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Senate’s Big Brother Bill Now (Somewhat) Less Big Brother-ish

Sen. Williams agrees to abandon checkpoints idea but automated license plate readers and warrantless GPS tracking devices remain in Senate Bill 9
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In Sen. Tommy Williams’ omnibus homeland security bill, vehicle checkpoints are out but warrant-less GPS tracking devices, automated license plate readers and other controversial immigration provisions remain mostly unchanged in the latest version.

Sen. Williams agreed to squash language in Senate Bill 9 that authorized DPS to set up checkpoints for drivers licenses and insurance on Texas highways – a backdoor way to turn state police into immigration enforcers, according to some critics. Bills by Democratic Sens. Uresti, Hinojosa and Lucio setting up southbound checkpoints for guns, drug money and stolen cars near points of entry also came out worse for the wear today.

At the Homeland Security Committee hearing today, the checkpoint idea quickly ran smack into some constitutional issues. “There is always that danger in acting on concerns that we begin to tromp upon long-held constitutional principles,” said Sen. Wendy Davis (D-Fort Worth), of the checkpoints.

A long parade of witnesses, including the El Paso District Attorney and DPS Director Steve McCraw, pointed out specific ways that drivers license checkpoints can run afoul of the 4th Amendment.

“I don’t think it can be the policy that we’re going to use driver license checkpoints to boostrap our way into massive amounts of border searchers,” said Robert Kepple, the executive director of the Texas District & County Attorneys Association.

Williams asked Kepple if he thought it would be “problematic” if a cop at a state-run checkpoint asked if someone was in the country legally.

“I think it is,” said Kepple. “I’m not sure one follows the other.”

Steve McCraw, the DPS director, said he believed that DPS already has the authority to set up driver license checkpoints but presumably hadn’t seen the need to set them up.

And with that, Williams withdrew the checkpoint authorization from his bill. As Grits wrote: “This southbound checkpoint scheme sounds like more boondoggle than bonanza.”

However, civil liberties advocates still have plenty to worry about. Intact is the automated license plate reader (ALPR) program at DPS. For those unfamiliar with license plate recognition technology, please read this story I did last year. With vendors swarming Texas and the availabilty of federal grant money, license-plate readers are one of the new ‘gotta-have’ gadgets for police and sheriffs.

From my story:

The implications for citizens’ privacy and civil liberties are staggering.

Because people spend so much time in their cars, especially in car-dependent metropolises like Dallas-Fort Worth, investigators or homeland security officials can potentially glean very personal information from the license plate data. In the United Kingdom, authorities have access to a national database, which has been used to “mark” the cars of anti-war demonstrators.

Given enough ALPR units, police or homeland security could effectively track the movement of an individual – from home, to work, to the bar, to political meetings, etc. The data, if  can also be analyzed alongside other massive data sets to give cops a detailed look at a person’s activities. “In practice you could track someone quite easily for inappropriate reasons,” said Matt Simpson, of the ACLU, to senators today.

At the hearing today, Simpson outlined some of these concerns and suggested that legislators give DPS “more direction” on how to use ALPRs. The good news for civil liberties and privacy advocates is that Williams seemed amenable to inserting a prohibition on storage of the data into Senate Bill 9.

Another dodgy part of Williams’ bill allows cops in Texas to install GPS tracking devices on people’s cars without a court order. Williams said the provision is needed to help Texas law enforcement “track and combat gang activity.”

Currently, under Texas law, law enforcement must get a judge to approve the use of a mobile tracking device. Senate Bill 9 would give Texas law enforcement the same expansive authority as the FBI or DEA, who are free to install GPS devices on cars so long as it’s on public property and is part of a criminal investigation.

In the latest version of the bill, Williams has set the provision to expire after two years. Though that’s unlikely to satisfy the guy today who presented Sen. Williams with a “Fuhrer” award and waved around a Nazi swastika saying, “With this bill we’re moving one step closer to this.” There are some very real civil liberties, privacy and constitutional issues with Senate Bill 9. Of course, you don’t have to be flying in a black helicopter to see them.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.