or even if there may be hearings. Heck, nobody knows who would even call such hearings. State Affairs Chairman Robert Duncan was appointed to be chancellor at Texas Tech, vacating his seat, which awaits his replacement via special election. The vice chair, Robert Deuell, lost his primary and probably isn't real motivated to aggressively pick up the mantle. Dewhurst could appoint someone else, but he's a lame duck, too. And with elections in November, there's not a lot of time for someone to come in new and start from scratch - these aren't the only issues on the committee's plate.

So, while State Affairs staff is working on the interim report (because somebody has to), there may be no interim hearing unless a few senate dominoes fall in the near future, I'm disappointed to report. Nobody knows anything for sure. But even if the State Affairs Committee remains temporarily dormant, electronic privacy issues are bubbling up in the news almost daily and the Lege can count on being asked again to address them next year.