Texas 2019 Location Privacy Bill Passes Senate, Awaits House Approval

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Data Foundry is actively supporting two state bills this session (SB 2093 and companion bill HB 3453) that require law enforcement to obtain a warrant to get historical location data and communication records from service providers. The bills also require law enforcement to obtain a warrant to use cell site simulators or IMSI catchers. These devices are informally known as StingRays. They mimic cell towers, forcing all mobile devices within range to connect to them. Through these devices, law enforcement can obtain location data on individuals carrying devices within range. StingRays can also be used to conduct man-in-the-middle attacks and intercept communications. These devices have been used by police departments for over a decade now, and they are largely unregulated.

Other states have passed laws in recent years requiring warrants for the use of StingRays, including California and Virginia (2015). Data Foundry leadership has long believed that using a StingRay or acquiring cell phone location data without a cause-based warrant violates Fourth Amendment rights, as do legal experts from the CATO Institute, the ACLU and the Center for Democracy and Technology. The Supreme Court also verified this interpretation of the laws in their decision last year on Carpenter v. United States.

The Code of Criminal Procedure currently provides no comprehensible standard to search or seize location records, which are produced by various modern technologies. It is completely unclear which sections govern location records, if any. Before now, Texas legislators had also been silent regarding how cell site simulators should be used by police, under what circumstances they are justified, and how to best minimize data collection from innocent third parties. This situation has created confusion for law enforcement and left the public without any assurance their rights are protected.

This year’s location privacy bills change that and create one comprehensive warrant standard for all types of location records, including data produced by cell site simulators. They do this by modifying the Texas Code of Criminal Procedure to include articles that require probable cause and search warrants. The amended articles require that all crime-related location methods obtain a warrant based on an affidavit demonstrating probable cause that a crime has occurred, and the requested location records will produce evidence of that crime.

In addition to this warrant standard, the bills add several safeguards to protect the public. For instance, location warrants can only be authorized for investigations of serious felonies. Whenever law enforcement obtains data on innocent third parties, that information must ordinarily be deleted within either 24 hours or 30 days, which is the timeframe recommended by the Department of Justice. Law enforcement is strictly prohibited from using cell site simulators at public gatherings to collect information on attendees and from intercepting the content of communications. Location warrants only run for limited periods and extensions require additional judicial authorization. The bills also make it a crime for members of the public to use cell site simulators against others without consent.

SB 2093 and HB 3425 include several features that advance the public interest. The bills include a limited emergency exception that builds on the trap/trace emergency authorizations in Article 18B.152 to create a similar approach for other location information like cell site records or cell site simulators. This authorizes law enforcement to obtain location information for short periods when time is of the essence, such as with Amber and Silver Alerts or escaped fugitives. The bills also allows warrants to be served on multiple service providers when only the location of a crime is known.

In sum, these bills provide much needed clarity to the Code of Criminal Procedure, to law enforcement, and reassurance to the public that their rights will be protected by Texas law, consistent with the state and federal constitutions. This afternoon, the bill promptly passed the Senate. Now we eagerly await the House’s vote and hope they will vote for legislation that simultaneously protects privacy while enabling law enforcement to fight crime with technology.