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Relating to subpoenas, orders, and warrants for the disclosure of location information, electronic customer communications records, and electronic customer data and for the use of pen registers, ESN readers, cell site simulators, and mobile tracking devices; creating a criminal offense.
No significant fiscal implication to the State is anticipated.
SB 2093 would would remove "contents of records and other information related to a wire communication" from the definition of what a search warrant can be issued for. The bill defines "Cell site simulator" as a device designed to collect info about a wireless communications device that locates or identifies a wireless communications device in the immediate vicinity of the simulator by simulating the functions of a wireless telecommunications network transceiver. The bill would also add special investigator to the definition of law enforcement office. The bill defines electronic customer communication records as information, other than location information, that is in the possession of an electronic communications service provider, and contain the content of a wireless communication. This includes information which identifies the recipient and the draft form of the communication as well as a summary of the content. SB 2069 would also remove the content of a wireless communication and any data stored by the communication provider for the customer from the definition of electronic customer data.
The bill also would allow an officer to install a pen register or trap and trace device in an "emergency situation" such as: an immediate life-threatening situation; conspiratorial activities characteristic of violent organized crime; an immediate threat to a national security interest, an ongoing attack on a protected computer, or an equivalent offense under federal law; or the report of the disappearance of an individual, including the report of a runaway individual younger than 18 years of age, and the report of a suicidal individual. If no offense was readily apparent at the time of the installation and use of a pen register or trap and trace device, the judge would be required to note the exact date and time at which the likelihood that an offense occurred became apparent. If no offense became apparent before the conclusion of the emergency or issuance of an order authorizing continued use of the device, the judge shall annotate the order to reflect that: "No affirmative investigative or prosecutive use may be made of any pen register or trap and trace records obtained pursuant to the device ’s emergency installation or use."
The bill would raise the requirement for issuance of a warrant for installing a mobile tracking device to require probable cause instead of reasonable suspicion. The installation of the device would also have to produce evidence of the offense; (the location of contraband, fruits of the offense, or other items illegally possessed; the location of criminal instruments; the identity of a person to be arrested; or the identity of a person being unlawfully restrained, instead of just being likely to produce it, as under the current statute.
The bill would require an application for location information to include the location the offense occurred and the providers on which the warrant will be issued. Information provided may not be used by law enforcement to further other investigations besides the one for which the warrant was issued unless the prosecutor makes an application to a judge to do so and shows good cause for that use.
Texas Action supports SB 2093 as it advances the principles of limited government and individual liberty. The bill increases the standards which must be met to issue a warrant for installing a mobile tracking device. A warrant for this type of device should be held to the same standards as any other warrant, requiring a show of probable cause, this bill does exactly that. The bill also prevents law enforcement from getting broad and indiscriminate location data information. This narrows the scope of location information warrants to what is relevant to the alleged criminal offense at hand, a strong protection keeping government from monitoring individuals locations outside of what is relevant to a criminal investigation.