What happens when legislatures pass laws enabling law
enforcement to obtain sensitive, private information about people without
requiring any evidence of criminal activity, and without any outside oversight
whatsoever?
Fishing expeditions.
Take a look at this graph, produced
by US Cellular in response to Senator Ed Markey's letters to cell phone
companies seeking information about law enforcement surveillance requests.
Cell phone order chart
Note that the company only received 2 wiretap
orders in 2012. Wiretap statutes require judicial oversight and for law
enforcement to produce sworn statements affirming that the search will likely
result in evidence of a specific crime -- probable cause. Some wiretap statutes
are even stricter, requiring that the crime under investigation be very
serious, like racketeering or murder. Search warrants require probable cause
affirmations and judicial approval, too. Law enforcement submitted only 702
search warrants to US Cellular in 2012.
On the other hand, the company received 10,801
subpoenas in 2012. Unlike wiretap orders and search warrants, subpoenas
require zero judicial oversight nor probable cause. In fact, a prosecutor can
issue a subpoena even absent any allegation that the subject of the
surveillance is connected to criminal activity. The requirement is simply that
the subpoena have something to do with (in legal parlance is
"relevant" to) an ongoing investigation.
That means any prosecutor -- yes, including the
prosecutors at your local district attorney's office -- can simply fill out a
form (a subpoena) and send it to a cell phone company, demanding personal
information about anyone. In many states, including Massachusetts, there is zero
outside oversight to ensure that law enforcement doesn't abuse this broad
power. We don't even know how many of these subpoenas are issued every year.
When we asked district attorneys in Massachusetts, many of them said they don't
keep records of how many they file. But we know it's common enough that the
system is abused. In 2013, the Middlesex county DA's office got into some
hot water when it was discovered that a secretary was illegally issuing the
subpoenas, which are supposed to come only from DAs.
Worse still, most of the people who are subjected to
subpoena-based surveillance will probably never find out about it. That's
because very few companies (kudos, Twitter!) inform
their customers when law enforcement subpoenas their records. That means the
only way you're likely to find out about such a subpoena is if you are
arrested, tried in court, and the prosecution uses the subpoenaed records as
evidence against you. Investigations that never lead to charges won't leave a
public trace that any surveillance against you ever took place.
But it's even worse. If you do find out in time to
try to quash the subpoena, a judge will probably cite the third
party doctrine, which says you have no right to privacy in any information
you hand over to a third party like a cell phone company, to kick you out of court.
And it's worse, yet. In most parts of the United
States today, law enforcement can access the content of many of our
communications by subpoena authority alone. That's because the Electronic
Communications Privacy Act (ECPA), passed in 1986, puts a six month expiration
date on the Fourth Amendment. Under the obsolete but active law, emails and
text messages -- unlike the letter in your desk -- lose their warrant
protection after 180 days.
It should tell us something very alarming that law
enforcement submitted 10,801 subpoenas to US Cellular last year, and only 702
warrants. Our private information shouldn't be up for grabs to any prosecutor
who wants it -- especially when we have no meaningful way to defend our
information against improper or warrantless surveillance, and when the subpoena
system is cloaked in secrecy. The subpoena standard creates a legal environment
ripe for abuse.
Take action now to modernize
the law.
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