[liberationtech] TxEPC's Cellphone Tracking Legislation in Texas

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:

http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=83R&Bill=HB912

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.

http://effaustin.org/2013/03/eff-austin-and-the-texas-electronic-privacy-coalition-txepc/

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 ;)

http://yaleisp.org/event/location-tracking-and-biometrics-conference

For those of us unable to go, the Yale conference will be streamed here:

https://www.youtube.com/user/YaleUniversity/featured?v=OwutGSjNQ0k

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.

https://www.eff.org/sxsw13party

Here's a map:

https://maps.google.com/maps/ms?msid=206568342716116155390.0004d6c1b3f1f0446ec12&msa=0&ll=30.267194,-97.739782&spn=0.007274,0.008765

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:

https://www.youtube.com/watch?v=Ic_1VuDzUU0

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 
first victory.

http://www.sjgames.com/SS/

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.

http://schedule.sxsw.com/2013/events/event_IAP16147

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.

http://effaustin.nationbuilder.com/

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 ;)

gf

~~~

EFF-Austin (Mar 1, 2013) - "EFF-Austin and the Texas Electronic Privacy 
Coalition (TxEPC)":

http://effaustin.org/2013/03/eff-austin-and-the-texas-electronic-privacy-coalition-txepc/

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.

http://aclutx.org/
http://www.tagtexas.org/
http://gritsforbreakfast.blogspot.com/

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 
agencies.

http://www.wired.com/threatlevel/2012/07/massive-phone-surveillance/

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."

http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request

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.

http://txepc.org/

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.

http://www.scribd.com/doc/127944100/Fort-Worth-Police-Department-Sample-Cellphone-Tracking-Invoices-Feb-26-2013

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.

http://www.house.state.tx.us/members/member-page/?district=5
http://www.senate.state.tx.us/75r/senate/members/dist20/dist20.htm

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.

http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB01608I.htm
http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/SB00786I.htm
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=83R&Bill=HB1608
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=83R&Bill=SB786

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 
you've been
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.

http://markey.house.gov/sites/markey.house.gov/files/documents/AT&T%20Response%20to%20Rep.%20Markey.pdf

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!

http://effaustin.nationbuilder.com/

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.

https://www.eff.org/sxsw13party

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.

http://yaleisp.org/event/location-tracking-and-biometrics-conference

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:

http://twitter.com/effaustin
http://facebook.com/eff.austin
http://lists.effaustin.org/mailman/listinfo/effaustin-discuss_lists.effaustin.org

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:

http://txepc.org/
http://twitter.com/txepc

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/