Texas, Montana making big strides in protecting citizens’ privacy

Texas and Montana are big states in terms of geography. But recently they have done some other big things in terms of citizens’ privacy.

On June 14, Governor Rick Perry signed into law HB 2268, a bill that gives Texans some of the strongest electronic privacy protections in the country. The Texas legislature passed the bill overwhelmingly earlier in the session. The bill requires state and local law enforcement agencies to obtain a warrant to search e-mail and other electronic communications content. Meanwhile, in Montana, the state just enacted a requirement for law enforcement to obtain a probable cause warrant before tracking a citizen of the state based on cell phone location, social networking check-ins, or a GPS tracking device.

Concerns about tracking and reading electronic content has been front and center for many citizens recently, especially in the wake of the U.S. Supreme Court’s decision in U.S. v. Jones, reports on new location-based marketing technologies, and recent reports about the scope of electronic intelligence gathering by the U.S. government. These concerns have sparked discussions in Congress and statehouses across the country about how to balance privacy and security.

But the states have been moving much faster and going much farther than Congress.  Texas’ new law, for example, is much stronger than privacy protections currently provided by other states or federal law. Previously, Texas law enforcement agencies could obtain, without the need for a warrant, opened e-mail and other communications content stored in the cloud such as calendars and pictures. Under the Electronic Communications Privacy Act (ECPA), federal law enforcement agencies only need to obtain a warrant to search recent email before it is opened by the recipient. But there is nothing in the law about protection for an e-mail once opened or e-mail that sits in an inbox for 180 days.

When ECPA was enacted in 1986, e-mail was limited in capability and use, and e-mail messages were downloaded to a computer. Additionally, most state wiretap and surveillance statutes are similarly narrow or even silent on the topic then and now. Today, e-mail is feature-rich, widespread, and stored in the cloud on the servers of providers. For their part, service providers are moving the cloud to provide users with seemingly unlimited storage for archiving and new features like faster search and enhanced security at less cost. Unfortunately, the law has not kept up with these changes in consumer preferences and technology. The disconnect between the law and the times has created a great deal of uncertainty about what is protected and what is not. Fortunately, states and Congress are turning attention to this issue.

These state actions have been of great interest to ALEC members and will continue to be so for the foreseeable future. Last year, the American Legislative Exchange Council joined the Digital Due Process Coalition, a group of companies like Apple and Intel and organizations ranging from the American Civil Liberties Union to Americans for Tax Reform that believe surveillance laws should be updated to reflect new technologies and consumer preferences to preserve constitutional rights of citizens. States like Texas and Montana are leading the way and showing both other states and Congress some ways how surveillance laws can be updated to protect citizens’ privacy.