Boost Texas prisoner food budgets 39 cents per prisoner/day

If your annual food budget was $800 per person and that money had to last all year, how would you spend it?

I'll give you a moment: Try to imagine what that would look like.

Having recently spent >$250 at my big, post-SNOVID trip to HEB, Grits can hardly fathom eating for a year on that amount. But that's the dilemma facing cafeteria cooks and nutritionists at TDCJ, where prisoners have been receiving food during COVID more suitable for pig slop than human consumption.

This is what Texas feeds prisoners
on an $800/year food budget

That said, in Texas prisons the pigs are air conditioned while the prisoners and guards are not, so it's likely the pigs eat better than this.

With the Texas Department of Criminal Justice poised to realize nine figures in budget saving thanks to newly closed prison units, the Legislative Budget Board had suggested the agency reduce its budget by $148 million and send that money back to the General Revenue pot. The group I lead, Just Liberty, is requesting they spend that money instead on two items: 1) Expanded treatment funding to move paroled prisoners out of lockups sooner, and 2) increasing prisoner food budgets by $17 million per year.

We discussed the treatment funding in the last post; let's delve deeper into TDCJ food budgets.

Food spending at TDCJ peaked at $106,601,431 paying for food for 155,076 inmates as of 8/31/09. That comes out to $687.41 per inmate spent on groceries in 2009, if you can imagine! 

If that amount had risen with inflation, food spending at TDCJ would currently be at $854.51 per prisoner.

Today, Texas incarcerates fewer people than we did back then - 119,541 as of January 2021 -  but only spends ~$810.56 per prisoner on food.*

Just Liberty is recommending boosting the food budget by 39 cents per day, per prisoner. That comes out to $17 million per year total, or roughly $952.77 per inmate. That's still an insanely small sum to eat on for a year, but it should give the agency enough leeway to improve prisoners' fare.

A final note: We only know how bad prison food is thanks to photos sent to reporters from contraband cell phones. Staff portray cell phones as dangerous contraband, but IRL they're the most important innovation in carceral accountability we've witnessed in the 21st century. Similar to bystander video of police brutality, cell phones in prisons have documented treatment long-alleged but difficult to prove.

Now, thanks to documented, firsthand examples across many units, we know complaints about Texas prison food aren't just whining from criminals: No one would feed this slop to anyone related to them.

With only a few exceptions, most Texas legislators consider themselves Christians. Well, this is one of those moments implicated in Matthew 25:40, wherein the disciples protested that they'd never visited Jesus in prison or fed him when he was hungry, as he'd described. Christ replied that, "whatever you did for one of the least of these brothers and sisters of mine, you did for me." Grits wants to ask state budget writers directly how they'd answer that question at the Pearly Gates: Is 39 cents per day too much to ask for the "least of these"?

Texas doesn't pay prisoners for their labor and, thanks to widespread guard understaffing, the truth is at this point they're largely who's keeping the prisons running. A decent meal isn't too much to ask.

For Keri Blakinger and thousands of hungry Texas prisoners.

*Prison populations have been dropping during COVID; when they budgeted for this fiscal year, the Legislature had been told to expect a much higher prison population, so these per-prisoner numbers look much better than they could have.

Blakinger scores big victory for hungry TDCJ inmates, visitation denied, why people convicted of unconstitutional statutes are innocent, and other stories

Here are a few odds and ends that merit Grits readers' attention:

TDCJ to improve lockdown food

The Marshall Project's Keri Blakinger hit another home run recently with her story on what Texas prisoners are being fed during lockdown. It was sprinkled with stomach-churning contraband cell-phone pics from prisoners that corroborated years of allegations about how awful food could be when prison units are locked down. On Friday, she reported on Twitter that TDCJ has told inmate families they will begin providing raw vegetables, cartoned milk instead of powdered, and are considering how to source fruit, pizza and hot pockets. Good for TDCJ, even if it took being shamed to improve things. And thank God for Keri Blakinger!

Many prisoners denied visits, phone calls before the lockdowns

Prisoners' families have been upset during the COVID crisis that so many inmates were forbidden access to phones to call them. Recently, some on lockdown have been allowed 5 minute calls, but that's still not much. Michael Barajas at the Texas Observer reminds us that a significant portion of Texas inmates couldn't call their families and had been banned from visitation even before the coronavirus, but TDCJ doesn't track how many are banned or why. Great job, Michael! Grits readers may recall that, earlier this year, TDCJ made visitation and mail policies even more restrictive, punitive and arbitrary. It's great to see some journalistic light shed on the subject.

Texas women inmates cope with COVID

At the Waco Tribune Herald, reporter Brooke Crum provided a window into how women inmates in Gatesville and their families are coping with coronavirus restrictions.

COVID testing rates vary widely at county jails

There are wide disparities in how frequently county jails are testing inmates and staff for the COVID virus, reported the Dallas News. Harris County is testing more broadly; Dallas County, not so much. Travis County, by contrast, is testing far less frequently than either of them. The thinking appears to be that, if you do not test, you won't have to report that anyone is sick. As of yesterday, 1,314 Texas jail inmates and 234 jail staff had been reported as testing positive to the Texas Commission on Jail Standards. But because some jails are testing so few people, those numbers are surely an undercount.

Ex-prosecutor could be disciplined for withholding exculpatory evidence

Daniel Rizzo, a former Harris County prosecutor, faces an attorney discipline lawsuit for withholding exculpatory evidence in Alfred Dewayne Brown's murder case, Texas Lawyer reported. Rizzo claims he never saw the phone records which later led Mr. Brown to be declared actually innocent, though they were available in his files.

People convicted of unconstitutional online solicitation statute were actually innocent 

The Texas Supreme Court has ruled that people convicted of online solicitation of a minor after the statute was deemed unconstitutional by the Texas Court of Criminal Appeals  qualify for innocence compensation under Texas statutes. (The Legislature enacted a new online-solicitation statute in 2015, but not nearly as stringent as the original.) Grits has wondered for years about how innocence claims from these cases would be handled. Now we know.

Deitch on possible solutions for prisoner phone calls during COVID lockdown

The Texas prison system has placed about 1/3 of the inmate population on lockdown status, including denying them access to visitation and phone calls. Michele Deitch of UT's LBJ School had a good idea on how to mitigate the situation: Providing burner phones for in-cell use. In an email to Just Liberty, she wrote:

I agree it is a very reasonable accommodation to allow people to have phones calls during a lockdown, especially when it is as likely to be as prolonged as this one will surely be. It is not only good from a humanitarian prospective, but it mitigates the harms caused by the lack of family connectedness, the idleness, and the lack of any type of outside eyes on what is happening inside. It can also help prevent violence and provide a lifeline to any person experiencing abuse or who cannot access health care. (Speaking of which, without access to phones, how does the PREA hotline work?) I have advocated for this approach from the beginning, and support it wholeheartedly. 

That said, the practicalities will be incredibly challenging. There are usually one or two wall phones per housing unit, and they are located in the dayroom. I don’t know if they are allowing folks individual access to the dayroom during the lockdowns (they should be), but they probably aren’t. If they are, they should be allowed to use the phones then. If not, TDCJ should get some kind of mobile phone booth that can be taken around to the cells (it’s pretty awkward- looking, but I have seen one in use at another facility before). Of course, the phone would have to be sanitized between uses, which isn’t so easy to do, and if it isn’t done, it could just risk spreading the virus more. 

What REALLY should happen is that TDCJ should obtain and issue burner phones with no data that can just be used for phone calls and let the prisoners have them. They are doing this in England now. Believe it or not, they are literally surveying the inmates to find out which cell phone companies work best behind the walls (based on their illegal usage)! 

And of course, any of this is something TDCJ could do tomorrow. No legislative act required.

I looked up England's use of secure phones for prisoners and found this article from the East Anglian Daily Times. According to that source:

A total of 900 secure phone handsets will be given to prisoners at 55 jails, allowing risk-assessed inmates to speak to a small number of pre-authorised contacts.

Strict measures will ensure the phones are not misused with calls time limited and monitored closely and they will not have internet access, the Ministry of Justice (MoJ) said.

The handsets will also include measures to prevent non-secure SIM cards being used, the MoJ added. ...

Currently more than 50 prisons across England and Wales have in-cell telephony which allows prisoners to stay in touch with their family members in a controlled manner.

The MoJ said the new handsets will make sure this ability is balanced across all prisons, and promote stability in jails without existing in-cell phones.

Why Police Should Be Required to Get a Warrant to Use Cell-Site-Simulators (aka, "stingrays")

Legislation heard this week in the Texas House Criminal Jurisprudence Committee, HB 352 (Blanco) would require warrants for Texas law enforcement to use so-called “stingrays” or “cell-site simulators” to track people's cell phones, and provide more transparency surrounding use of these devices.

So-called “Stingrays” or cell-site simulators are examples of relatively new surveillance techniques hovering at the bleeding edge of both cell-phone technology and Fourth Amendment jurisprudence. Because their use has been largely shrouded in secrecy and few clear precedents exist to model limits on this tech, the handful of law-enforcement agencies using it have until now operated in virtually a regulation-free zone.

Rep. Cesar Blanco, a third-term Democrat and former Navy intelligence office, understands signals intelligence better than probably any other legislator and is an excellent bill sponsor for this topic.

How Cell-Site Simulators Work
Cell-site simulators work by tricking your cell phone into believing it’s attaching to a legitimate cell-phone tower, which it “pings” periodically to make sure the phone is ready to make a call. This means that, when targeted users (or others in their vicinity) make a phone call, it’s routed through the cell-site simulator instead of the nearest tower. Representations by Houston PD at Monday’s hearing about the limited nature of the technology understated its capacity.

Cell-site simulators hijack and divert cell-phone signals from their commercial carrier’s network, making it more similar to a wiretap than a “pen register.” Some models of cell-site simulators allow full-blown wiretapping; others provide access to metadata from calls and callers; others may only provide information on signal strength and direction, allowing investigators to triangulate location with just a few measurements. It all depends on how much functionality an agency chose to pay for; the device is capturing the entire signal and can let investigators access any or all of it.

Movement toward ‘stingray’ warrant requirement
The US Supreme Court has not yet ruled on so-called “stingrays,” but several states already require warrants for cell-site simulator use with no ill effects. (Virginia, Washington, Utah, Minnesota, and California.)

On December 19, 2016, the U.S. House Committee on Oversight and Government Reform issued a comprehensive, bipartisan report on law-enforcement use of cell-site simulators and recommended legislation that would require “probable cause based warrants” to “ensure that the use of cell-site simulators and other similar tools does not infringe on the rights guaranteed in the Constitution.”

The US Department of Homeland Security established a policy of seeking a warrant for use of cell-site simulator technology with limited exceptions for exigent circumstances.

Finally, civil libertarians have persuasively argued that, when a cell phone inside someone’s home is targeted with signal interception via a cell-site-simulator device, it per se violates the Fourth Amendment right to security from unreasonable searches of one’s “houses, papers and effects.” (Traditionally, Fourth-Amendment protections inside the home have been much stronger than elsewhere.)

Secrecy breeds mistrust
At Monday’s hearing, police expressed fears that innocent people might be hurt if information from search warrant affidavits about how and when police used the technology ever surfaced. But search-warrant affidavits have been public records since the dawn of the Republic. The more significant concern is that law enforcement will use the technology unaccountably and secrecy will protect them.

Not only does the public deserve to know when the government is using invasive surveillance technology, undue secrecy creates systemic problems. In Houston, police have even kept prosecutors in the dark when stingray tech was used.

Texas legislators should extend the same warrant requirement mandated by the Supreme Court in US v. Carpenter to cell-site simulator devices. This shadowy practice has flourished for too long on the edges of modern technology and privacy law. HB 352 is Texas’ opportunity to begin to restrain and regulate it.

See prior, related Grits coverage.

Carpenter codification non-controversial so far

Rep. Cesar Blanco also filed a related piece of legislation, HB 353, which essentially codifies the US Supreme Court case US v. Carpenter requiring a search warrant for the government to access cell-phone location data held by wireless cell-phone carriers. (Readers may recall Grits' poetic ode to the case after the oral arguments.)

Unlike the stingray legislation, no one opposed this bill. There was a half-hearted effort by a cop speaking "on" the legislation to preserve the real-time vs. historic location information distinction that the Texas Court of Criminal Appeals tried to stake out in Sims v. Texas. But it's awfully hard to defend the idea that the government has a right to know where you are at any given time, in real time, without demonstrating probable cause. From the solitude of Judge Barbara Hervey's chambers at the Court of Criminal Appeals, one perhaps can make that strained argument without fear of recrimination. At a legislative hearing, nobody even tried. 

The reality is, even if they tried to do a Less-Than Carpenter Codification, this area of constitutional law is fluid and trending toward requiring more warrants for surveillance, not less. As such, Grits imagines that trying to short-change the warrant requirement could result in future federal court decisions rendering the language anachronistic. Rep. Blanco's approach is the wiser one.

'A Very Carpenter Christmas'

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 

The smartphones pinged cell towers, ne'er did they roam. 

Their location was fixed there all through the night, 

Could be proven in court with no warrant in sight. 

Then what to my wondering eyes did appear, 

But Chief Justice Roberts like a red-nosed reindeer,

Leading the way for SCOTUS to hone 

A warrant requirement for tracking your phone. 

On Roberts, on Gorsuch, on Sotomayor. 

Tracking us isn't what phones are for. 

On Thomas, on Ginsburg, on Breyer, on Kagan. 

Please give Fourth Amendment fans something to cheer again. 

And clearly explain, before it goes out of sight, 

Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:


Merry Christmas, y'all.

Christmas and the Surveillance State: December Reasonably Suspicious podcast

Check out the December edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. Two great interviews this month - one with reporter Brandi Grissom Swicegood about the alleged abuse and turmoil at the Gainesville State School, and another with Peter Neufeld, co-founder of the national Innocence Project, regarding forensic-science reform. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories
US v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.

Interview

Brandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.

Home Court Advantage

Evaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)

Interview

Peter Neufeld of the national Innocence Project, discussing forensic science reform.

Errors and Updates

• Forensic hypnosis
• Austin City Council rejected police union contract
• DNA mixture evidence

The Last Hurrah

• TDCJ prison understaffing and staff safety
• Death penalty use declining: A first for Harris County in 40 years
• Dallas pilot program de-escalates mental-health calls by sending medical staff instead of cops

Find a full transcript of the podcast below the jump.

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.

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan

In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.

Beating (up) Devon Anderson, and other stories

Here are a few odds and ends which haven't made it into independent posts but merit Grits readers' attention:

Beating (up) Devon Anderson
In Harris County, critics are now piling on incumbent District Attorney Devon Anderson, sometimes for things under her control and sometimes not. Texas Monthly compiled examples from the growing litany of allegations which could provide the margin for her defeat in what's expected (by me, anyway) to be a tight November race. As Republican DAs go, I like Devon Anderson. I think she's grown immensely since taking office (under what must have been weird and emotional circumstances). She's a sensible if modest reformer, not some tough-on-crime ogre. But her ouster by a candidate running essentially on a reform platform in the nation's fourth largest city would be significant. And lately, she hasn't done herself any favors.

Shortage of competency restoration beds worst in recent memory
Terri Langford at the Dallas News had an update on the shortage of competency restoration beds at Texas state mental hospitals, a longstanding Grits hobbyhorse. "The number of inmates [on the wait list] has jumped by more than 86 percent in the last 12 months to a record 278 in July. Their average wait time is 149 days." The crisis is now officially the worst its ever been:

Pointing fingers over Austin PD DNA mess
Seeking to take advantage of the ongoing SNAFU at Austin PD's DNA lab, the Austin Criminal Defense Lawyers Association this week alleged that, “'For years, the Austin Police Department has known its DNA lab was taking shortcuts to save time and money at the expense of science,' the defense attorneys organization said. 'Prosecutors in the DA’s office questioned the lab’s shoddy practices and were rebuffed.'” They accused APD officials of “shoddy practices” and “gross errors that could jeopardize the rights of thousands of defendants and victims.”

Federal statute inhibits Harris County jail reform
A Jimmy-Carter era federal statute explains why the Harris County Jail has been so slow to reduce unnecessary jail deaths, reported the Marshall Project. "[T]he result, at the Harris County jail, which has a population of about 9,000, and at some other large facilities, has been lots of talk, less action and, in some notable cases, scant sustainable improvement." To be fair, Harris County could have addressed these problems without being forced to do so without federal litigation. The failure to do so lies at the feet of the current and former Sheriffs and county commissioners. But it's also a fair point that federal oversight structures have few teeth.

State wants $4-5 million for Dawson State Jail site
The Dallas News reports the state of Texas will ask between $4 and $5.1 million for the old Dawson State Jail facility on the banks of the Trinity River. The city of Dallas hoped to purchase the land as part of its Trinity River redevelopment, raising the question: Will the city or one of its partners pony up that much?

Ranking Texas corrections population compared to cities
Attentive readers may recall Grits has pegged the size of the Texas prison system by declaring that it's larger than the city populations of Waco or Midland. Here's a column and chart establishing precisely where TDCJ's population falls on that scale. Now, if you include all Texans under supervision of the state criminal justice system - in prison, county jails, on probation and on parole - the system would come in 6th, just outdistancing El Paso's municipal population.

Stingray data dump
The Intercept's Sam Biddle reveals the results from the biggest open records haul yet regarding so-called Stingray devices (or, technically, IMSI catchers, see here, here and here) in a must-read piece for anyone interested in electronic surveillance questions. In Houston, notably, local police refuse to share details of the device's use with prosecutors, citing the confidentiality agreement now largely mooted with the release of these documents. Now it's just when, where and why the device is used that they're hiding; the how is out there.

Debate: How best to manage police departments?
This Harvard Business Review article suggested that the best way to manage police departments post-Ferguson is (apparently) to ignore demands from the community for justice and instead myopically hone in on what they dub "organizational justice" as viewed from the perspective of police officers and no one else. Thanks, guys. Advising police administrators to pander to the biggest, most aggressive opponents of reform, that's really helpful. To their credit, the same publication ran a much better article last month titled, "The Organizational Reasons Police Departments Don't Change."

Ban on surrogate social media for inmates a bad idea on many levels

Leave it to TDCJ to do exactly the wrong thing on inmate social media accounts. The Texas Tribune reported today that:

Texas prison inmates shouldn't be allowed to have active social media accounts, even if friends or family on the outside actually run them, the Texas Department of Criminal Justice has decided.

Earlier this month, the department updated its criminal handbook to prohibit prisoners from having personal pages on Facebook, Twitter or Instagram run in their name by others. When pages violating the policy are discovered, the department plans to report the violations to the appropriate social network.

"What really prompted the rule was that social media companies now require some sort of specific rule in place that's going to prohibit offenders from maintaining their social media accounts," said department spokesman Jason Clark. "I can tell you increasingly it has become more difficult to ask those companies to take it down. They would come back to us and say, 'You don't have a specific policy that says they can't have it.'"

But the new rule is eliciting free-speech concerns from civil liberties groups and raising questions about how friends or family can advocate for inmates.

Besides the fact that the new policy will almost certainly prove impossible to enforce, and that it was enacted without legislative authorization or even soliciting stakeholder input, this decision was wrongheaded on multiple levels.

Invites First Amendment kerfuffle
First, it invites litigation. It almost feels like they're trying to pick a legal fight. TDCJ just had to change their policy banning beards for Muslim prisoners because of a recent Supreme Court ruling, so we know SCOTUS thinks inmates don't comprehensively lose their First Amendment rights. And in this case, the rights involved aren't limited to the inmate.

Wayne Krause Yang, an attorney for the Texas Civil Rights Project, suggested "the prison system's reach exceeds its legal grasp" with this rule, reported the Trib. "Typically, prisons control the things inside the prisons. they don't traditionally get to pass prison policies that extend far beyond the bars, and it seems like that's what they're trying to do here," he said. "Those types of policies have a name – they're called laws. They should be considered by the representatives of the people, too, because this policy doesn't just affect the people behind the bars."

IANAL, much less a First Amendment expert. But it's not hard to imagine that maintaining a website in the name of another person, with their permission, is protected speech. In February a district judge ruled Texas' online impersonation statute - outlawing the use of another person's name without their permission - is unconstitutional. How much more protected might the courts consider these consensual arrangements?

Incarceration affects more people than just the person incarcerated and those other folks have free speech rights. TDCJ can't by rule take those away. And it raises serious constitutional concerns to threaten to punish an inmate if someone in the free world exercises their right to free speech by posting excerpts from inmate communications on social media.

Grits expects this to be litigated nearly instantly. I have no inside knowledge, but there are too many examples of inmates' social media sites being maintained by friends or loved ones for this not to be quickly and aggressively challenged, if I had to guess.

Misses reintegration opportunity: Should encourage inmates to connect to family, friends
Beyond civil libertarian concerns, though, TDCJ's ham-handed policy misses an opportunity for rehabilitation and reintegration of offenders into the community.

One often hears the estimate that Texas prisons incarcerate around 150,000 inmates, give or take, but that number is not static. Texas releases more than 70,000 prisoners per year, with local law enforcement sending them a roughly like amount to fill the beds they're emptying. That enormous number remained steady over the prior decade, even as crime dramatically declined, for reasons this blog has frequently discussed..

Most offenders aren't in prison that long and when they get out, having retained connections to friends and family facilitates rehabilitation. Average time served for people leaving TDCJ in 2014 was 2.8 years (0.8 years for those in state jails; 4.2 years for those in regular prison units). And they have to keep releasing that many because, despite the crime decline, county prosecutors keep convicting as many or more people of felony offenses than ever, boosting the ratio of convictions-per-arrest in ways that John Pfaff has shown are part of a national trend.

So the typical offender headed to TDCJ will get out four years hence. If they return having no connection to the folks most likely to help them succeed (TDCJ only gives them $100 and a bus ticket when they get out), how is that helping anybody?

These days, people stay connected to one another over distance through the internet, to which Texas inmates don't have access. To me, the solution here is simple and the opposite of what TDCJ has suggested: Allow inmates limited, regulated internet access and the ability to maintain social media accounts. Establish rules making them private except for approved contacts and monitor (by algorithm and, upon suspicion, by staff) and regulate the content of interactions. Give TDCJ back-end access, a kill switch if inmates don't follow the rules, and give inmates an appeals process if TDCJ abuses its authority.

Recently, following up on last year's coverage on Vice and our pal Maurice Chammah's good work for the Marshall Project, CBS' 60 Minutes had a feature on German prisons. The recurring mantra in that piece was that the overarching goal of Deutchland prisons - beyond retribution or incapacitation - was "being reintegrated into a normal life" as a rehabilitated individual. Here's an exchange between the 60 Minutes correspondent and a German prison official:

Joerg Jesse: The real goal is reintegration into society, train them to find a different way to handle their situation outside, life without further crimes, life without creating new victims, things like that.

Bill Whitaker: Where does punishment come in?

Joerg Jesse: The incarceration, the imprisonment itself is punishment. The loss of freedom, that's it.

Bill Whitaker: I think Americans think crime and punishment. You say punishment is not even part of the goal of the German prison.

Joerg Jesse: No.

Bill Whitaker: At all?

Joerg Jesse: Not at all.

Now, I'm not going to suggest for a moment Texas should model its prisons on Germany. We're about as far away from that as Grits is from a hiking route to Berlin. But would it kill us to pay homage to that "reintegration" goal where it can be done in a reasonable, secure fashion? And must prisons be the ONLY institution in society utterly unaffected by the advent of 21st century technology? Are Texans really so unimaginative that the only thing officials can think to do with the new social media phenomenon is close their eyes and wish it would go away?

We're missing an opportunity here to allow inmates to maintain greater connections to the outside world, connections they're going to need to succeed when they get out. Without them, there's a greater likelihood that, alienated and isolated, they fall back into a life of criminality after their incarceration ends.

19th century thinking bad for 21st century security

Let's be frank. Despite Sen. John Whitmire declaring a "zero tolerance" policy on contraband cell phones in Texas prisons, they're still smuggled in fairly routinely and inmates find ways to rent them if they want them. So right now inmates with sufficient resources can get online, create an account, and say or do whatever they want. Happens all the time.

If motivated inmates can access social media, anyway, then Lyndon Johnson's famous quote about J. Edgar Hoover comes to mind: "It's probably better to have him inside the tent pissing out than outside the tent pissing in." Having been unsuccessful at banning internet access, why not allow it, regulate it, and use it for public-spirited goals instead of relegating it to the black market?

Wouldn't it be a better approach if prison units all had a computer lab where inmates could a) learn skills with which they might support themselves in modern service economy and which b) allowed inmates to have email and social media accounts through which the agency could monitor and regulate their content and connections? If TDCJ allowed inmates email and basic social media access - say a Facebook account - and imposed similar content rules to what it does on outgoing mail, most offenders would just use that service and the market for contraband phones might just dry up. Federal prisons allow inmates limited email access, which is a start. but social media is how a lot of people stay connected, particularly among families.

Heck, one could see cell phones with limited access - the way parents can control contents for kids - that inmates could check out or keep in their cell. Keystroke logging could keep track of how it's used. And restricting access would become a probably-very-effective behavior management tool. (Long-time readers may recall Grits has been calling for some version of this change since at least 2011.)

If phones or computers are being used for criminality, harassing victims, etc., this way you know about them and can easily secure evidence. If they're plotting crimes or harassing victims on a contraband phone, what can you really do? Anyway, TDCJ can't know comprehensively who has a social media presence out in the world, especially if they use pseudonyms. So it's hard to stop that behavior on a contraband phone unless someone informs on them. If inmates are communicating using the agency's tech, by contrast, those sorts of things are a lot easier to monitor.

* * *

Bottom line, TDCJ treats inmate connectivity as something to fear and banish, but in cyberspace as with visits, letters, and phone calls, contact with the outside world is something prisons must manage. Positive communications that support goals of reintegration and maintenance of healthy relationships should be encouraged while negative interactions must be identified and stopped. TDCJ may have justified its new social media policy based on security. But by promoting greater demand for contraband and eschewing avenues for monitoring and regulating social media access, not to mention trampling on the free speech rights of free-world folk in probably-unconstitutional ways, in the medium to long run my guess is that this decision caused more problems than it solved.

MORE: From Maurice Chammah at the Marshall Project.

Will Houston PD, DPS begin getting warrants for Stingray use now that feds require one?

Now that the US Justice Department and the Department of Homeland Security have begun requiring agents to obtain search warrants to use "Stingray" surveillance devices (fake-cell phone towers operated by police which trick your phone into routing calls through it), will Houston PD, Fort Worth PD, Texas DPS, and other Texas agencies we don't know about who own those devices start getting warrants, too?

Houston PD doesn't even tell local prosecutors when they use the device, much less seek warrants from a judge. But that approach now diverges significantly from federal practice. Can it be sustained?

The Texas Legislature this year failed to pass legislation by Rep. Duane Bohac and Sen. Craig Estes which would have installed a warrant requirement in state law. But there's an argument the Fourth Amendment to the US Constitution requires a warrant, anyway. So, with the feds backpedaling on the question in the face of numerous court challenges, Texas agencies should probably start seeking warrants, too, or else risk a federal benchslapping down the line.

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.

Warrants-for-cell-phone-location data bill clears committee but time waning

With a half-dozen Texas Electronic Privacy Coalition volunteers gathered around, along with some staffers and a few interested members, Rep. Bryan Hughes' HB 2263 requiring the government to obtain warrants to access consumers' personal cell-phone location information passed out of committee yesterday at a sparsely attended desk meeting. Despite the fact that five committee members are coauthors, the bill was delayed uncomfortably long because of opposition from House Criminal Jurisprudence Committee Chairman Abel Herrero, who was the only "no" vote.

Interestingly, Chairman Herrero opposed this bill in committee last year, then later voted on the floor to amend it to another bill. But this session he opposed it again, even though both sessions he gave it an early hearing and then, after inexplicable delays, a vote. I can't understand what was going on. When a chairman opposes a bill, typically he'd just never give it a hearing, much less a vote, the way Senate State Affairs Chair Joan Huffman has done with Craig Estes' SB 942 in the upper chamber. ¿Quien sabe?

Regardless, firm and jovial support from Calendars Committee Chairman Todd Hunter at yesterday's meeting - and that fact that 12 of 15 Calendars Committee members are coauthors - makes Grits sanguine that HB 2263 might receive a floor vote in the lower chamber before time runs out, even though we're late in session. Senate deadlines are more flexible than in the House - they suspend the rules for everything on the eastern side of the capitol - so there's still plenty of time to pass the bill if the Calendars Committee will expedite giving the thing a vote.

RELATED: Though not yet posted, I'm told Duane Bohac's HB 3165 requiring warrants when police use Stingray devices will be set for a hearing Thursday in the House Select Committee on Emerging Law Enforcement Issues. However, a) it's late and b) that committee hasn't passed out a bill all year. Correction: A reader corrected me by pointing out that Emerging Issues voted for four bills last Thursday, but they've yet to be formally reported out yet, still in that nether region after a vote but before the committee report arrives at Calendars. My error. The fact remains, time is short. UPDATE: The hearing for HB 3165 has been posted.

AT&T: Historical cell-phone location data provides 'detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines'

At a hearing Wednesday evening on HB 2263 by Rep. Bryan Hughes requiring warrants for the government to access personal location data from cell phone companies, cops from Dallas and Houston testified that historical information should be subject to a lower standard than a Fourth Amendment probable cause warrant because it's less accurate than real-time tracking. The argument is that you can only tell which cell tower someone connected to, further narrowed by which third of the tower's range the signal came through. They depicted the scope of a cell tower's expanse as up to ten miles, and in rural areas I suppose that could be true. But these were Dallas and Houston cops and, as a factual matter, coming from those urban jurisdictions that's some pretty weak tea.

Here's how AT&T described the accuracy of historical cell phone location data in an amicus brief on the issue in November 2014:

The precision of this location information varies according to the array of the towers and technology employed. As the density of the cell towers increases (decreasing the area covered by any particular tower), the precision of the CSLI increases correspondingly. Rural or sparsely populated areas generally have fewer cell towers, each serving a larger territory. In more densely populated areas, towers are much closer together and serve smaller areas, generating more specific location information. As customers demand more bandwidth to support smartphones, video services, and other high-volume Internet access, service providers are increasing the density of cell towers, further shrinking the size of particular cells. Service providers are also increasingly boosting their network coverage through small cells known as “microcells” or “femtocells” that may cover an area as small as a single floor of a building or an individual house.

Cellular communications technology may also generate other, more precise forms of location information. For example, some mobile devices, such as smartphones, are equipped with GPS technology which determines the device’s exact location based on signals received by the phone from a network of satellites.  In addition, because mobile devices are often in contact with more than one cell tower at a time, it is often possible to  locate the device through triangulation – i.e., determining the point of overlap among the areas covered by each of the multiple towers within range of a particular device. ...

CSLI at times may provide more sensitive and extensive personal information than the car tracking information at issue in Jones [ed. note: a SCOTUS decision declaring use of GPS trackers is a search]. Users typically keep their mobile devices with them during the entire day, potentially providing a much more extensive and continuous record of an individual’s movements and living patterns than that provided by tracking a vehicle; CSLI, therefore, is not limited to the largely public road system or to when the device user is in a vehicle. That difference, in turn, may enable officials to use historical and prospective CSLI to construct a more detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines – including activities related to the home.

If "historical data is inaccurate" is the best argument they've got (all law enforcement witnesses granted that real-time tracking should require a warrant), this bill with its 97 House authors ought to do fine!

The whole AT&T brief (pdf) is quite a remarkable document for those interested in the topic. It staked out the corporate arguments in a systematic and compelling way for installing a probable-cause warrant requirement for government to access this detailed personal information.

MORE: It's worth noting both AT&T and Verizon registered in favor of Hughes' bill at the hearing.

Ban on Daydreaming would save more lives than texting-while-driving ban, just as enforceable

Eric Nicholson at the Dallas Observer's Unfair Park blog rehearsed the arguments against the ban on texting-while-driving passed in the Texas House, with a particularly good discussion of the disingenuous numbers used to hype the policy and the inevitable difficulties enforcing it:

When pushing the bill, proponents tend to conflate distracted driving with cell phone use, perhaps because the numbers are more impressive. Every year there 3,300 fatalities nationwide linked to distracted driving. In Texas, one in five crashes -- or maybe it's one in four -- involve driver distraction. Texting may well be the "king of distraction," as an insurance-industry lobbyist recently told the Texas legislature, but if so it's a monarch in a multipolar world. Data on whether and how a cell phone was being used in the lead-up to a car crash are shaky, since that generally requires a person to detail their phone use to a cop investigating the crash, but the best federal figures suggest that cell phone use of all kinds is involved in 12 percent of distracted driving crashes; daydreaming, meanwhile, accounted for 18 percent. And that's for all types of cell-phone use, not just texting but also reaching for the phone, dialing a number, and talking -- none of which are touched by the bill passed by the House.

Of course, the fact that no one knows exactly how big a piece of the distracted-driving pie texting accounts for isn't necessarily defensible grounds for opposing it. But conflating numbers in a way that overstates the potential impact of a policy on public safety is, at the least, frustrating. There's also no clear data on the effectiveness of texting bans. A 2014 study concluded that primary texting bans similar to the one being considered in Texas were associated with a 3-percent reduction in traffic fatalities. But another study concluded that whatever impact texting bans had on accidents dissipated after a couple of months, once the news coverage had died down. Still another study, put out by an insurance industry group, found that texting bans have sometimes increased crashes, possibly because drivers were more prone to put their phones on their laps instead of at eye level in order to avoid detection by police.

A bigger issue is the difficulty of enforcement. Under the bill, texting and surfing the web on a cell phone is banned, but dialing a phone number or using a phone to navigate via services like Google Maps is allowed. How can cops know whether someone is texting or looking at Google Maps? They can't: The bill naturally prohibits cops from searching phones during a traffic stop. And are misdemeanor prosecutors really going to subpoena cell phone records to prove beyond a reasonable doubt that a driver was texting when he was pulled over? Doubtful.

In that case, the measure would stand as little more than pretext for police to pull over drivers they didn't otherwise suspect of a crime. State Representative Harold Dutton, a Houston Democrat, proposed an amendment that would prevent texting from being used as probable cause for a traffic stop, but it failed, along with his proposal to require larger police departments to annually report texting-while-driving citations, including a racial breakdown.

If his concerns seem overblown, remember Dallas' now-dead law requiring bike helmets. It, like the texting ban, was touted as a commonsense way to promote public safety, but it led to wildly disparate enforcement: almost all of the citations happened in poor, minority neighborhoods.

It's telling that "daydreaming" is a 50 percent greater "distraction" to drivers than phone use, including texting and talking combined. If we want to keep everybody safe, surely we need to ban that next? Then, of course, we'll need Thought Police to enforce the Daydreaming Ban, and if anybody tells you it's a bad idea, just raise your voice and insist texting while driving is just as dangerous as driving drunk, and daydreaming is half again as dangerous as that! Think of the children!

Nicholson concluded, IMO rightly, that the only potentially valid, fact based argument for the texting ban is to "send a message," and regular readers know Grits thinks criminal laws are a terrible way to do that. After all, who besides lawyers read them? Want to send a message? Then taxpayers' money would be better spent on billboards and TV ads telling people to get off the phone than on cops and courts to "educate" them via Class C tickets.

Grits would also add an important coda to Nicholson's points which this blog raised in December, and which is perhaps even more poignant today in the wake of a bridge collapsing yesterday on I-35:

few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.

Reining in 'cellphone snoops'

The Houston Chronicle published a staff editorial this week ("Cellphone Snoops," March 4) lamenting Houston PD's opacity surrounding their use of international mobile subscriber identity (IMSI) catchers, known by the trade name "Stingray." The article opened, "For about seven years, HPD has been spying on Houstonians by using devices that mimic cellphone towers and trick phones into connecting through them." Moreover:

the whole history of law enforcement using Stingrays has been tarnished by a pattern of secrets and cover-ups. Police departments across the nation have relied on non-disclosure agreements to keep citizens in the dark about what the devices are capable of. Harris County prosecutor Bill Exley told Chronicle reporter Karen Chen that even prosecutors were out of the loop on HPD's Stingray use.

The paper also mentioned the useful fact bite that:

State Supreme Courts in Florida and Massachusetts have required police to seek warrants before engaging in real-time cellphone tracking. Eight states - Illinois, Indiana, Maryland, Minnesota, Tennessee, Utah, Virginia and Wisconsin - have passed laws specifically requiring warrants.

Real-time cell phone tracking probably is the closest analogy to what an IMSI catcher is doing, so I agree it should require a warrant. But the Chronicle repeated a misconception that dogs the Stingray debate - mostly because of misinformation spread by law enforcement - and which deserves correction. Said the editorial, "These briefcase-sized gadgets ... allow officers to look at the metadata on any nearby cellphone - such as whom you call and where you travel - all without needing a warrant."

The "without a warrant" part is accurate. But, while it's technically correct to say the device collects "metadata," it's also incomplete and misleading. A Stingray gathers more than "metadata," a term more applicable to information from phone companies about their customers. Instead, IMSI catchers hijack the phone call entirely, using fraudulent identifiers to convince your device that it's a real, commercial cell phone tower instead of a covert device performing a man-in-the-middle hacking attack. Stingrays don't just collect "metadata," they collect content, similar to an interloper climbing up a pole to listen in on a telegraph line in the 19th century. That's how they work.

Law enforcement claims they do not use Stingrays for wiretapping but that's not because an IMSI catcher cannot perform that function. Some models sold by the vendor, Harris Corporation can tap phones as well as gather "metadata," but non-disclosure agreements prevent anyone - even prosecutors - from knowing whether the model purchased by the City of Houston has that functionality.

Basically, HPD is telling you: Trust us, we're the government. But as Ronald Reagan advised, it's always best to "trust, but verify."

Legislation filed this week by state Senators Craig Estes and Rodney Ellis (SB 942) would require judicial oversight of Stingrays, but treating them as "pen registers" which require a lower standard than a probable-cause warrant ("reasonable suspicion"). Like Rep. Bryan Hughes' HB 2263, Estes' bill would require a search warrant for law enforcement to access personal location data from a third-party cell service provider. Grits expects legislation to be filed in the House suggesting a full-blown Fourth Amendment warrant requirement for Stingray use before the bill filing deadline March 13.

While they're regulating Stingrays, let's hope the Lege formally disallows law enforcement from entering into non-disclosure agreements with vendors regarding use of surveillance equipment. It seems like a no-brainer to me that state open records law should trump such a spurious NDA. But the Attorney General hasn't made them give it up, so - by denying information even to prosecutors - HPD has probably made it necessary to pass a law in order to enforce the law.

RELATED: While we're on the topic, check out the recently upgraded website for the Texas Electronic Privacy Coalition, with which your correspondent is working to pass legislation to require warrants for electronic snooping.

Houston PD conceals Stingray use details from prosecutors, citing NDA; warrant for cell-phone location data bill filed

"For about seven years, the Houston Police Department has owned devices that can trick your cellphone into sharing its location and call log by pretending to be a cell tower," reported Karen Chen at the Houston Chronicle (Feb. 27).

But little is known about how they are deployed, only what they are capable of: telling law enforcement where you are and to whom you've been talking.

In Texas, police are not required to obtain a warrant before using a Stingray, and the net is indiscriminate. The devices sweep up all nearby information, regardless of whether the cellphone is involved in a crime.

Your correspondent was quoted briefly in the story. The most interesting news was something told to me several weeks ago by the Harris DA's office, but made public in this story for the first time: That the Houston PD refuses to tell even the District Attorney's office, much less local judges, what they're doing with this technology, citing a non-disclosure agreement with the Harris Corporation which makes the device. 

Harris County prosecutor Bill Exley said the arrangement doesn't put people's minds at ease. As far as he is aware, Stingrays do not amount to wiretaps, which reveal the content of what's being communicated. That said, Exley said, the nondisclosure agreement has prevented him, too, from knowing what exactly Stingrays are capable of or being used for. He said he has never offered evidence in court that was produced by a Stingray.

HPD has told him that Stingrays are most useful in catching fugitives.

"If there's a warrant for your arrest, the cops should be able to do anything lawful to find you," Exley said. "The question becomes, at what level do you start requiring police officers to ask judges so they can do things they are otherwise legally able to do?"

Exley said as far as he knows the Stingrays aren't wiretapping. But the truth is, the Stingray captures private calls and routes them through a fake cell phone tower operated by the police, and that includes call content as well as metadata. So we have nothing but HPD's say so to support the assertion that they're not accessing content, it's not because the technology they have isn't capable of doing so. If "trust us, we're the government" is good enough for you, you ought to be okay with this.

In Florida, where much more has been made public about how law enforcement uses these devices, "agencies have been using stingrays thousands of times since at least 2007 to investigate crimes as small as a 911 hangup." For example, "A third of the listed stingray cases, in a list provided by the Tallahassee Police Department (TPD), show that the most frequently cited crimes were robbery, burglary, and theft." Most uses did not involve a warrant. The open records gurus at Muckrock.com have been tracking this topic: check out their latest missive, including examples from the NDAs between Harris Corp and local police departments. (This has garnered them fans at the FBI.)

In related news, State Rep. Bryan Hughes yesterday filed HB 2263 - a reprise of his HB 1608 last session which garnered 107 joint and coauthors in the House - which would require warrants for law enforcement to access cell phone location data, and there is interest (including among law enforcement interests) in potentially amending the bill language to include Stingrays (a trade name, the technical term is "IMSI catchers") before everything is said and done.

There's nothing wrong with law enforcement using the latest available technology, where appropriate, but there's also nothing wrong with judges exercising oversight over its use to ensure that new technological advances don't unwittingly dissolve old constitutional protections.

Cell phones responsible for tiny fraction of distracted driving, traffic deaths

Just a quick data-backed reminder, as San Antonio prepares for that city's ban on cell-phone use while driving to take effect next month, that the near-hysteria over drivers using cell phones often overstates the dangers this common behavior poses, which perhaps explains why laws banning phone use while driving haven't significantly reduced accidents. Reported the SA Express-News (Dec. 20):

“Since many things distract drivers, cellphone use may be replacing distractions that drivers would engage in absent phones,” [Insurance Institute for Highway Safety Vice President Russ] Rader said. “So the overall level of distraction may not be going down, even though phone use is.”

Crash statistics similarly show that for as much attention as cellphones get by policymakers and the media, they contribute to a small percentage of crashes.

There were 30,800 fatal crashes nationwide in 2012, a report this year from the National Highway Traffic Safety Administration states. Of those, 3,050 involved a distracted driver — 378 of whom were on cellphones, the federal data indicate.

That means cellphone use contributed to 1.2 percent of fatal crashes nationwide in 2012.

Federal data from 2010 to 2012 demonstrate that crashes involving cellphones account for about 5 percent to 7 percent of crashes caused by distraction, which in turn make up only about 16 percent of all crashes.

From all the "hang up and drive" hype, you'd think we'd be talking about more than 1.2 percent of fatal accidents. That figure seems low even to someone like me who's a skeptic of criminalizing common behaviors like cell-phone use. While every death is tragic, I'd have expected more fatalities than that to have been on the phone just as a matter of Bayesian probability since, from my own observation, at any given time more than 1.2 percent of drivers seem to be on the phone.

By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.

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.