The Texas State Legislature sent HB 2268 to Governor Rick Perry’s desk on Tuesday, May 28, 2012. The bill is designed to protect citizens Right to Privacy by requiring all state law enforcement agencies to get a warrant for all emails, no matter how old those emails are.
That’s a big difference from current US federal legislation. The Electronic Communications Privacy Act (ECPA) only requires law enforcement to get a warrant if they want to access recent emails before the intended recipient opens them.
That’s no privacy protection at all. If a government agency wants access to my emails past or present, opened or not, they ought to require a search warrant. Giving government agents license to snoop into the private communications of we mere citizens without a warrant is flat out wrong.
Texas Bill HB 2268, when passed, will give Texans the privacy protection the rest of the nation should already have if the Electronic Communications Privacy Act actually lived up to its name. Clearly it does not.
"Privacy is a special thing in Texas—it goes to the core values of Texas,” said Chris Soghoian, a senior policy analyst at the American Civil Liberties Union.
“It’s always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.”
“It is the first state legislature I’m aware of to change the law this way,” Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation (EFF), said.
“Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly.”
“It’s significant proof that privacy reform is not only needed but also politically feasible with broad bipartisan support,” Fakhoury said.
“Hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.”
Here’s the relevant section of law from HB 2268:
An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.. . .[A] district judge may issue a search warrant under this section for electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage, by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (h), regardless of whether the customer data is held at a location in this state or at a location in another state. An application made under this subsection must demonstrate probable cause for the issuance of the warrant and must be supported by the oath or affirmation of the authorized peace officer.
Seems a little freedom is returning to the Lone Star State. Amen!
If any other state or those yahoos in Washington are paying attention, perhaps they too will restore some of the protection they stripped from Americans in their lust for power and control over those I regularly and lovingly refer to as “mere citizens”.