How Riley v. California Impacts Texas

In Riley v. California, the U.S. Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized following arrest. The Court reasoned that cell phones are different from other kinds of things people carry on their persons. Your cell phone is like a detailed diary that can reveal highly personal information going back years. It makes sense, that the Court concluded, to give cell phones extra protection by requiring a warrant. The case got us thinking about privacy protections generally. So what’s the law here in Texas?

Last legislative session in Texas, over 100 members of the House signed on as co-authors or co-sponsors to legislation requiring law enforcement officers to get a search warrant prior to accessing location data from your cell phone company. Currently, law enforcement requests this personal information via a secret subpoena process. Location data can reveal what church you attend, what political and social groups you belong to, if you are married or having an affair, what bars you frequent, and many other personal details. In many ways, Texas legislators were grappling with the same issues the Supreme Court dealt with in Riley. Because so much data is collected and stored by wireless devices and other electronics, our policymakers are faced with important questions about how to update the law to protect our privacy and 4th amendment rights. Here are the 4 things you should know about electronic privacy in Texas:

1. Texas has not yet passed protections for your cell phone location data.

The bill from last session stalled at the end of session.

2. However, our state passed important protections for your email in an amendment to another bill.

The amendment requires a search warrant for government access to
stored communications.

3. In the upcoming legislative session, the ACLU of Texas as part of the Texas Electronic Privacy Coalition will again advocate for warrant protections for your location information.

We will also advocate for regulation of automatic license plate readers and Stingray devices that collect cell phone location data via a dummy cell tower.

4. We can have Texas solutions to privacy problems instead of waiting for the federal government to act.

When it comes to updating privacy protections, we have every opportunity to be ahead of the game. Important updates to state law can work in concert with today’s Supreme Court opinion and federal efforts to curtail NSA spying via the USA Freedom Act. Texans want a government that does not spy on it’s residents. Let’s lead the way in updating our laws to ensure our privacy is protected and the 4th amendment remains a living, breathing protection for us all.

First MSM coverage of push to require warrants for GPS tracking by law enforcement

The Dallas News today has coverage (“Texas civil liberties advocates  seek limits on law enforcement tracking cell phones,” Jan. 10) of Grits’ efforts to seek legislation requiring a warrant for police to access cell-phone location data, a topic with which regular readers will be familiar. The article opens:

Smartphones and certain apps can help you find where your kid is hanging out, check on the whereabouts of an absent co-worker or spy on your spouse.

But the satellite navigation that allows for such tasks also helps police track a phone user’s exact location, and Texas civil liberties advocates say that kind of surveillance without court approval goes too far.

They want to update state law to require a court-ordered warrant for cellphone GPS tracking by law officers, with some exceptions. Police can currently track someone’s whereabouts by requesting cellphone company records, said Scott Henson, whose Austin-based is influential among criminal-justice policy watchers.

“The law has not kept up with the technology,” said Henson, who is circulating proposed legislation to modernize the state Code of Criminal Procedure. No lawmaker has agreed to sponsor the measure yet, he said, but “folks really seem to intuitively understand that it’s a big deal.”

The American Civil Liberties Union of Texas and EFF-Austin, a “cyber liberties” organization, are also working on the effort, part of a national movement toward tightening up privacy for mobile device users.

Texas law officers currently have to get a court warrant for a wiretap, Henson said, and a court order is required before police can attach an electronic tracking device to someone’s vehicle. But he said the rise of smartphones equipped with GPS navigation means police can simply subpoena tracking records from cellphone companies, which received 1.3 million such requests in 2011.

Working with EFF-Austin, the ACLU (both state and national) and volunteers from among Grits readers, my wife and I put together a draft version of legislation we’d like to see filed and this week began making the rounds to seek out potential sponsors. Nobody has bitten yet, but I’ve been gratified at the reception in the Lege offices we’ve visited so far and suspect we’ll soon find someone to carry it.

The Dallas News story quoted a police union rep who seemed surprisingly sanguine, if grouchy, about the bill’s prospects:

While police respect privacy rights, law enforcement uses technology to combat crime, just as criminals use it for their purposes, said Charley Wilkison, public affairs director for the Combined Law Enforcement Associations of Texas.

“It’s a balance between the freedom of the individual … and the right of law enforcement to try to get at the bad actors,” he said.

Wilkison said accusations that GPS data is used broadly by police to spy on regular citizens are “a damn lie.” But he acknowledged that civil liberties advocates have a receptive audience among many lawmakers because of the “strong libertine, independent streak” in Texas.

To be clear, nobody said that “GPS data is used broadly by police to spy on regular citizens,” so that’s a red herring (Charley’s a master at concocting them). But it’s also true that, because requests by police for GPS data are sealed forever, nobody can know for sure what they’re doing with the information. Similarly, nobody is saying that law enforcement shouldn’t access GPS tracking data to fight crime, only that the tactic in most cases should require judicial oversight and, eventually, the public should get to know how those methods are being used.

That said, there is some evidence that requests for cell-phone location data are being used quite broadly by the feds, including in thousands of cases where charges are never filed, but nobody knows how frequently Texas agencies use the tactic. Federal Magistrate Judge Stephen Smith in Houston has pointed out that, when “Asked to furnish … cases brought against individuals who had been subject to warrantless cell phone tracking since 2001, the Department of Justice identified…about 38 cases a year. Given that the federal government obtains tens of thousands of these orders every year, this data suggests that the government is spending more time chasing the innocent than the black sheep and ne’er do wells.”

My guess would be that how and how often Texas law enforcement agencies access GPS tracking data varies widely. Some may misuse the privilege, while others may be more circumspect. If this bill passes, we’ll get to find out. However, we know for certain that any possible abuses can never be uncovered under the current system, where not just the public but even Texas judges can be kept in the dark when law enforcement accesses those records, which require only a subpoena to obtain.

Unreported in the Dallas News story, but importantly, the version of the bill we’re shopping includes exceptions to the warrant requirement during immediate, life-threatening emergencies and when the owner of an electronic device has reported it stolen. Also, to clarify, the bill includes not just smart phones but also regular cell phones (which are used by 88% of American adults) and other personal electronic devices that generate location data.

See a fact sheet regarding the proposed legislation that we’re distributing as we look for bill sponsors. If you’re a lege staffer and think your boss might be interested in carrying this bill, or if you live in Austin and are interested in volunteering for the effort, please shoot me an email.

Originally posted on Grits for Breakfast blog.

Opt Out of Invasive Programs: RFID in Texas Schools

By Matt Simpson
ACLU of Texas Policy Strategist

Rep. Kolkhorst of District 13 (Brenham) filed two bills that, if passed, would bolster protections for individual privacy rights of students in Texas schools.  HB 101 mandates that Radio Frequency Identification (RFID) student attendance tracking programs be voluntary and only implemented if approved by the school district board of trustees.  The approval process would include an opportunity for students, parents and the public to offer comments.  HB 102 cuts to the heart of the matter and bars school districts from requiring students to participate in an RFID badge program.

The ACLU of Texas opposes use of RFID technology to track studemts because the technology is not secure. This technology, originally used to track livestock, simply isn’t appropriate for use with children.

RFID is a generic term that is used to describe a system that transmits the identity (in the form of a unique serial number) of an object or person wirelessly, using radio waves. In schools, students wear RFID equipped ID cards that show their whereabouts at all times. On campus, RFID raises privacy concerns about the ability of school personnel to track students, even in restrooms. Off campus, RFID exposes students to stalking because the devices are easily hacked using simple, inexpensive devices called “readers” that cost as little as $8 on Ebay.

RFID technology to take attendance in schools made statewide news in October 2012 when John Jay High School north of San Antonio began tracking student attendance via RFID-equipped school ID cards.  Prior to this, only a very small number of schools in the Houston area used this technology but the use of RFID to track students has raised serious concerns for some time.

The ACLU has monitored the expanded use of RFID technology with students.  We have opposed such efforts because we don’t want to see this kind of intrusive surveillance infrastructure gain inroads into our culture, and because it is against American values of privacy and freedom to teach children to accept intrusive surveillance technology.

Rep. Kolkhorst’s proposals leave flexibility with local schools but the decision about tracking individuals rightly remains with students and their parents.  This is a balance that should transcend politics and remind us that parental authority is only temporarily (and never fully) handed over to schools.  Parents and students who share our concerns about the kind of intrusive, surveillance climate student tracking programs create should be able to opt out.

In truth, the ACLU of Texas encourages all school districts to avoid RFID controversy by ignoring the claims of savings used as selling points by RFID manufacturers and avoiding the purchase of expensive RFID tracking programs.  RFID was designed to track commercial products and livestock, not humans.  Students don’t need to be treated like parolees under house arrest with an ankle monitor.  Finding creative, locally grown solutions to support education, promote school attendance and education funding is critical.  But, RFID student tracking comes at too high a price.

Does DPS have any business tracking your prescription drugs?

By Dotty Griffith
Public Education Director of the ACLU of Texas

Do you want the Texas Department of Public Safety to keep track of your drug prescriptions?

Is that a big “NO!” we hear? That’s what we think also.

The ACLU of Texas bets most of you don’t know that since 1982 pharmacists have sent the Texas Department of Public Safety (DPS) information about your prescriptions. It’s called the Texas Prescription Program. This summer the gathered information will go online.

ACLU of Texas Legal Director Lisa Graybill is concerned about who will have access to the information.  Her understanding is that doctors will have access to it, but wonders how that access will be monitored and what kind of password protection there will be.

To find out more go to

And, Search Warrants Win!

By Kirsten Bokenkamp
Senior Communications Strategist

The protection of civil liberties had a day in court today when the U.S. Supreme Court decided that the government cannot use GPS trackers to track suspects without first obtaining a warrant.  The Court held that the government violated the Fourth Amendment, which protects us from unreasonable searches, when it placed a GPS device to a vehicle and tracked its owner’s movements continuously for a month.  This case is especially significant because it is the first time the Court has had to consider the constitutionality of location-tracking technology, and this decision could influence the law on cell phone tracking.

Also worth noting…during the last legislative session in Texas, the Senate Transportation and Homeland Security Committee tried to incorporate the exact practice now ruled unconstitutional by the Court into one version of its “homeland security” omnibus bill.  Texas lawmakers sure were wise not to pass that bill.  Of course, we were always against this practice to begin with, but we sure are happy that – on this issue – Texas law follows the Constitution!

The Good and the Bad from the 82nd Legislature

Matt Simpson
Policy Strategist

We aren’t going to lie, there was a lot of ugly in the 82nd Legislature, yet we are proud to report that the ACLU of Texas achieved some incredible successes despite the contentious atmosphere of the proceedings.  Many of the bills we supported passed, and we were successful in stopping many bills that would have been bad for Texas.

We worked with business leaders, civil liberties organizations, law enforcement, and religious leaders to stop various anti-immigrant proposals.  These proposals would have encouraged racial profiling and undermined public safety.  Although numerous proposals were offered, and we were backed into a corner when the so-called “Sanctuary Cities” bill was added to the Special Legislative Session, no anti-immigrant bill successfully passed.  Phew!

In addition to holding off the anti-immigrant charge at the Legislature, our other major successes came in the area of decriminalizing school discipline. Current policies and laws that require ticketing students for minor disciplinary infractions at school push youth into the juvenile and adult criminal justice systems, interrupting or altogether halting their education.  Futures have been ruined by these policies, and with more youth in jail – and out of a job – these policies certainly have not benefited the economy.   Additionally, criminal justice responses to minors’ misbehavior are more costly and less effective than other methods of encouraging good behavior at school. Here is an overview of our decriminalizing school discipline successes:

  • The Corporal Punishment, Ticketing, and Use of Force Bill (HB 359) addresses three separate school discipline issues.  First, it grants parents the power to determine if their children can be subjected to corporal punishment at school.  Second, it exempts children in sixth grade and under from being charged with three separate Class C misdemeanors for engaging in childish misbehavior on school property.  Third, it ensures that school peace officers report their use of restraints on special education students. 
  • The Truancy Bill (SB 1489) aims to reduce the number of youth and adults sent into juvenile and adult criminal justice systems for truancy.  In 2009 alone there were approximately 120,000 Class C misdemeanor charges filed against Texas students for failure to attend school, a 40 percent increase since 2005.
  • The Record Sealing Bill (HB 961) will better allow youth and young adults to move past childhood mistakes by lowering the age at which individuals may have juvenile records sealed and/or restricted.
  • The Anti-Bullying Bill (HB 1942) requires school district policies to include a procedure for reporting, investigating, and responding to instances of bullying on their campuses.   

Along with the passage of these good school discipline bills, two important criminal justice reforms passed this session. 

  • The Asset Forfeiture Bill (SB 316) reforms the way that asset forfeiture laws can be used.  In the past, asset forfeiture laws were sometimes misused by law enforcement to intimidate individuals (disproportionately African Americans) into relinquishing personal property in an effort to avoid being put in jail. 
  • The Anti-SLAPP Bill (HB 2973) allows for safeguards against frivolous lawsuits targeting individuals with the purpose of quelling the individual’s free speech rights. 

These wins will make a difference in the lives of many Texans, and we are proud to have had such a successful session. But, while we were able to successfully advocate for these bills and stop all of the anti-immigrant proposals, a few bad bills still passed:

  • The Voter ID Bill (SB 14) requires proof of identification at polling places, which creates more roadblocks to voting despite the already very low voter turnout rate in Texas. Voters must already show proof of identification to register to vote. A second show of ID isn’t necessary and there’s no evidence of voter fraud in Texas.
  • The Sonogram Bill (HB 15) intrudes on the doctor-patient relationship and forces a woman to go through an invasive sonogram procedure prior to undergoing an abortion.  
  • The Sexting Bill (SB 407), well-meaning but poorly crafted legislation that creates a new crime for youth that send naked images to friends or classmates, a practice that more than 20 percent of youth engage in nationwide.  There are better non-criminal ways to address this widespread youthful indiscretion without having to place children before a judge.

Between working to undo these unwise new laws and keeping the momentum going on the school discipline successes, we don’t have much time to rest. There is still a lot to do to protect the civil liberties of all Texans.  We assure you we aren’t going anywhere and will keep on fighting for your rights!  To follow the work we do, find us on Facebook, or follow us on Twitter!  And remember, to show your support for the work we do, please vote for us as “Best Activist Organization” in the Austin Chronicle’s Best of Austin contest.

Privacy Rights Must Keep Pace with Technology

Cross-posted from’s Blog of Rights

In November, a federal court in Texas found that the Constitution requires the government to get a warrant and show probable cause before getting access to someone’s historical location data from their mobile carrier. We applauded this decision because cell phones are tracking devices we carry around in our pockets. Knowing where someone goes can reveal a great deal of personal and private information about them – exactly the sort of information the Fourth Amendment was designed to protect.

The government appealed that decision. Last Friday, the ACLU, the ACLU of Texas and the Electronic Frontier Foundation filed a friend-of-the-court (PDF) brief asking the court to uphold the earlier decision. Our brief argues the government should have to go to a judge for a warrant and prove that it has probable cause before getting historical location data.

This is part of our ongoing campaign to make sure that as technology advances, our privacy rights are not left behind.