As the video played in the Texas Capitol meeting room, the red target jerked back and forth across the map, tracing every movement that Malte Spitz, a German politician, had 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 cellphone.
Using records of cell use — from phone calls to Twitter usage to Web access — Spitz was able to construct “an exact road map of what he did,” as state Rep. Bryan Hughes, R-Mineola, explained to fellow lawmakers gathered in the room. He was tracked in Germany by his phone company, and he sued to get his own records to see how minutely his movements could be tracked.
In much the same manner, Hughes explained, law enforcement in Texas and across the United States is using call-tracking information in investigations. That has led to questions about whether the technology violates the constitutional right to privacy or whether it is simply a high-tech shortcut to solve crimes.
A large group of Texas legislators wants to ban the practice unless police obtain a court order, and the issue is pitting tea party activists and others who oppose intrusive Big Brother government against the police, who say it is a boon to solving crimes. The House bill alone has nearly 100 co-authors in the 150-member chamber.
“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 this information should require some form of probable cause. … It doesn’t require that now.”
Two proposals — House Bill 1608 and Senate Bill 786 — would require police and prosecutors to obtain court orders to get location data from wireless companies, as they have to do to carry out search warrants. Currently, law officers are obtaining such information without a warrant, in both routine and emergency investigations.
“You’re going to completely gut law enforcement’s ability to build a criminal prosecution using electronic evidence,” warned Houston Police Department investigator Jimmy Taylor, echoing the sentiments of dozens of other authorities who testified against the bills at two public hearings last week.
Added Brian Tabor, with the Dallas Police Department: “We have a problem with raising the bar from reasonable suspicion (that does not require a warrant) to probable cause (that does). It takes away a valuable tool.”
Although some Austin Police Department officials attended the hearing, they declined to comment on their department’s policy. Phone calls to the department went unreturned Friday.
Just as adamant are supporters, who range from civil liberties groups to tech executives and average citizens.
“Technology has outstripped our constitutional right of privacy,” said Scott Henson, with the Texas Electronic Privacy Coalition.
Cell users have a reasonable expectation that police won’t be using their calls to track their whereabouts without a warrant, Henson said. “There’s no phone booth door today,” he said. “We’re all talking on cellphones.”
Hundreds of thousands of calls are being made daily on at least 167 cell towers now in operation in Austin within four miles of the Capitol, and on another 760 cell “antennas” that customers use to obtain service in dead zones, according to Henson and company officials. During the recent South by Southwest music and interactive festival, companies added additional towers to handle a flood of cell calls and data streaming.
According to a Pew Research Center survey, American cellphone owners each made or received an average of 12 calls per day in the fall of 2011, and they each sent or received an average of 41 texts per day.
“It started with the iPhone, and phone companies started putting in more and more towers to keep up with the demand for service — and as towers were added, the coverage areas became smaller and smaller,” said Christopher Soghoian, an industry expert and chief technologist for the American Civil Liberties Union. “As the coverage areas got smaller, it allows you to more accurately locate that signal.”
And that is where the rub between the right to privacy and police investigations conflict, said Scott McCullough, an Austin lawyer and former assistant attorney general who now represents phone providers in their dealings with police requests for cell location data.
“I’m here for privacy, about the people whose location information is requested and they never know about it,” he told the House committee, cautioning that current law provides no uniform standard on whether a warrant is required. “We don’t know what they (police) do with (the information), and we never know how they’ve used it.”
“The law needs to be clarified.”
The primary authors of the two bills — Hughes and state Sen. Juan Hinojosa, D-McAllen — insist their goal is not to impede law enforcement from catching criminals. But they are just as insistent that the cell tracking technology should not be used as a way around the constitutional right to privacy.
“The police can still get the information; they should just do it with a warrant — just like they do to get other information for investigations,” Hinojosa told the Senate Criminal Justice Committee.
Similar legislative battles are under way in other states and in Congress, where bills are pending to require warrants.
Prosecutors and police in Texas say they are reluctant to discuss the issue so as not to compromise any investigations. Privately, though, they acknowledge that cell location information has been used for some time, though it’s unclear to what degree.
The data has become big business for some cellphone providers, including several who market the data to police departments to determine a suspect’s location, to trace phone calls and texts or to provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations, according to congressional testimony and information from the Electronic Frontier Foundation, a digital rights organization.
So far, state and federal courts in Texas and across the nation have split on whether cellular call location data requires a warrant. While some courts have said no, a federal court in the Southern District of Texas recently said yes, according to the Senate Research Center analysis of Hinojosa’s bill.
Left unresolved, that could mean trouble for future prosecutions, supporters and opponents agree. And that, insists Hinojosa, “is exactly why the change in law is needed.”
Mike Ward has covered criminal justice for the American-Statesman for more than two decades and has written about how technology and social media are changing the corrections and law enforcement landscape.