Participating in Public Hearings of Committees of the Texas House of Representatives

"Freedom of Speech" by Norman Rockwell (1943) “Freedom of Speech” by Norman Rockwell (1943)

One of the most important moments in a piece of legislation’s lifecycle is its public hearing. This is the opportunity for a bill to be formally considered by its assigned committee, and a decision made as to whether the bill will be reported out of committee to the full legislative body favorably, unfavorably, or deferred for additional consideration.

As defined in “Texas House Rules: 83rd Legislature, 2013”, meetings of committees may include:

a public hearing where testimony is to be heard, and where official action may be taken, on bills, resolutions, or other matters;

After a bill is filed and referred to a particular committee, the committee Chair, in consultation with other committee members and the bill author, decides when to schedule the bill’s public hearing. As committees must consider many bills during each legislative session, Texas House committees generally hold public hearings on a weekly basis.

Public Hearings are PUBLIC

As the name indicates, public hearings are open to the public. Texas House Rule 4, Section 12 states:

All meetings of a committee or subcommittee, including a calendars committee, shall be open to other members, the press, and the public unless specifically provided otherwise by resolution adopted by the house.

This means you can show up to observe and report on the proceedings of your elected officials. There is an open wireless network available throughout the Capitol Complex called Public-Capitol should you want to broadcast your observations:
http://www.legis.state.tx.us/resources/wireless.aspx

You Can Be a Witness

Citizenship grants you the right to participate more actively in committee public hearings by becoming a witness. You and organizations you are empowered to represent have three options for participating and making your voice heard in relation to any particular bill heard by a committee:

  1. Show up and register your position as “For”, “Against”, or “Neutral” in relation to a bill
  2. Show up, register your position, and file written comments which are attached to the meeting minutes
  3. Show up, register your position, and testify before the committee

Showing Up and Registering Your Position

Each of these options for participating in committee public hearings requires your physical presence, even if you are just registering your position. Traditionally, registration has entailed filling out a paper card (stacked near the entrance to the committee public hearing room) and delivering the card to the committee clerk (typically seated in the front of the room below the committee members). Recently, the Legislature has taken steps to allegedly make this process a little easier by installing iPad kiosks in the Capitol Complex to enable witness registration. You can also use your own iPad to connect to the House Witness Registration system from within the Capitol Complex, and register without having to locate a kiosk.

Here are the details on registering as a witness for a House Committee hearing:
https://www.mytxlegis.legis.state.tx.us/HWRSPublic/About.aspx

You can setup a witness profile in advance. This will save you time so you don’t need to enter your personal information more than once. Here is a video on using the House Witness Registration system:
https://www.mytxlegis.legis.state.tx.us/HWRSPublic/Video/HouseWitnessReg.mp4

The video shows that you can register your position as “For” a bill, “Against” it, or “Neutral”. The “Neutral” position can be important if you are testifying on behalf of an organization that cannot perform political lobbying, as you can still present information to inform committee members. Texas House Rule 4, Section 10’s Explanatory Notes state:

Many times, persons representing an association or executive branch agency will appear before a committee to testify “on” a particular measure. Such persons often refer to themselves as “resource witnesses” because they are not taking a position for or against the measure.

Filing Written Comments

In addition to registering your or your organization’s position on a bill, you may also file written comments. Texas House Rule 4, Section 20(c) states:

Sworn statements submitted in paper format for those persons recognized by the chair to address the committee shall accompany the copy of the minutes of the meeting filed with the committee coordinator.

Comments submitted along with your sworn statement become part of your statement. Keep your comments concise, generally no more than a paragraph or a page. Make copies for each of the committee members and the committee clerk (and for others, including the press, who might be amenable to learning about your position). Once you’ve filled out the witness registration card, hand the committee clerk your comments along with your sworn statement on paper. Please note the emphasis on paper here: you cannot submit comments electronically which leaves an open question as to whether one can use the online House Witness Registration system when intending to file written comments.

Testifying

You can also register to provide spoken testimony at a committee public hearing. When a bill is presented before the committee, witnesses who have asked to speak are called (generally in the order in which they registered) to present their testimony for three minutes each (longer depending on the mood of the committee). Committee members then have an opportunity to ask you questions. Providing spoken testimony can be powerful – or it can unintentionally undermine your efforts. Jon Roland has put together a good summary of points to consider when forming and delivering testimony.
http://obitur-dictum.blogspot.com/2012/08/testifying-to-texas-legislature.html

Remote and Video Testimony

In certain circumstances, witnesses do NOT have to be physically present at a public hearing to provide testimony. Rule 4, Section 20(g) states:

The chair may recognize a witness who has been invited by the committee to attend the meeting but is not present in the same physical location as the committee to testify before the committee through an Internet or other videoconferencing system…

In this circumstance, it sounds like the committee itself would need to invite a remote witness.

Rule 4, Section 20A provides for “Video Testimony”:

The committee coordinator shall…establish procedures to permit a person to submit testimony relating to measures under consideration by a committee to the committee in the form of an online video. The procedures established must ensure that testimony submitted in the form of a video is available to the public on the Internet. Online video testimony submitted to the committee may not exceed three minutes.

Recordings of Public Hearings

House Video/Audio Services are tasked with providing live web-casts and broadcasts of committee and subcommittee meetings, but cannot do so for all public hearings. So you may be able to watch committee public hearings online. Here is the House Weekly Broadcast Schedule:
http://www.house.state.tx.us/video-audio/broadcast-schedule/

You can find the House video archive here:
http://www.house.state.tx.us/video-audio/

Furthermore, audio recordings are generated at every public hearing and are subsequently available for review with a little wrangling:

All House committee clerks are responsible for recording audio of every public hearing. You may listen to these recordings in CD or cassette format in the House Communications, Video/Audio Services office, located in the John H. Reagan Building at 105 West 15th Street, Room 330, Austin, TX. (Just North of the State Capitol) Copies of the audio recordings may be purchased for a fee. For more information, call (512) 463-0920. You may send your signed Open Records Request letter via fax at (512) 463-5729 or mail to the Texas House of Representatives, c/o Video/Audio Services, P. O. Box 2910, Austin, TX 78701.

Make Your Voice Heard

Your options for participating in public hearings of committees of the Texas House of Representatives before, during, and after the fact are substantial. Prepare in advance and make sure you know these important pieces of information before you arrive at the Capitol Complex:

  1. The bill number you are interested in
  2. Which committee the bill is referred to
  3. The date, time and location of the public hearing

Good luck! Make your perspectives and opinions known.

EFF-Austin and the Texas Electronic Privacy Coalition (TxEPC)

Texas Electronic Privacy Coalition (TxEPC)

In early January of this year, as the Texas state legislature inaugurated its 83rd biennial session, EFF-Austin connected with a group of citizen activists concerned about the hidden exchange of information between telecommunications companies and law enforcement agencies. Together with the ACLU of Texas, Texans for Accountable Government, and the widely read and respected criminal justice blog Grits for Breakfast, we formed a new organization—the Texas Electronic Privacy Coalition—to initiate a targeted campaign to update Texas state law to better protect citizen privacy in the digital age.

If you own a mobile phone, you have signed a contract which includes a clause permitting your telecom provider to share your subscriber information (text messages and email) as well as information about your phone’s physical location (your whereabouts and movements) with law enforcement agencies should they legally request it. This information is typically requested through an administrative subpoena, which does not require demonstration of probable cause to a judge, and is typically sealed so no one ever hears about it. EFF-Austin is concerned about the lack of judicial oversight for this process and the lack of transparency into or accountability for this law enforcement surveillance tactic.

Just how much is this tactic used? Thanks to a Congressional privacy probe initiated by Representative Edward Markey (D-Massachusetts), we know that cell phone carriers serviced roughly 1.3 million requests for subscriber information in 2011 from state and federal law enforcement agencies.

Not much is known about the amount of surveillance being conducted in Texas. The ACLU carried out an open records campaign to survey the use of this surveillance tactic in 36 states, but Texas was not one of them. They concluded: “…we know that this method is widespread and often used without adequate regard for constitutional protections, judicial oversight, or accountability.”

To inform our perspective, the Texas Electronic Privacy Coalition (TxEPC) has initiated an open records campaign throughout the state of Texas to gather invoices issued to law enforcement agencies for services rendered by telecommunication providers. That’s another little wrinkle in this surveillance tactic: the telecom providers must be compensated for the expenditure of resources and staff time exhausted providing law enforcement access to subscriber information, even going so far as to build private web portals to receive and process all of the requests. From what we’ve learned, a law enforcement officer has to send an email to their District Attorney to acquire a subpoena, then login to a telecom web portal, type in the target number and attach a subpoena. That’s pretty darned easy and shows we’re a far cry from the days when a wiretap required actual physical exertion of effort and time to acquire much less information.

To add insult to injury—as if your cell phone bill weren’t outrageous enough already—taxpayer dollars are shoveled over to telecom providers…to conduct surveillance on taxpayers.

However, there is a silver lining to that ominous funnel cloud, as this means the invoices issued by telecom companies are public records and thus subject to required disclosure thanks to the enlightened open records laws of the great state of Texas. So the TxEPC open records campaign has been generating quantitative data by poring over public information – such as this sample of invoices obtained from the Fort Worth Police Department.

Fort Worth Police Department – Sample Cellphone Tracking Invoices (Feb 26, 2013) by grtsk1

Not only does this begin to tell us how much public money is spent on this surveillance tactic (a figure which no one currently knows, not even the Governor) but it also gives us insight into whether particular law enforcement agencies are going above and beyond current state law by requiring their staff to obtain search warrants. TxEPC sincerely hopes we discover law enforcement agencies which are doing a good job, as that would reflect the ACLU’s nuanced findings across the country. If you are a member of one of those agencies, we’d like to hear from you and celebrate your ethical wisdom and moral compass.

Simultaneous with and informed by our open records campaign, the Texas Electronic Privacy Coalition has composed a bill which minimally modifies the Texas state code to ensure better protection of citizen privacy in the digital age. Thanks to Representative Bryan Hughes and Senator Juan “Chuy” Hinojosa, legislation has been filed in both chambers to require a search warrant when law enforcement goes to your cell phone company for your comprehensive location data.

Check out HB 1608 as filed, and SB 786 as filed. You can also track the progress of the bills through the House and the Senate.

The bills accomplish three things:

  1. require a warrant for cell phone location information, whether law enforcement is tracking your phone in realtime or checking in on where you’ve been
  2. for tracking devices installed by police, limit the amount of time a tracking order can be sealed by a judge (kept secret) to one year
  3. require aggregate reporting on the amount of location tracking that’s happening out there, and whether all this surveillance is actually resulting in the capture and conviction of criminals.

According to AT&T’s letter to Congressman Ed Markey last summer (PDF), “When the law requires a warrant for disclosure of customer phone usage information, AT&T requires that a warrant be provided.” Texas law, which hasn’t been updated for the smartphone era, is silent on the process for getting location information. These bills will end that silence.

EFF-Austin would like to thank the lawmakers who have taken this on, as well as all the other Representatives who’ve already told us they want to support our effort. We’re a long way from final passage, but we are well-positioned and the time is right. To turn these bills into law, it will take the combined efforts of all the groups who have thus far joined EFF-Austin in the Texas Electronic Privacy Coalition (we’d love to hear from your organization if you’d like to join). As well, our elected officials will need to hear from their constituents, so passage of these bills will also take grassroots support from Texans everywhere.

Toward that end, EFF-Austin has begun transforming into a member-oriented, grassroots organization. If you would like to join us on this adventure—and the many more yet to come—please join our new mailing list. At the same time, you can opt-in to volunteer with us (we’re all volunteers here) and indicate what you’d like to help out on. We can definitely use your help wrangling open records requests, planning events, fundraising, educating elected officials, building websites, and fighting the good fight!

Want to meet us in person? We’re hosting a non-badge SXSWi event in coordination with national EFF and iSEC Partners next Saturday March 9th from 4-6pm at Capital Factory. TxEPC will take the stage to talk about our legislative push, drum up support, and ask for your financial help. We’ll have cool “Geek Activist” t-shirts, coffee mugs, stickers, and buttons which we give away as gifts at certain donation levels. Registration is required and space is limited, so sign up and come meet as many privacy activists, civic hackers, and concerned citizens as we can fit in the place.
https://www.eff.org/sxsw13party

We’re also attending the Yale Information Society Project’s Location Tracking and Biometrics Conference this Sunday in New Haven, Connecticut. If you’ll be attending, keep your eyes open for Scott Henson of the Grits for Breakfast blog.
http://yaleisp.org/event/location-tracking-and-biometrics-conference

You can also follow us on Twitter, The Facebook (another battle!), and join our discussion list to share information and learn what’s happening with and to online civil liberties around the country and world:
http://twitter.com/effaustin
http://facebook.com/eff.austin
http://lists.effaustin.org/mailman/listinfo/effaustin-discuss_lists.effaustin.org

If you’d like to follow the Texas Electronic Privacy Coalition, we’re just getting our online presence off the ground (did I mention we could use some coders and designers?). For your reference, here’s where we’re at:
http://txepc.org/
http://twitter.com/txepc

And in case you were wondering, that’s pronounced “Tex-EPIC” y’all! See you in the halls of the state legislature!

Xi Jinping’s Visit Amidst a Rattling of Cyber Sabers

Photo by Matt McClain, The Washington Post/Getty Images
Soldier at the 9/11 Memorial at the Pentagon.
Photograph by Matt McClain, The Washington Post/Getty Images.
Image credit: National Geographic

Being a sequence of quotations from contemporary articles contextualizing the visit of the rising Vice President of China amidst a conspicuously timed introduction of unprecedented domestic cybersecurity legislation.

National Post Full Comment (Feb 14) – “From bitter gruel, Xi Jinping to ascend to China’s top job” by Peter Goodspeed
http://fullcomment.nationalpost.com/2012/02/14/xi-jinping/

He arrives in Washington Tuesday on the first stop of a week-long tour of the United States in one of the final diplomatic rituals he must undergo before becoming China’s next leader.

Now vice-premier, Mr. Xi is widely expected to replace President Hu Jintao as secretary-general of the Chinese Communist Party in October, when China will change 60% of the members of the party’s Central Committee and replace seven of the nine members on the ruling Standing Committee of the Politburo.

By spring 2013, he should replace Mr. Hu as president, then become chairman of the Central Military Commission.

Meanwhile…

Hillicon Valley (Feb 13) – “Senate cybersecurity bill would let firms appeal Homeland Security regulations” by Gautham Nagesh
http://thehill.com/blogs/hillicon-valley/technology/210349-senate-cybersecurity-bill-would-let-firms-appeal-regulations

The legislation would task the Department of Homeland Security with determining which sectors of the economy would be covered by new cybersecurity regulations, after risk assessments in consultation with the private sector, the intelligence community and others.

But designated sectors would have the right to appeal whether the regulations apply to them. Several groups representing portions of the private sector considered part of the critical infrastructure have expressed concern about the impact of the regulations on both security and the bottom line.

“Passing the bill is crucial for national security, but not if the provisions on critical infrastructure regulation are watered down. This will be a real test for this Congress,” said James Lewis, senior fellow and director at the Center for Strategic and International Studies.

James A. Lewis is one of the star witnesses for the Senate Homeland Security and Governmental Affairs Committee’s hearing this Thursday on what has been termed “comprehensive” cybersecurity legislation being unveiled by Majority Chair Joe Lieberman and co-sponsor Minority Chair Susan Collins. Senator John (Jay) Rockefeller IV is the other primary co-sponsor, and will be the first witness at Thursday’s hearing.

Examples of sectors considered likely to fall under the new regulations are utilities, water treatment plants and transportation providers. Some sectors, such as major financial institutions and telecom providers, may ask for exemptions based on a demonstrated ability to secure their systems.

After determining which firms are critical infrastructure, DHS would then, in consultation with the private sector, determine cybersecurity performance requirements for firms in the covered sectors.

“There would be a huge market incentive for designated sectors to meet the security standards. But if they don’t DHS and the AG would decide on penalties,” said the spokesman.

What about international cybersecurity standards and practices?

WSJ (Jan 27) – “China’s Cyber Thievery is National Policy—And Must Be Challenged” by former NSA Director Mike McConnell, former Secretary of DHS Michael Chertoff, and former Deputy Secretary of Defense William Lynn.
http://online.wsj.com/article/SB10001424052970203718504577178832338032176.html
This appears to be a copy liberated from between the lines of Rupert Murdoch’s curious digital divide:
http://defense-technologynews.blogspot.com/2012/02/dtn-news-defense-intelligence-news.html

The bottom line is this: China has a massive, inexpensive work force ravenous for economic growth. It is much more efficient for the Chinese to steal innovations and intellectual property—the source code of advanced economies—than to incur the cost and time of creating their own. They turn those stolen ideas directly into production, creating products faster and cheaper than the U.S. and others.

Cyberspace is an ideal medium for stealing intellectual capital. Hackers can easily penetrate systems that transfer large amounts of data, while corporations and governments have a very hard time identifying specific perpetrators.

Stewart A. Baker, another witness for Thursday’s hearing, on the metaphorical wall isolating domestic and foreign intelligence gathering: “I thought that the civil liberties dangers it was supposed to ward off were probably more theoretical than real.”
http://www.skatingonstilts.com/skating-on-stilts/tired-of-reading-chapters-backwards.html

Continuing with the perspectives expressed in the WSJ:

The report to Congress notes that the U.S. intelligence community has improved its collaboration to better address cyber espionage in the military and national-security areas. Yet today’s legislative framework severely restricts us from fully addressing domestic economic espionage. The intelligence community must gain a stronger role in collecting and analyzing this economic data and making it available to appropriate government and commercial entities.

Congress and the administration must also create the means to actively force more information-sharing. While organizations (both in government and in the private sector) claim to share information, the opposite is usually the case, and this must be actively fixed.

National Journal (Feb 13) – “Feinstein Introduces Information-Sharing Bill Ahead Of Senate Cybersecurity Debate” by Josh Smith
http://techdailydose.nationaljournal.com/2012/02/feinstein-introduces-informati.php

Feinstein’s proposal would require the government to designate an agency as a “cybersecurity exchange” to coordinate information sharing; allow the government to share classified cybersecurity information with certain private-sector organizations; and provide liability protection for companies that share information.

“Alongside terrorism, cybersecurity is perhaps the number one threat facing our nation today, but many obstacles exist that prevent the cooperation and coordination needed to deter this growing threat,” Feinstein said in a statement.

NextGov (Feb 13) – “DHS budget would double cyber spending to $769 million” by Aliya Sternstein
http://www.nextgov.com/nextgov/ng_20120213_7454.php

There is bipartisan support for improving computer network defenses, so the outlook may be positive for obtaining much of the proposed $769 million from Congress. The funding would go toward the National Cyber Security Division for protecting federal networks and coordinating with the private sector on safeguarding critical infrastructure systems such as utility grids.

For perspective:

U.S. Department of Defense (Feb 13) – “DOD Releases Military Intelligence Program Requested Top Line Budget for Fiscal 2013”
http://www.defense.gov/releases/release.aspx?releaseid=15058

The Department of Defense released today the military intelligence program (MIP) requested top line budget for fiscal 2013. The total request, which includes both the base budget and Overseas Contingency Operations appropriations, is $19.2 billion.

The department determined that releasing this top line figure does not jeopardize any classified activities within the MIP. No other MIP budget figures or program details will be released, as they remain classified for national security reasons.

What is the mood of the Senate, and the posture towards the private sector?

United States Senate Democrats (Feb 9) – ‘[Senate Majority Leader Harry] Reid Outlines Process For Cybersecurity Legislation, Including “Fair and Open” Amendment Process [in letter to US Chamber of Commerce CEO Tom Donohue]’:
http://democrats.senate.gov/2012/02/09/reid-outlines-process-for-cybersecurity-legislation-including-%E2%80%9Cfair-and-open%E2%80%9D-amendment-process/

I was struck by the testimony of the leaders of our Intelligence Community at recent Intelligence Committee hearings. Director of National Intelligence James Clapper called cyber security “a profound threat to this country, to its future, its economy, and its very being.” And Robert Mueller, Director of the Federal Bureau of Investigation (FBI), stated that, “stopping terrorist attacks with the FBI is the present number one priority, but down the road, the cyberthreat, which cuts across all programs, will be the number one threat to the country.” Think about that: in the years to come, malicious cyber activity will pose a threat to our country greater than terrorism. We simply cannot afford to repeat the mistakes of the past by failing to prepare for the leading threats of the future.

Yet, addressing cyber security is not simply a matter of staving off a future threat; it demands that we stop the hemorrhaging of national security secrets, intellectual property, and jobs already underway. In a recent letter to Senate Republican Leader McConnell and myself, eight former high-ranking national security officials led by Secretary of Homeland Security Michael Chertoff and Secretary of Defense William Perry pointed out that, not only are critical infrastructure such as power plants and hospitals at risk; moreover, “foreign states are waging sustained campaigns to gather American intellectual property – the core assets of our innovation economy – through cyber-enabled espionage.” They counseled that the “constant barrage of cyber assaults has inflicted severe damage to our national and economic security, as well as to the privacy of individual citizens. The threat is only going to get worse. Inaction is not an acceptable option.”

At this point, all signs indicate informed consensus for this legislation to pass quickly through Committee into an opportunity for debate culminating in passage through the Senate.

In closing, witness Stewart A. Baker from his text Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, (Stanford, California: Hoover Institution Press, 2010), p. 5-6.
http://www.skatingonstilts.com/skating-on-stilts/tired-of-reading-chapters-backwards.html

In the 1990s, after a term as the National Security Agency’s top lawyer, I spoke out in favor of keeping a wall between spies and cops. The idea was simple enough. Agencies like the National Security Agency (NSA) gathered intelligence on a global scale, and they rarely observed the legal constraints that applied to domestic policemen. To protect the civil liberties of Americans, it only made sense to separate intelligence gathered in that way from evidence assembled in a criminal investigation. With a wall between the two, criminal investigators from agencies like the Federal Bureau of Investigation (FBI) would be forced to observe the legal restrictions that went with criminal investigative tools. They wouldn’t be tempted to take the shortcut of using intelligence that had been gathered with less attention to civil liberties.

That was the theory, anyway. In practice, the wall crippled our last, best chance to catch the hijackers before September 11, 2001. In August of that year, the wall kept the FBI from launching a fullscale criminal search for the hijackers—even though all of our security agencies were expecting an imminent al Qaeda attack, and even though both the FBI and the Central Intelligence Agency (CIA) knew that two dangerous al Qaeda operatives had entered the United States. The failure to track those operatives down wasn’t a matter of incompetence or a failure to communicate, at least not in the last weeks. FBI criminal investigators spent the last part of August begging for a chance to track the terrorists. They were shut down cold—by lawyers who told them the wall simply could not be breached.

I wasn’t the most enthusiastic proponent of the wall. I thought that the civil liberties dangers it was supposed to ward off were probably more theoretical than real. But I saw no harm in building in an extra margin of protection for civil liberties. If nothing else, the wall would reassure privacy advocates in the courts, in the newspapers, and on Capitol Hill that intelligence would not be misused. It was insurance, not just for civil liberties, but for the intelligence agencies themselves. For both reasons, I thought, it was best to keep the wall high.

It made eminent sense inside the Beltway.

Until the world outside the Beltway broke through, just a few yards from where I’m standing.

Will the world outside the Beltway be heard in the composition of these new laws and during the creation of these new authorities? Are the new cyber sabers already rattling?