Your E-Mail Privacy & Texas: 1st-in-Nation Bill Sent to Gov. Perry

Texas Legislators move to protect Texans inboxes while federal protections ... languish

Texas Insider Report: AUSTIN Texas Assuming Texas Gov. Rick Perry signs the bill into law the Lone Star State appears set to enact the nations strongest E-mail Privacy Bill. As a country we still have a long long way to go but at least in Texas were eager to celebrate this milestone when the governor signs the Frullo-Carona bill" said Ron Yokubaitis co-CEO of the Austin-based Data Foundry.  

The legislation Texas HB 2268 by State Rep. John Frullo (R-Lubbock right) currently sits on Perrys desk awaiting signature where he has until June 16 2013 to sign or veto the bill.  While backers do expect Perrys signature if he does neither it becomes law and would automatically take effect September 1 2013.

But while HB 2268 gives Texans more privacy protection against unwarranted state-level snooping of their inbox it would not protect against federal investigations. In early May a new FBI Domestic Investigations Guide disclosed the FBI believes it has the authority to open e-mail whenever it wants essentially just like other federal agencies.

Currently there are no such Texas-like provisions in Federal Law for opened e-mail or for messages sitting in an inbox unopened for 180 days or more.

Representative Frullo (above right) & Senator John Caronas (R-Dallas right) bill which passed both houses of the state legislature without a single nay vote can require only Texas state law enforcement agencies to get a warrant prior to demanding access to all e-mails regardless of the age of the e-mail.

Nonetheless if enacted this would make Texas law more privacy-conscious than the 25-year old 1986 Electronic Communications Privacy Act (ECPA). With the ECPA federal law enforcement agencies are required to get a warrant to access only recent e-mails that are unopened by the recipient.

Citing the Electronic Communications Privacy Act (ECPA) signed into law October 21 1986 Federal Government agencies currently claim the right to:

1. Track an individuals movements without having a warrant issued by a judge using the mobile phone signal silently transmitted out every few seconds and
2. Read an individuals e-mails while sneaking a peek at online calendars and the private photos stored in the cloud all without a warrant.

As a video played in the Texas Capitol Hearing Room recently the red target jerked back and forth across the map tracing every movement Malte Spitz a German politician 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 websites accessed Spitz was able to construct an exact road map of what he did" as Texas State Representative Bryan Hughes (R-Mineola right) explained to fellow lawmakers gathered in the room. Explained Hughes law enforcement in Texas and across the U.S. is using mobile-tracking information in investigations. That led Hughes and other Texas lawmakers to question whether the technology violates the 4th Amendment 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 and individuals private information should require some form of probable cause. … It doesnt require that now."

In March 2013 the Department of Justice acknowledged in a Congressional hearing that this distinction no longer makes sense and that the Obama Administrations Department of Justice (DOJ) would support revisions to ECPA.

It is the first state legislature Im aware of to change the law this way" said Electronic Frontier Foundation attorney Hanni Fakhoury. Other states are currently considering similar legislation including California where SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly Mr. Fakhoury said.

In Texas Frullo and Caronas HB 2268 reads in part:

An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

. . .

A district judge may issue a search warrant under this section for electronic customer data held in electronic storage including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (h) regardless of whether the customer data is held at a location in this state or at a location in another state. An application made under this subsection must demonstrate probable cause for the issuance of the warrant and must be supported by the oath or affirmation of the authorized peace officer.

Nudging Washington

The efforts in Texas give civil libertarians legal experts and privacy-loving 4th Amendment conservatives hope that Congress may be spurred to pass what many believe to be much-needed ECPA reform. ECPAs existing 180-day requirement stands as the law of the land in Texas and all the other 49 states.

The law needs to be clarified. Privacy is a special thing in Texas" said Scott McCullough an Austin lawyer and former Assistant Attorney General who now represents online providers in their dealings with police requests for mobile location data. Im here for privacy about the people whose information is requested and they never know about it" he recently told the Texas House Criminal Jurisprudence 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.

Its always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts see this is a safe space to venture into" says the ACLUs Chris Soghoian.

When cities and states start protecting e-mail judges may then feel like theres a reasonable expectation of privacy" Soghoian said.

The more that states pass legislation similar to that in Texas the more attention given Congress to keep up with the changing personal information cloud-computing 4th Amendment legal landscape.