Texas could lead on cellphone privacy rights

Posted Monday, Apr. 01, 2013  comments  Print Reprints

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It seems that crooks and law enforcement agents are dashing neck and neck into the future with technology, but the law is lagging behind.

Criminals are running sophisticated schemes and scams, coordinating deliveries with whiz-bang electronics and avoiding detection using pre-paid cellphones. Investigators are right behind -- or sometimes ahead of the curve -- getting records of where suspects' phones have traveled, even using fake wireless towers to trick phones and capture conversations.

But it's not just logistics. Privacy advocates say constitutional rights are at stake for innocent Americans as well as criminal suspects.

Bills introduced in the U.S. House (HR1312) and Senate (S639) in March would require a warrant -- based on probable cause of suspected illegal activity -- for federal or state agents to track someone using their mobile device or a GPS gadget attached to their vehicle.

Bills in the Texas Legislature have a better chance of moving forward -- though they're meeting some opposition from prosecutors and police who say it would make their jobs harder.

The question is whether the Fourth Amendment's mandate that searches and seizures be reasonable protects cellphone data generated through private commercial transactions.

HB1608, by Rep. Bryan Hughes, R-Mineola, would require a warrant for information about cellphone location, except in a life-threatening situation. Warrant applications would have to be made public six months after being filed, unless a judge orders them sealed longer because of an ongoing investigation.

Cellphone carriers and prosecutors would also have to report warrant requests to the Texas Department of Public Safety, which would give an annual accounting to state leadership. That would include how much the cellphone companies charge law enforcement agencies for phone records.

Sen. Juan Hinojosa, D-McAllen, filed an identical bill, SB786, which is scheduled for a hearing today in the Senate Criminal Justice Committee.

Hughes' bill has brought together an unlikely coalition of co-authors: Republicans Lois Kolkhorst of Brenham and Jonathan Stickland of Bedford, along with Democrats Lon Burnam of Fort Worth and Senfronia Thompson of Houston.

If it became law, the bill would put Texas ahead of the nation. In a case currently before the 5th U.S. Circuit Court of Appeals, the Obama administration has argued that a warrant isn't necessary to get cellphone location data.

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