New TDCJ visitation/mail policies punitive and arbitrary

The Texas Department of Criminal Justice is changing its visitation, mail and commissary policies for Texas prison inmates in ways which seem arbitrary and unnecessary.

Let's start with visitation. TDCJ will begin running a drug-sniffing dog past all potential visitors, even children, and deny entry if the dogs alert. If a dog alerts twice, that person will be denied entry permanently.

The move is being billed as preventing contraband smuggling, but that doesn't justify it. For starters, nearly all the contraband smuggling is done by guards, and the biggest problem is the agency can't fire them because they wouldn't have enough people to staff the prisons.

Consider this example from the French Robertson Unit in Abilene last year:

A list obtained by KTXS from the Texas Department of Criminal Justice (TDCJ) said that 51 French Robertson Unit staff members were disciplined and one of those staff members was fired for bringing in contraband between January 1, 2013 to July 3, 2019, a six-and-a-half-year span.

Moreover,

The TDCJ also said that out of the 400 staff members at the French Robertson Unit, the number of contraband disciplines "are below average for disciplinary action and contraband issues as compared to the other 103 state prisons in Texas." 

So one staffer out of 400 was fired for bringing in contraband to the prison, while 51 were allowed to continue working there. And that's "below average" for other units. So it takes a lot of chutzpah for TDCJ to blame families for contraband! That's absurd.

Anyway, why not just run the drug dog past inmates before they go back to their cell, or search them, for that matter, if need be. If you're trying to find contraband, the policy makes no sense.

For that matter, if a drug dog hits on a family member, why not search them for drugs instead of just sending them home? If they don't have drugs, let them visit. Narcotics dogs have very low hit rates (especially compared to, say, explosives-detecting dogs) and in general are about as reliable as a coin flip. But to just send folks away when they hit? It's like they want to discourage visitation more than they want to discover contraband.

Which brings me to another point, if TDCJ is going to use drug dogs in this way, they should record every alert and gather data on false positives. If dogs are alerting when there are no drugs, then you're not preventing contraband smuggling by using them and the whole ordeal is just a waste of time that discourages legitimate visitors.

Changes to mail policy were equally unreasonable and untethered to actual safety concerns. No greeting cards? Really?

And this part seems directly aimed at discouraging letters from children: No stickers or "artwork using paint, glitter, glue, or tape."

In general, "Offenders will only be allowed to receive mail from general correspondents on standard white paper. Mail received on colored, decorated, card stock, construction, linen, or cotton paper will be denied."

Part of this is aimed at getting inmates and families to use their JPay system, but that costs more and bleeds inmates and families financially. Phone rates were finally reduced in Texas, but JPay renews the practice of mulcting incarcerated people's families for the privilege of staying in communication with their loved ones.

If public safety were in any way a concern, maintenance of family ties being a key predictor of success after people leave prison, the agency would do everything in its power to encourage family members to stay in touch with inmates. But they're understaffed and see those communications as a chore they'd like to cut down on, not a central pillar of successful prisoner reentry.

Part of me wonders if this is a ham-handed public relations move, getting in front of major problems with guards smuggling contraband by making a big show of publicly blaming inmate families for it. But that assumes more sophistication and forethought than the agency, whose institutional culture remains stuck in the '90s, generally demonstrates.

Regardless, these changes seem punitive, ill-considered, and even a little mean-spirited. Either TDCJ should reconsider them or the Legislature should change them next year.

UPDATE: Our pal Keri Blakinger with the Marshall Project was in the room when these new policies were announced and forwarded me her notes from the event:

When I first heard about the greeting card ban a few weeks ago, I called the spokesman to confirm and he would not confirm even though officials had already begun telling people. TIFA had known, prisoners themselves had known for weeks, and people kept asking me questions yet - absurdly - TDCJ would not confirm to me. So I showed up at the conference on Saturday in hopes of getting on-the-record confirmation. Here's a sampling of what was said:

The announcement formed the bulk of an hour-long presentation by CID Director Lorie Davis, who kicked off by telling the pretty-full room, "We gotta keep people safe and we gotta help people change."

(This seems to me often at odds with what actually happens but ok.)

"It’s no secret that drugs are bad choices, drugs are one of the reasons why we have the population that we do," she said. "It’s a bad choice to do drugs in the penitentiary."

She said, "We’re committed to fighting this battle," and added, "It’s great that the recidivism rate has come down 10 percent in 10 years that’s great that’s cool but it’s not enough." (unclear not enough what, recidvism decrease or positive action from the agency) 

One of the drugs she railed against coming in was suboxone, which is used to treat opioid addiction. It is easy to dose mail with the water-soluble strips - but it is not something people overdose on and is considered the "gold standard of care."

Despite banning glitter, colored paper and various other things, Davis specified that crayons are still allowed: "I don’t wanna take away a kid’s ability to use crayons and color their mom and dad a picture. That’s important." She stressed the value of staying in touch through mail, saying, "Let's put down our telephones and let's write some cards together." (She meant collectively, not literally offering to chill out with families and write cards, of course.*)

She detailed the creation of a new security precaution indicator (CD) for anyone who catches a disciplinary case relating to contraband (including simply refusing a UA). She says that this won't affect good time, just housing assignments and job assignments - like, those accused of smuggling won't be given janitor jobs.

Anecdotally, what I'm hearing is that the SSIs (porter/janitor-type jobs) are just moving these things around the unit, not necessarily the ones bringing them in - that is, according to all the jail mail I get, largely the guards.

She closed by freaking people out with news of the addition of video visitation at some units. Plans for this add-on were announced in 2018 when they lowered the phone rates. She reassured everyone it would not replace in-person visitation, and was just part of the phone deal. These are the units that will have it: Clements Connally Crain Michael Stiles Wynne Jester Garza Hutchins Montford Travis and Sanchez.

TBH, families still seemed freaked out about visitation - and generally - despite those assurances. She fielded a peppering of worried questions and by the time she closed with a very emotion-laden "drugs are bad," everyone seemed quite concerned.

* Grits' note: She also didn't mean writing cards, which she just announced were banned.

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If you're a Grits subscriber and want those ads to go away, use the donation link in the sidebar to contribute toward that goal. If we hit $320 in some reasonable period of time following this request, I'll switch it over. (Any excess, as always, will go toward this blog's ongoing newspaper subscription expenses.)

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Add accountability to rehab, reentry arguments for inmates' access to email

Grits has long believed that there's little big-picture risk and much benefit from the federal system of allowing prison inmates limited access to monitored email services. At first, this view stemmed mainly from a desire to let inmates stay in touch with their loved ones, which helps facilitate both rehabilitation and successful reentry. But Hurricane Harvey shows that prisoners' email can also serve as an accountability mechanism by giving voice to eyes and ears inside the prison walls.

State prisoners in harms way were evacuated during the recent floods (no clear, comprehensive picture yet of what happened in county jails), but federal prisoners apparently were not, including several privately operated facilities and a federal prison in Beaumont.

Regarding the latter, the federal Bureau of Prisons told the Houston Chronicle that "although the facility's water source was compromised and had intermittent power, it was 'adequately maintained with generator backup power when needed. There is an adequate food and water supply for both inmates and staff.'" But the Chronicle obtained emails from prisoners family members which told a different story. One described:

a scene where a fellow inmate passed out Thursday night because of malnutrition; inmates haven't had a warm meal in more than five days, he said. Because of the water shortage, four portable toilets were brought in to service the man's building. No chemicals were placed in the toilets, which have already been "topped off" with waste, the man said. 

"Save me Jesus," the man said in an email. "I never thought nothing like this would happen in prison."

From the family member who shared the email: "Animals are treated better then those men. They evacuated all those animals and made sure they were safe, why can't they make sure those men in those units are safe, fed, healthy with clean clothes and enough amount of water? They are people too." The 

If this prisoner's account is accurate and complete, then federal inmates in Beaumont experienced nothing like the horrors that went on in New Orleans with inmates during Katrina. But the rosy picture portrayed by the feds wasn't entirely true. And without prisoner access to email, there would be no credible source to dispute inaccurate government claims.

Sometimes the government misrepresents reality to offer only a self-interested perspective, and the closed nature of prisons makes them especially good at concealing their problems from the outside world. Providing electronic communications access to prisoners can add first-person narratives to the mix to help inform those on the outside what goes on inside.

Texas inmates can pay to have incoming emails printed out and given to them, but cannot send outgoing email.

So, we may add "holding government accountable" to "facilitates rehabilitation" and "improves reentry prospects" among the best argument for providing inmates limited access to monitored email, as has long been successfully accomplished in the well-established federal system.

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.

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.

Are we on the verge of a Fourth Amendment revival?

Former Williamson County DA John Bradley has been keeping a low profile since voters ousted him from office last year, at least everywhere but the Texas District and County Attorney Association user forums where he remains a prolific contributor. I may often disagree with him, but Bradley's a smart guy and last week he posed an interesting question that merits Grits readers attention:

When SCOTUS decided the Jones case and said placing a GPS device on a car was a search, the Court did not decide whether a warrant was required. Texas law has not required a warrant. But here is one federal court that has said a warrant is required:

Details.

Given the SCOTUS requirement for a warrant in the McNeely blood draw case, is the national trend toward requiring warrants?

He could have added the example of the Texas Legislature becoming the first state to require a warrant for law enforcement to access cloud-based emails. Moreover, legislation with 107 joint and co-authors in the Texas House, which received 126 votes as an amendment on the House floor, would have required warrants both to place GPS devices on vehicles as well as to access people's cell-phone location data if procedural machinations hadn't kept the amendment off the final bill. (Maine and Montana passed similar legislation this year.) Also, Texas' new law regulating drones requires law enforcement to secure warrants to use them for investigative purposes, even tacking on a powerful exclusionary rule if drones are used without them.

I think JB's right that we're witnessing a "national trend toward requiring warrants" and, moreover, Texas has been a leader in that trend as it regards electronic privacy issues. The Fourth Amendment has been so battered in recent decades by judicial-manufactured exceptions that significant factions in both political parties are beginning to endorse its revival through the legislative process. Hell, it's one of the few issues that seems capable of drawing bipartisan support even in Washington, D.C..

Perhaps that's just false hope and/or wishful thinking on my part, but clearly Grits isn't the only one observing these changing trends. IMO there's a window opening over the next few years during which the opportunity to bolster the Fourth Amendment will re-assert itself. The question will be whether judges, politicians and advocates can discover the courage and wherewithal to seize the moment.

California's Jerry Brown vetoes legislation similar to Texas' warrant-for-email bill

California Governor Jerry Brown vetoed legislation similar to a bill passed here in Texas last spring requiring law enforcement to secure a search warrant to access cloud-based emails. Rick Perry, by contrast, signed Texas' Tea-Party backed legislation on the same topic.

Gov. Brown also vetoed legislation reducing penalties for low-level drug possession aimed at complying with a federal court order to reduce prison overcrowding. This despite a poll last year that found "62 percent of Californians agree that the penalty for possessing a small amount of illegal drugs for personal use should be reduced to a misdemeanor."

Arguably, conservatives seeking a less-government, liberty-minded approach to criminal justice should just look at what Jerry Brown does and do the opposite.

On the dangers and pitfalls of diminished electronic privacy

With the national press closely tracking the blow-by-blow, this blog has not been closely following revelations about NSA data gathering on Americans' phone calls, including at least for a time their cell-phone location data. But I wanted to point readers to this new story from the UK Guardian detailing more of the agency's internet surveillance capabilities. As depicted in training materials for a program called XKeyscore, "the ability to search HTTP activity by keyword permits the analyst access to what the NSA calls 'nearly everything a typical user does on the internet'." In  another major revelation, cybersecurity expert Bruce Schneier has a fascinating (if rather technical) article about how the NSA is able to exploit vulnerabilities in Firefox web browsers to defeat the Tor online anonymity service, one of the more powerful encryption/anonymity methods available to the public. More on that here.

There have been a couple of other recent national news stories on electronic privacy that may interest Grits readers concerned about electronic privacy in the digital age:

• Center for Investigative Reporting: Easily obtained subpoenas turn your personal information against you
• NPR: Your Digital Trail: Data fuels political and legal agendas

The lengthy CIR story reminds us that "it’s not just an ultrasecret spy agency that can create a dossier on you." For example, "Law enforcement can create a map or timeline of a person’s whereabouts by accessing data from license-plate scanners, toll-bridge crossings and mobile phone carriers and, without much trouble, access records on your power consumption, purchasing habits and even snail mail." In some states, much of the same data can be acquired by divorce attorneys or other private litigants.

The latter article contains an interesting thought experiment from John Dean, who was Richard Nixon's White House counsel during the Watergate scandal:

Here's a question for the digital age: If you are one of those people who say, "I've done nothing wrong; I've got nothing to hide," do you have any reason to worry that someone might try to use your digital records against you?

We posed that question to John Dean, a man who has become immortalized in U.S. history books as President Richard Nixon's White House lawyer. His answer: "Think about the Nixon Enemies List."

"If Richard Nixon were alive today and in office," Dean says, "I'd have great concern about the data that's being collected."

Dean says the history of Nixon's Enemies List, which surfaced during the Watergate scandal, shows that even when people have done nothing wrong and think they have nothing to hide, unscrupulous government officials can still dig up personal information and use it to try to smear people.

D Magazine touts Stickland's warrants-for-cloud-email bill

D Magazine has a story in its August issue on Jonathon Stickland's amendment to require a warrant for law enforcement to access cloud-based email and other computer content. The story by Farraz Khan, which quoted your correspondent, called it "the session’s most significant bipartisan piece of legislation." It concluded:

While the legislation was awaiting Governor Rick Perry’s signature, news of the NSA’s PRISM surveillance program broke, landing electronic privacy back on the national agenda. The timing was perfect: says Henson, it made Stickland look “eerily prescient.” On June 14, the governor signed Stickland’s measure into law, effective immediately.

Now, in Texas, state law enforcement must secure a probable cause warrant before it can search private emails or cloud content. According to Allie Bohm, a speech privacy and technology policy strategist with the ACLU, Texas is the first state to enact a law protecting email content from warrantless searches. But it won’t be the last. Stickland’s office has received phone calls from Republican and Democrat activists and policymakers from California, Georgia, Kentucky, Oklahoma, Tennessee, and Virginia, who want to pass similar legislation in their states. And it puts pressure on Congressional lawmakers in Washington to pass a bill to amend ECPA that was introduced in the spring by Senators Patrick Leahy, a Vermont Democrat, and Mike Lee, a Utah Republican.

Not bad for a freshman.

This has been so well received, it makes me even more frustrated we didn't get the warrants for cell-phone location bill passed this session. That would have made a nice two-fer.

Graph your own Gmail metadata; TX updates data breach law

Since the NSA domestic spying scandal broke there has been much talk about "metadata," mostly surrounding phone calls. Few people outside the tech community, though, have a clear sense of what metadata is or what it might tell others about us. Not just phone calls but other electronic communications like email and texting also generate metadata. Brian Fung at National Journal brings word of a new tool that lets you see what the metadata from your Gmail account tells about your connections and relationships:

When Google hands over e-mail records to the government, it includes basic envelope information, or metadata, that reveals the names and e-mail addresses of senders and recipients in your account. The feds can then mine that information for patterns that might be useful in a law-enforcement investigation.

What kind of relationships do they see in an average account? Thanks to the researchers at theMassachusetts Institute of Technology Media Lab, now you can find out. They’ve developed a tool called Immersion that taps into your Gmail and displays the results as an interactive graphic.

To analyze your own data you must give MIT access to your Gmail info, though you're given the option to delete it once the analysis is done. Or check out an example using anonymized data.

Also on the electronic privacy front, though it wasn't a piece of legislation Grits was tracking, this item from Lexology brings word of SB 1610 updating Texas' data privacy breach statute to require notification of consumers when their data is compromised even if they live out of state. Glad to see it.

Via Pogo Was Right.

Freshman lauded for email privacy legislation

The July issue of Texas Monthly has a lengthy interview with freshman state Rep. Jonathon Stickland, mostly focused on his amendment requiring law enforcement to secure warrants to access cloud-based email. Grits was interviewed recently for a D Magazine feature about the legislation which I understand will run in its August edition. Glad to see him getting in-state credit. The amendment received terrific attention nationwide, particularly from the tech press, but the Texas media hasn't seemed to want to give the freshman the credit he deserves.

See related Grits posts:

• Third-party doctrine and the future of the Fourth Amendment in the digital age
• Stickland warrants for cloud-content amendment continues to rack up media praise
• National tech press loves Stickland email legislation: Will it become law?
• Federalism, search warrants, and cloud-based email: Correcting a false meme
• Texas first state to require warrants for old email if bill survives veto period
• Texas closing email loophole, requiring warrants for content: Feds should follow suit
• Texas House approves electronic privacy legislation
• Texas House votes to require warrants for emails stored with third parties
• Protecting email from warrantless government searches
• Require warrants for police to read old email

Third-Party Doctrine and the Future of the Fourth Amendment in the Digital Age

With Independence Day approaching, Grits still laments this session's near-miss loss for the Fourth Amendment regarding warrants for cell-phone location data, legislation carried by state Rep. Bryan Hughes and state Senators Juan Hinojosa and Craig Estes that nearly passed as an amendment. This NY Times headline yesterday would have looked a lot better with Texas in the title than Montana, that's for sure.

The public faces increasing commercial pressure to utilize cell-phone location data that right now is not covered by Fourth Amendment protections under the Supreme Court's third party exception. But location data is only the spearpoint of the issue. To me, eventually the entire third-party doctrine spawned from the court's Smith and Miller cases in the '70s (see here for an example of an Obama apologist using those cases to justify the NSA gobbling up everyone's cell-phone metadata ) must be reconsidered in light of the advent of cloud computing in the digital age, as Justice Sonia Sotomayor rightly argued in US v. Jones. These were already going to be some of the biggest Fourth Amendment issues of the decade before anyone ever heard of Edward Snowden, though he certainly heightened their profile.

Approaching a holiday celebrating our freedoms, I am gratified the Lege offered its own contribution to the national debate over digital Fourth Amendment protections, making Texas the first state to require law enforcement to get warrants for cloud-based email and other content. Grits expects other states to follow our lead, just as other states are already following Montana's on cell phones. Maybe in 2015 the Texas Electronic Privacy Coalition can convince the Lege to pick up the cell-phone location data bill like a bowler picks up a spare. But it sure would have been nice to get both of them this time. Rep. Hughes and Co. were awfully close to have it peter out at the end.

Stickland's warrants-for-cloud-content amendment continues to rack up media praise

Texas state Rep. Jon Stickland's amendment to HB 2268 requiring warrants for cloud-based email and other computer content held by third parties continues to get good press, recently garnering him rare, unreserved praise from a Texas daily, the Fort Worth Star Telegram, which on June 12 issued a staff editorial ("Texas freshman legislator set a standard on privacy law") which opened:

Darned if the new guy from Bedford didn’t accomplish something of national importance in privacy law during his first term as a state representative.

Republican Rep. Jonathan Stickland, 29, was elected last year in District 92 with strong conservative and Tea Party backing. Todd Smith had vacated the seat in an unsuccessful run for the Senate.

As is the way of life for legislative freshmen, Stickland was relegated by many senior members to “seen but not heard” status. Still, he vowed to compile the most conservative voting record of anyone in the House — and he might have achieved that distinction or something close to it.

But what might turn out to be Stickland’s most important first-term accomplishment is the amendment he successfully attached to House Bill 2268, which has been sent to Gov. Rick Perry. (Ed. note: The bill was signed and has become Texas law.)

The amendment set national precedent by requiring law enforcement officers to get a warrant for access to someone’s email or customer data stored by an electronic service provider.

Congrats again to Rep. Stickland, his staff, and everyone at TXEPC who worked on the bill. As I've told several reporters recently, this was a big accomplishment for a freshman. Here are some links to additional, recent coverage of Sticland's email bill. (See earlier coverage rounded up here, here, and here.)

• Before It's News: One Giant Leap for Privacy: Texas now requires warrant for content
• The Daily Dot: Texas enacts email privacy law
• Tom's Guide to tech for real life: Texas law now can't snoop in email without a warrant 
• CultureMap Austin: Texas to feds: Come and take it (our digital data)
• Red Alert Politics: New law in Texas requires warrants to search emails
• Higher Thinking Primate: Texas becomes first state to require warrant for email spying
• Naked Security: Texas  becomes first US state to ban warrantless email spying
• The Unhived Mind: Strongest email privacy law signed by Texas governor
• Tech and Gadget News: Tea Party Republicans and 'liberal weenies' alike celebrate Texas email privacy law
• Llodo.com: Email snooping corralled in Texas: Other states may follow

Finally, a related update: Regular readers know that there's federal legislation moving to plug the same loophole in federal law that Stickland's amendment addressed in Texas' Code of Criminal Procedure. Here's a recent story on the House version of that federal legislation, which includes among its coauthors Texas Congressman Ted Poe.

Read more here: http://www.star-telegram.com/2013/06/12/4933366/texas-freshman-legislator-set.html#storylink=cpy

Jail politics and the purported decline of 'apostrophe laws'

Here are a few tidbits which haven't made it into individual posts but may interest Grits readers:

Fort Worth jail costs skyrocket from incarcerating Class C misdemeanants
Here's an absolutely superb story from the Fort Worth Star-Telegram on a dispute between Fort Worth and Tarrant County over housing Class C traffic ticket violators. Tarrant won't do it so Fort Worth entered into a rather squirrelly contract with Mansfield for which they're massively overpaying to house Class C offenders. Unlike most jurisdictions, Fort Worth does not cut deals to reduce fines and sends people to jail until either they can pay or their jail credits cover the debt. Critics including the Tarrant County Sheriff say that amounts to operating a "debtor's prison."  Give it a read, there aren't too many reporters in the state with enough understanding of the system to pull off this story. Yamil Berard is one of them.

Jail health privatization
Navarro County is considering privatizing health care services at its county jail.

New jail suggestion rejected
Commissioners in Rockwall County rejected a study designed to prepare them for jail expansion.

Welcome to SA, prepare to be blamed
The Bexar County Jail just got a new jail administrator. That's a more political job these days in San Antonio than in most counties because of disputes between the Sheriff and Commissioners Court over staffing. He's got his work cut out for him.

Cite-and-summons process needs mechanism to improve court-appearance rate
Travis County's cite-and-summons program for low-level misdemeanors (authorized by the Lege in 2007 to ease jail overcrowding) has a high no-show rate, the Austin Statesman reported. IMO this is in part because no infrastructure is in place to remind people of court dates, etc., the way pretrial services does with defendants given personal bonds. The rate will never get to zero but with a little forethought and effort it could be dramatically lowered from where it is now. By contrast, Sheriff Gary Painter in Midland effusively praised the program and said they haven't seen similar problems.

Governor signs TX warrants for email bill
After Gov. Perry signed Texas' warrants for email bill it received some nice coverage from Ars Technica and Law360.com. I had breakfast this morning with Greg Nojeim from the Center for Democracy and Technology who said he expects similar federal legislation to pass the US Senate but fears for its prospects in the House of Representatives.

Montana requires warrants for cell-phone location data
Montana's governor has signed legislation requiring warrants for law enforcement to acquire cell-phone location data. Readers will recall the legislatures in Missouri and Maine passed similar legislation, but Montana's governor beat them to the punch in signing it, making them the first state to finally pass such a law. Go here for detailed information about the MT bill.

Public doesn't trust fed snooping
A new poll found that 57% of the public fears the NSA uber-database on phone records will be used for political purposes unrelated to national security. That's an unsurprising and perhaps even a realistic assessment. After all, the database isn't assisting terrorism investigations, which makes one wonder if it exists for some different, perhaps less noble purpose. Polling on the NSA phone spying scandal has been all over the map but given the Obama Administration's recent record regarding journalists' privileges and the use of the IRS to target political opponents, I can't say I blame the public for being skeptical.

Are 'apostrophe laws' really on the decline?
I'm not sure I believe this but USA Today reported that so-called "apostrophe laws" - typically enhancements named after dead children, driven by grieving parents - are receiving a cooler reception among state-level lawmakers this year. That may be because many are bad public policy or, as the article suggests, they may have just run out of low-hanging fruit. We still see a lot of this in Texas, though, I'm not sure the trend described has yet migrated across the Red River. And though the article focuses on penalty enhancements, in Texas the concept cuts both ways - the "Michael Morton Act," the creation of the "Timothy Cole Advisory Panel," and the Tulia legislation were all good examples of reform legislation passed in response to a particular injustice. Ideally government shouldn't make public policy based on individual anecdote, but that's the political reality we live in for good or ill.

Drug cases dropped from misconduct, and other stories

A few, disparate items that caught my eye:

J. Salvador fiasco impacts first case beyond Galveston
The Texas Court of Criminal Appeals has granted relief (pdf) for the first time in one of the Jonathon Salvador drug cases originating outside Galveston, where the District Attorney has been facilitating them most quickly. Not only that, in this case out of Harris County, unlike in Galveston, the DA's office attempted to contest the findings on behalf of the defendant but were rebuffed both by the trial court and now the CCA, which used the same boilerplate language they used to grant 18 prior cases. By Grits' count, the 19 cases overturned so far have totaled 151.5 years, for an average of eight years per case. There could easily be thousands of cases overturned based on this one lab analyst's misconduct by the time we're done. UPDATE: See more from the Houston Chronicle.

Deja vu on drug task force misconduct
As many as 75 drug cases may be dismissed in Hidalgo County because of recent misconduct charges against key members of their multi-agency drug task force. Multi-county task forces were put under DPS supervision in 2005 and those have all closed up shop rather than comply with more strict DPS policies than their loosey-goosey, oversight-free status had afforded them. But some counties simply scaled back to multi-agency drug task forces among agencies in the same county - which are not regulated by DPS - and those continue to crop up as sources of corruption and ineptitude.

Understaffing and jail suicides
See a must-read piece by Michael Barajas at the SA Current titled "Dead in Seven Hours: When overdosed meets overworked, Bexar County Jail's fatal flaws come to light."

Texas groups excoriate 5th Circuit judge over recent speech
Judge Edith Jones of the Fifth Circuit Court of Appeals has drawn a formal complaint from a variety of organizations in response to a recent, public exhibition of foot and mouth disease, reported the Austin Chronicle. Read the whole thing, a brief summary can't do it justice. See also more from the Texas Tribune, and a blog post from Paul Kennedy.

Private prison news
Several good, interesting posts over at Texas Prison Bidness if you haven't visited recently.

More media on warrants-for-email
The warrants for email legislation continues to get good coverage. There was a nice item from KVUE in Austin. See others here, here, and here. And prior press roundups. (Whether readers are sick of it or not, I need to keep tabs on the press it gets.)

Youth crime reductions leading recent crime drops
The latest drop in crime nationally is being led by a substantial reduction in youth crime, found the Research and Evaluation Center at the John Jay College of Justice in New York. Grits readers, of course, are aware of my own favorite theory why that's the case: Young people spend a great deal of time engaged with technology like the internet, video games and cell phones that didn't exist 25 years ago. These activities occupy time of teens and young adults who are the most likely to commit crimes. The kid perfecting his skills at Grand Theft Auto V may not be preparing himself for the job market, but he isn't out stealing my car. There's even some formal research to back up that notion. Obviously, though, there are many factors contributing to 21st century crime reductions.

National tech press loves Stickland email legislation: Will it become law?

After Ars Technica published a widely read piece calling the bill "unprecedented" and the National Journal followed up, several more news stories have come out regarding legislation now pending before the Governor, HB 2268, which includes an amendment by Rep. Jonathon Stickland to require warrants for government to access cloud-based email. See earlier Grits coverage and these recent stories:

• Austin Business Journal: Texas email privacy bill turns heads
• Computer World: In Texas, cops will soon need a warrant to read your email 
• Government Technology: Will Texas pass nation's strongest email privacy bill?
• RT.com: Texas could set new standard on email privacy laws
• Fierce Homeland Security: Texas legislature passes bill requiring warrants for email searches
• Mashable: Texas police may soon need warrants to read emails
• Daily Tech: Texas seeks to become first state with strong email privacy protections
• Law360: Texas email privacy bill could prod states, feds 

Jonathon Tilove at the Austin Statesman linked to the Ars and National Journal stories but besides that, surprisingly the Austin Business Journal is the only Texas media outlet to cover the bill's passage, much less mention that Texas would be the first state to install a warrant requirement for cloud-based email. My theory is that reporters don't want to have to say anything nice about the author of the email amendment, Jonathon Stickland, who's become a bit of a whipping boy in the liberal press and authored a bill aimed at gutting government subsidies to newspapers. Free from such biases, the national tech press (rightly) consider it landmark legislation.

During session, Grits had considered the warrants-for-email bill a bit of a consolation prize. Location data was where government put up a real fight, probably because the tool is used much more often. Location data is an investigative shortcut; reading reams of old email is a slog, so investigators do it a lot less often. Plus, the law-enforcement lobby really didn't want to stand up in public and say the cops should be able to read your personal email without a warrant. Even those registering opposition to HB 3164 at the committee hearing merely "put in a card." Nobody wanted to speak publicly against it, much less answer questions from legislators on the topic.

Several reporters have asked if I think Rick Perry will veto the bill. While having no direct knowledge, Grits tends to doubt it. For starters, the warrant-requirement was amended to prosecutor-friendly legislation that the DAs actually want. Plus, the bill has gotten loads of positive national press, many of the stories plastered with Perry's picture. It sets Texas apart from the Obama Administration which has a terrible record on this topic. Mr. Stickland gives it a fine, grassroots conservative Tea Party imprimatur. And since the Lege didn't do much for ideological conservatives this year, this is something to sell. Meanwhile, vetoing it would open the governor up to criticism from grassroots conservatives in a potential primary fight with Greg Abbott, John Cornyn, or (God help us) another presidential run. Finally, it's the right thing to do and Perry's record on criminal justice reform topics isn't half bad, though the Fourth Amendment has been a weak spot. I just don't see a reason he would pick this bill out of the pile to veto and many reasons for him to let it become law.

One thing's for sure: We'll know by Father's Day.

RELATED: Federalism, search warrants and cloud-based email: Correcting a false meme

Federalism, search warrants, and cloud-based email: Correcting a false meme

There's a meme spreading in national coverage of Texas' legislation requiring warrants for email that needs quashing. At the National Journal, Brian Fung wrote that, "The Texas bill can't override ECPA [the Electronic Communications Privacy Act]; it can only change the way the state deals with lower-level cases. But it would set a high-profile example." Then, Cory Doctorow at Boing Boing wrote that, "The Texas law is somewhat symbolic (since it won't stop Fed snooping), but it's still an important step toward establishing a better norm in privacy standards for files on cloud-based services."

The idea that this bill is "symbolic" or only applies in "lower-level cases" couldn't be further from the truth. Grits replied thusly to Doctorow in the comments:

No, no no! Not symbolic at all! The overwhelming number of prosecutions including for the most serious cases like murder, sexual assault, child abuse, etc., all take place in STATE courts. The new warrant requirement applies in all those cases, which means it applies in most criminal cases in Texas, by a longshot. Ask your friends at EFF-Austin about it, they were part of the Texas Electronic Privacy Coalition that promulgated and helped pass the bill. States get to establish their own rules of criminal procedure with SCOTUS rulings and federal law as a floor, so the law headed to Perry covers every state and local cop in Texas, which means peace officers at more than 2,600 agencies.

Let's be clear: Texas and other states get to set their own search-warrant standards as long as they don't go below floors set by the US Supreme Court. Beyond that, federal criminal procedure applies to federal agents - the FBI, DHS, etc.. It doesn't necessarily govern how states handle criminal cases in their own jurisdictions. In this case, however, Texas law currently incorporates the ECPA statute by reference. What the Stickland amendment to HB 2268 did was to delete the sections of Texas' statute that incorporated ECPA, instead insisting that a warrant will always be required for state and local government to access cloud-based email, no matter how old, and whether opened, unopened, or in draft form.

Texas law doesn't apply to the FBI or other federal agencies operating here, but it does apply to state and local cops from the Texas Rangers to the lowliest two-man PD, every county sheriff, and Texas state agencies. In 2011, there were 256,664 felony cases processed in Texas state district courts according to the Office of Court Administrate (see here, p. 8 - add appointed and retained counsel totals).

By contrast, in the fiscal year ending August 2012, federal courts processed 94,121 cases nationwide, with just a fraction of them in Texas (see here, subtract civil cases from the total). In fact, in Texas the feds have been doing fewer traditional criminal cases because the Southern and Western Districts in particular have been overwhelmed with immigration cases, a situation exacerbated by the US Senate's inexplicable delays approving judicial appointments.

All this to say, the warrants for email legislation would apply in the overwhelming majority of criminal investigations in Texas, including in the most "serious" cases. The hundreds of people on Texas death row, for example, all got there via Texas state courts. The bill is not "symbolic," nor does it only apply to minor cases. It's an expression of federalism - the laboratory of the states - and it would be virtually a snub to his beloved Tenth Amendment for Gov. Perry to veto it.

Texas first state to require warrants for old email if bill survives veto period

Very nice story from Cyrus Farivar from Ars Technica about state Rep. Jon Stickland's email bill which was amended on to legislation currently headed to the governor. The article, titled "Unprecedented email privacy bill sent to Texas Governor's desk" (May 28), concluded thusly:

“Privacy is a special thing in Texas—it goes to the core values of Texas,” Chris Soghoian, a senior policy analyst at the American Civil Liberties Union, told Ars.

“It's always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.”

Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, agreed.

“It is the first state legislature I'm aware of to change the law this way,” he also told Ars. “Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly.”

“It's significant as proof that privacy reform is not only needed, but also politically-feasible with broad bipartisan support. And hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.”

I couldn't be more proud of the Texas Electronic Privacy Coalition, an alliance of state and local groups powered mostly by volunteers who brought Rep. Stickland the bill and helped promote it. And it should be mentioned that while Jon Stickland's reputation may be taking a beating among the capitol cognoscenti, this legislation was a significant achievement for a freshman. He was bold to file it and bolder still to amend it to a passing bill when the filed version got gummed up in the process. In my book he deserves a lot of credit for that.

MORE: From National Journal. AND MORE: From Popular Science.

Texas closing email loophole, requiring warrant for old content: Feds should follow suit

At the federal level in the wake of the IRS and AP surveillance scandals, we're increasingly seeing headlines like this latest one from Wired declaring, "[Eric] Holder Should Demand Feds Get a Warrant to Read Our Email." The nation at large is becoming aware of something Grits readers have known for some time: Under federal law - which Texas statutes currently incorporate by reference - law enforcement doesn't need a warrant to look at emails stored with a third party like Gmail or Yahoo! once they're older than 180 days. (Quick question: What's the oldest email stored on your own personal system?)

Given this nascent national debate, Grits is pleased to report that the Texas Legislature has sent a bill to Governor Rick Perry, HB 2268, that in its amended form requires a warrant for law enforcement to access old emails, closing the loophole at least for state and local law enforcement in Texas. Federal agents can still access your old emails under the 1986 Electronic Communications Privacy Act, though Congress is (again) considering updating that law. But barring an unexpected veto (the bill amended was a prosecutor-friendly measure the governor is unlikely to oppose), Texas will be ahead of the curve on the email front. Perhaps Texas' new warrant requirement will even contribute momentum toward passing similar federal legislation.

Congratulations to freshman state Rep. Jon Stickland whose HB 3164 served as the template for his amendment to HB 2268, which would ban the sort of snooping into old emails that Congress, the US Justice Department and the courts have inexplicably allowed at the federal level. The Texas Electronic Privacy Coalition brought the bill after Stickland and a couple of other legislators specifically requested it. Ever since the Petraeus scandal, privacy-inclined folks have become increasingly aware of the vulnerability of email stored with third parties and legislators who were aware of the issue needed little priming. To my knowledge, though, Texas will be the first state to specifically address the subject through legislation.

Naturally, I'm disappointed that an amendment to the senate companion of the same bill requiring a warrant for police to access historic cell-phone location data didn't make it onto the version that finally went to the Governor. But requiring warrants for older emails is a nice get. And most of the 126 House members who voted for Bryan Hughes' cell-phone privacy amendment will be back again in 2015 when we can take another shot at it.

RELATED: See Grits' coverage from when Stickland's bill was filed and when it was amended onto HB 2268, as well as an op-ed I authored on the bill's behalf in the Dallas News.

Texas House approves electronic privacy legislation

Great news!

A pair of bills backed by the Texas Electronic Privacy Coalition were amended onto a Senate bill in the Texas House of Representatives (SB 1052) - one requiring warrants for police to access cell-phone location data and another instituting a warrant requirement for emails stored with a third party.

Rep. John Frullo accepted Rep. Bryan Hughes' HB 1608 (requiring warrants for law enforcement to access cell-phone location data) as an amendment to SB 1052, though not until after after his motion to table Hughes' amendment failed by a whopping 126-4 margin.  Frullo also accepted an amendment to require warrants for email stored with third parties - legislation originally filed as HB 3164 by Jon Stickland. Now, the Texas Senate must decide whether to concur in the amendments or send the bill to conference committee.

Find below the jump a copy of a press release from the Texas Electronic Privacy Coalition lauding the passage of the two amendments.