As DRT-boxes track Texans from planes, considering options for restricting government cell-phone surveillance

The Texas National Guard is using so-called IMSI catchers, aka "Stingrays" or "DRT-boxes (read: Dirt Boxes, which are IMSI catchers attached to airplanes or drones), which are fake cell towers used to trick your phone into routing its call through government surveillance technology instead of your carrier. See an excellent article by Melissa del Bosque, with one caveat. She quoted Austin attorney Scott McCollough declaring:

“These DRT boxes are far more capable than the old Stingrays,” McCollough said, “The old-style Stingrays were not able to capture content. Guess what? The DRT box is. … These newer ones get everything.”

McCollough knows more than most about the law surrounding cell phone surveillance (some of his clients are small cell-phone companies which must comply with law enforcement requests for customer data). But he's wrong about the tech. The old Stingrays also gathered content, by definition, since the entire call including content is routed through the Stingray, bypassing commercial cell phone towers. And as of 2013, they were already selling an "interception model" of the Stingray for which gathering content was an option.

For several years, your correspondent was part of a coalition which, for a couple of sessions, made a big push at the Texas Legislature to require warrants for the government to gather people's cell-phone location data, which implicates how the Stingrays/DRT boxes are used. But despite more than 2/3 of the Texas House signing onto the bill, it couldn't clear the senate. So we dropped that bill in 2017, though the rise of a new Speaker could reinvigorate the effort in 2019. (Who knows, maybe one of the past supporters will become Speaker next. Most of them were supporters.)

Alternatively, the US Supreme Court is about to hear a case dubbed Carpenter which could end up deciding that warrants should be required for the government to gather and use personal cell-phone location data, which could moot the legislative push for a warrant.

Regardless, use of this tech has expanded beyond the capacity of existing constitutional and legislative structures to restrain it. Whether such restraints come from the judiciary or legislative sources, or more likely both, to me matters little. Folks like Orin Kerr who insist that only legislation is an appropriate solution are IMO disingenuously using the distinction to argue for doing nothing. In this situation, a vacuum of authority is what allowed the government to use these emerging technologies to track average Americans in the first place. Both branches  - legislatures and the judiciary - have a role to play in in preserving Fourth Amendment rights and updating their interpretation to match 21st century realities. It's not enough to protect our "papers" anymore, the cell-phone era exposes much more data about us than just what we write down.

The fact that, in light of that vacuum, the executive branch will use surveillance technology not forbidden to it shouldn't surprise anyone. Texas had a chance to restrict this sort of surveillance tech and didn't do it. So government surveillance is what we get, until one or both of the other two branches step up to stop it.

Pricetag for DPS, Texas National Guard border adventure approaching one billion dollars

So, lame ducks Rick Perry and David Dewhurst plan to commit the state to spending $86 million to continue the much ballyhooed border surge until August. Reported the Texas Tribune, "Gov. Rick Perry announced Tuesday that he, House Speaker Joe Straus and Lt. Gov. David Dewhurst had reached an agreement that will cost about $86 million. If approved by the Legislative Budget Board, that spending will not need a green light from incoming lawmakers, who are set to gavel in in January."

And how to pay for it? "Perry said in the statement that the funding will include $13.7 million from the state’s disaster funds, $47.9 from the Texas Department of Transportation's general revenue bond fund, $7 million from the state's Emerging Technology Fund and $17.5 million from the Texas Public Finance Authority."

This proposed commitment of revenue outside the Appropriations bill by the Legislative Budget Board demonstrates exactly what's wrong with spending so much money on redundant and unnecessary border security measures in the first place: It's cost so much the money must be diverted from other necessary government functions, in this case spending on disaster response, roads, emerging technology, and state-owned facilities.

There's been much talk of a constitutional amendment to limit state spending but little talk of what should be cut. Grits fails to see a single state priority in the budget that's outweighed by the massive, on and off-budget ballooning of frankly frivolous border security spending in recent years. How much are we talking about? Lt. Gov. David Dewhurst told the Tribune that:

“The reason to continue the border surge through the end of the fiscal year, which is Aug. 31, is because some of the newly elected officials may not be focusing on the fact that it's undoubtedly impossible to get a two-thirds vote in both chambers to continue it,” he said. “And once you don't get a two-thirds vote for immediate effect, the surge will stop, we'll have business as usual for the cartels and the $850 to $900 million that we just spent will be all for nothing.”

What could have been done with an extra $850 to $900 million over the last few years? If you spent every dime of it on transportation upgrades it wouldn't be enough, but it'd fill a lot of potholes. Ditto on school finance, health care, universities, or a half-dozen other investments one could name.

In the criminal-justice realm, that's more than enough to have simply eliminated the Driver Responsibility surcharge and funded hospital trauma centers out of the general fund. Or it could have provided more treatment and diversion programming to support local probation departments and helped the state close more prisons. If it'd been spent on some combination of diversion programming and improved guard pay, maybe TDCJ wouldn't face the understaffing crisis that presently besets it.

The border surge was for the most part a policy decision made outside the legislative process by a handful of state officials who are now exiting public service. It was approved after the fact as a fait accompli, though never really interrogated on its own merits as a budget priority before now. Clearly Dewhurst doesn't think there's sufficient support for a two-thirds vote (an assessment which frankly surprises me), so they want to lock in the spending specifically because they don't think it has sufficient political support in the Legislature. Fascinating.

The Austin Statesman added that the agreement between Perry, Straus and Dewhurst was subject to approval at a Legislative Budget Board meeting Dec. 1st, but if past is prologue, that's probably a rubber-stamp formality. It's truly remarkable how much money Texas has spent on this misbegotten border adventure with so vanishingly little to show for it.

UPDATE: The Austin Statesman followed up with a report that the National Guard deployment will only last through the end of March, pointing out that the initial statement on Tuesday "left the impression that the Texas National Guard, deployed by Perry in July, would continue to be an integral part of the enhanced border enforcement effort through the end of the fiscal year" in August. According to the Houston Chronicle, Dewhurst yesterday acknowledged the Guard will "wind down" its presence while the DPS "surge" will continue through August, if the LBB approves the agreement.

So Straus cut a slightly tougher deal with his lame duck counterparts than had been initially reported, though the overall total spent on misguided border security still speaks to off-kilter priorities when one considers the opportunity costs regarding what could have been accomplished with such large amounts of money.

Economics of Texas' border 'surge' unsustainable

I'm glad to see Texas legislators are beginning to question the enormous ad hoc expenditures recently approved for the governor's ill-considered border security surge. Reported the Texas Tribune (Aug. 12):

“The border has got to be secured. We’ve got to stop this,” said Committee Chairwoman Jane Nelson, R-Flower Mound. But the federal government would have to step in to make the effort sustainable, she added. “Month by month, we’re draining state resources that should go to education, should go to highways, should go to water, and we can’t do it forever.”

Democratic Sens. Juan “Chuy” Hinojosa of McAllen and Judith Zaffirini of Laredo emerged as the strongest critics of the deployment. Hinojosa said giving more funding to the Texas Department of Public Safety, which ramped up its border presence in June, would have been more effective than sending in the National Guard. Hinojosa voiced concerns that the National Guard’s concentration in the Rio Grande Valley would simply encourage smugglers and traffickers to move to Laredo and other points north.

"Those are issues that I think were not really thought out and planned out," he said. ...

National Guard and DPS costs will total $17 million to $18 million per month. [Adjutant General John ] Nichols said the costs for August will be somewhat lower, as many troops are still in training and not yet at the border, but the money will probably dry up by mid- to late October. Without a new infusion of financial support, he said, the Guard would then have to begin a gradual drawdown of troops.

Finally! After the state has thrown hundreds of millions of dollars at misbegotten border security boondoggles with little to show for it, the budget numbers are getting SO big that the Lege must confront head-on how to fund it. Given that there are no cost-benefit metrics to show these surges help anyone at all, at any level - especially compared to other public-safety expenditures like treatment courts or anti-recidivism and reentry programs -  eventually one imagines the surge must cease, possibly as soon as October, when the state is projected to run out of funds. Will the 84th Legislature, with Rick Perry out of the picture, choose to spend that money to keep DPS and the National Guard at the border instead of on education, healthcare or roads? Who knows? But it's clear the status quo of a joint DPS-Guard surge is as economically untenable as it is strategically dubious. To keep it up, they'll have to raise taxes or cut somewhere else.

Prison closures, anyone?

CORRECTION: An earlier version of this item misidentified Adjutant General John Nichols as state Sen. Robert Nichols. Grits regrets the error.

'Do border surges work?' For incumbent pols, but not really the rest of us

The Austin Statesman on Sunday published an extended investigative piece on Texas' beefed up border security efforts and posed the simple but controversial question: "Do border surges work?" The article tracks several themes examined on Grits earlier this month about the lack of articulable goals or success metrics for an expensive, open-ended deployment which now includes not just Texas DPS but 1,000 National Guard troops, all of which so far is being paid for, un-budgeted, out of the state's general fund.

Government claims victory both when seizures go up and down, making the metric meaningless for evaluating whether taxpayer money is well spent funding "surge" efforts. The authors attempt to apply a normative analysis based on the facts and interests at stake and concluded there's little evidence Texas boondoggle border surges are helping the problems they're ostensibly aimed at resolving. All these troopers and soldiers arrive at the border with no obvious jurisdiction or meaningful role to play.

Still, the bottom line answer to "Do border surges work" is "Yes," though not for the reasons one might think. Certainly they're not thwarting illegal immigration, drug smuggling, nor maximizing the state's bang for the buck fighting crime. But those expectations misunderstand what's really going on with this latest round or border security spending.

Like its predecessors dating back to Operation Linebacker, recent surges by state and local law enforcement, much less by the National Guard, are nothing more nor less than expensive political theater. Border surges "work" not to reduce crime at the border but to allow Texas pols to claim they're "doing something" about the illegal immigration since Obama won't fix the problem. Never mind that their actions also won't fix the problem and may worsen it. Or that state leaders have prioritized a politicized "surge" over road maintenance. Or that a purely martial response ignores the real and immediate humanitarian crisis facing children from Central America who're piling up like kindling in Texas-based detention facilities. The meme plays well to portions of the GOP base and in the near term, to win an election, ginning  up the base matters a lot more than the truth. As long as that dynamic holds, we'll see more border surges because incumbent politicians have seen they "work,"  at least for purposes of political expediency, though not because they make us one iota safer.

What would it mean for border security to really "work"? Grits has argued in the past that any new border security funding should go first to pay for expanded Internal Affairs capacity (or maybe some sort of anti-corruption unit) to rein in bribery and collusion with drug runners among border law enforcement that contributes to the chronic, intransigent nature of the problem. Just paying overtime for more vehicle patrols, in the end, won't accomplish much.

Meanwhile, Politifact took on questions about a purported crime wave by "criminal aliens" touted by Attorney General Greg Abbott and Governor Rick Perry to support the border crackdown. I'm not a fan of Politifact. I think their only two ratings with any real meaning are "True" and "Pants on Fire." But lo and behold, they gave a "Pants on Fire" rating to Gen. Abbott for asserting that about 3,000 murders in Texas could be attributed to lax border security, calling the claim "incorrect and ridiculous." They also gave a "Pants on Fire " rating to Gov. Perry for similar overstatements a couple of weeks prior for claiming a phony Mexican murder wave. Of course, in the real world immigrants - legal and undocumented alike - commit crimes at very low rates compared to American citizens. But one wouldn't want to let facts interfere with one's opinions, so instead we must witness the disgraceful spectacle of the state's top politicians bearing false witness to pander to the nativist wing of the GOP base.

Another, accompanying article from AP posed the question: "Lawmakers: Is beefed up border security worth it?" with the additional National Guard troops announced while I was out of town (in Mexico City, ironically), Texas is now spending $4.3 million per week out of un-budgeted general revenue to support DPS' and the National Guards' expanded presence, perhaps indefinitely. That's nearly a quarter-billion dollars per year if it goes on that long. I know people have short memories, but those who can recall at least back to the George W. Bush governorship should understand why sending soldiers to the border is as likely to end tragically as to improve things. 

Increasingly I wonder if much of the extra hype we're seeing about the border from state leaders isn't intended as a pre-emptive counter to House Speaker Joe Straus' stated desire to stop spending state highway money on DPS and spend it on roads and transportation instead. By getting him to commit to this extra spending before session even begins and Straus can appoint a new budget chair (Adios, Jim Pitts!), the Speaker seems to have been outmaneuvered, ensuring money from the state highway fund will continue to be siphoned to DPS, perhaps even in increased amounts. Col. McCraw and his allies knew better than to let a crisis go to waste and seized on the humanitarian plight of Central American kids to justify proposing a much more militarized southern border.

That's my best guess as to the larger chess match being played here, with all the overheated border security rhetoric that's dominated the public debate a convenient smokescreen for DPS and its allies hoping to stave off budget cuts if their highway money goes kaput. Now it's the Speaker's move. He can acquiesce, or insist after some respectable interlude that DPS prioritize and cut other spending in its budget to cover the cost. That'd be a Hail Mary, though. He'd need a strong Republican Senate ally (or a governor with line-item veto power) to pull himself out of the corner he's been backed into.

Regardless, that to me seems like the Speaker's only option, besides giving up his quixotic push to spend highway funds on highways before it ever properly got off the ground.