Since Texas lawmakers considered, but failed to pass, a measure requiring warrants for obtaining cell-phone location data in 2013, has been a major shift has occurred in public discourse over electronic privacy, thanks to disclosures, by Edward Snowden and others, of widespread government surveillance.
The bill, by Representative Bryan Hughes, is back for the 2015 session, this time with even more overwhelming support. The bill has 97 co-sponsors, or just about two-thirds of the chamber's membership. One thing about the debate hasn't changed: Big-city cops are still fighting the bill.
Under Hughes' proposal, police would need to go to a judge and establish probable cause before getting location data from the cell phone of someone they believe is linked crime, just as they are required to do before searching someone's house, car or the other contents of their cell phone. Location data here includes both precise geolocation or GPS data generated by a phone and data showing the phone's relative position to cell phone towers and Wi-Fi networks.
At a hearing on the bill last week, police mostly steered clear of the argument that the latter type of data -- we'll call it metadata -- is too vague to justify serious privacy concerns. As Hughes argued as he laid out his bill, the ubiquity of cell phones and the proliferation of cell towers, which cover smaller and smaller areas, means that metadata can all but pinpoint someone's location, or at least establish a highly detailed picture of his movement over a given period of time. Here, via Grits for Breakfast, is a court filing from AT&T detailing just how precise such data can be.
Rather, police spent the hearing prophesying doom if the warrant requirement were to go into effect. Houston PD' Jimmy Taylor spent so much time enumerating various murders, kidnappings, rapes, SWAT standoffs and instances of human trafficking his department has had to deal with in recent months that his comment period expired before he could explain how protecting cell-phone metadata would harm their ability to cope with violent crime.
His HPD colleague, John McAllen, was more precise. He said putting increasing the burden of proof for obtaining a search would result in cases going unsolved and criminals getting away. He cited a case in which a Houston man reported his son missing. Police were suspicious and obtained location data from his cell phone that allowed them to trace his steps just before the son went missing. As it turned out, the man had murdered his son in their apartment and dumped his body. He was convicted of capital murder and sent to prison. McAllen doubts police would have cracked the case without the cell phone data. Dallas cop Frederick Frazier, a vice-president of the Dallas Police Association (who you may remember from his role as the rabid cop watcher in a recent police-shooting simulator for reporters and politicians), warned that the lawmakers were "about to make a huge mistake [regarding] what we do in law enforcement and how we get very bad individuals off the street."
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Requiring a warrant to get cell-phone metadata will doubtless make certain police investigations harder, even if carve-outs in the bill in the case of "an immediate, life-threatening situation" and when the phone is in the possession of a wanted fugitive make cops' dire predictions seem unlikely. But the debate as framed by Hughes and his supporters isn't about whether easy access to location data is a useful tool; it's whether that tool is or can be used to violate people's privacy. Letting police search people's houses or wire-tap phone calls or plant tracking devices on their cars would also make it easier to fight crime, but no one's seriously questioning whether cops should be able to do those things without a warrant.
The bill was left pending in committee on Wednesday.
Send your story tips to the author, Eric Nicholson.