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[liberationtech] TxEPC's Cellphone Tracking Legislation in Texas
gfoster at entersection.org
Sat Mar 2 15:56:56 PST 2013
Hello everyone -
I'm happy to announce some good news from Texas, and encourage you to
join in on the enthusiasm we're generating through the work we have
underway. As I'm well aware of my tendency to compose tl;dr emails to
the list---this being by far my most egregious example to date---I want
to certify this message is particularly important and worth your
consideration. I've waited until we achieved sufficient certainty.
A new organization, the Texas Electronic Privacy Coalition (TxEPC), has
a bill filed in the Texas state legislature requiring search warrants
for law enforcement access to telecommunication provider subscriber data
(specifically geolocation data). The bill, HB 1608 and its companion SB
786, has been filed on both sides of the legislature by members of the
committees that are responsible for hearing them. We are now building
the list of joint authors and co-authors, lobbying the committee
members, and preparing for our hearings. TxEPC's membership includes
several astute Texas political strategists who recognized that the
composition of this session's state legislature was going to be
receptive to swinging the pendulum back in the direction of protecting
citizen privacy and curbing government overreach. As Texas politics is
dominated by the Republican party, principled factions have the
opportunity to emerge. And this session we have an influx of classical
Libertarian-leaning Tea Party freshmen, and plenty of big government and
nanny state haters to go around. I think this is best evidenced by the
anti-drone bill, characterized as one of the toughest in the nation,
which as of this writing has 5 joint authors and a remarkable 96 co-authors:
We're visiting all of the legislators on that list and are making lots
of new friends. But we've just begun this particular race, and have a
lot of ground to cover in a short period of time before the session
finish line at the end of May.
I'm attaching the text of our summary blog post from yesterday, which
provides the story of what we've been up to, background on the issue,
details about our open records campaign (including a sampling of telecom
invoices to the Fort Worth Police Department), and ways to help.
I'd like to focus the rest of this message on ways members of this list
and community can help.
Most immediately---tomorrow in fact---the Yale Law School Information
Society Project is hosting the Location Tracking and Biometrics
Conference. TxEPC will be represented there by Scott Henson, the author
of the widely respected Texas criminal justice blog Grits for Breakfast
as well as a lobbyist for The Innocence Project. We are looking to
connect with subject matter experts in this space so we can bring them
to Austin to meet with elected officials and testify at our hearings
should scheduling work out. As ACLU of Texas is a member of TxEPC, we're
already doing everything we can to connect with Christopher Soghoian -
so Chris, you have been warned ;)
For those of us unable to go, the Yale conference will be streamed here:
Next up, I'd like to formally invite everyone who will be in Austin next
week for SXSW to come meet up with us and one another at the non-badge
"Hack Digital Freedom: SXSW" event being organized by EFF, EFF-Austin,
and iSEC Partners. It's on Saturday March 9th from 4-6pm @ Capital
Factory, walking distance from the Convention Center. You'll need to
register (the event is free), but there's a VIP list too so don't be
bashful if you're a bad ass.
Here's a map:
While the organizers will get up and speechify a little, we're also
acutely aware of the necessity of having a good time while doing good,
so we're doing our best to line up some fun. Taking the risk of things
not panning out, I'll just say we're trying to get Bruce Sterling and DJ
Spooky to participate. DJ Spooky will be at SXSW as he's scored a new
documentary on file sharing and the history of Napster that will be
screened at the festival:
And what would SXSW be without Bruce's, shall we say, "grounding"
closing remarks? :) Bruce was on the board of EFF-Austin for many years
and wrote "The Hacker Crackdown," the canonical treatment of the Secret
Service's bungled raid of Austin-based Steve Jackson Games, the event
that precipitated the formation of EFF in 1990, and also the site of its
While we're in the vicinity of SXSW, please also plan to attend the
Aaron Swartz Town Hall on Friday March 8th (6:30-8pm) at the Convention
Center in Ballroom A. This is also a non-badge event, free and open to
the public, and it looks like quite a few key figures in Aaron's life
will be sharing with us and providing a great forum for interconnection
and strengthening of common cause.
Wrapping up, THANK YOU if you have read this far. I hope some of the
enthusiasm and excitement we are surfing here in Austin is conveyed
through this message. My recent experiences have given me newfound
optimism that the pendulum of civil liberties has reached an apex of
encroachment and has now begun swinging back towards a new equilibrium.
It has been a long time coming.
One last request: please help us spread the word. EFF-Austin has setup
a NationBuilder instance to coordinate the grassroots activism piece of
the puzzle and to help identify volunteers for various roles, so tell
your friends in Texas to join up (and kudos to NB for their
game-changing redesign launch yesterday!). There's a whole other story
unfolding about our open records campaign which we're looking to fund so
MuckRock News can unleash the hounds on the public information offices
of the roughly 1,100 law enforcement agencies in Texas. If you know of
subject matter experts who are open to traveling to Texas---or who are
already coming for SXSW and wouldn't mind stepping away for a few hours
to meet some legislators---send them our way. If you agree there's a
compelling story unfolding here which your journalist friends can cover,
we can dish out the details and connect them with the players.
It's been a long time coming, and it sure feels good to be able to
celebrate some good news with the list. This unusual feeling, I think
it's called "winning", portends more is on the way ;)
EFF-Austin (Mar 1, 2013) - "EFF-Austin and the Texas Electronic Privacy
In early January of this year, as the Texas state legislature
inaugurated its 83rd biennial session, EFF-Austin connected with a group
of citizen activists concerned about the hidden exchange of information
between telecommunications companies and law enforcement agencies.
Together with the ACLU of Texas, Texans for Accountable Government, and
the widely read and respected criminal justice blog Grits for Breakfast,
we formed a new organization---the Texas Electronic Privacy
Coalition---to initiate a targeted campaign to update Texas state law to
better protect citizen privacy in the digital age.
If you own a mobile phone, you have signed a contract which includes a
clause permitting your telecom provider to share your subscriber
information (text messages and email) as well as information about your
phone's physical location (your whereabouts and movements) with law
enforcement agencies should they legally request it. This information
is typically requested through an administrative subpoena, which does
not require demonstration of probable cause to a judge, and is typically
sealed so no one ever hears about it. EFF-Austin is concerned about the
lack of judicial oversight for this process and the lack of transparency
into or accountability for this law enforcement surveillance tactic.
Just how much is this tactic used? Thanks to a Congressional privacy
probe initiated by Representative Edward Markey (D-Massachusetts), we
know that cell phone carriers serviced roughly *1.3 million requests for
subscriber information in 2011* from state and federal law enforcement
Not much is known about the amount of surveillance being conducted in
Texas. The ACLU carried out an open records campaign to survey the use
of this surveillance tactic in 36 states, but Texas was not one of
them. They concluded: "...we know that this method is widespread and
often used without adequate regard for constitutional protections,
judicial oversight, or accountability."
To inform our perspective, the Texas Electronic Privacy Coalition
(TxEPC) has initiated an open records campaign throughout the state of
Texas to gather invoices issued to law enforcement agencies for services
rendered by telecommunication providers. That's another little wrinkle
in this surveillance tactic: the telecom providers must be compensated
for the expenditure of resources and staff time exhausted providing law
enforcement access to subscriber information, even going so far as to
build private web portals to receive and process all of the requests.
From what we've learned, a law enforcement officer has to send an email
to their District Attorney to acquire a subpoena, then login to a
telecom web portal, type in the target number and attach a subpoena.
That's pretty darned easy and shows we're a far cry from the days when a
wiretap required actual physical exertion of effort and time to acquire
much less information.
To add insult to injury---as if your cell phone bill weren't outrageous
enough already---taxpayer dollars are shoveled over to telecom
providers...to conduct surveillance on taxpayers.
However, there is a silver lining to that ominous funnel cloud, as this
means *the invoices issued by telecom companies are public records* and
thus subject to required disclosure thanks to the enlightened open
records laws of the great state of Texas. So the TxEPC open records
campaign has been generating quantitative data by poring over public
information - such as this sample of invoices obtained from the Fort
Worth Police Department.
Not only does this begin to tell us how much public money is spent on
this surveillance tactic (a figure which no one currently knows, not
even the Governor) but it also gives us insight into whether particular
law enforcement agencies are going above and beyond current state law by
requiring their staff to obtain search warrants. TxEPC sincerely hopes
we discover law enforcement agencies which are doing a good job, as that
would reflect the ACLU's nuanced findings across the country. If you
are a member of one of those agencies, we'd like to hear from you and
celebrate your ethical wisdom and moral compass.
Simultaneous with and informed by our open records campaign, the Texas
Electronic Privacy Coalition has composed a bill which minimally
modifies the Texas state code to ensure better protection of citizen
privacy in the digital age. Thanks to Representative Bryan Hughes and
Senator Juan "Chuy" Hinojosa, legislation has been filed in both
chambers to require a search warrant when law enforcement goes to your
cell phone company for your comprehensive location data.
Check out HB 1608 as filed, and SB 786 as filed. You can also track the
progress of the bills through the House and the Senate.
The bills accomplish three things:
1. *require a warrant* for cell phone location information, whether law
enforcement is tracking your phone in realtime or checking in on where
2. for tracking devices installed by police, *limit the amount of time a
tracking order can be sealed* by a judge (kept secret) to one year
3. *require aggregate reporting* on the amount of location tracking
that's happening out there, and whether all this surveillance is
actually resulting in the capture and conviction of criminals.
According to AT&T's letter to Congressman Ed Markey last summer, "When
the law requires a warrant for disclosure of customer phone usage
information, AT&T requires that a warrant be provided." Texas law, which
hasn't been updated for the smartphone era, is silent on the process for
getting location information. These bills will end that silence.
EFF-Austin would like to thank the lawmakers who have taken this on, as
well as all the other Representatives who've already told us they want
to support our effort. We're a long way from final passage, but we are
well-positioned and the time is right. To turn these bills into law, it
will take the combined efforts of all the groups who have thus far
joined EFF-Austin in the Texas Electronic Privacy Coalition (we'd love
to hear from your organization if you'd like to join). As well, our
elected officials will need to hear from their constituents, so passage
of these bills will also take grassroots support from Texans everywhere.
Toward that end, EFF-Austin has begun transforming into a
member-oriented, grassroots organization. If you would like to join us
on this adventure---and the many more yet to come---please join our new
mailing list. At the same time, you can opt-in to volunteer with us
(we're all volunteers here) and indicate what you'd like to help out
on. We can definitely use your help wrangling open records requests,
planning events, fundraising, educating elected officials, building
websites, and fighting the good fight!
Want to meet us in person? We're hosting a non-badge SXSWi event in
coordination with national EFF and iSEC Partners next Saturday March 9th
from 4-6pm at Capital Factory. TxEPC will take the stage to talk about
our legislative push, drum up support, and ask for your financial help.
We'll have cool "Geek Activist" t-shirts, coffee mugs, stickers, and
buttons which we give away as gifts at certain donation levels.
Registration is required and space is limited, so sign up and come meet
as many privacy activists, civic hackers, and concerned citizens as we
can fit in the place.
We’re also attending the Yale Information Society Project’s Location
Tracking and Biometrics Conference this Sunday in New Haven,
Connecticut. If you’ll be attending, keep your eyes open for Scott
Henson of the Grits for Breakfast blog.
You can also follow us on Twitter, The Facebook (another battle!), and
join our discussion list to share information and learn what's happening
with and to online civil liberties around the country and world:
If you'd like to follow the Texas Electronic Privacy Coalition, we're
just getting our online presence off the ground (did I mention we could
use some coders and designers?). For your reference, here's where we're at:
And in case you were wondering, that's pronounced "Tex-EPIC" y'all! See
you in the halls of the state legislature!
Gregory Foster || gfoster at entersection.org
@gregoryfoster <> http://entersection.com/
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