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Texas Lawmakers Clear Email Privacy Bill; Would Require Search Warrant for Access

Monday, June 3, 2013

By Paul Stinson  

 

AUSTIN, Texas--The Texas Legislature May 28 cleared a bill (H.B. 2268) that would require law enforcement in the state to obtain a search warrant before requesting email service providers to hand over consumer records.

The bill now heads to Gov. Rick Perry (R) for consideration.

H.B. 2268 would close a legal loophole that allows state and local law enforcement to access older emails.

The proposed law would require “a warrant before state and local police can read the contents of your email,” the Texas Electronic Privacy Coalition (TEPC) said in a May 27 statement.

The Texas Senate approved the measure May 22 in a unanimous 31-0 vote followed by the Texas House's May 24 approval of the measure in a 142-0 vote with two abstentions.

The governor has until June 16 to deliver his signature or veto the measure. In the absence of action, the measure would pass automatically and go into effect Sept. 1.

“I'm certainly not counting any chickens but the email amendment is attached to a prosecutor-friendly bill that I'd think [Perry would] be unlikely to veto,” Scott Henson, a legal analyst who lobbied for the privacy protections on behalf of TEPC, told BNA May 30.

ECPA Unaffected

The federal Electronic Communications Privacy Act, and the existing Texas search warrant statute, allow the government to access without a warrant emails held by cloud-based services for longer than 180 days. The laws allow law enforcement to access emails with only a subpoena so long as the targeted customer is notified.

Although the proposed Texas law would change the way the state handles cases, federal agents would still be able to access older emails without a warrant as the measure would not override ECPA.

While expressing disappointment at the lack of progress related to other privacy measures, the TEPC said that the recently concluded legislative session marked the first time that lawmakers had “started to wrestle with the fundamental structure” of the state's “outdated” electronic surveillance laws, which have been overtaken by the rise of cellphones and the internet.

A proposed measure (H.B. 1608) that would have required a warrant for the detailed location data housed by a cellphone services company “ended up too far down the last House calendar” to get a vote, TEPC said.

Another bill (S.B. 1052) that would have provided warrant protection for cellphone location data cleared the House unanimously in the final days before the Legislature's May 27 adjournment but failed to garner support in the Senate, the coalition said.

 


H.B. 2268, as cleared by the Legislature, is available at http://www.capitol.state.tx.us/tlodocs/83R/billtext/pdf/HB02268F.pdf#navpanes=0.

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