Time Running Out for Cellphone Tracking Bill

The House clock may not be on the side of a bill to regulate the use of cellphone records in law enforcement investigations.

State Rep. Bryan Hughes' House Bill 1608, on the calendar for Thursday, would compel police and prosecutors to get a warrant before acquiring cellphone records from phone companies. But the measure is so far down the schedule that Hughes, R-Mineola, acknowledges it may not come up before the lower chamber's midnight deadline to take the first vote on House bills.

"Anything could happen," Hughes said, adding that he and other supporters are "keeping our eyes open" for another vehicle for the bill. 

In the months since Hughes filed the bill, which would require law enforcement agencies to prove to a judge that there is probable cause before obtaining cellphone records in their investigations, the issue has become increasingly divisive nationally.  

In a slightly different take, lawmakers in Nevada, Rhode Island and Colorado are considering proposals to require cellphone companies to hand over data about a user's location if there is evidence the user is in imminent danger. The proposal is being promoted in several states by Massey Smith, a Kansas mother whose daughter was abducted and murdered after police had trouble getting locational data from a cellphone company.

The Texas bill would apply to authorities seeking "historical" records on alleged criminals — not where they are currently, which is already allowed, but where they have been. But law enforcement officials say such restrictions would still be dangerous.  

Steve Baldassano, a Harris County prosecutor, told The Texas Tribune that cellphone data might be the only evidence available in the early stages of an investigation to support or disprove a suspect's alibi. With this new barrier, he said, “you’d just have to let it go.”

Hughes' bill would also lift seals on court orders for the cellphone data — which keep information about who police are looking for private — after 180 days. Donald Baker, a commander with the Austin Police Department, said he opposes this measure because many investigations last longer than that. “You don’t want that information out there,” he said.

Privacy advocates argue the bill is necessary to keep up with advancing technology; cellphone companies are increasingly able to determine the precise whereabouts of their users. "In your typical criminal process, someone steps in and says that constitutional rights are being honored," said Matt Simpson of the American Civil Liberties Union's Texas chapter. "It's just about creating transparency."

“This is a case where the law needs to catch up with technology,” Hughes said at a March meeting of the House Criminal Jurisprudence Committee.

Responding to a congressional inquiry last year, wireless carriers reported that they receive thousands of requests every day from law enforcement agencies for cellphone data, including text messages and caller locations. Members of Congress are now considering legislation similar to Hughes' bill.

More than 100 members of the state House have signed on to Hughes' bill as authors and coauthors. Scott Henson, the author of the criminal justice blog Grits for Breakfast, helped to initially gather support for the bill and said that he and other advocates took flyers and thank-you cards to these members on Wednesday. The cards feature Spider-Man, Henson said, because "superheroes value their privacy."

Becca Aaronson contributed to this report