By KELLEY SHANNON Published: 01 April 2013 11:09 PM
AUSTIN — They’re busy championing government transparency this session, but lawmakers are also telling Big Brother and others to butt out when using technology to trample on Texans’ privacy.
Through multiple bills, legislators of both political parties are trying to curb what they say is invasion of privacy through electronic surveillance. They’re trying to place limits on the use of cellphone location tracking, unmanned drone aircraft and electric company smart meters.
“Technology is moving a lot faster than the law,” said Rep. Bryan Hughes, R-Mineola. He wants to require police to obtain a search warrant before getting detailed location data about a person from cellphone companies.
Modern cellphone technology lets police pinpoint someone’s location through GPS or cellphone towers, said Chris Soghoian, principal technologist and senior policy analyst for the American Civil Liberties Union.
“It allows the government to paint a picture of someone’s life that no one else can learn,” he said.
Court cases have been unclear on how the data should be obtained. Small-government advocates are joining civil liberties groups in backing Hughes’ bill. Sen. Juan Hinojosa, D-McAllen, has offered similar legislation. Their proposals have support from lawmakers of both political parties, but police object, saying the bills could help criminals stay a step ahead.
The makeup of the current Legislature, with so many new House Republicans who tend to be more “Constitution-focused,” is helping to drive such legislation, said Scott Henson, spokesman for the Texas Electronic Privacy Coalition.
“It’s refreshing to hear that conversation,” said Henson, who operates the criminal justice policy blog gritsforbreakfast.org.
Rep. Lance Gooden, R-Terrell, proposed legislation to ban many uses of images captured by drones, or unmanned aircraft, and unmanned vehicles unless the person whose property is in the picture gives permission.
Gooden told the House Criminal Jurisprudence Committee that he wants to eliminate “indiscriminate surveillance” of private property unless it’s done through legal channels by law enforcement. One committee member agreed, expressing concern that aerial cameras might capture images of his wife sunbathing.
Among those raising objections to the bill were aviation enthusiasts, news photographers and people hoping to start commercial ventures using drone photography.
“We figured there would be ‘what ifs.’ This is new technology,” Gooden said, acknowledging more work will be done on the proposal.
News photographers contend that imposing a civil or criminal penalty for possession of photos taken from unmanned aircraft could make it difficult to cover stories such as natural disasters or real estate development.
“We do aerial photography on occasion,” said Michael Schneider, newsroom and legal services director for the Texas Association of Broadcasters. Some television stations stopped owning or leasing helicopters because of the cost and are considering using drones, he said.
In Dallas, a private citizen taking photos along the Trinity River using a remote-controlled miniature airplane discovered a red discharge into the water in 2012. He called the National Response Center, which handles chemical spills, and The Dallas Morning News.
State and local officials determined the discharge was untreated pig blood released by a meat packing plant. The company and two of its executives are awaiting trial.
Both Republicans and Democrats say they want to pass a version of Gooden’s legislation once they figure out the right balance.
Meanwhile, Hughes is updating his cellphone bill, which is still in the Criminal Jurisprudence Committee, to try to satisfy law enforcement. Members of the Dallas and Houston police departments testified against the bill. Other officers are privately voicing their complaints to Hughes.
Currently, police must have “reasonable suspicion” to get a court order to obtain cellphone company records, said Frederick Frazier, political action committee chairman and first vice president of the Dallas Police Association. Hughes’ bill would raise the bar to “probable cause.”
Cellphone location records are carefully used by police to track suspects, but Hughes’ proposal would block law officers from using that tool in many cases, Frazier said.
“It would hamper investigations, say in a murder case, a robbery case, a serial rapist case,” he said.
Proposals to allow Texans to opt out of advanced electric meters, known as smart meters, and to limit uses of the meters’ information are also percolating.
Smart meters allow utility companies to see in quick intervals how much electricity someone is using and what type of appliance is on. That provides the company with personal “lifestyle data,” said Beth Biesel of Dallas. She leads a team from the Texas Eagle Forum, a conservative group, opposing smart meters.
“It’s way too much information for any entity to have access to, unless I would want to give permission,” Biesel said.
She said she is heartened about an attitude of cooperation she’s seeing among lawmakers on privacy issues.
“I do believe that there is a mood for protecting the citizens,” she said, “for protecting privacy.”
Follow Kelley Shannon on Twitter at @kelleyshan.
AT A GLANCE: Privacy proposals in the Legislature
Proposed legislation: House Bill 1608 by Rep. Bryan Hughes, R-Mineola, and Senate Bill 786 by Sen. Juan Hinojosa, D-McAllen, would require law officers to obtain search warrants to access cellphone tracking records. There would be exceptions for when a phone has been reported stolen or an “immediate life-threatening situation.” Phone companies would report each year how many location records are requested.
Arguments for and against: Civil libertarians and other privacy advocates say the precise electronic trails left by today’s cellphones shouldn’t be too easy for government to obtain. Law officers contend that setting the bar higher at “probable cause” could keep police from adequately investigating serious crimes.
Proposed legislation: House Bill 912 by Rep. Lance Gooden, R-Terrell, would ban possession and use of many images captured by unmanned aircraft, or drones, and unmanned vehicles. Civil and criminal penalties could be imposed for violators. Exceptions exist for certain law enforcement activities.
Arguments for and against: Proponents of the legislation say indiscriminate surveillance should not be allowed on private property without the owner’s approval. News photographers contend the bill would prohibit them from covering the ongoing drought or other natural disasters. Entrepreneurs say the bill could block their use of drones for agriculture and other business ventures.
Proposed legislation: An effort by Rep. David Simpson, R-Longview, to allow Texans to opt out of advanced electric meters failed during a Public Utility Commission sunset debate. But a privacy provision for smart meter information by Rep. Yvonne Davis, D-Dallas, succeeded. Other smart meter opt-out or privacy proposals are pending, including Senate Bill 241 by Sen. John Carona, R-Dallas; House Bill 3590 by Rep. Dennis Bonnen, R-Angleton; and Senate Bill 1219 by Sen. Wendy Davis, D-Fort Worth.
Arguments for and against: Opponents of smart meters want the choice not to have one installed and to opt for a traditional meter instead. Others want to make sure information gathered by smart meters is not distributed without customer permission. Legislators who support smart meters say that they allow consumers to better gauge their energy usage and that the Public Utility Commission is working on rules covering smart meter installation and privacy.