Protect cellphone privacy

Lisa Kinzer

Cellphones are useful for the very reason that we can carry them around, but most of us don’t realize that our service providers keep a record of everywhere we travel whenever our phones are turned on. In fact, it turns out that service providers are selling millions of these records to government authorities, and the authorities don’t need a search warrant to purchase them.

This week Texas legislators are considering groundbreaking legislation that would set new standards in cellphone privacy by requiring authorities to apply for a search warrant before accessing cellphone records. The bill, HB 1608, was filed by Rep. Bryan Hughes, R-Mineola, and would also require state agencies to report how much taxpayer money is being spent on these records and reports. 

With more than a hundred coauthors, Hughes’ bill has a broad base of support from across the political spectrum. Why is there so much support for the proposal? Simply put, unregulated access to these records has resulted in repeated breaches of privacy — breaches that affect not only criminal suspects, but anyone who happens to be in the vicinity of a crime.

For example, perhaps the most common type of record request is the “tower dump,” which is a list of all the phones that were near a certain cell tower over the course of an hour. These reports often include the names and addresses of each phone’s owner, as well as a log of all the calls and texts sent and received during that time period. In 2006, one reporter found that a single report disclosed all this information on over 7,000 customers! And with over 500,000 cell towers and a million microtowers in use in the United States, these records can also be used to recreate an individual’s recent travel and activities with a high degree of accuracy.

Yet not everyone believes that this information should be protected. In a public hearing on the bill, one county prosecutor said the records are “just like any other business records,” and a police officer suggested that having to apply for these warrants would “completely gut” law enforcement’s ability to build a criminal prosecution. 

But these arguments aren’t very convincing. A list of everyone with whom we’ve communicated and everywhere we’ve traveled sure doesn’t seem like other business records. And agencies that already use search warrants have said that doing so doesn’t unduly impede their prosecutions. Moreover, the bill includes exceptions for the most urgent investigations.

Clearly it’s important that law enforcement have all the tools necessary to conduct criminal investigations, but it’s equally important that we as a nation keep our laws updated to reflect new technology and safeguard our constitutional right to privacy. With HB 1608, Texas has a chance to take the lead in doing so.  

Kinzer is a third-year UT law school student and an editor of the Texas Law Review.