But the Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used.
Democratic state Representative César Blanco, a former Navy intelligence analyst who is the vice chairman of the Texas House committee that oversees the Texas National Guard, told the Observer that he wasn’t aware of the purchases, which haven’t previously been made public.
Blanco said the purchases concern him and he wants the Legislature to develop a committee modeled after the House and Senate intelligence committees in Congress, which oversee the sprawling federal intelligence bureaucracies like the FBI, CIA and NSA.
“There are really big privacy and constitutional due-process concerns with the use of this technology,” Blanco said. “If it’s useful to authorities, then I completely understand that. … [But] if the Texas National Guard want to get into the business of surveillance and utilizing intelligence and classifying intelligence, there’s got to be an oversight body that responds to the citizens of Texas.”
Because law enforcement agencies often sign nondisclosure agreements with companies such as DRT or Harris Corp., it’s difficult to determine how widely the surveillance equipment is used. The ACLU has identified 24 states, including Texas, where cell-site simulators are used by law enforcement.
