According to the Department of Justice, cellphone users can be tracked without a warrant because “no reasonable expectation of privacy” applies to location data. But lawmakers in Texas disagree—and are proposing strict new tracking regulations that could place the state at the forefront of nationwide efforts to rein in government surveillance.
Two identical bills filed at the end of last month in the state House and Senate propose a series of amendments to the Texas code of criminal procedure. The bills, submitted by Rep. Bryan Hughes, R-Mineola, and Sen. Juan Hinojosa, D-McAllen, would in all but exceptional cases require law enforcement agencies to get a search warrant to obtain cellphone location information—whether the phone is being tracked in real-time or retrospectively.
In addition, the amendments would oblige all telecom providers in the state to produce an annual transparency report showing the number of surveillance requests made, broken down by each law enforcement agency making the request and detailing the type of data desired. They would also limit the amount of time a judge can keep secret a court order issued to authorizing tracking. This would mean that after 180 days the order would have to be “unsealed” and revealed to the public, unless there is “good cause” shown to further extend the secrecy.
Before being taken up by Hughes and Hinojosa, the legislation was authored by a group calling itself the Texas Electronic Privacy Coalition—which consists of the ACLU of Texas, Texans for Accountable Government, EFF-Austin, and the Texas criminal justice blog Grits for Breakfast. The group says it is concerned about how much can be learned about a person using location data—and how little is required for authorities to obtain that information.
“Surveillance has become so easy, thanks to the data collected and stored by your cell phone company, that it’s now ripe for abuse,” ACLU of Texas’ Matt Simpson said in a press release. “In a free society, there have to be limits on the government’s ability to monitor people’s activities and associations—that’s just a basic premise of liberty.”
Last year, a congressional inquiry revealed that the major wireless carriers received more than 1.3 million requests for subscriber data from law enforcement in 2011 alone. This revelation disgruntled privacy and civil liberties groups nationwide, and it’s possible that legislators in other states may follow Hughes and Hinojosa’s lead in proposing that warrants be required before accessing location data. It’s unclear, of course, whether the bill will eventually become law, as police in the state can be expected to lobby aggressively against it. But it’s certainly likely to receive some strong backing if a separate Texas bill seeking to regulate drone use is anything to go by. HB912, described as “the toughest anti-drone legislation in the country,” was filed in the state house in early February and has bipartisan backing from more than 100 representatives.
A landmark Supreme Court case in January last year ruled that tracking someone by sticking a GPS on his vehicle should be protected by the Fourth Amendment’s protections against unwarranted searches and seizures. The DOJ claims that cellphone location data is a different issue—arguing in a 5th Circuit Court of Appeals case last year that because cellphone records showing location are held by telecom companies, they are "third-party records" and therefore “customers have no protected privacy interest in historical cell-site records.”
The DOJ will no doubt be watching developments in Texas closely—hoping that a backlash against warrantless tracking in the state is not the start of a trend.