A handful of law enforcement critics have raised concerns about HB 1608 (Hughes, et. al) and its companion SB 786 (Hinojosa) that deserve rebuttal. While most of the specific concerns are addressed in the committee substitute to the House version, here is a rebuttal of the particular criticisms being launched against the bill.
ISSUE: Location data belongs to the cell phone company, not the customer.
RESPONSE: The “third party doctrine” is a court-authored exception to the Fourth Amendment under which the Supreme Court has held that we don’t have a “reasonable expectation of privacy” when we knowingly give information to a third party. Thus, the argument goes, cell-phone customers have no reasonable expectation of privacy regarding historical location data and government should be able to access that information without a warrant. This may be technically true but to most cell-phone users the idea is viscerally offensive, especially in light of the level of detail it reveals about them. In the ‘70s, the Supreme Court ruled bank records weren’t protected by the Fourth Amendment under the third-party doctrine and Congress swiftly acted to legislatively reverse the decision, which is what this bill would do for historic cell-phone tracking.
ISSUE: Historic location data is less accurate and therefore does not violate privacy as much as current or prospective surveillance.
RESPONSE: Historic location data is very accurate and becomes more exact as more cell phone towers or antenna go up to support the smart phone market. The data allows far closer tracking than is publicly portrayed by law enforcement (Google “malte spitz tell-all telephone” for a real-world example from 2009—there are a lot more towers now). Historic data is arguably more problematic as a violation of one’s “reasonable expectation of privacy” because nothing is more personal than where we have been every minute of the day—a retrospective of our lives containing details we ourselves have probably forgotten.
ISSUE: The warrant standard should be reduced from “probable cause” to “reasonable suspicion.”
RESPONSE: Probable cause is the standard set out in the Fourth Amendment for government searches of our “persons, houses, papers, and effects.” Reasonable suspicion, by contrast, is a far lower standard created by the courts to govern brief police interactions with the public like Terry stops (aka, “stop and frisks). That’s not the appropriate standard by which to judge long-term location tracking. The question becomes, in a modern world where “papers and effects” are now largely digitized and held by cell-phone companies and cloud-based data vendors, should the Fourth Amendment still apply? Cell-phone location data is incredibly detailed, documenting everywhere you go and everything you do. It may well include your visits to churches, political rallies, gun shows, or that private visit to a psychiatrist or medical specialist. It includes stops you’ve made that you yourself have probably forgotten. In that sense, your cell-phone company knows more about you than you do and the data creates a diary of your life more detailed than anyone would take the time to write. Courts are slowly concluding that the Fourth amendment should apply to location data, including in two of Texas four federal districts, but that process could take years. In the meantime, Texas should require a probable-cause based warrant by statute.
ISSUE: This bill will dangerously expose police informants and undercover officers.
RESPONSE: The bill requires that information about cell phone location tracking used in an investigation must eventually be made public. However, the author has agreed to amend this section in the committee substitute to allow the identity of informants and undercover officers to be redacted from any documentation that is ever made public.
ISSUE: All cell-phone location tracking already requires a judicial order, so there is already adequate court supervision to prevent abuses.
RESPONSE: The Texas Department of Insurance told the House Criminal Jurisprudence Committee that their law enforcement division used administrative subpoenas to get historic location data. Some law enforcement agencies say they can and do use a federal “18 USC 2703(d) order,” often referred to as a “D order,” or the Texas equivalent in CCP Art. 18.21 section 5. These orders for location data are formally signed by a judge but the standard under which they’re granted – that the judge “shall” issue the order if location data might be “relevant” to the case – is too low, falling far short of Fourth Amendment warrant protections.
The wireless industry receives requests for location information through administrative subpoenas (which have no judicial supervision), court orders (using the “relevant” standard), and sometimes warrants, an attorney for cell-service providers testified at the hearing, but only the latter approach requires showing probable cause. Much of this surveillance activity is carried out in secret. Since there is almost no public information about Texas-based location requests, whether subpoenas, orders or warrants, we have no way to know which methods have been used nor their relative proportions throughout the state. Regardless of prior practices, HB 1608 and SB 786 would require that, going forward, a search warrant must be secured upon a showing of probable cause.
ISSUE: The bill is poorly drafted and overly broad.
RESPONSE: Prosecutors object that the bill is overly broad, but have specified few types of location data that should be exempted from the probable cause warrant requirement. The author has accepted suggestions from prosecutors and law enforcement for narrowly crafted exceptions like finding a felony fugitive. And the bill already contained clear exceptions for life threatening situations or finding a stolen cell phone. Rather than being overly broad, the bill makes clear that a probable-cause warrant will be required for requests to cell-phone carriers for personal location data, simplifying a needlessly byzantine statute that arguably is one of the most confusing and poorly written subsections (CCP 18.21) in Texas law.
ISSUE: The bill will require extra paperwork and locating a judge in cases when time is of the essence.
RESPONSE: The bill includes a clear exception for emergency where time is of the essence. The exception includes “hostage, barricade or other emergency situation” in which a person threatens another with death or exposes them to a “substantial risk of serious bodily injury.” This is a broad exception which gives police significant leeway to determine when a particular situation requires immediate location data from the carriers. Cell phone companies already understand the emergency exception and will respond with immediate location data when requested under such circumstances. Besides, to the extent it’s true that law enforcement already seeks judicial approval on these sorts of orders, as some have claimed (see the prior question) it lessens the impact of requiring them to seek out a judge to get a warrant. They already must find a judge, anyway.
ISSUE: Reporting requirements are too onerous.
RESPONSE: The reporting requirements for cell phone companies involve only aggregated billing data – which agencies they reported location data to and how much they charged them. Given that law enforcement pays for these services, essentially this amounts to an aggregated receipt. The reporting requirements on courts and prosecutors are there because currently it’s impossible to know to what extent information collected about individuals is actually being used in criminal cases. United States Magistrate Stephen Smith in Houston has written that the sparse objective information that does exist on a nationwide level indicates that in too many instances “the government is spending more time chasing the innocent” than the criminal. Without additional reporting, no one can know if that’s true. This legislation requires aggregate reporting about cell-phone location orders that will clarify many of the speculative debates surrounding this legislation, giving us hard data to analyze instead of assurances and promises.