Sunlight is a disinfectant--and this law stinks.



Carol Rose

Carol Rose, executive director of the ACLU of Massachusetts, originally wrote this blog for Boston.com.

Our democracy rests on the fundamental notion that no branch of government should have unchecked power. When that system of checks and balances breaks down, abuse of power is inevitable.

So perhaps we shouldn't be surprised to learn that, after nine weeks of secret court hearings, the Suffolk Superior Court has ordered Twitter, Inc., to comply with a state administrative subpoena issued by the Suffolk District Attorney's office on December 14, 2011, seeking personally identifying information for an anonymous Twitter user during the period December 8, 2011 to December 13, 2011, for "account or accounts associated with" the names "Guido Fawkes", "@p0ison0N", "@OccupyBoston", or the Twitter hashtags "#d0xcak3" and "#BostonPD".

Both the subpoena and the secrecy of various court proceedings have been challenged by the ACLU of Massachusetts, most recently at a hearing this morning.

According to Peter Krupp, cooperating attorney for the ACLU of Massachusetts and partner at the law firm of Lurie & Krupp:

"The ACLU challenged the lawfulness of this administrative subpoena and was told by the Superior Court that we did not have standing. As a result of these various proceedings, the Superior Court ordered the documents produced.

"We continue to believe that our client has a constitutional right to speak, and to speak anonymously; and that this administrative subpoena both exceeded the scope of the administrative subpoena statute and infringed our client's rights under the First Amendment. With the turnover of these documents any subsequent review of these issues will be moot.

"The court has impounded all of the documents in this case except the three-page order requiring Twitter to provide the information, which was apparently released to the press today by someone other than the ACLU, Twitter, or me."

Here's the scary thing: the ACLU has been fighting this subpoena since December 29, but the proceedings themselves have been closed to the public. At times, the hearings have been both secret and ex parte--meaning that even the ACLU lawyers of "Guido Fawkes" were excluded from the hearing.

But the real culprit in this abuse of power case is the Massachusetts administrative subpoena law, which was amended in 2008 to give state and county prosecutors virtually unfettered discretion to obtain personal information on internet users without probable cause that the person has committed a crime--and without even giving the person a chance to challenge the subpoena.

The law, originally drafted to nab bookies, was amended in 2008 on the pretext of increasing sentences for sex offenders ("Jessica's Law"). At the time, the ACLU warned that that the power "wasn't limited to investigations of suspected sex offenders or child abuse cases. It was a general grant of unchecked power to District Attorneys and the Attorney General that can be used against all residents of Massachusetts."

The provision enables prosecutors to acquire private communications records from internet and other communications providers merely by issuing an "administrative subpoena"--a demand letter--without ever telling you that your records are being sought. Local DAs and the Attorney General need only "reasonable grounds" to believe that the records were "relevant and material to an ongoing investigation"--which is a very low standard. The government says you can't challenge their determination--at least apparently not until you are indicted.

Once prosecutors get this kind of power, they will use it -- without checks and balances to determine when and how to do so.

Consider this: records obtained by ACLUM showed that in two Massachusetts counties (the only two that bother to keep records), the district attorney has made extensive use of administrative subpoenas. During the period from January 1, 2009 to December 31, 2010, the first two full years that expanded subpoena authority was available, a total of at least 514 administrative subpoenas were issued by the District Attorney for Suffolk County, with 159 issued in 2009 and 355 issued in 2010. (The numbers may be larger as the District Attorney’s response acknowledged that the records may be incomplete.) In Berkshire County, the office of the district attorney issued 1,040 administrative subpoenas in 2009 and 2010. 474 subpoenas were issued in 2009. 566 subpoenas were issued in 2010.

Do you really think there are more bad guys to track in Berkshire County than in Suffolk County? Or could it be that the absence of checks and balances means that local prosecutors can do whatever they want with unfettered discretion?

It's only going to get worse unless we fix this law. Look what happened at the federal level.

Since the USA PATRIOT Act expanded the power of the FBI to issue secret national security letters--another form of administrative subpoena--the government has used the power over 200,000 times, if not more. It's hard to know the exact number, since this government snooping is done in secret, without judicial oversight and with a gag order attached. Still, targets to date have included journalists reporting on stories skeptical of the administration, whistle-blowers critical of the government, peace activists, elected officials and others whom prosecutors determine--without oversight by a court--to be worth "investigating."

Sadly, the state administrative subpoena law has become a "Son of National Security Letter" law, enabling county prosecutors to do an end run around the already minimal due process protections of bothering to convene a grand jury.

The ACLU still has motions pending before the superior court to make publicly available all court filings, but since someone (not the ACLU or Twitter) has released the 3-page order to the press, the dirty secret of the Massachusetts is subpoena law is finally coming to light.

Sunlight is a disinfectant--and this law stinks.