http://www.nytimes.com/2013/03/08/us/cellphone-records-officer-in-texas-you-may-soon-need-a-warrant.html

March 7, 2013

The Cellphone Records, Officer? You May Soon Need a Warrant

By MAURICE CHAMMAH

Seeking to regulate the use of cellphone records in investigations by law enforcement, Texas lawmakers are considering a bill that would require police officers and prosecutors to have a warrant before obtaining such records.

Last month, Representative Bryan Hughes, Republican of Mineola, filed House Bill 1608, which would require law enforcement agencies throughout the state to obtain warrants and prove to a judge there was a probable cause of illegal activity before obtaining cellphone records in their investigations. It would also lift the seals on court orders for the data after 180 days. A companion bill has been filed in the Senate by Juan Hinojosa, Democrat of McAllen, and others have signed on.

Privacy advocates like the A.C.L.U. say the bill is necessary because cellphone companies are now able to determine and transmit customers' specific locations. But some police officers and prosecutors say that the higher standard of proof would make it harder to catch criminals in certain long-term investigations. In response to a Congressional request last year, wireless carriers reported that they received thousands of requests a day from law enforcement agencies for cellphone information, including text messages and caller locations. Privacy advocates in Texas said they were startled at how common the practice is.

"Right now we're just guessing on the numbers," said Matt Simpson, a policy strategist with the Texas branch of the American Civil Liberties Union, "but they seem very high."Current technology has eroded "traditional conceptions of privacy," said Scott Henson, the writer of the criminal justice blog Grits for Breakfast, who shopped the bill around to lawmakers. "This bill ensures that government can't track your daily movements without a good reason." In certain situations, said Mr. Simpson, the police might track an individual simply for going to an Islamic mosque. That would be a violation of the right to freedom of worship, he said, but under current laws no judge would need to consider the issue before the cellphone records were obtained.

Steve Baldassano, a Harris County prosecutor, said that although the policy change would affect only "historical" investigations -- the police already need to establish probable cause in "real time" situations involving kidnappings and chases -- it could make it harder to catch certain criminals. Mr. Baldassano said that cellphone data might be the only evidence supporting or disproving an alibi at an early stage of an investigation. With this new barrier, he said, "you'd just have to let it go."

Donald Baker, a commander with the Austin Police Department, took issue with Mr. Hughes's requirement that the court seal be lifted after 180 days, because many investigations last longer than that.

"You don't want that information out there," he said.

Mr. Henson said prosecutors and the police could still keep records sealed under public information laws, which allow for information to be kept from public disclosure if "release of the information would interfere with the detection, investigation or prosecution of crime."

mchammah@texastribune.org