MASSACHUSETTS residents are on the verge of losing a fundamental protection from government spying if the Legislature and governor approve a bill to give prosecutors the power to seize Internet, telephone, and electronic communications records – without judicial oversight and without notifying a citizen they have done so.
The attorney general and district attorneys have attached their power grab to a bill aimed at increasing sentences for sex offenders, which is named “An Act to Further Protect Children” or “Jessica’s Law.” However, the power that they seek isn’t limited to investigations of suspected sex offenders or child abuse cases. It is a general grant of unchecked power to district attorneys and the attorney general that can be used against all of us.
The provision would enable prosecutors to acquire private records from the Internet and other communications providers merely by issuing an “administrative subpoena” – a demand letter – without telling a person that those records are being sought. Local district attorneys and the attorney general would need only “reasonable grounds” to believe that the records were “relevant and material to an ongoing criminal investigation” – which is a low standard.
All we can hope is that them members of this legislature aren’t as tainted by criminality as Congress has been alluded to be (See Glenn Greenwald’s musings on the topic).
This bill merely updates the law in order to provide law enforcement with the critical tools necessary to keep pace with technology and investigate various computer crimes such as child pornography and on-line threats, without disrupting the privacy of citizens who use the Internet. I commend the Legislature for giving law enforcement the tools necessary to fight crime in a high-tech age.
SECTION 3. Chapter 271 of the General Laws is hereby amended by striking out section 17B, as so appearing, and inserting in place thereof following section:-
Section 17B. Except as otherwise prohibited under section 2703 of Title 18 of the United States Code, whenever the attorney general or a district attorney has reasonable grounds to believe that records [emphasis added] in the possession of (i) a common carrier subject to the jurisdiction of the department of telecommunications and energy, as defined in paragraph (d) of section 12 of chapter 159; or (ii) a provider of electronic communication service as defined in subparagraph (15) of section 2510 of Title 18 of the United States Code; or (iii) a provider of remote computing service as defined in section 2711 of Title 18 of the United States Code, are relevant and material to an ongoing criminal investigation, the attorney general or district attorney may issue an administrative subpoena demanding all such records [emphasis added] in the possession of such common carrier or service, and such records shall be delivered to the attorney general or district attorney within 14 days of receipt of the subpoena. No such common carrier or service, or employee thereof shall be civilly or criminally responsible for furnishing any records or information in compliance with such demand. Nothing in this section shall limit the right of the attorney general or a district attorney otherwise to obtain records from such a common carrier or service pursuant to a search warrant, a court order or a grand jury or trial subpoena.
Notwithstanding the provisions of this section, a subpoena issued pursuant to this section shall not be used to obtain records disclosing the content of electronic communications [emphasis added], or subscriber account records disclosing internet locations which have been accessed including, but not limited to, websites, chat channels and newsgroups, but excluding servers used to initially access the internet. Nor shall the recipient of such a subpoena provide any such records accessed, in response to such a subpoena.
So, although it is threatening, Ms. Coakley’s assertion that the bill does not empower the collection of content, only traffic records, is correct. So, maybe I’ll vote for her again.