Digital rights advocates cheered yesterday after the state House passed a measure requiring police to obtain a search warrant before collecting personal cell phone data. Groups as diverse as the ACLU of Texas and the arch-conservative Texas Eagle Forum have expressed concern that current law, which allows law enforcement agencies to freely harvest cell phone location data, was antiquated and a violation of the Fourth Amendment prohibition on unreasonable searches.
"Cell phones communicate location information constantly," as Electronic Frontier Foundation-Austin vice president Greg Foster has previously explained it. "Now the details of your life - your employer, your hobbies, your relationships, your religion, political meetings you attend - can all be gleaned from customer data held by your phone company. And police don't need a warrant to get it."
Grits for Breakfast's Scott Henson framed the matter somewhat differently:
After all, who guards their privacy more closely than superheroes? Batman, Superman, Spiderman, Captain America - all the great ones employ closely guarded secret identities, not to perpetrate evil but to enable their work for good. One of the items on Batman's utility belt in 2013 surely must be a smart-phone. But we may be certain the Caped Crusader doesn't want his cell-service provider handing out his historical location records. There are some secrets even Commissioner Gordon needn't know, at least without demonstrating probable cause to a judge.
The superhero analogy is a bit tortured, but the point is well taken. Current law was put in place back in the '80s, way before people carried traceable GPS devices in their pockets. An update is long overdue.
But the measure is being fought tooth-and-nail by the Dallas Police Association, among others.
"It's going to kill people," Frederick Frazier, who chairs the group's PAC, said yesterday upon the passage of the privacy measure, according to the Morning News.
The Morning News piece continues:
Current law lets police track cell phones with the burden of reasonable suspicion, which Frazier said allows them to - say - get the cell phone records of the last 10 people who called the dead guy in the ditch and figure out where they were last night.
Or, he said, a girl goes missing, police find out there are 10 sex offenders living next to where she was when she disappeared, so they get their records and find out who was there when she disappeared.
Or using cell phones to track the Kaufman DA killer, or the Boston bomber - all, he said, would be hampered by a bill like this.
Raising the burden to the level of search warrant not only costs time and paperwork, Frazier said, but restricts them from even being able to obtain the records because probable cause doesn't cover the wide net police have to cast sometimes in order to find a suspect.
Nor do the exceptions carved out for life-threatening emergencies and felony fugitives placate Frederick, who insists that investigators' hands will be tied. But lawmakers aren't exactly taking a tool out of law enforcement's tool box. They're simply requiring a judge to look at the evidence to see if that tool should be used. Given the massive amounts of information that can be gleaned from cell phone location data, that hardly seems unreasonable.
Now, on to the Senate.