The Texas Capitol, by IPBrian/FlickrThe Supreme Court may have approved the warrantless wiretapping of American citizens for just about forever, but the good old state of Texas isn't going to take that lying down. Texas lawmakers don't believe that cell phone location data is fair game for law enforcement, and a couple identical bills filed in Texas's House and Senate would provide sweeping protections for private cell users.
Currently, the DoJ and Supreme Court have said that cell users have no reasonable expectation of privacy when it comes to location data and other data gleaned from cell transmissions. So while warrantless GPS tracking is out of bounds, cell location data can provide a fairly comparable analog, and additionally allows lawmakers to track when and where calls were made, and even gain access to text messages.
The new bill, which was authored by a group called the Texas Electronic Privacy Coalition, which includes the Texas branches of the ACLU and EFF. The bill is designed to require law enforcement to get a standard warrant before gleaning any cell data. That means that law enforcement can only breach cell privacy "if there is probable cause to believe the records disclosing location information will provide evidence in a criminal investigation."
“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's Matt Simpson said in a 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. This bill simply requires a judge to take a look, and make sure a request for location data is reasonably likely to turn up evidence of crime in an investigation.”
One key aspect of the bill, as Cyrus Farivar at Ars noted, is that it also would require carriers to disclose when they release cell data to law enforcement. That's an important privacy provision, especially when the current laws have allowed for rampant data collection. Remember, a Congressional investigation found that in 2011 alone, carriers responded to 1.3 million subscriber information requests from law enforcement, which generally wouldn't require warrants. Carriers have actually begun complaining about the rising costs of complying with such requests, which would suggest that they've certainly not slowed in frequency.
In step with the Texas bill, a similar electronic privacy bill has been introduced in Congress by Rep. Zoe Lundgren of California. That bill isn't solely concerned with cell phones, and includes email and other forms of electronic communication under its warrant requirements. Of course, a similar bill from Lundgren failed last year amidst opposition from law enforcement officials.
Still, it's heartening to see lawmakers finally recognize that the Fourth Amendment has largely been gutted and ignored as our communication increasingly becomes wireless and in the cloud. It's taken a long time for legislators to grasp the fact that, even if your data is stored somewhere outside your home or is being beamed through the air, it's still yours, and you do have a reasonable expecation of privacy. It's important to remember that these bills are still only proposed, but the fact that they exist is a step in the right direction.