Friday, July 18, 2008

Ontogeny Recapitulates Philogeny

I guess it was bound to happen. State and local officials, seeing how easily the federal government did an end-around the Fourth Amendment, have decided they also can trample on the Constitution. Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, had a disturbing op-ed piece in yesterday's Boston Globe in which she describes and decries a Massachusetts bill which would allow state and local prosecutors to seize records of all sorts without a court issued subpoena.

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.

They won't need to take their request to a judge or magistrate before secretly obtaining records about phone calls, e-mails, or browsing habits. And despite assurances that they won't look at "content," the legislation itself never defines precisely what information will be collected. The bill also grants blanket immunity to cooperating telecoms, thus removing any incentive for either the companies or prosecutors to play by the rules.

Sound familiar? They could call it "Mini FISA."

The irony, of course, is that the state's entire congressional delegation voted against the Patriot Act, which introduced the concept of secret national security letters, those administrative subpoenas which no judge ever has to approve. Yet the state is about to give the same system to itself. The only real difference is that instead of linking the proposal to terrorism, the prosecutors are linking it to another hot-button issue, sex offenders who prey on children.

I'm tempted to use the metaphor of the "slippery slope", but that somehow doesn't capture what is really going on here. I think it more like the gradual increase in heat applied to a pot of water. The critter inside isn't even aware of what is about to happen.




Anonymous Anonymous said...

The idea of child abuse is even better than fear of terrorism at stifling criticism.

Barry Crimmins was really on to something when he talked about how folks use retribution as a way of changing the subject on child abuse, of not actually addressing the underlying problems.

And now we see child abuse being used as a smokescreen for a power grab.


4:01 AM  
Blogger Benjamin Wright said...

Dianae: Lawyers or prosecutors who abuse the power to issue a subpoena can be subject to sanctions in court. What do you think? --Ben

8:44 AM  
Anonymous Anonymous said...

I am a resident of New York, not of Massachusetts, but if I were a Massachusetts resident, I would be writing the same outraged letters to my representatives at the state level that I wrote to my representative and Senators on the national level (not that I'm taking any credit, but my rep and my Senators voted the right way on FISA this time, and last time, too).

It seems to me that we need to keep as close a watch on our state and local governments as we do on the national government, and that it might even be easier for citizen advocacy to have an effect on stupid legislation like this on the state and local level than on the national one.

3:57 PM  

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