Prosecutor elections, the limits of reasonable suspicion, and other stories

If only to clear my browser tabs, here are a few odds and ends that may interest Grits readers:

TX prosecutor election outcomes
By TDCAA's calculations, there will be at least 20 new elected prosecutors across Texas by the time the 2016 election season ends. See details here.

Dallas cops still can't ticket for marijuana
Despite urging from the county, which must pay to jail pot smokers arrested by Dallas PD, the Dallas City Council declined to allow its officers to issue citations instead of making arrests for low-level marijuana possession. The vote was 10-5. That sounds like a dandy issue to campaign on in a local election, don't you think? What a waste of officers' time and county jail resources!

Austin extends "ban the box" to private sector
The Austin City Council made it easier for ex-offenders to get a job, requiring larger employers to ban-the-box. I've been grumpy at them lately on non-criminal justice topics, but must give credit where it's due: This was an important and encouraging step. Here's coverage from KUT. Reported the Statesman, "The Austin City Council voted 8-2 Thursday night to pass the “fair chance hiring” ordinance championed by Council Member Greg Casar, which prevents companies from asking applicants to check a box on a job application if they have a criminal history. ... The ordinance applies to employers with at least 15 workers." See Amanda Woog's writeup of the hearing.

Strike the black jurors?
Prosecutor Nathan Wood from Wharton this week accused his boss, the elected DA Ross Kurtz, of advising attorneys in the office to avoid black jurors as a matter of strategy.

The issue emerged during a black woman's trial that began in February with Wood and another prosecutor striking the only three blacks on a jury panel. Defense attorney Mark Racer objected, forcing the prosecutors to give race-neutral explanations for their actions.

"This is just a win-at-all costs mentality that shouldn't be there," Racer said this week. "And clearly one of the prosecutors was uncomfortable with it."

The limits of 'reasonable suspicion'
The Texas Court of Criminal Appeals issued a pro-defense opinion in a case which raised the question "whether an officer has reasonable suspicion to detain a suspect based on observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based upon the officer's unsubstantiated belief that the suspect is a 'known criminal.'" In an opinion by Judge Larry Meyers, a unanimous court said that was not enough to justify a detention. Commentary at TDCAA advised that, "Reasonable suspicion is a low threshold, but not quite this low. The Court is typically deferential to the officer on the street, but this officer perhaps could have talked with the suspect awhile longer before detaining him. By doing so, he might have discovered other suspicious facts to support a detention."

License plate readers and roadside debt collection
The Southeast Texas Examiner took a deep dive into the issue of law enforcement's use of license plate readers now that the Lege has okayed roadside collections via credit card.

Pepper spray abuses
A couple of blatant misuses of pepper spray caught Grits' eye recently. In Fort Worth, a police officer sprayed motorcycle club members as a line of bikes passed him on the highway. In Austin, the Peaceful Streets Project caught an officer on video pepper spraying a handcuffed man in a police van; the officer opened the van door, sprayed the guy, then shut it again while the guy writhed around in pain inside. Both those cops should be fired.

Targeting union-dues paycheck deductions
GOP voters in the Republican primary voted by an 83-17 margin to eliminate public employee unions' ability to deduct dues from members' paychecks and Empower Texas is promoting a petition urging the Legislature to do away with the practice. Grits might be more interested in that idea except that the bill they pushed last time gave a pass to dues deductions for local police associations, who arguably are the most powerful labor interest in the state. If this is about principle, apply the principle across the board. Besides, they're mainly doing this to attack Texas House Speaker Joe Straus and it was police unions who came to his ardent defense when the Speaker was attacked during the primary. If they're going to do this, police associations must be included or the proposal comes off as two-faced.

Toward police accountability
Several additional items related to police reform merit readers' attention:

• Citizens panel urges removal of confrontation-promoting Austin PD trainer
• Awful but lawful (from ACLUTX's Matt Simpson)
• Police de-escalation training, how it could help
• Don't hide police use of force videos from body cams
• Policing 2016 (a new report from the Urban Institute) 

House Speaker Paul Ryan backs criminal-justice reform
U.S. House Speaker Paul Ryan announced this week he'll move federal sentencing reform legislation in the House and explained the reasons behind his own, personal transition from tuff-on-crime maven to reform advocate. For example, "I didn't necessarily know this before, but redemption is a beautiful thing. It's a great thing," he declared. "Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws."

License plate readers beef up debtors' prison enforcement arm

The Austin Statesman has a feature on the most insidious enforcement mechanism yet for Texas' debtors prison system, coercing payments from indigent defendants via threat of incarceration.

Following up on the EFF report regarding license-plate reader vendors and roadside debt collection by police in Texas, Eric Dexheimer and Tony Plohetski at the Austin Statesman delved into the topic in more detail in today's paper. The story opened with this workaday description of what promises soon to become the future of Texas traffic enforcement:

When Guadalupe County Precinct 3 Deputy Constable Jesse Rosales arrives to work each morning, his computer greets him with a list of people who have outstanding warrants, mostly for minor crimes like traffic offenses. In the past, finding the offenders was time-consuming, and Rosales says there were plenty of days he came up empty.

Yet unlike the old warrant lists, the ones the deputy receives today are a technological wonder. Each defendant’s name is accompanied by a picture of his vehicle; an aerial photograph pinpoints the exact location where the car was observed only hours earlier.

This isn't some futuristic Big-Brotherish dystopian vision, it's what traffic enforcement cops at the local constable's office do with their time today and tomorrow in Guadalupe County, Texas. Continued the Statesman:

The pictures Rosales uses are made possible by high-speed cameras attached to fleets of private cars driven around by bank and finance company repo men cruising neighborhoods in search of delinquent auto loans. Nationally, about 2,300 photos per minute flow into a massive database of license plate photos maintained by a Fort Worth company called Digital Recognition Network.

Then, in a partnership that civil libertarians and privacy advocates worry could cross the line from efficient policing to intrusive government and corporate snooping, client law enforcement agencies use that information to obtain up-to-date locations of scofflaws who owe money. When Rosales finds one of his targets using the photos and his own company-supplied license plate reading camera, the person can be arrested, or pay up right away — 10 months ago, the deputy also had a credit card reader installed in his cruiser.

In exchange, a Digital Recognition Network-affiliated company called Vigilant Solutions gets to keep a 25 percent fee tacked onto the fine. For a standard traffic violation warrant, that comes to about $75.

In recent months, constables and the sheriff’s department in Guadalupe County have installed the system, as have the cities of Kyle and Lakeway. (Lakeway owns its cameras and so gives no money to Vigilant from warrant collections.) Others around the state say they are considering it. Those using it report they are thrilled with the results. Letting people pay directly to police is convenient for defendants, they say, and potentially keeps them out of jail.

It has also been lucrative. A year ago, Rosales was working as a constable’s deputy only one day a week. But after he began bringing in thousands of dollars a month, “I went to our court and asked for a full-time person,” said Guadalupe County Commissioner Jim Wolverton.

Quite a few other states have regulated or even prohibited long-term retention of license plate reader generated location data by law enforcement, with Utah and Arkansas banning "private companies from amassing license plate data" entirely, the paper reported.

See related Grits posts:

• EFF: License plate readers shift traffic enforcement priorities to debt collection
• Pragmatic acquiescence vs. nagging presentiments about roadside ticket collections

EFF: License plate readers shift traffic enforcement priorities to debt collection

The Electronic Frontier Foundation yesterday offered Grits an "I told you so" regarding legislation passed last year allowing Texas cops to become debt collectors, accepting credit cards for traffic ticket debt at traffic stops. I'd much rather have been wrong.

Grits had suggested that Rep. Allen Fletcher's HB 121, combined with automatic license plate reader technology, could allow police to “cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.”

Wrote EFF's Dave Maass (formerly of the San Antonio Current):

As it turns out, contracts between between Vigilant and Guadalupe County and the City of Kyle in Texas reveal that Henson was right to worry.

The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools.

The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.1 In other words, the driver is paying Vigilant to provide the local police with the technology used to identify and then detain the driver. If the ALPR pings on a parked car, the officer can get out and leave a note to visit Vigilant’s payment website.

But Vigilant isn’t just compensated with motorists’ cash. The law enforcement agencies are also using the privacy of everyday drivers as currency.

 

From Vigilant Solutions contract with City of Kyle

Buried in the fine print of the contract with Vigilant is a clause that says the company also get to keep a copy of all the license-plate data collected by the agency, even after the contract ends. According the company's usage and privacy policy, Vigilant “retains LPR data as long as it has commercial value.” Vigilant can sell or license that information to other law enforcement bodies, and potentially private companies such as insurance firms and repossession agencies.

In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.

So really, I wasn't cynical enough. Grits certainly didn't anticipate that license plate reader vendors would give away their systems in exchange for a 25 percent surcharge. EFF concluded that:

the system raises a whole host of problems:

• It turns police into debt collectors, who have to keep swiping credit cards to keep the free equipment.
• It turns police into data miners, who use the privacy of local drivers as currency.
• It not-so-subtly shifts police priorities from responding to calls and traffic violations to responding to a computer’s instructions.
• Policy makers and the public are unable to effectively evaluate the technology since the contract prohibits police from speaking honestly and openly about the program.
• The model relies on debt: there’s no incentive for criminal justice leaders to work with the community to reduce the number of capias warrants, since that could result in losing the equipment.
• People who have committed no crimes whatsoever have their driving patterns uploaded into a private system and no opportunity to control or watchdog how that data is disseminated. 

There was a time where companies like Vigilant marketed ALPR technology as a way to save kidnapped children, recover stolen cars, and catch violent criminals. But as we’ve long warned, ALPRs in fact are being deployed for far more questionable practices.

The Texas public should be outraged at the terrible deals their representatives are signing with this particular surveillance contractor, and the legislature should reexamine the unintended consequences of the law they passed last year.

RELATED: Bud Kennedy at the Star-Telegram offered up a column criticizing the shift in priorities:

Lawmakers originally said the system would save officers time — true — but justice reformers were concerned that collections would become the focus over traffic patrol.

EFF warned that “To Protect and Serve” would become “To Stop and Swipe.”

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article56747488.html#storylink=cpy

Pragmatic acquiescence vs. nagging presentiments about roadside ticket collections

Grits remains torn about state Rep. Allen Fletcher's HB 121, which allows drivers with outstanding Class C warrants stopped on the side of the road to pay the officer with a credit or debit card to avoid being taken to jail. The bill was heard Wednesday evening in the House Criminal Jurisprudence Committee and left pending. The committee substitute (said Vikrant Reddy of the Texas Public Policy Foundation, testifying in favor of the bill) makes it clear that collections may only occur for cases which have already been adjudicated - cops can't collect fines for tickets they're writing at the same traffic stop.

Part of me is incredibly sympathetic. Certainly it's better for drivers who can afford it if they can pay up, avoid arrest, and go on their way. Grits has a credit card and, if I'm busted for a ticket I forgot to pay, no doubt that'd be preferable. For those who can't pay, they're in the same situation they would be in otherwise. So there's an argument to be made that the outcome is no worse for drivers who can't pay and improves the world for drivers of greater means. In that sense, it's a regressive policy, but at least one that would reduce arrest and incarceration totals overall.

But here's the part that nags at me (and these concerns were touched upon if not fully elaborated by Chris Howe, the lone witness against the bill, on Wednesday night): More than ten percent of Texans at any given time have outstanding arrest warrants, a number that grows over time because of the vicious cycle created by the Driver Responsibility surcharge. That's a lot of folks.

Meanwhile, new law enforcement technology now being deployed by local agencies - specifically, hand-held and vehicle-attached license plate readers - could and IMO will facilitate agencies which deploy that tech using it to have their traffic-enforcement officers cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.

So, if more than ten percent of drivers have outstanding arrest warrants, that's a near-endless sea in which they can fish for roadside revenue generation, diverting focus from traffic safety in the pursuit of the Almighty Dollar. Fletcher's main witness was a former county judge from a 17,000 person county who said 1/5 of their county budget - around $4 million per year - came from traffic fines. Being able to mulct drivers on the side of the road, she imagined, would have boosted their coffers even more.

And I'm sure she's right. The fiscal note says the bill would "have a positive fiscal impact on counties" and "increase the collection rate of court costs and fees for defendants of misdemeanor cases and those issued warrants for capias pro fines," though because "the number of defendants who would choose this option cannot be determined," LBB declined to estimate how much more might be generated.

Grits doesn't suppose maximizing revenue generation is Rep. Fletcher's main intention; he's an ex-cop honestly trying to help people avoid arrest, and it's a decent idea as far as that goes. But changes in technology create possible, unintended consequences which at least merit consideration. Are there enough departments deploying license plate readers to cause concern? Will they use them in such a fashion? How will anyone know? Is it possible to monitor - or better, measure - any shift in on-the-ground police priorities resulting from the new economic incentives created by the bill? ¿Quien sabe?

Maybe I'm thinking too hard about this; HB 121 might be a fine idea and my nagging presentiment may be unjustified. Maybe. Let me know what you think in the comments.

Cops, prosecutors, raise white flag, vow to fight on warrants for cell-phone location data

I only saw two news outlets covering electronic privacy debates at the Texas Senate State Affairs Committee meeting yesterday:

• Dallas Observer: Texas cops are going to fight like hell against cell phone privacy protections
• Austin American Statesman: Balancing privacy, police needs tricky, Senate panel hears

The meeting was led by new Chairman Craig Estes who last session sponsored legislation to require a warrant for cell phone location data. See my own written testimony to the committee on behalf of the Texas Electronic Privacy Coalition. The key TXEPC recommendations, fleshed out in greater detail in the full written testimony, included themes familiar to Grits readers.:

• Require law enforcement to obtain a search warrant to obtain historic cell-phone location data.
• Require a warrant to install GPS tracking devices on vehicles.
• Centralize use of 'stingrays,' aka, IMSI catchers at DPS the way the state does wiretaps and require a warrant for their use.
• Limit data retention on innocent drivers for automatic license plate readers, limit access to the databases to trained, authorized personnel, and restrict sale of data.
• Evaluate the Department of Public Safety's unilateral decision to take all ten fingerprints when drivers obtain or renew their licenses based on potential privacy violations involving personal electronic devices using fingerprints in lieu of passcodes.

A big highlight for me was expert testimony by Chris Soghoian, a tech expert now working for national ACLU whose dissertation (pdf) first broke open this issue and spawned my own interest in these location-data issues. Thanks, Chris, for coming down!

The hearing took a strange turn, as prosecutors and a detective from the Houston Police Department insisted that changes to state law last session meant law enforcement already had to get a warrant to access cell phone location data. I'm not a lawyer, but that seems downright bizarre since the bill to require a warrant for location data failed; only content, not "metadata" (as it has come to be called post-Edward Snowden), was protected in the language that passed in HB 2268.

The prosecutors' new stance is especially odd because two different Texas appellate courts ruled in recent months affirming no warrant is currently required in Texas to obtain historical cell-phone location data. The US Fifth Circuit Court of Appeals ruled the same way, creating a federal circuit split. (See a related, earlier Grits discussion.) Indeed, the portion of Sec. 5 in Art. 18.21 of the Code of Criminal Procedure that the Fourth Texas Court of Appeals decision in Ford v. State relied upon was not changed in the amendment to HB 2268 requiring warrants for content. I just don't understand how that claim can be justified.

A case summary of Ford on the prosecutors association website even recommended their members rely on the case for precedent in the future ("Because there is precious little caselaw that construes Article 18.21, this decision could turn out to be helpful to others on that basis as well"). And in Barfield v. State, police obtained cell-phone location with an administrative subpoena and Texas' 14th Court of Appeals in Houston upheld it being admitted into evidence. (The Department of Insurance testified that it, too gets cell-phone location data with only a subpoena.)

There appear to be no court cases supporting this novel view that Texas law already requires a warrant to access cell-phone location data. Its proponents could not even provide examples of local district judges suppressing location data, nor of any jurist denying police access to this information. All they offered were hypotheticals.

But no matter how often they kept repeating that the law requires a warrant now, your correspondent simply sees no evidence for the claim. Again, I'm not a lawyer. But attorneys for service providers like Data Foundry and Golden Frog also insisted that warrants are not required in Texas presently for law enforcement to access location data. And that was certainly the universal, contemporary understanding at the time the 83rd session ended. Just a weird debate to have.

The Observer piece by Eric Nicholson summed up the odd tenor of the event thusly: "The debate over whether warrants are currently required is a bit of a head spinner. (Cops are in the paradoxical position of arguing both that warrants are necessary to obtain cell-phone metadata and that they will fight efforts during the 2015 legislative session to require warrants for cell-phone metadata.)" To be sure, I hope they're right and I'm wrong. I want a warrant requirement for these records in Texas (and nationally, though your lowly correspondent can't do anything about that). But until the judiciary agrees a warrant is required, it's hard to buy what police and prosecutors were selling at yesterday's State Affairs hearing.

Go here if you'd like to watch the whole thing online.

MORE: I was interviewed this afternoon along with Rep. Bryan Hughes on the Texas Public Radio show The Source about yesterday's hearing and location tracking issues generally. Go here to listen to the broadcast.

Date set for hearing on interim charges on electronic privacy

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

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

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

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

License plate readers fail to accomplish crime fighting goals

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

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

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

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

Thinking through state-level regulation of automatic license plate readers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See related Grits posts:

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

Dewhurst assigns interim charges on electronic privacy

Grits was especially pleased to see that Lt. Gov. David Dewhurst announced several notable "interim charges" (pdf) to be taken up by the Texas Senate State Affairs Committee in the coming year related to electronic privacy, ordering them to:

• Examine possible measures to protect the personal privacy of Texas residents from governmental and commercial surveillance, including: (1) any necessary limits on warrantless search and seizure of data from electronic devices and wireless providers, including digital content and geolocational data; (2) any necessary protections against non consented video and audio recordings collected by private handheld and wearable mobile devices and other private surveillance; and (3) any necessary limits on warrantless monitoring of the physical location of individuals through the use of biometrics, RFID chips, facial recognition, or other technologies. Examine related measures proposed or passed in other states.
• Review the types and scope of personal data collected by governmental and commercial entities and consider methods to minimize the government’s collection of data on its citizens. The study should include: (1) whether sufficient protections exist for DNA samples and information, including whether there should be a prohibition on the creation of DNA databases, except for felons and sex offenders; (2) methods to protect the privacy of gun owners from aggregated purchasing pattern tracking; (3) mechanisms to ensure that private health care information is properly protected; and (4) ways to ensure that previously anonymous data is not improperly reidentified and marketed. Examine related measures proposed or passed in other states.
• Examine possible reforms designed to increase citizens' ability to know what data is being collected about them by governmental and commercial entities and with whom that data is being shared, including an analysis of consumer informed consent. Examine related measures proposed or passed in other states.

See a related press release.

Interim charges are often aimed at preparing bills that the leadership plans to prioritize during the next legislative session, though with Dewhurst facing several challengers for Lite Guv, he may or may not be around to see such legislation come to fruition. Still, assigning these charges in the midst of a heated primary campaign indicates he must think the issues resonate with the GOP base. That's a good sign.

The first charge related to warrant requirements perhaps seems more appropriately assigned to the Senate Criminal Justice Committee, but either way I'm grateful to see the Lt. Governor raising the profile of electronic privacy issues and look forward to interim hearings on these topics.

Regulate data collection from license-plate readers

When the 84th Texas Legislature convenes in 2015, Grits hopes they will consider and pass restrictions on the use of license plate readers by law enforcement and the private sector. Stateline published a story this week including details about how other states are handling the new technology:

Privacy advocates don’t object to police using LPRs to catch criminals. But they are concerned about how long police keep the numbers if the plates don’t register an initial hit. In many places there are no limits, so police departments keep the pictures—tagged with the date, time, and location of the car—indefinitely.

The backlash against LPRs began in earnest this year, as three more states limited law enforcement use of the systems and in some cases banned private companies from using the systems, for example, to track down cars for repossession. So far, five states limit how the cameras are used, and the American Civil Liberties Union anticipates that at least six other states will debate limits in the upcoming legislative session.

In New Hampshire, police and private companies (with the exception of the tolling company EZ Pass) are forbidden from using license plate readers. Utah requires police to delete license plate data nine months after collection. In Vermont, the limit is 18 months and in Maine it is three weeks. Arkansas police have to throw out the plate numbers after 150 days and parking facilities are the only private companies allowed to use the technology.

See the full story for more background.

License-plate reader tech open to abuse: TX Lege should regulate them in 2015

The Austin Statesman published an interesting item Sunday on the use of license-plate scanners at the Austin Police Department, offering local law enforcement's reaction to a recent, critical report from the national ACLU ("Amid concerns, Austin police call license plate scanners invaluable," July 21). Here's a notable excerpt:

Austin officials say that using the readers has made it easier to find stolen vehicles or those involved in crimes and is not an invasion of privacy.

“There is no expectation of privacy of vehicles in a public place,” said Sgt. Felecia Williams-Dennis with the auto theft interdiction unit. “If your vehicle is in a public place, any person with any type of camera can take a photo of it and store it forever, so we’re not doing anything that any other citizen can’t do.”

Using infrared technology, the reader can automatically scan license plates in the vicinity of the patrol car and alert the officer almost immediately. The reader can be mounted inside or outside of the vehicle. The information, including the date and time the license plate was scanned, is stored in a department database indefinitely, Williams-Dennis said.

But the civil rights group said that tracking the location and time for a vehicle has the potential to reveal what friends, doctors, political events or churches a person is visiting.

“The privacy concerns raised by the proliferation of ALPR technology go well beyond the mere taking of a photo,” said Rebecca L. Robertson, legal and policy director for the ACLU of Texas. “And as far as we can tell from the response to our opens records request, the Austin Police Department has stored every single license plate scan they’ve ever taken. With the potential for data mining, license plate scanners definitely (impede) our right to privacy.”

According to the department’s vendor, Genetec, readers can scan up to 5,000 plates per minute.

The statement that "There is no expectation of privacy of vehicles in a public place" is an argument Grits considers true but trivial. True, that's currently the law under existing Supreme Court rulings. But it's complete bullshit. Nobody outside the courtroom thinks there's not a reasonable expectation that the government won't track your movements when there's no reason to suspect you of a crime. In US v. Jones, five of the nine justices agreed in concurrences that continuous tracking of citizens over time cumulatively resulted in a Fourth Amendment violation (the "mosaic theory," it's called), and that notion is surely implicated by using license plate readers and permanently storing the data for future searches.

Grits' biggest concern with license plate readers is with indefinite data retention. Some jurisdictions limit data retention of information about non suspects to as little as 48 hours or just a few days. Texas, however, doesn't regulate data retention from license plate readers. What you don't want is for the government to keep such location data forever, as Austin PD appears to be doing. It's fine to use such devices to hunt for stolen cars, but there's no reason to keep data on the location of the 99.99% of cars that aren't stolen. And there's certainly no call for setting the devices up on the side of the road to gather data indiscriminately, independently of any enforcement action. Emerging research has already shown that location data is the ultimate biometric because no two things (hence no two people) can be in the same place at the same time and travel patterns are unique. So location data can be individualized with only a few data sources and, combined with other public "Big Data" and social media sources, reveal an enormous amount about drivers, whether they're driving a stolen car or not. That leads us down a path toward invasive mass surveillance in public spaces that would have been considered science fiction a generation ago.

License plate readers also could and inevitably will be used inappropriately as a revenue generation tool. Thanks to overcriminalization, roughly 10% of adult Texans at any given time have a warrant out for their arrest, mostly for traffic violations. Using license plate readers to generate money from ticket roundups would be technically legal but would externally appear for all intents and purposes like the tactics of some Orwellian, totalitarian state. Indeed, the Texas Electronic Privacy Coalition considered trying to include license plate readers in the warrants-for-location data legislation aimed at cell providers this spring, but the issues were complicated and we determined it needed to be a stand-alone bill. By 2015, perhaps we'll have a clearer idea of precisely how best to regulate this technology. The privacy implications are severe.

It does sound like these aren't being used widely in Austin at the moment, but not for lack of trying:

The department’s lone portable reader has been in and out of commission in recent weeks, Williams-Dennis said, so patrol officers are still mostly doing what they’ve done before when checking license plates — manually entering the plate on their computer or asking dispatch to do it for them. ...

In 2009, with the blessing of the City Council, the department purchased two mounted readers, which are no longer in service after the vendor went out of business.

By contrast, a recent ACLU report estimates the city of Sugar Land scans 413,000 license plates per month. See the results of ACLU's open records request (pdf) for that city. In September 2012, the city of Grapevine captured 14,547 plates per day, said the report. The DEA has installed license plate readers along highways in Texas and other states bordering Mexico. And of course, many dozens of Texas agencies subscribe to a private service that accumulates license plate reader data from public and private sources.

What can be done? Locally, probably nothing. Maybe things will change when the Austin city council switches to single member districts after next year, but this is one of those issues where historically - because law enforcement in Austin is so politicized and the city council is in the pocket of the police union - it would be nearly impossible to effect change locally. Plus, there are too many jurisdictions using the technology to battle it out at the local level. The best bet is to wait till 2015 to get the Lege to regulate or severely limit the practice. Let me know in the comments what you think such legislation should look like and any specific issues that should be addressed. There are perhaps 15-16 months to craft draft legislation before it's time to work  on getting it filed.

For more background, see ACLU's recent report, "You Are Being Tracked: How license plate readers are being used to record Americans' movements" (pdf).

Nearly 200 Texas LEOs use license-plate-reader location tracking vendor

When George Orwell wrote the novel 1984 he was imagining future totalitarianism dominated by socialist governments. He never considered that technologies of control would be privatized in a capitalist system, but that's seems to be where we're headed. Via Privacy SOS:

Did you know that a private company which hoards detailed information about your driving habits also has plans to create the largest private sector law enforcement database in the world, by combining plate reads with commercial databases, face recognition technology and more?

Vigilant Video is a private corporation. It maintains a database called the National Vehicle Location Service (NVLS), containing hundreds of millions of data points showing the travel patterns of millions of people in the United States. The data in the system comes from a variety of sources including government agencies, other companies like tow truck and repo firms, and a fleet of company cars that drives around sucking up license plate information on our streets and in our neighborhoods

Grits went to look at the registration page for the service and found their clients on a dropdown list. Though they're not broken out by state, by my count, around 200 Texas law enforcement agencies are clients of Vigilant Video and use its vehicle location tracking services, as well as loads of federal customers. The Immigration and Customs Enforcement (ICE) office in Dallas was among their first clients when it rolled out last year and now many others, from the IRS to the Air Force, are on the list. Among Texas state agencies, the Department of Public Safety, the Attorney General, TABC, TDCJ, TCEQ, the Department of Insurance and UT-System police departments (individually and collectively) all subscribe to the service.

All the big city police departments in Texas subscribe to the service - Austin, Dallas, Fort Worth, Houston, San Antonio, and El Paso - as well as the corresponding sheriffs and district attorneys offices in those counties. But dozens of smaller jurisdictions use them, too, from Nacogdoches to Refugio, Denton to Del Rio, from Sherman to Sugar Land. Even some constables and school district police are getting into the act. Unfortunately, one can't tell how frequently they used the service without filing an open records request with the various departments for invoices from the company for its use.

This for-profit service demonstrates how outdated 20th century conceptions of privacy need significant updating in the wake of a swiftly changing technological landscape. According to Government Security News, the company plans to quickly expand its database into biometrics: 

Surpassing the challenges of a national LPR database via NVLS, our future roadmap plans an extensive integration between LPR data and public records, a facial recognition platform, and ‘leaps and bounds’ expansion of LEARN which seamlessly ties together all data sources. We are on schedule to provide the most advanced Law Enforcement criminal database loaded with billions of records -- a universal data system with one common goal in mind -- making it easier for Law Enforcement to ‘Catch the Bad Guy’.

Except, one might quibble, the overwhelming number of people whose information makes up their database aren't "bad guys." There are lots of uses for this data besides just that. For example, Grits could see such a database eventually commercialized for use by corporate marketers, or for that matter for more nefarious purposes.

Though most people don't think of it that way, location data is the ultimate biometric. One may have plastic surgery to throw off facial recognition systems or blot out fingerprints with scarring or acid. But there is nothing more unique about an individual than their location - where they are at any given moment - because two things cannot occupy the same space at the same time. A growing body of research shows that even a small number of location points can tell a great deal about a person and the license plate recognition function instantly attaches that location data to an individual (or at least their vehicle).

License plate readers blur the lines between public and private information, calling into question outdated Fourth Amendment doctrines holding that Americans have virtually zero expectation of privacy outside the home. In US v. Jones last year, five US Supreme Court justices agreed for the first time that long-term location tracking without a warrant can violate someone's reasonable expectation of privacy. But it will be years before the courts, on a case-by-case basis, elaborate the extent and limits of those expectations, particularly when mediated through a third-party vendor as in this case. The folks compiling this database know the courts wouldn't allow law enforcement to gather all this data on innocent people so their business model relies upon exploiting a court-created loophole to let a private vendor do it. They're still agents of law enforcement, though, even as contractors.

License plate readers are all-but-unregulated technology with enormous implications in the coming years for personal privacy. There should be strict retention limits on use of such data and prohibitions on government sharing it with private vendors, which appears to be from whence the bulk of their information comes.

'The Police State is Here': Conservative critiques of Big Brother

 These few, disparate items with caught Grits' attention related broadly to limits, or the lack thereof, on government power:

Conservative critiques of Big Brother
A reader forwarded a link to an interesting pair of stories from the Rockwall County News (July 26). See here (pdf) - the articles in question are the second and third ones on the first page, scrolling down, with these headlines:

• Will you be the next peaceful traveler? A scenario and analysis of judicial practice
• The Police State is Here

The second story laments that "So-called fusion centers have popped up in 49 states, amassing files on ordinary Americans for doing the most ordinary of things." These articles interest me not because of their incisiveness - I could quibble with aspects of both of them - but because they portray critiques of the criminal justice system from the perspective of populist conservatism.

Texas let DEA install license plate readers
Speaking of fusion centers and gathering data on ordinary Americans, the national ACLU has launched a research effort to gather information about automatic license plate readers. Their press release mentions:

The Drug Enforcement Administration is planning to install a network of plate readers on major highway systems nationwide. The Department of Homeland Security clocks every car that enters the country. Local and state police departments operate many thousands of ALPR systems nationwide—how many and to what extent, we aren’t sure. Together these programs form a network of data points that can tell the government a lot about our lives.

The Texas Department of Transportation in 2008 rejected a DEA request to install license plate readers on Texas highways, however another recent ACLU blog post stated that "scanners are already in place on 'drug trafficking corridors' in California and Texas." I was unaware that 2008 decision had been reversed. Does data from license plate readers, one wonders, funnel up into so-called "fusion centers"? Who besides DEA has access to this information?

Cops get database with Texans' Rx prescription information
Texas is developing other large databases that a civil libertarian may fear would be uploaded into fusion centers or used by various government entities for reasons unrelated to the purpose for which they were created, particularly a "new state online database of patient prescription drug information." Reported the Fort Worth Star-Telegram, "DPS officials say the database is secure and, beginning this month, available to registered users who provide licensing information, including law enforcers." And if it's available to "law enforcers," why couldn't the data be uploaded to fusion center databases?

On the political economy of the militarization of domestic policing
While we're on the subject of conservative critiques of the criminal justice system, check out this academic article critiquing the "the political economy of the militarization of domestic policing" from the perspective of the Law and Economics movement. Here's a notable passage attributing abuses to the government's near "monopoly" on use of force:

One reason governments are able to effectively exploit their citizens is because they maintain a monopoly, or near monopoly, on military force. It is the concentration of military power, with its weaponry, organizational structure, and tactics that serves as the ultimate tool of government abuse. The threat of violent force raises the cost of deviations from government decree and can be used to repress citizens. As per the paradox of government, this leads to the central concern that while force can, in theory, serve the function of protecting citizens from threats to their person and property, it can also be used by the political elite to undermine the very rights government is tasked with protecting.

Fourth Amendment as a campaign issue
Finally, Grits found it fascinating that legislative efforts to restrict TSA pat downs at airports became a campaign issue in the Texas GOP US Senate runoff, and it seems highly likely the topic will be revived next year when the Texas Legislature meets again. For many years the only time the Fourth Amendment came up in Texas campaigns was when politicians (from both parties) promised to scale back its protections in response to the "war on drugs" and/or the "war on terror." The measure turned out to be immensely popular with the GOP base and perhaps could open the door to more legislation aimed at bolstering Fourth Amendment protections (which couldn't happen soon enough to satisfy this correspondent).

Read more here: http://www.star-telegram.com/2012/08/02/4150020/state-launches-online-database.html#storylink=c

Big Brother, felony pranks, and rebates for 'murder insurance'

Let's do a roundup post to clear out the mounting, increasingly daunting sea of tabs across my browser that have relentlessly taunted Grits for several days now:

PBS features Kerry Max Cook saga
PBS Frontline has a new feature on Kerry Max Cook, following up on a New York Times story last week by Michael Hall.

Picking grand jurors
This Austin Statesman story gives one of the best descriptions you'll see of the nuts and bolts of how grand juries are selected in Travis County - either by appointed commissioners or from the same jury pool as regular jurors. I prefer the latter, even if the commissioner system generates more "diversity." I don't want prosecutors cherrypicking grand juries - as DA Rosemary Lehmberg said she did in a recent, high-profile case involving a police shooting - based on the grand jurors' skin colors, either to affect the outcome or to pander to public perception.

Big Brother in Big D
According to the Dallas Morning News, tomorrow Dallas Police Chief David "Brown will unveil the latest in crime-fighting technology that, he hopes, will ensure that the city’s crime rate stays permanently on its declining trajectory. The technology consists of monitoring devices such as cameras, license-plate readers for squad cars and tracking equipment" for use in bait cars and other "bait" items. The News editorial focuses on the "bait" strategy, but I'm more concerned about the expansion of cameras with little credible evidence they're cost effective or prevent crime, much less "license plate readers for squad cars," which would amount to a massive data mining project operating in the field with little regulation. The Dallas City Council should reject those two items.

Big Brother meets the Alamo
James Bamford at Wired has a lengthy, must-read story on the domestic intelligence gathering apparatus of the National Security Administration, including a massive campus at Lackland Air Force Base in San Antonio which "Focuses on intercepts from Latin America and, since 9/11, the Middle East and Europe. Some 2,000 workers staff the operation. The NSA recently completed a $100 million renovation on a mega-data center here—a backup storage facility for the Utah Data Center."

Defense can explain 'guilty beyond a reasonable doubt'
The Court of Criminal Appeals recently upheld a pro-defense ruling to say that defense counsel has a right to explain to jurors what "guilty beyond a reasonable doubt means." Good luck with that! In my experience if you get five different lawyers in a room you'll get at least six different opinions on the question. As the judge in the story pointed out, reasonable doubt "is not mathematically quantifiable, but rather is a level of certainty of belief in the minds of each of the jurors."

Counties get 'murder insurance' rebate
The regional capital public defender office in West Texas - what some have dubbed "murder insurance" - refunded $400K to the 77 counties in its jurisdiction, reported the Lubbock Avalanche Journal.

Public interest lawyering recognized
Congrats to the UT Law School's Texas Law Fellowship Public Interest Award recipients. "They are: Ian Spechler, ‘07, founder of the Legal Representation for Dually Managed Youth Project; David Gonzalez, founding partner of a sliding-scale criminal defense firm in Austin; UT Law Clinical Professors Bill Allison and Patricia Cummings of the Criminal Defense Clinic, who are being recognized for their work on the Michael Morton case; and Jordan Pollock, a third-year UT Law student."

Corrupt in Covington?
Attorney Michael Lowe writes about a Texas Ranger investigation of alleged police corruption in Covington, TX.

Felony pranks
In College Station, a young Aggie has been charged with a third degree felony for online impersonation after posting a woman's cell phone number in the Craig's List casual encounters section as a prank. Though not a Texas case, in Georgia a valedictorian and senior class president has been charged with a felony for participating in ritual graff writing with a group of classmates as the end of their senior year approached. Texas has a similarly harsh law making any graffiti on school property a felony.

Bad homeland security bill gets much-needed makover; still ugly

Forrest Wilder at the Texas Observer says that SB 9, Sen. Tommy Williams' homeland security bill, looks quite a bit less Big-Brotherish as it left the Texas Senate, which "deleted or moderated the most objectionable, civil liberties-shattering provisions." Wilder thusly summarized the changes:

• Deleted - Authorization for police officers to install GPS tracking devices on vehicles without a court order;
  
  
• Deleted - Drivers license and insurance checkpoints that critics said would function as de facto immigration checkpoints;
  
  
• Modified - In the original, a peace officer was required to check the immigration status of someone they were arresting. Law enforcement groups expressed concern that such a mandate would take up ungodly amounts of time. Immigrant advocates worried that individual officers wouldn't necessarily have the requisite expertise. Now, the status-check happens at the jail under the federal Secure Communities Initiative, a controversial program that has rapidly transitioned being voluntary to mandatory.
  
  Sen. Jose Rodriguez, a former El Paso county attorney, voted against SB 9, in part because of Secure Communitites' disturbing record of snatching up legal residents and even citizens. "Nationwide, there have been thousands of cases of U.S. citizens being detained as undocumented immigrants and tens of thousands of immigrants apprehended without a criminal conviction," he said in a statement after the vote. "This is a broken system and not one we should mandate."
  
  
•  Modified - The DPS pilot project for automated license plate readers (background here) remains in the bill, albeit with some constraints. Sen. Kirk Watson, an Austin Democrat, got Williams to accept changes that will require that all data collected from the devices be deleted after one year. Any agreements to share the data beyond DPS would be subject to the Texas Public Information Act, though the data itself would be unavailable to the public.
  
  "It's a very useful tool for law enforcement," said Williams, "but I'm also senstiive that we don't want Big Brother looking over our shoulder any more than we have to."

Regarding the license plate readers, Wilder mentioned that "Grits has opined that the Watson provisions are 'an improvement... but still far from satisfying gruel we're being forced to swallow.'" See also coverage from the Texas Tribune, though Wilder's story did a better job of placing the compromise bill in context from the breathtakingly sweeping filed version.

Notably, SB 9 pays for its multi-million dollar costs by doubling a fee that the Lege is already diverting from its "dedicated" source. According to the fiscal note, SB 9 would raise almost $90 million per year by requiring "an insurer to pay a fee of $2, rather than $1, multiplied by the total number of motor vehicle years of insurance for policies delivered, issued, or renewed. The bill would authorize fifty percent of each fee to be appropriated only to the Automobile Burglary and Theft Prevention Authority." So this is bad fiscal policy as well as troubling from a civil liberties perspective. I don't see one thing in this bill that's actually, presently needed.

Mother of all Big Brother Bills clears committee in Senate

In a brief meeting this week the Texas Senate Transportation and Homeland Security Committee kicked out Sen. Tommy Williams SB 9, discussed here and here, which is more or less the Mother of all Big Brother legislation, at least for the 82nd session. Some of the objectionable parts of the bill were eliminated, including southbound checkpoints aimed at generating revenue from asset forfeiture, but it would still would require arresting peace officers instead of jailers to check immigration status, authorize the Department of Public Safety to use license plate readers, and let law enforcement place a GPS tracking device on your car without a warrant or other court order. Yuck, yuck, and triple-yuck.

The committee tacked on two amendments before kicking the bill out of committee, only one of which (by Sen. Kirk Watson) offered any remedies to the policy concerns on which this blog is focused: It says data from license plate readers can only be used for law enforcement purposes (as if that's some great limitation) and requires deletion of the data after one year if it's not used in criminal investigations. The amendment also makes data sharing agreements regarding information from license plate readers subject to the open records act. That's an improvement, I suppose, but still a far from satisfying gruel we're being forced to swallow. I'd rather the data be deleted immediately if license plate readers don't result in a "hit" for warrants, stolen cars, etc.. And rather than for "law enforcement purposes," IMO the information should be restricted for use in "criminal investigations." That way the focus will stay on stolen cars and fugitives instead of trolling the general public looking for people with outstanding traffic warrants.

Coverage of the bill from the Rio Grande Valley - the only media who seem to be paying much attention besides Grits and the Texas Observer - has focused mainly on the expansion of immigration checks, putting the onus on police officers in the field instead of performing the task at the county jail. I can't believe more media attention hasn't focused on the suggestion that police can put a GPS tracker on your car without a warrant! For whatever reason, and there are plenty available, I'm hopeful this bill gets tripped up somewhere along the line.

Scaled-back Big Brother bill still pushes license plate readers, GPS tracking w/o warrants

Besides a brief update to a blog post from Karen Brooks at the Dallas News, Forrest Wilder at the Texas Observer seems to be the only journalist who covered yesterday afternoon's hearing in the Senate Transportation and Homeland Security on SB 9 - Chairman Tommy Williams' Big-Brotherish, prosecutor-wish list legislation couched as a border security effort - reporting that the bill became "(Somehwat) Less Big-Brotherish" over the course of the hearing. (On Monday, Grits called the legislation "Big Brother on steroids.") In particular, the idea of using checkpoints for immigration checks or nabbing asset-forfeiture income basically ran aground on the rocky shores of reality:

A long parade of witnesses, including the El Paso District Attorney and DPS Director Steve McCraw, pointed out specific ways that drivers license checkpoints can run afoul of the 4th Amendment.

"I don't think it can be the policy that we're going to use driver license checkpoints to boostrap our way into massive amounts of border searchers," said Robert Kepple, the executive director of the Texas District & County Attorneys Association.

Williams asked Kepple if he thought it would be "problematic" if a cop at a state-run checkpoint asked if someone was in the country legally.

"I think it is," said Kepple. "I'm not sure one follows the other."

That should pretty much nip that idea in the bud.

Another Big Brotherish item removed from the bill: Williams said language eliminating the requirement of an "overt act" for prosecution of conspiracy was a drafting error and wouldn't be included in the final version. It later turned out it wasn't a "drafting error" per se but a recommendation from some unnamed Texas prosecutor - just one which wasn't supported by the state association.

There's still a lot of other unpleasant stuff left in the bill, though: Particularly the expansion of license-plate readers, a topic that Wilder wrote about at length last year. Wilder did add that, "The good news for civil liberties and privacy advocates is that Williams seemed amenable to inserting a prohibition on storage of the data into Senate Bill 9." That may help a little, though it's clearly not going to satisfy the folks who showed up in Nazi regalia to give out satirical "Tyranny Awards" (see a YouTube video of an office visit) to Williams and SB 9 supporters. And while I generally disapprove whenever someone proves Godwin's Law in a public debate, it doesn't satisfy me, either.

A vendor representative testified at the hearing that license plate readers scanning thousands of plates per hour don't violate the Fourth Amendment under existing court rulings, and I'm sure that's true. However, what that tells you isn't that license-plate readers are hence automatically a good thing, but that the 222-year old Fourth Amendment never anticipated that technology might allow such sweeping government tracking of the citizenry's movements. That's why some modern courts have extrapolated  a "right to privacy" from the "penumbra" of the Fourth Amendment: It's clear the Constitution's drafters intended the public to enjoy a measure of security from government intrusion regarding personal information and property, even if technological advances have rendered antiquated language about keeping safe one's "papers and effects."

But the item in the bill I personally hate the most is authorization for law enforcement, without a warrant or other court order, to place a GPS tracking device on your car and track you wherever you go. That makes concerns about the license plate readers appear quaint! Wrote Wilder:

Another dodgy part of Williams' bill allows cops in Texas to install GPS tracking devices on people's cars without a court order. Williams said the provision is needed to help Texas law enforcement "track and combat gang activity."

Currently, under Texas law, law enforcement must get a judge to approve the use of a mobile tracking device.

Senate Bill 9 would give Texas law enforcement the same expansive authority as the FBI or DEA, who are free to install GPS devices on cars so long as it's on public property and is part of a criminal investigation.

In the latest version of the bill, Williams has set the provision to expire after two years.

"Dodgy" indeed! Here again, I don't doubt that federal courts have allowed this. The drafters of the Fourth Amendment could never have conceived that such a thing might even be possible, so how can that poor, overwhelmed, one-sentence 18th-century commandment be expected to cover every possible technological nuance in the 21st century? It can't. There are going to be government intrusions that do not technically violate the Fourth Amendment but which still breach the same personal privacy rights the Founders were aiming to protect. This is just such an instance.

Unfortunately, to extend those old protections into new areas - at least if one doesn't want courts finding new "rights" in the Constitution's "penumbra" - we must rely on legislators' good judgment and respect for personal liberty, neither of which seem to be in nearly as great supply today as in post-revolutionary America when the Fourth Amendment was penned. There's absolutely no demonstrated need for this bill so let's hope somewhere in the process, for whatever reason, it just dies.

See related Grits posts:

• More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges
• Big Brother on steroids: License plate readers, checkpoints, and tracking cars w/o a court order up Wednesday
• Making the same old mistakes on asset forfeiture: Profit motive has no place in law-enforcement strategy

Big Brother on steroids: License-plate readers, checkpoints, and tracking cars w/o a court order, up Wednesday

There are a ton of nasty-sounding bills up in the Senate Transportation and Homeland Security Committee hearing on Wedesday morning at 7:30 a.m. (see their agenda), but I think SB 9 by Sen. Williams has definitely made it to the short list so far among candidates for my own, personal, "Most Despised Bill of the Session. This legislation:

1. Authorizes drivers license and insurance checkpoints (after the Lege and courts have repeatedly rejected DWI checkpoints, which is what police really want).
2. Authorizes a two-year statewide pilot program of roadside license plate readers with tracking data gathered by a private contractor.
3. Requires police officers in the field to check the immigration status of arrestees with ICE instead of leaving the task to county jails after arrest.
4. Requires county jails to calculate and report every month the cost of the unfunded mandate caused by increased incarceration from #3, above.
5. Changes the duties of "special" Texas Rangers to include background investigations and monitoring sex offenders as well as two man patrols in "high threat areas" (no word if that's the border or central Houston).
6. Increases penalties for organized crime but in certain cases removes the requirement of an "overt act" to establish that someone is part of a criminal conspiracy.

I don't think I agree with anything in this bill after the caption: "relating to homeland security." Sen. Williams and others also have bills on the agenda breaking up each of these individual ideas into their own bills, and there are two other bills up from Democrats Lucio and Hinojosa setting the groundwork for southbound checkpoints by DPS aimed at seizing cash they hope will bolster state coffers through asset forfeiture.

Another billl by Chairman Williams, SB 1694,  would allow law enforcement agencies to put a tracking device on your vehicle without a court order!

There is one promising if modest bill up from my own state Sen. Kirk Watson, SB 1572, limiting the information that can be gathered by fusion centers thusly:

A fusion center may not:
                  
(1)  review, collect, or maintain noncriminal information or criminal intelligence data about the political, religious, or social views, associations, military history, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity; or

(2)  review, collect, or maintain protected health information, biometric information, or personally identifiable information unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity.

If they passed that bill I might feel (slightly, marginally) less awful about the idea of putting up license plate readers here there and yon, since the only limitation presently in SB 9 is that the data must only be used "for law enforcement." But really I'm hoping most of the Big Brotherish stuff will get rejected, if only because of the fiscal note (which hasn't been released yet) and the local impact of expanding peace officer duties given limited resources. All these checkpoints, the data collection and analysis, the extra immigration-related enforcement and incarceration, all cost money, if the Lege is honest about it, and seems unwise at a point in time when the state needs to scale back its activities, not find new unfunded mandates and gadgetry to waste the taxpayers' money on.

RELATED: See coverage of SB 9 from the Conroe Courier.

'Quiet' consensus, slippery slopes, integrity lapses, conservatism, clemency, and justice, 'sanguinary and cruel'

Just a few, disparate items that may interest Grits readers:

Texan named to advise federal science grants
Reports the San Marcos Mercury, "Joycelyn Pollock, a professor in the department of criminal justice at Texas State, has been named by Attorney General Eric Holder to the newly created Office of Justice Programs (OJP) Science Advisory Board."

Lutz on 'quiet' bipartisan consensus for Lone Star criminal justice reform
Reacting to the new 'Right on Crime' initiative, Will Lutz at The Lone Star Report declared that "One of the most interesting, albeit quiet, developments in the Texas policy world has been the bipartisan consensus that has developed on criminal justice since about 2005. Basically, the idea is that putting non-violent offenders in prison for technical violations wastes public funds and that rehabilitation and restitution should play larger roles in the criminal justice system. This approach places more emphasis on controlling costs in criminal justice by focusing incarceration for the most dangerous and violent offenders." Maybe it's because I've been running a blog on the subject the whole time, but I didn't think it'd been all that quiet. :)

Slippery slope: Motive for license plate readers changed after implementation
I have mixed feelings about the idea of having officers with license plate scanners and the capability of processing warrants with credit cards in the field, as described in this story about a constable's office out of San Antonio. There's a slippery slope aspect going on in SA: "The automatic license plate readers were built specifically for the use of warrants on sex offenders and stolen vehicles according to the Constable. However, their use has grown over the past year" to include Class C misdemeanors. On one hand this is better than taking the same folks to jail. But the changed mission comes off as a bait and switch, and using license plate scanners to farm the 1 in 10 drivers with outstanding warrants begins to feel more like some kind of hustle or shakedown than law enforcement - a feeling that's not entirely unfamiliar to Alamo City residents.

Local DA 'public integrity unit' rarely prosecuted elected officials
The Dallas News last week reported, "The specialized unit Dallas County District Attorney Craig Watkins assigned to look into allegations of corruption against two elected county constables has little success with such cases and in fact has rarely prosecuted elected officials since its inception three decades ago."

Why Kino Flores and not Sharon Keller?
I don't quite understand the difference between the reporting omissions by state Rep. Kino Flores that earned him a felony conviction and the omissions by Judge Sharon Keller regarding assets she owned and several corporate boards she sat on which reportedly had not been disclosed to the Texas Ethics Commission. The TEC, in response, levied its largest ever administrative fine against Keller for what sounds to me like essentially the same thing for which Kino Flores was found guilty. I get how her father might move investments around in her name without her knowledge, but I fail to understand how there could be corporate boards she supposedly sat on where either a) she wouldn't have been aware or b) someone had an as-yet-unknown reason not to tell her. That said, there isn't an obvious political motive why the Democratic prosecutors who pursued Flores would abstain from prosecuting Keller, a prominent statewide Republican, so perhaps there's a distinction between the cases that I don't understand. (Even off the record explanations offered up to me from the County Attorney's office have been vague and unsatisfying.) No reporter to my knowledge has ever looked more closely at those companies and Judge Keller's role in them beyond the initial Dallas News coverage, but it might make a good story.

A 'police state' doesn't come cheap
Debbie Russell at the Austin Post laments "The High Cost of Austin's Police State."

'Innocence Unmodified'
Doug Berman points to an academic article titled "Innocence Unmodified" which lays out in its abstract the quite legitimately debatable point that, "The Innocence Movement has unwittingly participated in the construction of a binary between actual' and 'legal' innocence.  Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is 'actually' innocent.  This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction.  As such, the Innocence Movement devalues 'legal' innocence and the constitutional values that underlie a broader conception of innocence." I can think of good arguments on both sides of that question.

Originalism, Conservatism, and Clemency
In the best reaction so far to the Texas Public Policy Foundation's "Right on Crime" initiative, P.J. Ruckman at Pardon Power has an outstanding essay titled, "The Conservative Case for the Pardon Power," making the conservative ideological case for more extensive use of the executive clemency power. He reminds us that:

the Founding Fathers made a conscious effort to emphasize the importance of this power. Federalist 74 (authored by Alexander Hamilton, who argued for the pardon power in his first speech at the Constitutional Convention) notes that pardons are a logical by-product of "humanity and good policy." Why? Because "the criminal code of every country partakes so much of necessary severity." The cure for this tendency? "Easy access" (yes, you read that right), "easy access" to "exceptions in favor of unfortunate guilt." Otherwise, says Federalist 74, "justice would wear a countenance too sanguinary and cruel."