Texas Could End Up Leading the Country on Electronic Privacy

A bill waiting for Gov. Rick Perry's signature would set up even stricter protections for user data than current federal law.

By Brian Fung
Updated: May 29, 2013 | 4:42 p.m.
May 29, 2013 | 3:18 p.m.

Despite having lost his bid for the presidency, Texas Governor Rick Perry now finds himself again in a position of (potential) national leadership. On the way to his desk is a bill that would put Texas far ahead of the rest of the country when it comes to protecting consumers' electronic privacy.

Unless Perry takes action to veto it, the legislation would fix a legal loophole that currently lets law enforcement seize opened emails (or unopened emails older than 180 days) with little more than an administrative subpoena. Under the new law, which passed the state House on Monday and the state Senate on Tuesday, investigators would need to get a search warrant before asking businesses to hand over consumer records.

The bill mirrors reforms that have been floated in the U.S. Senate, and as Ars Technica's Cyrus Farivar first noted, letting it become law could put pressure on Congress to fast-track updates to the federal Electronic Communications Privacy Act, a 27-year-old statute. ECPA reforms recently made their way out of the Senate Judiciary Committee and are waiting for a floor vote. The Department of Justice has also given its approval to the rule change on emails.

The Texas bill can't override ECPA; it can only change the way the state deals with lower-level cases. But it would set a high-profile example.

What HB 2268 didn't include, however, was an even more ambitious idea to require a warrant for cell-phone geolocation data.

Scott Henson is a legal analyst who lobbied for HB 2268 on behalf of the Texas Electronic Privacy Coalition. He told me that a companion bill in the state Senate, SB 1052, actually did incorporate the rule on geolocation data as a set of amendments. But the Texas lawmaker who'd shepherded HB 2268 through the House objected to the amendments in the face of stiff opposition from law enforcement.
"So they moved forward HB 2268 in the Senate without the amendments at the 11th hour," Henson wrote in an email, "leaving SB 1052 to die."

What's headed for Perry's desk is still a bold measure. The governor could either sign it or ignore it, and it would become a precedent-setting law. (The only way it dies is if he vetoes it, and it's not clear yet what his plans are.) But all that aside, it's interesting to see what got left on the cutting-room floor.


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