Monday, August 11, 2014

Reshuffling chairs benefits cell-phone privacy bill in Texas Senate

If, like me, you're prone to indulging in political tea-leaf reading, here's some potentially good news for Texans who favor keeping their cell-phone location data private!

In 2013, state Sen. Craig Estes (R) of Wichita Falls and Sen. Juan "Chuy" Hinojosa (D) of McAllen both filed ultimately unsuccessful legislation to require law enforcement to gain warrants to access cell-phone location data, except in emergencies or at the request of the phone owner. A similar provision by state Rep. Bryan Hughes passed the Texas House as an amendment on a 126-4 vote but was not included in the final bill.

Now, Sen. Estes chairs the Senate State Affairs Committee which has received an interim charge to recommend legislation on a topic he was already championing! That should give cell-phone privacy legislation a significant boost in the 84th session.

The story of the current interim charges on electronic privacy is an object lesson regarding the unpredictable vicissitudes of politics. Interim charges were first requested by the House Criminal Jurisprudence Committee, but were not assigned by Speaker Joe Straus. One hopes Straus is not blocking the effort to spite the House author, with whom he has feuded in the past on other matters. After all, the bill had 107 joint and co-authors including a majority of reps from both parties! Most of his members want this!

Anyway, those of us hoping for movement on this bill were a bit deflated. Then, Lt. Gov. David Dewhurst revived the issue, assigning an excellent set of interim charges on these and related topics to the Senate State Affairs Committee. Suddenly, it looked like the issues would receive a thorough vetting before the 84th Legislative session after all. At least, right up until State Affairs Committee Chair Robert Duncan left his post to become Chancellor of Texas Tech and the Lt. Governor lost his primary and became a lame duck, as did the committee's vice chair, Robert Deuell (a great if under-remarked loss to the body on many levels). With the committee leaderless, a State Affairs staffer told me as recently as last month that they likely wouldn't hold hearings and would somehow generate a committee report without them.

Texas Senate State Affairs Chairman Craig Estes
Then, the Lt. Governor recently named state Sen. Craig Estes as the new chair of the State Affairs committee, a development I missed while vacationing in Mexico. As one of two Senate authors of legislation to require warrants in most cases for police to access cell-phone location data (Chuy Hinojosa was the other one), one would expect him to confront those aspects of the committee's interim charges with more than just a passing interest. These interim charges just got a LOT more interesting.

The House was already primed to pass the Hughes/Estes/Hinojosa legislation and this development sets the bill up to have a much better chance in the Senate in 2015.

Of course, there's many a slip twixt the cup and the lip. If Dan Patrick comes in as Lt. Governor and replaces Estes as State Affairs chair, that could reverse what currently looks like home-field advantage for the bill in that particular committee, depending on the replacement. And who knows where Greg Abbott will come down on the topic? Time will tell. But the odds of a cell-phone privacy bill's passage next year improved tremendously with Craig Estes' ascension to chairman of State Affairs, no question about it.


Anonymous said...

Didn't the SC just settle this in June by stating that you have to have a warrant to search a cell phone at arrest?

Gritsforbreakfast said...

Different issue, 11:46. This is about location metadata held by your service provider. The federal circuits are split with the 5th (IMO) going the wrong way.

Anonymous said...

Grits is correct. The issue here is not searching the cell phone contents but warrantless gps tracking. The problem in Texas is the 5th circuit has ruled that no warrant is needed. However this is a HOT debate nationally with organizations like Digital Due Process and others lobbying the U.S. Congress to review ECPA the electronic privacy statute dealing with the issue. I believe/hope the supreme court will soon relieve us from this BOGUS 5th circuit decision. The police need to get a warrant before tracking people down using cell phone GPS.

concerned said...

Please help! We don't know this person but a whole group of people are trying to find this inmates family but nothing so far. The link has been sent out to anyone and everyone that will listen.

concerned said...

this utube video is of someone talking about how they abuse and beat a mentally ill inmate and get rid of evidence. someone holding their cell in their lap is recording as they are talking. In case the video is deleted several of us have a copy downloaded.

Gritsforbreakfast said...

concerned, stay on topic please.

Anonymous said...

To stay on topic--the major problem I have with the bill is that, as currently written, it does not allow law enforcement to obtain information to locate a person charged with a felony offense. There are many times that law enforcement uses cell phone tracking for the sole purpose of executing a felony arrest warrant (i.e. no evidence is being sought--just the arrest of the defendant).