Biometric Blues: Facial-recognition tech starting to be good enough to threaten privacy

Several recent items related to the use of facial recognition technology by law enforcement caught Grits' eye lately:

• San Francisco and Lowell, MA banned the technnology after it was revealed Amazon was selling facial recognition tech to police departments.
• Axon, which manufactures Tasers and is the largest police bodycam manufacturer, decided not to use facial recognition tech with its products, at least for now.
• The Government Accountability Office came out with an analysis of facial recognition tech used by the FBI, finding that the latter agency hadn't implemented earlier recommendations to improve accuracy.
• Shopping centers have begun using facial recognition tech. But schools are beginning to reject it (though some will surely adopt it).

The rise of facial recognition and other biometric identification technology was an early hobbyhorse on this blog. I stopped covering the topic after civil libertarians lost all the big, related fights at the Legislature over gathering biometric data, particularly from Texans' driver's licenses. (Texas allowed DPS to gather Texas drivers' fingerprints and facial-recognition biometrics from their licenses then almost immediately began to hand the data over to the federal Department of Homeland Security.) But those were bitter, memorable battles, with the losses made more palatable only by the reality that, back then, facial-recognition tech simply wasn't ready for prime time and didn't work well enough to threaten privacy.

Today it's closer, but not quite yet there. But that utilitarian excuse for not confronting totalitarian surveillance tech will soon fall away. Even if facial-recognition is reliable, it's a bad idea as a generalized surveillance tool. So, arguments against it must ultimately rest not on the prospect of errors (right now, they have higher error rates when identifying racial minorities), but on the prospect of privacy vanishing, and a new form of high-tech totalitarianism rising, if the product were to ever work perfectly.

For more thoughts and background on the subject, here's an old blog-post series I wrote headed into the 2005 Texas legislative session:

• Biometric Blues
• Biometric Blues, Second Stanza
• Biometric Blues, Third Stanza

Looking back, much of it still holds up.

The case against permanently sealing pen-register orders

The Wall Street Journal has been litigating in Texas to gain access to sealed, federal judicial orders granting the government electronic surveillance authority, the paper reported today ("Long-term secrecy surrounds electronic monitoring," Oct. 1). The article opened:

A federal judge's recent unsealing of a secret government request for electronic monitoring shines a light on how such applications are kept hidden from the public long after criminal cases that result from them are closed.

The Sept. 2 order, by U.S. District Judge Nelva Gonzales Ramos, came after Dow Jones & Co., publisher of The Wall Street Journal, filed motions in a Texas federal court to unseal 14 cases as part of an investigation into the confidentiality of such surveillance applications.

The unsealed request for monitoring, involving a drug-trafficking case, was filed on Oct. 30, 2007. It sought approval for a "pen register," a common surveillance tool that records dialed phone numbers and Internet addresses. The subject named in the application pleaded guilty to conspiracy to engage in money laundering and was sentenced in 2012 to two years, nine months in prison.

As more people use cellphones and email, prosecutors increasingly are using tools for monitoring those communications in criminal investigations. Federal courts allowed a pen register 18,760 times in 2012, more than triple that in 2003, Justice Department data show.

The government also routinely asks that the applications for such matters be sealed, a move that ends up keeping documents permanently secret in courts across America. Though judges have long kept matters from the public in national-security cases and continuing probes, the spreading move to permanent secrecy of more commonplace criminal cases contradicts a long U.S. tradition of open courts, according to some legal specialists.

"The broader message here is that the government is keeping stuff sealed too long even if it had a basis for sealing stuff initially," said Brian Owsley, a former magistrate judge who initially sealed the Texas case at issue and now is an assistant law professor at Indiana Tech Law School.

I met Judge Owsley at a conference on electronic surveillance last year, and Grits has pointed to Judge Owsley's writing on related topics. He was the first to alert me to this issue of permanently sealed federal surveillance orders.

As it turns out, Texas law poses the same conundrum. Sec. 2(g) of Art. 18.21 of the Code of Criminal Procedure tells judges they "shall seal" such orders with no provision for their unsealing. (State Rep. Bryan Hughes' HB 1608 last session would have changed that "shall" to a "may" and limited the extent to which such orders could be routinely kept secret, requiring that prosecutors show good cause to justify sealing the documents beyond 180 days.)

So this isn't just a federal issue. Indeed, unlike the feds, Texas doesn't even have good data. Office of Court Administration reports record how many search warrants judges issue but don't track lesser orders for pen registers, cell-phone location data, and other personal phone information collected under Art. 18.21.

Also unlike the feds, state courts haven't seen an aggressive media outlet pursue the story the way Wall Street Journal reporters have done. But a quite similar story is waiting to be written regarding pen-register orders Texas state courts if journalists and editors were of a mind to do so.

Attorney: Warrants not required in TX for cell-phone location data

Dallas defense attorney Michael Lowe had a probative, recent blog post on a topic much-discussed in this venue titled, "Texas police can get your phone records from phone company without a warrant: Ford v. State" (Sept. 3). A particularly notable point mentioned that, before Ford v. State:

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get ... location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.

Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf

Perhaps the misunderstanding Mr. Lowe describes explains the bizarre confusion demonstrated at the recent Texas Senate State Affairs Committee regarding how to interpret Art. 18.21 of the Code of Criminal Procedure. If Lowe is right that many in law enforcement believed before Ford that a warrant was required, that might explain Houston PDs position. But prosecutors from Harris and Bexar counties must have known about Ford and a similar recent case out of the 14th Court of Appeals (Barfield v. State). And the portions of the statute courts are interpreting did not change with the new language from last session on cloud-based content.

Grits will readily grant the statute on its face is unclear - its plain language offers police a range of options for getting this information, from an administrative subpoena to a full-blown warrant. (In Barfield, police used a subpoena to access location data; in Ford, police obtained a court order using a lesser standard than a probable cause warrant.) But as Mr. Lowe pointed out, case law leaves no ambiguity: At the moment, unless the Legislature changes the law in 2015, no warrant is required in Texas for the government to access cell-phone location data.

MORE: See additional coverage from the Houston Press of last week's State Affairs hearing and law enforcement's strange stance on whether warrants are required for location data.

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf

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.

Debunking weird cop claim that warrants already required for cell-phone location data

On Monday, Eric Nicholson of the Dallas Observer followed up this Grits post with his own reportage, including quotes from your correspondent, regarding the (to me, non)debate over whether warrants are required under current Texas law for police to access historical cell-phone location data.

For some reason, law enforcement interests at the capitol are telling legislative staff that warrants are already required because of the Stickland/Dutton amendment (based on a bill first suggested by the Texas Electronic Privacy Coalition) which required a warrant for cloud-based email and other content. But the legislation didn't reach location data nor other "metadata," as the term has been popularized post-Edward Snowden.

Law enforcement interests took a completely different position when the two bills were in play in 2013. Back then, I can say from first-hand experience, the cops were willing to acquiesce on warrants for email and cloud-based content. But they fought tooth and nail against HB 1608. They ultimately convinced the authors of the bill to which Hughes had amended it - state Sen. John Carona, who lost his primary to Senator-elect Don Huffines, and Rep. John Frullo, who is returning - to strip Hughes' language out of the final version that passed.

So the Legislature did not change the law, which presently allows agencies to get location and other metadata under lesser federal standards or even a subpoena, as is done by the Department of Insurance according to the agency's testimony to a Texas House committee last year.

As the Grits and Observer posts point out, the cops' stance also contradicts recent, on-point caselaw. In Ford v. State, a Fourth Court of Appeals (San Antonio) case delivered in August which found there was no warrant requirement because of the Third Party doctrine. See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data, which jibes pretty closely with past appellate rulings. (The 14th Court of Appeals in Houston ruled similarly last year in Barfield v. State.) The courts aren't going to fix this and the appellate judges are telling us the Legislature hasn't done so either, yet. No matter what law enforcement is saying to legislative staff, the Stickland/Dutton amendment simply did not reach cell-phone location data; Ford and Barfield make clear that that would require further legislative action.

In many ways, I'm glad TXEPC, of which I'm a proud member, launched our campaign to require a warrant for cell-phone location data in Texas nearly a year before the Edward Snowden revelations. The 107 joint and co-authors who signed onto the bill in the House weren't reacting to some trendy national scandal about the NSA or the Obama Administration, but because they agreed with the concept independently, on the merits. It's true, if Snowden had come forward two months earlier, both bills would have passed instead of just one, as I told Mr. Nicholson. But if we can pick up the warrant requirement for location data (like a bowling spare) in 2015, the effort won't have been in vain. Next week's Senate State Affairs Committee hearing on electronic privacy should give us a better idea of where we stand in the upper chamber.

To prepare for his post, Eric watched the House committee hearing on Rep. Bryan Hughes' HB 1608 back in 2013 (See Grits coverage here and here, or watch the hearing yourself here beginning at the 3:37:15 mark on the video.) He observed, in retrospect: "Watching the committee hearing, it's almost quaint to watch lawmakers grapple with the notion that the cell phone in their pocket is continually transmitting enough data to give anyone crunching it a time-stamped map of their locations and habits. Snowden wouldn't bring the concept of cell-phone metadata to public consciousness for another three months."

My hope is that the warrants for location data bill gets low bill numbers and an early start in both chambers so that stalling tactics can't kill the popular legislation, as happened in 2013. There are other issues on the State Affairs Committee's interim charge list on electronic privacy that aren't as well developed, but in the case of the Hughes/Estes/Hinojosa legislation on cell-phone location data, it's been vetted through the process and is ready to move, if the leadership will allow it.

Date set for hearing on interim charges on electronic privacy

As predicted, hearings on the Texas Senate State Affairs Committee's interim charges regarding electronic privacy are back on now that state Sen. Craig Estes has been elevated to chairman. The committee has announced a meeting specifically on those three, related interim charges at the capitol on Sept. 16 at 8 a.m.. They'll be taking public testimony.

My hopes for the hearings are that the committee recommends a) a version of the Estes/Hinojosa/Hughes legislation to require warrants for police to access cell-phone location data, and b) new restrictions on license-plate readers including limits on how long location data can be retained.

Some parts of the interim charges, particularly related to privacy vis a vis commercial vendors, I have less expertise than with law enforcement matters and thus fewer concrete suggestions regarding privacy enhancements. But I did see a related, recent essay - a speech, actually, to the Black Hat hacker conference - that offered several thoughtful suggestions that might inform those discussions.

The Obama Administration has consistently taken the position that neither cloud-based email nor cell-phone location data should require warrants for police to access them. Texas took a huge step last session in the opposite direction, passing the nation's first requirements for police to obtain warrants to access cloud-based email and other content. During the 84th session in 2015, we have the opportunity to similarly exert leadership regarding location data - both in the form of cell-phone metadata and license plate readers. This hearing September 16 represents an opportunity for the Senate to snub the Administrations' pro-snooping positions and contrast the state as a bastion of liberty compared to the Nasty Old Feds. Plus, it's the right thing to do and the public, including the conservative base and the state's thriving tech industry, supports it. What a happy convergence of interests!

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.

Roundup: Expensive jails, paid-for pols, broken grand juries, and flawed forensics

Here are a few odds and ends that haven't made it into full, individual posts since my return from Mexico City but which still deserve Grits readers attention:

This week in Cow Town: Hair microscopy and other forensic conundrums
The Forensic Science Commission will hold meetings of its hair and fiber microscopy panel (2 p.m.) and the Complaint Screening Committee (4:30 p.m.) in Fort Worth this afternoon, with its main, full committee meeting tomorrow morning. Go here for the agendas and a livestream of each event.

Contract jail scheme failed to turn profit because of high jailer pay
El Paso county commissioners say they have the most expensive jail in the state because of high jailers salaries that start at $37K and rise to $60K after eleven years, which is certainly the highest I've heard of in Texas. The county takes in $10-11 million per year in revenue for federal prisoners they house but can't turn a profit (I know Grits readers are surprised) because of high overhead costs.

John Wiley Price: Federal defendant
So much to say ... so little of it fit for polite company. In Dallas, county commissioner John Wiley Price has been arrested on federal corruption charges and hauled away in irons. He has been "indicted on 11 bribery- and conspiracy-related charges that allege that he took things of value to influence his vote on business matters," reported Texas Lawyer. Price for years acted as a self-appointed czar of the Dallas County Jail as well as the county bail bond board, so there's a particular irony in his present situation. I don't know much about the specifics of the feds' case against Price beyond published newspaper reports, but it'd be hard for any allegation to surprise me. The feds and Price have been dancing around the issue for years, so I'd be surprised if the US Attorney failed to come loaded for bear. If this fiasco ends with Price rising from the political grave, vampire-like - or worse, Messiah-like, stronger than before - it will balkanize and poison Dallas politics for years. So if they've got him, I hope it's dead to rights.

'Is the grand jury system broken?'

At Texas Monthly, Dan Solomon followed up on Lisa Falkenberg's reporting about grand jury misconduct with a short essay titled, "Is the grand jury system broken?" Good question. IMO the answer is, "There's no way to tell." Last session, state Rep. Bryan Hughes filed an unsuccessful bill to require recording of witness testimony in addition to suspects. That'd be a start, and even better would be for those proceedings to be recorded and turned over to the defense prior to trial, just like Brady material. At a minimum, the information should become public after conviction, like other materials in police and prosecutors' possession that becomes public under Sec. 552.108 of the Government Code when a conviction is final.

Rising law enforcement costs in Montgomery County
The Sheriff's office accounted for the bulk of a recent budget increase in Montgomery County.

Make death-in-custody reports more easily available
I wish the Attorney General would link copies of death in custody reports to the names on their macro list published on their website. It's all public record and doing so would make them a lot easier to use without wasting everyone's time with pointless bureaucracy. According to the list, there have 1,736 deaths in custody at TDCJ between 2005 and so far in 2014.

Consensus on privacy of cell-phone location records?
I agree we are approaching a national consensus that cell-phone location records should be private, but unlike this author I'm not sure all the evidence so far blows that direction. If the Texas and California Legislatures pass warrant requirements, it would be hard for SCOTUS to deny there's a significant national trend. The array of less populous states whose legislatures have so far acted may not yet count as a consensus, particularly when federal circuit courts are split on the question and mine in particular (the 5th) is on the wrong side of history.

A big advocate for bail reform
Times have changed when New Jersey Gov. and presidential hopeful Chris Christie feels politically comfortable getting out in front of bail reform. He wants to give judges discretion to deny bail based on dangerousness and to have most release decisions governed by risk assessments instead of the ability to pay a bondsman.

Texas CCA beat SCOTUS to punch on cell-phone search issue

The US Supreme Court unanimously ruled today that law enforcement may not search the contents of cell phones incident to arrest without a warrant. This decision will be much-heralded as a victory for privacy, and rightly so. But I wanted to take a moment to point out that, for once, the Texas Court of Criminal Appeals was ahead of the curve on this one, ruling 8-1 in February that law enforcement couldn't search the contents of arrestees' cell phones without a warrant after they'd been booked into the jail. Grits criticizes the CCA when I think they get things wrong - to the occasional annoyance of more than one member of the court - so it's worth acknowledging when they got it right. This time they did.

MORE: See a SCOTUSBlog symposium on the new case.

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.

Virginia, Utah, require warrants for phone location data, Tennessee bill awaiting gov's signature

More states have approved legislation requiring law enforcement to obtain warrants to track cell-phone location data, measure that passed the Texas House last year but didn't make it all the way through the process. Reported Tennessee Watchdog (May 2):

Tennessee law enforcement may soon need a warrant before tracking the whereabouts of a suspect’s cell phone.

The Tennessee General Assembly recently passed a bill that bans “a governmental entity or law enforcement agency from obtaining the location information of an electronic device without a search warrant except under certain circumstances.”

As of Monday, the bill was listed as ready to be signed by the speaker of the House and the speaker of the Senate. From there, the bill will be ready for Tennessee Gov. Bill Haslam.

Montana and Maine were charter members of the club of legislatures requiring warrants for cell-phone location data (in New Jersey and Massachusetts, their high courts imposed similar requirements), and this spring two more jurisdictions passed similar bills through the legislative process:

In Virginia, Gov. Terry McAuliffe approved a bill requiring that law enforcement obtain a warrant before tracking the location of a cell phone; the law also takes effect July 1.

Real-time location tracking without a warrant is not the only area state lawmakers are looking to rein in law enforcement agencies.

Utah Gov. Gary R. Herbert signed a bill into law March 31 banning the admission of electronic data collected without a warrant in criminal court proceedings.

The law takes effect July 1.

RELATED: The Next NSA? Police departments under scrutiny for phone, license plate surveillance

Tennessee law enforcement may soon need a warrant before tracking the whereabouts of a suspect’s cell phone.
The Tennessee General Assembly recently passed a bill that bans “a governmental entity or law enforcement agency from obtaining the location information of an electronic device without a search warrant except under certain circumstances.”

GET A WARRANT: Police in Tennessee may soon have to obtain a warrant to track the location of a suspect’s cell phone.

As of Monday, the bill was listed as ready to be signed by the speaker of the House and the speaker of the Senate. From there, the bill will be ready for Tennessee Gov. Bill Haslam.
- See more at: http://tennessee.watchdog.org/2014/05/02/tn-ban-on-warrantless-cell-phone-tracking-awaits-governors-signature/#sthash.bDbFdOPq.dpuf

Debating drones: Texas EquuSearch case shows why bans were unwise, premature

Does it constitute "surveillance" to use drones to look for missing persons and/or the people who may have taken them? ¿Quien sabe?

The Houston Chronicle reported that "Texas EquuSearch filed suit Monday against the federal government to overturn the grounding of its fleet of aerial drones used to search for missing people." Regular readers know the Federal Aviation Administration won't come out with regulations for civilian drone use until 2015.

But the truth is EquuSearch's use of drones for this purpose by a private actor may also be banned under Texas law. HB 912 passed last session allowed law enforcement to use drones to search for missing persons, but it made no exception for nonprofits like this organization.

This is another example why Grits and many national experts considered Texas' "drone bill" banning video recording by unmanned aircraft to be misguided. Drones have a plethora of legitimate uses, many of which have yet to even be imagined yet. Blanket bans - whether by the Texas Legislature or the FAA - preempt many cool and useful things this technology can do before people can even try them. I agree with the FAA that Texas EquuSearch's drones are probably covered by the ban on civilian use until 2015, and even if they weren't their use would likely be prevented by Texas' HB 912, strictly interpreted. I don't agree, though, that banning them best serves the public and there are many other legitimate uses that should also be allowed.

MORE: See a letter (pdf) to the FAA from Texas EquuSearch arguing why the FAA ban on civilian drone use shouldn't apply to them.

CORRECTION: I was wrong about Texas' law. It allows someone under the direction of law enforcement to look for missing persons with drones so Texas EquuSearch could legally do so at the behest of law enforcement.

Police tech roundup

Here are several items related to policing tech that caught my eye today:

Speeding and Tweeting
Cops in Keller, TX are posting on Twitter and Facebook where and when they'll be doing traffic enforcement in hopes that people who know they'll be there will avoid speeding in the first place. Seems like a sensible plan.

Police body cams and privacy
Grits is generally a fan of police wearing body cams because it generates better evidence in criminal cases and provides a prophylactic against wrongdoing. But there are a handful of legitimate privacy issues cameras bring with them - toilet time, talking to confidential informants, etc. - that are discussed in this article and especially, in much more detail, in the comments. Not insurmountable, but the issues need to be discussed as this tech become more widespread.

Utah Lege: Require warrants for location data, content
Utah this month passed several notable pieces of electronic privacy legislation, including a bill "to obtain the location, transmitted data, or stored data of an electronic device such as a mobile phone or laptop. The bill requires law enforcement to delete any data they collect that doesn’t pertain to the suspect named in the warrant. It also requires notification to the individual that the location or data was obtained, much like a person is served a copy of a traditional warrant when physical property is searched or seized."

The FBI and signals intelligence
Don't just worry about the NSA invading your privacy, worry about the FBI. This article from Foreign Policy delves into the FBI's growing domestic signals intelligence capacity aimed at foreign embassies, but the same tech could be and is used in domestic criminal investigations.

The 'spy in your pocket'
 Dave Lieber at the Dallas Morning News had a column last month about the nexus between government and commercial cell phone tracking. See also recent columns at Wired touting the benefits, or at least relevant benevolence, of the 21st century consumer surveillance society.

I spy with my little surveillance camera
Check out examples of concealed surveillance devices from the Middle East and Guantanamo Bay, the latter of which was used to listen in on conversations between prisoners and their defense counsel.

Joe Straus, ALEC, and electronic privacy

My old pal Forrest Wilder at the Texas Observer reported recently in breathless tones that Texas House Speaker Joe Straus is helping the American Legislative Exchange Council (ALEC) - which he dubbed an "embattled corporate-funded group that pairs lawmakers with special interests to write legislation in secret" - to fundraise in Texas.

Forrest worries that, "Straus is generally considered one of the few bulwarks in state government against tea party excesses. Why would he join forces with ALEC?"

On the other hand, lawmakers getting together with special interests and writing legislation in secret is hardly a new thing. At least when ALEC proposes legislation it eventually becomes a public strategy and everyone can agree or disagree on the bills themselves as they appear.

From my own perhaps-myopic perspective, Grits is rather pleased to see the Speaker's affiliation with ALEC because, during the 83rd session, Straus and his allies on the House Calendars Committee were the principal barrier to getting the lower chamber to vote on electronic-privacy legislation carried by sometimes-Straus critic Rep. Bryan Hughes. But lately, Hughes has been working with ALEC to create model electronic privacy legislation based in part on his Texas bill requiring police to obtain warrants for cell-phone location data as well as legislation that passed (amended to something else, not as an independent bill) requiring warrants for cloud-based email and other content.

Hughes' bill had more than one-hundred joint and co-authors, so if it had ever been granted a floor vote it would easily passed. (In fact, the bill was amended on the House floor on a 126-4 vote to a senate bill but the senate author, John Carona, who was ousted in the recent primary, used a parliamentary maneuver to pass a version that didn't include it.) Will a closer affiliation with ALEC help convince Joe Straus to embrace electronic privacy legislation instead of hinder it? I hope so. Certainly I'm not going to spend a lot of time fretting over the Speaker's very pragmatic decision to affiliate with them.

Court of Criminal Appeals bars warrantless searches of cell phones, electronics incident to arrest

The Texas Court of Criminal Appeals today held in Texas v. Granville that the Fourth Amendment protects against searches of cell phones incident to arrest. Texans now cannot have the contents of their cell phones and other electronic devices searched indiscriminately after they’re booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.

As an attorney friend described the ruling in an email, "The primary issue was whether the Fourth Amendment exception that allows searches of an arrestee’s property for contraband also allows a wholesale search of a cell phone. The decision has a good explanation about why modern technology requires heightened protection above that applied to shoes, pants, etc.  The decision even cites with approval the recent DC Circuit decision holding the NSA metadata collection program unconstitutional." Here's an notable excerpt from the majority opinion:

The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects - a cell phone - without a warrant.

See the majority opinion from Judge Cochran, a concurrence from Judge Keller, and a lone dissent from Judge Keasler.

The US Supreme Court agreed this term to consider similar issues in a pair of related cases. According to Reuters, "The court will hear oral arguments in April and issue rulings by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212." The Texas CCA opinion governs state and local law enforcement, not the feds.

RELATED: Amarillo appeals court: 'A cell phone is not a pair of pants.'

MORE: From EFF, which filed an amicus brief in the case.

MA latest state to require warrants for cell-phone location data

The Massachusetts Supreme Court this week ruled that law enforcement in that state must obtain a search warrant to access cell-phone location data for extended periods. The Boston Globe reported:

In 5-2 ruling issued Tuesday, the state’s highest court clarified the issues, providing both a clear definition of the privacy of phone records in the digital age, and also affording prosecutors a road map to using those records in their case against [Shabazz] Augustine. 

The court said it was possible that if the data covered only a short period, then obtaining the records under the federal Stored Communications Act without a search warrant might be acceptable. But it said it was clear that in Augustine’s case, in which two weeks of data was obtained, the period was too long.

“The tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,” said the Massachusetts court opinion, written by Justice Margot Botsford.

The ruling also makes Massachusetts the latest of several US states to set stricter limits on government access to citizens’ phone records.

Rather odd to suggest that it violates someone's rights to access two weeks of data but not short periods. Basically police can peek in on someone but not stare at them. Another Globe report noted that, "Massachusetts joins New Jersey as one of two states where courts have ruled that phone record searches require a warrant. Maine and Montana have passed legislation to establish the same policy. And before Tuesday’s decision, a Massachusetts legislator, Senator Karen E. Spilka, Democrat of Ashland, filed similar legislation."

The Texas House in 2013 approved an amendment 126-4 requiring Texas law enforcement to get a warrant to access cell-phone location data, but it was stripped out of the version of the bill approved in the Senate. This year, Lt. Gov. David Dewhurst included an evaluation of this and other electronic privacy questions in the interim charge for the Senate State Affairs Committee, so one can expect the matter to be revisited when the Texas Legislature reconvenes in 2015.

RELATED: From the New America Foundation, "The Ever Falling Cost of Surveillance."

License plate readers fail to accomplish crime fighting goals

Civil libertarians have expressed serious privacy concerns related to the widespread use of license plate readers by law enforcement, but an equally strong argument against may be that they simply fail to accomplish their goals and aren't worth the bang for the buck.

With the Texas Senate State Affairs Committee charged with evaluating the collection of geolocational data by government this year as part of their interim charges (pdf), I was interested to see that CrimeSolutions.gov - a federally sponsored site which provides evidence-based evaluations of crime-fighting strategies - lists license plate reader technology as a tactic which has "no effect" on crime.

Studies have found neither general nor specific crime deterrent effects from deployment of license plate readers and only a slight increase in recovery of stolen vehicles. There was a short-term spike effect on vehicle thefts when police used manual license plate readers as opposed to the stationary ones installed on the side of the road, but "the effect faded over time."

Given those results, it's hard to justify government spending on license plate readers given that "The cost of the license plate recognition (LPR) technology is approximately $20,000-25,000 per unit."

Rehearsing arguments for warrant requirement re: cell phone location data

Since Texas' legislation to require law enforcement to seek warrants for cell-phone location data failed to pass in 2013 (despite stalwart efforts from state Senators Juan Hinojosa and Craig Estes and state Rep. Bryan Hughes, along with his many joint and coauthors), Grits has continued to follow debates in other states that could inform a renewed push for such a bill next session. To that end, I was interested to see this amicus brief (pdf) from the Electronic Frontier Foundation, filed in a Connecticut case, arguing for the courts to impose a warrant requirement.

The brief argues that cell-phone location data "reveals a detailed map of a person's location over time," and urge the court to take seriously the US Supreme Court's admonishment in Kyollo to reject "mechanical interpretations" of the Fourth Amendment, and the 7th Court of Appeals declaration that "The meaning of a Fourth Amendment search must change to keep pace with the march of science."

There are now more cell phones than people in the United States, according to the brief, and 56% of them are "smart phones" that allow for even more accurate location tracking (because they're constantly pinging the nearest cell tower for emails, texts, etc..) The growth in smart phone use has been accompanied by an explosion in the number of cell towers, which as a practical matter "means that a person's location can be pinpointed with even greater precision." EFF cited a 6th Circuit case, US v. Skinner, in which:

law enforcement was able to track a phone (and the person carrying it) almost 770 miles from Tucson, Arizona to Abilene, Texas over two days.   Agents could see the suspect's travel point by point, and waited until he stopped at a rest stop before swooping in to arrest him. Most critically, [a]t no point did agents follow the vehicle or conduct any type of visual surveillance." The cell phone made the government surveillance easier. Agents would not need to follow the truck physically around the clock or run the risk that they would be discovered. Nor did they need to find a way to surreptitiously install a GPS device onto the truck to track its movements. Instead, as the New Jersey Supreme Court recently noted, cell site information "is akin to using a tracking device that can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. (Citations ommitted.)

Further, "cell phone tracking can even reveal information about a person in the most constitutionally protected space: a home. One federal magistrate judge has noted 'pinging a particular cellular telephone will in many instances place the user within a home, or even a particular room of a home.'"

Argued the brief, "Imposing a search warrant requirement would not result in an unnecessary burden on law enforcement because the law currently requires the government seek judicial authorization before obtaining" cell-phone location data. Under Texas law, by comparison, the current standard for obtaining this information is less clear. In legislative hearings last spring, most agencies said they too were seeking court orders - albeit at a lower standard than required for a warrant - to access cell-phone location data. But the Texas Department of Insurance told legislators it obtained that information using only a subpoena, and representatives of cell-service providers said they provided information under both subpoenas and court orders based on reasonable suspicion. The EFF brief concluded:

cell-phone location data "is a valuable crime fighting tool because of its power to intrude on a traditionally private sphere to obtain an enormous amount of sensitive information about where a person has been, their patterns of movements and their associations and affiliations. Law enforcement should be permitted to use this information to keep people safe, provided they adhere to strict safeguards designed to protect privacy. The proper way to balance these interests is to require a search warrant supported by probable cause before authorizing disclosure of cell site location information.

Expect similar arguments to be made next year when the Texas Lege again considers these issues. Maine, Montana and New Jersey have all instituted warrant requirements for police to access this information and I fully expect other states to follow suit before the 84th Texas Legislature re-convenes. Indeed, if the scandal over the NSA's collection of cell-phone records had erupted just a couple of months earlier than it did, I have little doubt Texas would already have passed such  legislation. If we get it done in 2015, though, that would still be better late than never.

Thinking through state-level regulation of automatic license plate readers

Since Lt. Governor David Dewhurst ordered the Texas Senate State Affairs Committee to research possible privacy-protecting legislation regarding geolocation data, among other electronic privacy topics, I was pleased recently to notice a law review article by Stephen Rushin of the Illinois College of Law titled "The Legislative Response to Mass Police Surveillance." He proposes model legislation for regulating what he calls "digitally efficient investigative technologies," especially Automatic License Plate Readers (ALPR) and surveillance cameras, the latter particularly when they're connected to facial recognition technology that allows police to individually identify people en masse.

To me, his paper is most useful for its analysis of license plate reader regulation. While surveillance cameras are used by many departments, very few (and none I know of in Texas) have them connected with facial recognition software, though one supposes that could be coming. According to a Denver Post article he cited, "[t]hirty-seven states currently load driver's license photographs into state databases, which are searchable using facial recognition software." For now, though, Grits thinks fusing the two issues would unnecessarily muddy the waters. As a legislative matter, I'd rather see the topics confronted separately.

The breathtaking efficiency of license plate readers (which can scan and cross-reference up to 1,800 plates per second) means they're already in a position to be abused in ways that aren't yet broadly true of facial-recognition equipped surveillance cameras. ALPR technology is already quite widespread. A 2009 survey conducted by the International Association of Police Chiefs found that 66% of agencies larger than 501 officers and 80% of agencies larger than 1,001 officers utilize ALPR technology, and 85% of chief at all agencies "plan to acquire more ALPR devices or increase use in the future."

Rushin describes in some detail how and why 20th century Fourth Amendment jurisprudence is ill-equipped to address highly efficient surveillance in public, arguments that are especially on point as they relate to present-day use of ALPR. Courts have long assumed citizens have no reasonable expectation of privacy regarding any activity occurring in public, but those norms were influenced in the past by the fact of limited police resources. Yes, police can theoretically tail a suspect anywhere, but limited resources mean they can't do it forever. OTOH, public surveillance based on location data from license plate readers (or as the NSA scandal demonstrated, cell phones) removes resource limits and makes mass surveillance not just possible but relatively inexpensive. Moreover, noted Rushin, "because the digitally efficient investigative state monitors the entire community, it collects information on illegal activity as well as innocuous behavior," meaning "it will invariably gather enormous amounts of data on innocent people."

While about half of departments retain license-plate reader information for six months for less, 28% of agencies either have no retention limits or by policy retain the information indefinitely. Given that it's possible to identify individuals using a very small number of location data points, this information over time becomes increasingly invasive to everyone's personal privacy. Such expansive powers breed potential for abuse. Wrote Rushin:

Psychological and historical evidence suggests that the availability of pervasive surveillance tools may facilitate law enforcement corruption. With the unregulated ability to monitor an entire community, law enforcement may be incentivized to conduct fishing expeditions that "exacerbate racism, stereotyping, or profiling."  This elevates the risk of false positives and harms citizens' perceptions of procedural fairness. Thus, while the digitally efficient investigative state may be an important development for crime prevention, it also raises numerous privacy concerns.

The article outlines model state-level legislation to regulate these technologies and, while I don't agree with all of his choices, Rushin's discussion provides a useful framework for analyzing the decisions that must be made when implementing state-level regulation.

His model statute differentiates between "observational comparison" and "indiscriminate data collection." The former he defines as "the retention of locational or identifying information after an instantaneous cross-reference with a law enforcement database reveals reasonable suspicion of criminal wrongdoing." The latter involves retention of such data "without any suspicion of criminal wrongdoing" and is the type he suggests should be the focus of the bulk of state regulation.

Among states, Maine, Arkansas, New Hampshire, Vermont, and Utah have regulated ALPR tech through legislative measures. In New Jersey the Attorney General used constitutional authority to hand down directives regulating use of ALPR and limiting data collection, while Virginia has "passed relatively broad laws that regulate the retention of data by the government in all forms." New York has suggested model guidelines on the topic that are not prescriptive. Between them, these states provide examples of the various forms ALPR regulation might take.

All state legislatures regulating this tech put some restriction on data retention. Maine is the most restrictive, limiting retention to 21 days unless it specifically relates to a criminal investigation, while Vermont allows retention up to 18 months. (Rushin's model policy suggests one year, but given that half of departments surveyed have policies maxing out retention at six months or less, to me that seems too long.) New Jersey's Attorney General rules allow for retention for up to five years, which seems flat-out excessive.

Several states, like New Jersey, include limits on disclosure of personally identifying information "unless there is a legitimate and documented law enforcement reason for disclosing" it. In general, the longer states allow such data to be retained, the more important that aspect of regulating ALPR tech becomes. My preference would be to retain "indiscriminate" data for a shorter period, as in Maine, but either way there should be a requirement that the data only be used for legitimate investigative purposes.

Some states restrict sharing of ALPR data, though Rushin's model statute would allow it. He suggests limiting sharing to agencies that comply with minimum standards on retention, access, etc.. To me, at a minimum, states also should forbid sharing the data with commercial vendors. (For that matter, there's a gaping hole in his model statute in that it doesn't regulate the collection and sale of data by privately owned ALPRs, like those used by towing companies.)

Rushin also suggested rules limiting who may access ALPR data stored by police, requiring prior authorization as well as maintenance of logs documenting every user and every time they access the information. His model policy would require that stored data only be accessed only for legitimate law enforcement purposes, though IMO his limiting language could be stronger. He also suggests mandatory training in proper procedures for handling and accessing data, as well as discipline for police employees "who fail to follow policy parameters." The New York guidelines sensibly suggest "that departments establish a list of designated personnel who are authorized to access ALPR data."

Enforcement may be the most difficult nut to crack. In New Jersey, the AG can revoke an agency's authority to use ALPR if they don't comply with state rules. Arkansas provides for civil remedies if individuals can show harm, while Utah, New Hampshire and Maine criminalize misuse of ALPR data. Rushin's model statute would give the Attorney General of the state authority to file civil suits over misuse, but that structure wouldn't fit well with the historical role of the AG in Texas. I do like his suggestion that the AG perform and publish the results of regular compliance audits of ALPR use.

During the 83rd Texas Legislature, the Texas Electronic Privacy Coalition, of which your correspondent was a member, proposed two pieces of legislation: Requiring warrants for law enforcement to access cloud-based email and other content, which passed, and requiring warrants for them to access personal location data from cell phones and other electronic devices, which cleared the House by a 126-4 margin but did not make it through the Senate side. There have already been behind-the-scenes discussions among TXEPC members about whether regulating license-plate readers should be the next phase of regulating government tracking of geolocation data. Lt. Gov. Dewhurst's interim charges on electronic privacy gave such suggestions additional, recent momentum.

While I don't agree with every jot and tittle of Rushin's model statute - in particular he'd allow data retention for longer than I'd prefer and his enforcement mechanisms wouldn't be a great fit for Texas - I appreciate the good professor's efforts to think through the fundamental components such legislation might include. His article provides a fine starting point for considering how automatic license plate readers should be regulated at the state level.

See related Grits posts:

• Regulate data collection from license plate readers
• License plate reader tech open to abuse; TX Lege should regulate them in 2015
• Nearly 200 Texas LEOs use license-plate reader location tracking vendor

Driverless cars and the future of law enforcement

The Texas Tribune has a story out on a new report (pdf) from UT-Austin's Center for Transportation Research that opens thusly: "Self-driving cars once seemed the stuff of science fiction. But with such projects from companies like Google already being showcased in Texas, lawmakers and transportation officials see an opportunity to use new technology to relieve congestion and improve safety in the rapidly growing state."

Volvo has suggested they'll have cars on the market by 2020 that are "impossible to crash"; the Tribune estimates driverless cars will be marketed to the public by 2025. And of course, it'll take some time to transition to the new tech and/or retrofit older vehicles. But a couple of decades from now, when the technology has been well-established, one can foresee a day when insurance companies may charge more or even refuse to cover people driving without such high-tech crash prevention technology.

From a traffic safety perspective, self-driving cars can't come soon enough as far as I'm concerned. When it finally happens, though, it's going to change law enforcement forever. For starters, no more drunk drivers, roadside breathalyzers, DWI cases in court, or for that matter $1,000 per year surcharges . Ethan Couch could be as drunk as he wanted in Google's driverless car and get home safely every time. But the even bigger change could be redirecting law enforcement away from the traffic stop as their primary enforcement strategy, since presumably vehicles would be programmed to obey the traffic laws. In that case, what would become of law enforcement's much-beloved pretext stop? As pointed out in this Grits post from January:

In 2008, according to the Bureau of Justice Statistics (pdf), 59.2% of all citizen contacts with police were traffic related. That year, police conducted searches at about 5% of traffic stops nationally, discovering contraband in about one out of every10 searches. While most drivers (84.5%) thought they were pulled over for good cause, an overwhelming majority of drivers searched, said BJS, said the search was "perceived as not legitimate." Police arrested 2.6% of drivers they stopped that year.

When police no longer have traffic enforcement as a pretext for getting around the Fourth Amendment, law enforcement in this country will lose what's become a primary crime fighting strategy. In that sense, Grits views the focus on traffic enforcement and pretext stops as an example of short-term, numbers-driven myopia. Just as fishermen fish where the fish are, law enforcement focuses on traffic enforcement not just to prevent crashes but also because that's the most cost-effective way to maximize arrests for other offenses, allowing police to find contraband when they otherwise would have no cause to stop, much less search average citizens. For now that makes sense if their goal is to maximize arrests. But police seeking to maximize arrests in the future may have to rely on different tactics that today they tend to downplay, like investigating and solving reported crime.

Overall, I'd view such a shift in law enforcement tactics and culture as a good thing.

On the negative side, the privacy implications are fairly profound because GPS tracking is pivotal to the functioning of driverless cars. There would need to be some way to ensure anonymity before driverless cars are unleashed en masse. That's not an insurmountable problem, but if driverless cars rolled out in large numbers without some sort of anonymizing feature, it would be a privacy concern on the scale of the NSA mining cell-phone location data.

There will be pros and cons to change but make no mistake: In the words of Sam Cooke, "Change is gonna come."

MORE: Here's a piece from Forbes on the massive amounts of data accumulated by new cars and potential privacy implications. The author also articulates some of the limits of anonymizing vehicle data.