Cops, prosecutors, raise white flag, vow to fight on warrants for cell-phone location data

I only saw two news outlets covering electronic privacy debates at the Texas Senate State Affairs Committee meeting yesterday:

• Dallas Observer: Texas cops are going to fight like hell against cell phone privacy protections
• Austin American Statesman: Balancing privacy, police needs tricky, Senate panel hears

The meeting was led by new Chairman Craig Estes who last session sponsored legislation to require a warrant for cell phone location data. See my own written testimony to the committee on behalf of the Texas Electronic Privacy Coalition. The key TXEPC recommendations, fleshed out in greater detail in the full written testimony, included themes familiar to Grits readers.:

• Require law enforcement to obtain a search warrant to obtain historic cell-phone location data.
• Require a warrant to install GPS tracking devices on vehicles.
• Centralize use of 'stingrays,' aka, IMSI catchers at DPS the way the state does wiretaps and require a warrant for their use.
• Limit data retention on innocent drivers for automatic license plate readers, limit access to the databases to trained, authorized personnel, and restrict sale of data.
• Evaluate the Department of Public Safety's unilateral decision to take all ten fingerprints when drivers obtain or renew their licenses based on potential privacy violations involving personal electronic devices using fingerprints in lieu of passcodes.

A big highlight for me was expert testimony by Chris Soghoian, a tech expert now working for national ACLU whose dissertation (pdf) first broke open this issue and spawned my own interest in these location-data issues. Thanks, Chris, for coming down!

The hearing took a strange turn, as prosecutors and a detective from the Houston Police Department insisted that changes to state law last session meant law enforcement already had to get a warrant to access cell phone location data. I'm not a lawyer, but that seems downright bizarre since the bill to require a warrant for location data failed; only content, not "metadata" (as it has come to be called post-Edward Snowden), was protected in the language that passed in HB 2268.

The prosecutors' new stance is especially odd because two different Texas appellate courts ruled in recent months affirming no warrant is currently required in Texas to obtain historical cell-phone location data. The US Fifth Circuit Court of Appeals ruled the same way, creating a federal circuit split. (See a related, earlier Grits discussion.) Indeed, the portion of Sec. 5 in Art. 18.21 of the Code of Criminal Procedure that the Fourth Texas Court of Appeals decision in Ford v. State relied upon was not changed in the amendment to HB 2268 requiring warrants for content. I just don't understand how that claim can be justified.

A case summary of Ford on the prosecutors association website even recommended their members rely on the case for precedent in the future ("Because there is precious little caselaw that construes Article 18.21, this decision could turn out to be helpful to others on that basis as well"). And in Barfield v. State, police obtained cell-phone location with an administrative subpoena and Texas' 14th Court of Appeals in Houston upheld it being admitted into evidence. (The Department of Insurance testified that it, too gets cell-phone location data with only a subpoena.)

There appear to be no court cases supporting this novel view that Texas law already requires a warrant to access cell-phone location data. Its proponents could not even provide examples of local district judges suppressing location data, nor of any jurist denying police access to this information. All they offered were hypotheticals.

But no matter how often they kept repeating that the law requires a warrant now, your correspondent simply sees no evidence for the claim. Again, I'm not a lawyer. But attorneys for service providers like Data Foundry and Golden Frog also insisted that warrants are not required in Texas presently for law enforcement to access location data. And that was certainly the universal, contemporary understanding at the time the 83rd session ended. Just a weird debate to have.

The Observer piece by Eric Nicholson summed up the odd tenor of the event thusly: "The debate over whether warrants are currently required is a bit of a head spinner. (Cops are in the paradoxical position of arguing both that warrants are necessary to obtain cell-phone metadata and that they will fight efforts during the 2015 legislative session to require warrants for cell-phone metadata.)" To be sure, I hope they're right and I'm wrong. I want a warrant requirement for these records in Texas (and nationally, though your lowly correspondent can't do anything about that). But until the judiciary agrees a warrant is required, it's hard to buy what police and prosecutors were selling at yesterday's State Affairs hearing.

Go here if you'd like to watch the whole thing online.

MORE: I was interviewed this afternoon along with Rep. Bryan Hughes on the Texas Public Radio show The Source about yesterday's hearing and location tracking issues generally. Go here to listen to the broadcast.