Wednesday, August 19, 2015

Will SCOTUS require warrants for cell-phone location data after Texas Lege failed twice to do so?

Here's a good summary of the state of legal challenges asking the federal courts to require a warrant for cell-phone location data.

Texas came far closer to requiring a warrant for police to gather cell-phone location data in 2013 than in 2015. This year, a House bill received a late vote from Chairman Abel Herrero, a bill opponent, and was never set for a floor vote by the Calendars Committee. (In 2013, the same bill was placed on a floor calendar too late to actually receive a vote.) In the Senate, Lt. Governor Dan Patrick sent it to the State Affairs Committee chaired by Joan Huffman instead of John Whitmire's Criminal Justice Committee, as would be typical of a bill adjusting the Code of Criminal Procedure. She exercised her pocket-veto power, a prerogative of committee chairs, and refused to set the bill for a hearing.

The Lt. Governor can kill legislation nearly at will in the Senate, so if Dan Patrick chooses to send a bill to Joan Huffman for disposal, there's not much anybody can do about it (except maybe amend Senate legislation in the House). But when the Calendars Committee won't set a bill with 93 joint and coauthors for a House floor vote, after the Calendars chairman voted for the bill in committee, no less, then the bill faces a larger leadership problem that extends beyond the Lt. Governor.

It's possible the federal courts will require a warrant for cell-site location information (CSLI) based on an interpretation of the Fourth Amendment, but that path is uncertain and SCOTUS has only recently begun to overcome the knee-jerk deference to law enforcement on search-and-seizure questions which has characterized its rulings throughout most of the Drug War era.

Grits would prefer a legislative warrant requirement to one written by judges, particularly ones as on this court who are as ancient as they are august. Asking octo- and septuagenarians to apply the Fourth Amendment to 21st century tech (preferably without needing to imagine tiny constables stowed away on coaches) may prove too much for them. If they screw it up, it could be hard to fix. And if there's a lesson to be learned from the federal Electronic Communications Privacy Act of 1986, it's that judging what's important at any given moment is a moving target that must be regularly updated as technology evolves, which is easier done in statute than in case law.

OTOH, one hopes SCOTUS does implement a warrant requirement since a state-level bill in Texas faces clear, persistent obstacles in both legislative chambers, not because the membership of both bodies don't support the bill but because leadership has denied them the opportunity to demonstrate it.


Anonymous said...

Let's hope the geezers of SCOTUS stop sexting each other long enough to read this article. Maybe they would take it up as a challenge to demonstrate to the lowly state legislators how to be 'hip with the times'.

john said...

Texans can have no privacy that would be inconvenient for those in power--and notably their enforcers--because keeping their power "knows better" than rights. I'm so sick of the dangerous minds in power, the oligarchy of abuse. I guess that's how a police state beats down its slaves.
Ever since the U.S.A. P.A.T.R.I.O.T. Act, there's been a top-down disintegration of rights. Like most evolution, it becomes combative in order to guarantee its own survival.
THE GOV SHOULD STOP AT "PROTECT & SERVE." THE LEGISLATURE SHOULD CONSIDER THE CONSTITUENTS FIRST AND FOREMOST. They know that; yet they have little oversight (less all the time) and growing bribery. If it was cronyism as capitalism, now it's fascism as cronyism.

Soronel Haetir said...

I will be extremely surprised if SCOTUS were to rule that any records other than actual conversations require a warrant. I expect the third party doctrine to simply be an overwhelming argument that the court will not set aside.

Especially so for records of which tower were used at any given time rather than an actual GPS report from the phone. Even in the latter case I expect that SCOTUS will say that since the cell user gave the location information in exchange for whatever service the telco is offering (directions, etc.) that the third party doctrine still rules.