A Reminder That Texas Cops Still Don't Need a Warrant to Collect Cell-Phone Metadata

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Big brother is watching.

Even without cell-phone metadata placing him near his ex-girlfriend's San Antonio condo in the early morning hours of New Year's Day 2009, prosecutors may still have convinced jurors that Jon Thomas Ford was guilty of her murder. There was the testimony of their friends at the party he'd stormed out of early, pictures from an ATM camera showing his car pulling into her complex, his DNA on the blood-soaked towel found covering her face when her body was discovered on the bathroom floor. The cell-phone records, which investigators used to triangulate Ford's general location based on its communication with cell towers and track his incoming calls, just made it that much easier for prosecutors to debunk Ford's claim that he'd headed straight home after the party and gone to bed.

The thing about those phone records was that police obtained them without a warrant. Ford argued on appeal that this was illegal, that the metadata should never have been allowed to be introduced as evidence, and that, as a result, his 40-year prison sentence should be thrown out.

The problem for Ford, as San Antonio's 4th Court of Appeals pointed out last month when it rejected Ford's plea, is that, more than a year after Edward Snowden leaked secret U.S. surveillance information, the warrantless collection of cell-phone metadata is still perfectly legal in Texas.

As the court wrote:

The cell site data acquired by the State is simply the business records memorializing Ford's voluntary subscriber transaction with AT&T for the service he wanted from his cellular provider all along, i.e. the ability to transmit and receive data on AT&T's network of cell towers. The fact that this data happens to reveal the general location of Ford's cell phone, and presumably himself, at given points in historical time is of no consequence to the legal analysis here. Accordingly, we overrule this issue and hold the State's actions did not violate Ford's Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.

Why warrantless metadata collection remains legal is partly an accident of timing, partly a byproduct of the harried, convoluted way the Texas Legislature makes laws.

A bill introduced by state Representative Bryan Hughes during the 2013 legislative session would have banned the practice. It was wildly popular by Texas legislative standards, with nearly three-fourths of the House signing on as co-sponsors.

Hughes says he and other lawmakers started looking at how best to ensure email privacy, which bled into broader discussions about smartphones and electronic communications.

"As we dug into it and learned more about how cell towers work and how many more of them there are and how that information is stored, we realized" that there were significant privacy concerns.

Scott Henson, author of the criminal-justice blog Grits for Breakfast says it was going to pass as an attachment to a landmark email privacy bill, but state Senator John Carona stripped out the metadata protections at the last minute under pressure from police groups.

See also: Strongest Email Privacy Bill in the U.S. Is on Gov. Rick Perry's Desk

Henson recalls it as "the most vicious police reaction to a bill I have seen since the Tulia legislation," a reference to a 2001 law requiring the testimony of undercover informants to be backed by other evidence. That law was passed in response to a scandal in the Panhandle town of Tulia, where dozens of black residents were convicted on the testimony, much of it later revealed to be false, of a single, rogue cop.

Much of the arm-twisting was done behind closed doors, Henson says, though several cops did testify against the measure at a committee hearing last March. Brian Tabor, a homicide detective with the Dallas Police Department and sometimes star of The First 48, spoke on behalf of Dallas Police Chief David Brown.

He said requiring cops to show probable cause before obtaining a suspect's location data and call records would hamper criminal investigations. He downplayed privacy concerns.

"I think there's a misconception about getting somebody's location compared to getting a cell-tower location," he told the committee. "Just because your device or your phone is registering an area that doesn't mean that's where you are that's the cell tower address and not necessarily the house you're in or the restaurant you're eating at."

Watching the committee hearing, it's almost quaint to watch lawmakers grapple with the notion that the cell phone in their pocket is continually transmitting enough data to give anyone crunching it a time-stamped map of their locations and habits. Snowden wouldn't bring the concept of cell-phone metadata to public consciousness for another three months.

Had Snowden's revelations come a few weeks sooner, or had the legislative session lasted a few weeks longer, Henson believes Hughes' bill would have passed. Henson and his fellow members of the Texas Electronic Privacy Coalition now have their sights set on 2015. It's possible that the effort will again be derailed by Texas' powerful cop lobby, but Henson is relatively confident that, post-Snowden, the political momentum will be sufficiently strong to push the measure to the governor's desk.

Hughes is more diplomatic about the cop lobby -- "they recognize just like we all do that the Bill of Rights does put limits on the government's power," he says -- but he, too, is optimistic about the chances of a cell-phone privacy bill in 2015.

This post has been updated with comments from Representative Bryan Hughes.

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