Bill Limiting Contact Tracing Programs Filed in Texas House

Earlier this year, Governor Greg Abbott locked Texas into a $295 million contract with a contact tracing company. A new bill filed by Rep. Jared Patterson (R-Frisco) would prohibit such a program from using data from cellular phones or other wirelessly transmitting devices.

Patterson said of the bill, ”Fourth Amendment rights cannot be ignored. I believe government tracking of cellular data and location is unconstitutional and the government shouldn’t be pushing the boundaries of privacy.”

“Policy always lags innovation and that’s why it’s imperative that statute ban this process should authorities attempt to employ it as a method,” he concluded.

House Bill 888 states, “Except as provided by Subsection (b), the department, a health authority, or a contact tracer may not use location data obtained from a cell phone, or other device through which personal wireless services are transmitted, to identify or track directly or indirectly the movement of individuals for contact tracing purposes.”

Law enforcement and other peace officers are exempt from the bill’s limitations, and an individual may voluntarily permit an agency to track their whereabouts through wireless data.

Concerns about contact tracing extend beyond the transmission of wireless data. Patterson’s bill also prohibits the use of third-party data storage to keep available an individual’s location data.

Such data can be obtained by the government with the issuance of a valid warrant under the bill.

Remedial civil action is specifically authorized for prospective violations of the law.

Texas’ coronavirus contact tracing contract with MTX Group, Inc. was authorized for a 27-month period and included 2,000 tracers and a 5,000-person call center.

The governor was criticized by some legislators for the move not only on Fourth Amendment grounds but for the exclusion of the legislature from the decision. 

Contact tracing programs are designed to prevent or slow the spread of infectious diseases by narrowing down exposures and isolating infected individuals and those who may have come in contact with them. South Korea, Singapore, and Israel each used a similar program for coronavirus. Israel’s Supreme Court then declared it unconstitutional.

Abbott has broadly applied the authority bestowed upon his position in the Texas Emergency Code to suspend various rules and protocols. He traces this ability to the Texas Disaster Act of 1975 in which the legislature vested power in the governor to suspend laws during a declared emergency.

That language, however, runs counter to Article 1, Section 28 of the Texas Constitution, which states, “No power of suspending laws in this State shall be exercised except by the Legislature.”

The discrepancy between the two pieces of code has not been fully litigated in court yet, despite the various lawsuits filed this year challenging it.

One such case was filed concerning the practice of contact tracing. In August, Abbott was sued over the program and contract by five state legislators. That case’s hearing date is set for January 14, 2021.

Furthermore, the Supreme Court of the United States ruled in its 2018 Carpenter v. United States decision that public officials must obtain a warrant to search cellular data.

The legislature will convene on January 12, and Abbott announced Monday that the capitol will open on January 4 ahead of the session.

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