Your Cell Phone User Privacy Hearings are This Week

Who is tracking you? Your mobile phone. Texas Insider Report: AUSTIN Texas Technology has outstripped our constitutional right of privacy said Scott Henson of the Texas Electronic Privacy Coalition. Two Texas legislators  State Rep. Bryan Hughes (R-Mineola) and State Sen. Juan Hinojosa (D-McAllen) are proposing two bills whose time is past due. House Bill 1608 and Senate Bill 786 would require police & prosecutors to obtain court orders for access location data from mobile companies and the privacy implications are profound.   Republican state Rep. Bryan Hughes of Mineola and Democratic state Sen. Juan Hinojosa of McAllen are the primary authors of the proposed legislation. The House bill alone has over 100 co-authors in the 150-member chamber. A hearing on Hughes House bill was held last month and is still pending further action. A public hearing on Hinojosas Senate bill is scheduled for Wednesday. The Constitution protects suspects by placing burdens on law enforcement the courts and the government whose powers are far greater than the individuals. The proposed legislation restores some balance to the individuals rights against the interests of the state. The proposed legislation would also require law enforcement officials to report how much theyre paying cellphone companies for location data. Some law enforcement officials who currently can obtain cellphone information by citing reasonable suspicion" stand against the proposed legislation. They argue that by having to show probable cause" as the legislation would require they will be deprived of a valuable investigative tool. Its a tool they say they need to keep pace with electronically savvy criminals. It would be wrong to dismiss Hughes and Hinojosas bills by glibly saying that if youre not doing something wrong then you dont have anything to worry about and therefore have nothing to hide from the police. But you dont have to be engaged in criminal activity to be concerned about the ability of authorities at all levels of government to pinpoint your actions and whereabouts. As the video played in the Texas Capitol meeting room recently the red target jerked back and forth across the map tracing every movement that Malte Spitz a German politician had made during several months in 2009 - when he was riding a train when he was at a nuclear protest when he was in meetings or at a store and when he was at home. Who was tracking him? His mobile phone. Using records of cell use - from phone calls to Twitter usage to web access - Spitz was able to construct an exact road map of what he did as state Representative Bryan Hughes R-Mineola explained to fellow lawmakers gathered in the room. In much the same manner Hughes explained law enforcement in Texas and across the United States is using mobile-tracking information in investigations. That has led to questions about whether the technology violates the U.S. constitutional right to privacy or whether it is simply a high-tech shortcut to solve crimes.

This is a case where the law needs to catch up with technology Hughes told the wide-eyed House Criminal Jurisprudence Committee as the video ended. There seems to be broad consensus that accessing this information should require some form of probable cause. ... It doesnt require that now.

Currently law officers are obtaining such information without a warrant in both routine and emergency investigations. A large group of Texas legislators wants to ban the practice unless police obtain a court order and the issue is pitting tea party activists and others who oppose intrusive Big Brother government against the police who say it is a boon to solving crimes. Just as adamant are supporters who range from civil liberties groups to tech executives and average citizens. Mobile users have a reasonable expectation that police wont be using their calls to track their whereabouts without a warrant Henson said. Theres no phone booth door today he said. Were all talking on mobile phones. It is true that probable cause" is more difficult to show but the 4th Amendment protects individuals from police abuses. The proposed legislation grants exceptions for life-threatening situations for example and places no impediment on criminal investigations. Warrants will still be issued and issued quickly. Most of us realize on some level that we give up a degree of privacy when we use our cellphones and other electronic devices. But most of us probably fail to appreciate how easily our electronic actions can be tracked and what it potentially means. A recent Austin American Statesman Editorial was titled Protect Cellphone Data from Big Brother. Sophisticated cellphone technology has made it easier than ever before for phone companies to track our every purchase or for advertisers to track your every mood. That also enables police departments and other law enforcement agencies to track our every move. As our phones become smarter our privacy becomes more vulnerable. Not only can the information we leave behind be traced without our knowledge but trying to find out how often police track the information and what they do with it is too difficult. The bills before the Legislature add welcome transparency by requiring cellphone companies and law enforcement officials to report the number of requested cellphone records. According to a Pew Research Center survey American mobile phone owners each made or received an average of 12 calls per day in the fall of 2011 and sent or received an average of 41 texts per day. It started with the iPhone and phone companies started putting in more and more towers to keep up with the demand for service - and as towers were added the coverage areas became smaller and smaller said Christopher Soghoian an industry expert and chief technologist for the American Civil Liberties Union. As the coverage areas got smaller it allows you to more accurately locate that signal. And that is where the rub between the right to privacy and police investigations conflict said Scott McCullough an Austin lawyer and former assistant attorney general who now represents phone providers in their dealings with police requests for mobile location data. Im here for privacy about the people whose location information is requested and they never know about it he told the House committee cautioning that current law provides no uniform standard on whether a warrant is required. We dont know what they police do with the information and we never know how theyve used it. The law needs to be clarified says McCullough. The police can still get the information; they should just do it with a warrant - just like they do to get other information for investigations Hinojosa told the Senate Criminal Justice Committee. Similar legislative battles are under way in other states and in Congress where bills are pending to require warrants. Rep. Hughes HB 1608 and State Sen. Hinojosas SB 786 are proposals whose time is past due. They would clarify the application of the 4th Amendment to cellphone data by requiring police to demonstrate probable cause to obtain a search warrant for cellphone records. The proposed legislation would help limit potential abuses of cellphone data by placing limits on the easy shortcuts such data allows law enforcement to take.