Texas law enforcement could be tracking you right now. And you might never know.
Complex and fast-changing laws regulating how law enforcement can monitor people’s locations have legislators working to close loopholes and perhaps get ahead of new technologies, while advocacy groups warn of the dangers of secrecy.
GPS tracking is a perfect example.
Until a U.S. Supreme Court Case last year - U.S. v. Jones - police could use GPS tracking devices whenever they wanted to. Now they have to show probable cause and get a warrant from district court. That’s created a big problem, says State Representative Allen Fletcher (R-Cypress). He’s a retired Houston cop who vice-chairs the House Homeland Security and Public Safety Committee. The problem, says Fletcher, is that court proceedings, unless sealed by a judge, are public record.
"The bad guys - the drug cartels - they know that you’re tracking them. And don’t think they don’t have attorneys on retainer who peruse through the records to see what court orders have been issued for what tracking," said Fletcher.
Fletcher has introduced a bill, H.B. 1322, that would keep these warrants sealed. And another, H.B. 919, that would prevent freedom of information requests from revealing the movements of uniformed and undercover officers.
That has the Texas Association of Broadcasters - of which KUT is a member - worried. The TAB’s Michael Schneider says the so-called “law enforcement exception” that allows governments to deny freedom of information requests is used too much already.
"The public needs to be able to determine for themselves whether or not law enforcement is following proper procedures, whether the investigation actions are justified, and if you remove information from that process, the public is kept in the dark, " Schneider said.
Matt Simpson is with the American Civil Liberties Union of Texas. He monitors bills in the Texas legislature and makes sure the ACLU's point-of-view is heard. He’s more concerned about another tracking device that tracks almost everyone – almost constantly: Your cell phone.
"Our cell phones put a signal out to towers as we move around and this creates a digital log of where you’ve been," Simpson said.
He says police don’t need a warrant to get your location records from your cell phone company. They just file a sealed subpoena and get whatever location records they want. There’s no judge involved.
The ACLU is working with two state representatives, Bryan Hughes and James White, on House Bill 1608. It would require Texas law enforcement officers to get a warrant for those records. Simpson says the public needs to know about these requests, so that they’re being made for the right reasons.
"If a police department were checking the location of someone based on the fact that they belonged to a certain religion, or based on free speech or association, that would be something that a judge could catch and say hey, this isn’t a basis that’s appropriate for investigation," said Simpson.
Austin Police Lt. Norris McKenzie says H.B. 1608 would add burdensome reporting requirements that could be difficult to meet. Criminals often use disposable phones that can’t be easily traced to an individual.
"You’ve got these 'throwdown' phones, now, that you might not know who the owner of the phone is," said McKenzie.
The ACLU says no one knows exactly how many requests law enforcement agencies make for cell phone location information, but its best estimate is more than 1.3 million requests so far, nationwide.