Following Texas’s Lead on Location Tracking

Yesterday, the Texas House of Representatives passed the first bill in the nation that would require law enforcement to obtain a probable cause warrant before tracking individuals’ location by collecting their cell phone location data. As Rebecca Robertson, legal and policy director for the ACLU of Texas put it, “By approving this amendment, our legislators would take a significant step to preserve the Fourth Amendment rights of Texas citizens, protecting them from potential unreasonable searches and seizures that could take place entirely outside judicial review.” They would also set a precedent that the rest of the country should be quick to follow.

We’ve been talking about location tracking for a long time now, because where you go says a lot about who you are—are you going to gay bars, a mosque, a fundamentalist church, a gun store, an Alcoholic Anonymous meeting, a political protest, etc.? In August 2011, 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies to ask about their policies, procedures and practices for tracking cell phones, and in April 2012, an additional affiliate filed 27 requests. What we learned is alarming: the laws and policies guiding cell phone location tracking across the country are in a state of chaos, with agencies in different towns following different rules — or in some cases, having no rules at all.

We believe that law enforcement agents should be obtaining location information in investigations only with safeguards—the probable cause standard and review by a judge—to ensure that while legitimate investigations can proceed, innocent Americans will be protected from unjustified invasions of their privacy. We’ve known that this standard is workable, because law enforcement agencies in every region of the country—from Denver, Colo. to Hawaii County to Wichita, Kan. to Lexington, Ky.—already obtain a probable cause warrant to track location and still do effective law enforcement. And, in the Jones Supreme Court case, a majority of the justices (in two concurrences) recognized that long term monitoring of an individual’s travels, no matter what technology is used, impinges on that individual’s reasonable expectation of privacy. Nonetheless, Texas could soon be the first state to actually legislate on this issue.

It’s been a long slog to get to this point. Despite having over 100 co-sponsors in Texas’s 150-member House, the original cell phone location tracking bill, HB 1608, was not brought up for a vote before Texas’ deadline for moving legislation through its first chamber. But, not to be deterred, the amazing bill sponsors, Rep. Hughes and Sen. Hinojosa, the ACLU of Texas, and the rock star Texas Electronic Privacy Coalition got the legislation added as a House amendment to a Senate bill, SB 1052, that requires a warrant for access to electronic communications content. (Congress, are you taking notes? Texas is about to show you how to update the Electronic Communications Privacy Act (ECPA), the outdated federal law that governs access to communications content and is, as of yet, silent on location tracking.) The Texas bill still has to go back to the Senate to approve the House amendments before making it to the governor’s desk.

If you’re from Texas, you can help your state make history by reaching out to your senator and ask him/her to support the House amendments to SB 1052. (You can find your senator’s contact info here.)

If you’re not in Texas, you can ask Congress to update ECPA, and if you happen to be from Maine, your legislature is poised to vote on this issue also, so please tell them to follow the Texas’ House’s lead and pass warrant protections for location tracking.

Texas is known as an outsized state with an ego that rivals its land mass. And, if the state that brought us two George Bushes and Six Flags can also bring us privacy safeguards for location tracking, Texans will really have something to brag about. Perhaps Matt Simpson, policy strategist at ACLU of Texas, put it best: “Clearly, policy has not kept pace with technology. Approval of this proposal by state legislators would place Texas at the nation’s forefront of demanding privacy for its citizens when it comes to personal cell phone use.”

Update (5/23)

My California colleagues remind me that California actually passed a location tracking bill last year. It was vetoed by the governor, but it is not strictly true that Texas is the first.

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