LONGVIEW (LONGVIEW NEWS-JOURNAL) — An East Texas lawmaker says his bill requiring investigators to obtain a warrant before raiding cellphone records is right on time.
“It’s really just the law catching up with technology,” Bryan Hughes, R-Mineola, said of his House Bill 1608.
Hughes’ measure focuses on instances in which law enforcement might need to know someone’s location at a given time.
“Just about every application you download has got this location data,” he said. “You’re basically creating a fingerprint wherever you go.”
Investigators have learned that and commonly obtain data about a phone’s user from carriers to determine where a suspect was at critical moments, Hughes said. His bill would require those detectives, district attorneys and other investigators to obtain a judge’s order to get the information from a carrier.
Hughes added the bill does not affect laws already on the books regarding wire taps or other intrusive searches. Those already require a warrant.
“Our issue is about seeking data from the carrier,” he said. “It’s not so much what you can see on the phone itself, because the carrier would know where you’ve been.”
Hughes’ bill was assigned Monday to the House Criminal Jurisprudence Committee where he is a member. The measure has drawn 26 co-authors including East Texas Republicans David Simpson of Longview and Travis Clardy of Nacogdoches.
A companion bill has been filed in the Senate by Juan “Chuy” Hinojosa, D-McAllen, and others have signed on. The Texas Tribune reported that privacy advocates such as the American Civil Liberties Union back the bill.
The Tribune also reported Friday that some police and prosecutors say that the higher standard of proof would make it harder to catch criminals in certain long-term investigations.
Wireless carriers reported to Congress this past year that they get thousands of requests a day from law enforcement agencies for cell phone information, including text messages and caller locations.
Technology has eroded “traditional conceptions of privacy,” Scott Henson, a criminal justice blog writer who shopped the bill to lawmakers, told the nonprofit Texas Tribune. “This bill ensures that government can’t track your daily movements without a good reason.”
Matt Simpson, a policy strategist with the Texas branch of the ACLU, said police might track a person simply for going to an Islamic mosque. That would be a violation of the right to freedom of worship, he said, but under current laws, no judge would need to consider the issue before the cell phone records were obtained.
The proposal comes in the wake of a broader federal debate over the use of GPS tracking by law enforcement. In January 2012, the U.S. Supreme Court decided, in the case United States v. Jones, that sticking a GPS device on the car of a suspected drug dealer in the District of Columbia named Antoine Jones constituted a “search.”
After the decision, federal prosecutors and Jones’ defense attorneys prepared to go back to trial. A U.S. attorney obtained Jones’ cell phone records, which showed dates and times of calls and the cell towers used, though not Jones’ exact locations, and Jones’ attorneys are asking the U.S. district court in Washington to not allow the data at the trial. That issue, as well, could reach the U.S. Supreme Court.
“It may be years before the U.S. Supreme Court catches up with today’s technology,” Henson said. “In the meantime, state law should create a clear and protective privacy standard for Texans.” In June 2011, U.S. Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, proposed a bill with similar requirements to the current Texas proposal in federal cases.
Steve Baldassano, a Harris County prosecutor, said that although the policy change would only affect “historical” investigations — police already need to establish probable cause in “real-time” situations involving kidnappings and chases — it could make it harder to catch certain criminals. Baldassano said cell phone data might be the only evidence supporting or disproving an alibi at an early stage of an investigation. With this new barrier, he said, “you’d just have to let it go.”
— The Texas Tribune contributed to this report.