Power to seize phone, Net records is a ‘sanctioned fishing expedition,’ critics say
When prosecutors first pushed for the power to seize telephone and Internet records themselves, bypassing the need for a judge to approve a warrant, they argued the power was necessary to help them quickly track down missing children and sexual predators.
But records obtained by the American Civil Liberties Union show prosecutors have used that significant subpoena power hundreds of times a year in routine investigations related to larceny, check fraud, assault, and other common crimes.
The explosion in the use of these administrative subpoenas, as they are formally known, has alarmed civil libertarians, who point out that, under the law, the targets do not have to be criminal suspects and are generally unaware that law enforcement is tracking their phone logs and online histories.
The law allows prosecutors to issue the subpoenas as long as they have “reasonable grounds to believe” the records “are relevant and material to an ongoing criminal investigation.” Unlike for a warrant issued by a judge, prosecutors do not need to present evidence that there is probable cause to believe a crime has been committed, and no independent arbiter oversees the process.
“It’s a sanctioned fishing expedition tool,” said Kade Crockford, director of the Technology for Liberty Program at the ACLU of Massachusetts. “It shouldn’t be easy for law enforcement to dig around in our communications records, and find out who we’re talking to, and for how long, and be able to strip us of our anonymity online, simply by signing a piece of paper.”
Prosecutors argue the subpoenas are a critical tool to help investigators move quickly. They point out that the subpoenas allow them to obtain call logs, the names of telephone subscribers, and the IP addresses and names associated with social media and e-mail accounts, which can allow them to find a user’s physical location. Prosecutors cannot, under the law, obtain the contents of telephone calls, text messages, or e-mails.
“Administrative subpoenas enable us to build probable cause in the early stages of investigations into serious cases like human trafficking, child pornography, and drug trafficking,” said Chloe Gotsis, a spokeswoman for Attorney General Maura Healey. “Without them, we would not be able to successfully pursue many of our cases.”
Prosecutors were granted the power to issue administrative subpoenas under a 2008 state law called An Act Further Protecting Children. District attorneys and then-attorney general Martha Coakley pushed for the law — which also toughened penalties for child rapists — saying it would help them locate missing children and combat cybercrime.
But the ACLU has long been concerned that there is no independent oversight to prevent the law from being abused. In one case cited by the group, Suffolk District Attorney Daniel F. Conley issued a subpoena in 2011 to find the subscriber information for several Twitter handles and for anyone who used the hashtag #BostonPD after the police removed an Occupy Boston encampment in Dewey Square.
Conley’s office said the records were needed to investigate the hacker group Anonymous, which was stealing data and attempting to intimidate law enforcement officers. But the ACLU argued the subpoena could net any Twitter users who criticized police and used the #BostonPD hashtag. Conley’s office later narrowed the subpoena to two specific Twitter handles, but no indictments ever resulted from the investigation.
To shed more light on the issue, the ACLU recently asked Healey and the state’s 11 district attorneys how many administrative subpoenas they issued between 2014 and 2016, and the types of investigations for which they were needed.
District attorneys Thomas M. Quinn of Bristol County and David E. Sullivan of the Northwestern District did not respond to the request.
Conley, Michael W. Morrissey of Norfolk County, Anthony D. Gulluni of Hampden County, and Jonathan W. Blodgett of Essex County declined to provide data, saying they did not track their use of the subpoenas or would not release the information because it relates to investigations and is therefore exempt from the public records law. As a result, for six district attorneys, almost nothing is known about how many people were targeted, and for what purpose.
Four other district attorneys disclosed a limited amount of data. But Healey and Middlesex District Attorney Marian T. Ryan turned over a large trove of information that revealed how frequently the subpoenas are used.
Ryan’s office said it issued more than 2,400 over the last three years, while Healey’s office said it sent more than 1,200 during the period.
Healey’s office did not disclose all of the criminal matters involved but said some were related to human trafficking, child sex abuse, larceny, and drugs.
Ryan’s office said the subpoenas were used to investigate crimes ranging from annoying calls and destruction of property to stabbing and rape of a child.
District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years, said his prosecutors used them most frequently to investigate homicides, unattended deaths, and drug crimes. He said investigators cannot always wait for a judge or grand jury to approve a search warrant.
“You might lose some valuable time in the initial stages of the investigation, so the use of the administrative subpoena moves things along fairly quickly,” he said.
Senator Cynthia S. Creem, a Newton Democrat, said she is frustrated that prosecutors initially told lawmakers the subpoenas were needed to protect vulnerable children from predators.
“We were promised that it was limited, and that immediacy required it,” Creem said. “It seems like they took a tool that was voted for one purpose, and used it for their own purposes, and that’s not how it works.”
Creem has filed a bill that would limit the use of administrative subpoenas to certain crimes against children and require prosecutors to report how many subpoenas they issue, the types of investigations involved, and whether they led to charges and convictions.
The bill would also require prosecutors, at the close of an investigation, to inform the customers whose telephone and internet logs were seized.
Prosecutors typically urge the internet and telephone companies that receive subpoenas not to alert the customers who have been targeted. Law enforcement officials said if the customers knew they were being investigated, they could destroy records. But Crockford said the request means most people are never aware their phone and internet records have been tracked.