Did you know that right now, Massachusetts county and state prosecutors can access your phone and internet records without a warrant, without independent oversight, and without you even knowing that law enforcement might be snooping on you?

When Edward Snowden revealed the NSA was collecting billions of phone call records each year, the American public was rightly horrified. But did you know that local District Attorneys and the Attorney General in Massachusetts currently have the power to monitor whom you call, how frequently, and when—no warrant required?

All they need to do is fill out a piece of paper called an “administrative subpoena” and send it to your phone or internet service provider (ISP). Prosecutors don’t have to tell you they are monitoring your communications. And worse still, they can do this even if they don’t suspect you of a crime.

That’s why in June 2017, the ACLU of Massachusetts and Boston attorney Jeff Pyle, of Prince, Lobel, Glovsky and Tye, went to court to seek court records that would reveal more about the secret world of administrative subpoenas in Massachusetts. It’s also why voters should urge state lawmakers to fix the broken state administrative subpoena law.

Until now, excessive secrecy about administrative subpoenas has stifled the public debate around the use and misuse of this significant law enforcement power. We still don’t know nearly enough about how often or when prosecutors invoke these surveillance orders in Massachusetts. But what we do know—as outlined in this document—is shocking, and should prompt all Massachusetts voters to insist on swift legislative reform.

But first, a case study to illustrate what happens when secrecy meets politically tinged surveillance. The result is reminiscent of Kafka. 

The Twitter Subpoena Case: Secret Surveillance of Government Critics

In 2011, two years after a devastating financial collapse wrought havoc on the world economy, people across the United States united in outrage. Throughout the country, thousands of people flocked to tent encampments in financial centers to protest economic injustice. The movement used the name of its tactic: Occupy. Here in the Bay State, Occupy Boston’s Dewey Square encampment became home base for a swirl of political organizing, drawing attention to issues as diverse as wealth inequality, police brutality, foreign wars, and financial regulation. The movement birthed the phrase “The 99%,” a nod to the fact that the vast majority of money in the United States is now concentrated in a tiny minority’s (mostly white) hands.

For months, the Dewey Square camp was the vibrant center of political dissent in Boston. From September 30 to December 10, 2011, activists conducted political education sessions and workshops during the day, and most evenings featured at least one march or protest. The Audre Lorde to Howard Zinn (A-Z) library was created to provide free social reform reading material to everyone. Free meals were served daily.

In the late hours of October 10, 2011, the Boston Police conducted a nighttime raid on the camp, arresting 141 people. The ACLU of Massachusetts and National Lawyers Guild sprung into action. In November, the organizations went to court and obtained a temporary restraining order barring the police from taking any action to remove the dissidents from the camp. The following month, on a cold December day, the court issued an order permitting the Boston Police to remove the protest encampment. Three days later, on December 10, the police encircled the remaining residents at Dewey Square, evicting anyone who remained and shutting down the camp. 46 people were arrested.

Days after the camp was closed, the Suffolk County District Attorney’s office served an administrative subpoena on Twitter, Inc. demanding the subscriber and IP log information of all Twitter users who tweeted, among other things, the hashtag #BostonPD around the time the BPD forcibly evicted the Occupy Boston encampment from Dewey Square Park in downtown Boston.

The subpoena instructed Twitter not to inform the targets of the surveillance that an order had been served on their accounts.

Fortunately, the Massachusetts statute authorizing the use of administrative subpoenas did not compel Twitter to comply with such gag requests. And, unlike many digital communications providers, Twitter typically notifies its users when the government seeks their account information. As a result of one such notification, an anonymous Twitter user (“John Doe”)—represented by the ACLU of Massachusetts—filed a motion to quash the Suffolk DA’s subpoena in Suffolk Superior Court.

In court, the Assistant District Attorney (ADA) arguing for Suffolk County suggested that John Doe gave up his right to anonymity online when he joined Twitter. Amazingly, when the Judge asked the ADA how someone in the 21^st century might exercise their First Amendment right to anonymously criticize the government if they cannot do so online, the prosecutor suggested the person might wear a ski mask, go to Dewey Square, and pass out flyers.

But the case got stranger still when the ADA requested a sidebar with the Judge, who then turned around and sealed the entire case.

At first, even the existence of the case was kept secret under a court order. ACLU lawyers were forbidden to speak about the case—and even our own briefs became a secret (ironically, the content of the long-secret ACLU briefs was the importance of court transparency and freedom of speech). After challenging the scope of that order, the court lifted the ban on talking about the existence of the case. Nonetheless, the entire case file—including the ACLU briefs— was impounded on December 29, 2011.

Then, on February 27, 2012, the Court ordered Twitter to comply with the subpoena.

Even when the court later lifted the seal on the Judge’s order that commanded Twitter to comply with the administrative subpoena, the rest of the case file remained secret for more than five years.

Challenging Government Secrecy

On May 15, 2017, Boston journalist Shawn Musgrave went to the Criminal Clerk’s Office at the Suffolk Superior Court to try to bring some long-awaited transparency to this case. He asked to view the case file in the Twitter subpoena case, using the publicly available case number. Bafflingly, the Clerk told Musgrave that no such case file existed. As a result, in June 2017, Boston attorney Jeff Pyle, of Prince Lobel Glovsky and Tye filed a complaint asking the Court to locate and unseal these materials. The ACLU of Massachusetts joined the complaint on behalf of ACLU of Massachusetts technology fellow Nasser Eledroos.

We filed the complaint because we wanted to learn, once and for all, what actually happened in the case we litigated concerning the Twitter subpoena. Equally important, we wanted to know what the Court thought was so important to keep secret that it required a curtain over the legal arguments made by both sides.

In response to our lawsuit, in July 2017, the Court lifted the impoundment order at the state’s request. The underlying documents were finally public. Among other things, we learned that the initial impoundment order had been for ten full years. Had we not filed in June 2017, these records would have remained secret until 2022, even though the Commonwealth never filed charges against our client.

Administrative Subpoenas: Secret Surveillance Orders Without Judicial Oversight

It didn’t come as a surprise to learn that John Doe was never charged with a crime. That’s a reflection of the core problem with Massachusetts’ administrative subpoena statute: it does not require that the target be a criminal suspect, or that the District Attorney issuing the subpoena have any evidence or reason to believe the target is engaged in criminal activity.

Instead, the statute requires only the remarkably low-threshold showing that the information sought be “relevant and material to an ongoing investigation.” That means you don’t even have to be the target of an investigation in order for a prosecutor to use a subpoena to get your records. “Relevant and material” is an incredibly low bar for prosecutors to meet.

Under state law passed in 2008, G. L. c. 271, § 17B, the Attorney General and District Attorneys may use administrative subpoenas to obtain communications and location records from internet service providers and telecommunications companies. Prosecutors can use the subpoenas to demand:

• phone records showing who you called and texted, when those calls or text messages occurred, and how long the calls lasted;
• internet protocol address logs, which can be used to physically locate you;
• names and addresses;
• banking and credit card information; and
• the length of service and types of service you use with the company receiving the subpoena.

Former Attorney General Martha Coakley and Massachusetts District Attorneys (DAs) pushed for the expanded surveillance power as part of an omnibus bill they proposed to the legislature called “An Act to further protect children.”[1] But, despite its packaging, the statute does not restrict the power to investigations dealing with internet-based child sex crimes. The Twitter subpoena case, along with more recent records obtained by the ACLU detailed below, reveal that prosecutors have used administrative subpoena power in a wide range of investigations unrelated to internet and child pornography, including routine drug and larceny investigations.

Ultimately, administrative subpoenas are just pieces of paper upon which prosecutors write down what information they want from an ISP or telecom company about you and me. No judge or other neutral arbiter checks to make sure the subpoena is legitimate. And because the target of the surveillance doesn’t need to be a criminal suspect, the subpoena power is used to monitor hundreds or even thousands of people per year who are never charged with a crime. The vast majority of people monitored probably never learn their records were subpoenaed in the first place because, unlike Twitter, most companies don’t tell you when a Massachusetts DA subpoenas your records.

Massachusetts state law does not require that District Attorneys keep records showing how or why they use administrative subpoenas. There is no requirement that DAs publicly report on their use of the controversial, warrantless surveillance power. And despite the fact that the Massachusetts statute doesn’t authorize prosecutors to issue gag orders along with the subpoenas, records obtained by the ACLU of Massachusetts reveal that DAs nonetheless routinely instruct the recipient not to disclose the existence of the subpoena to the target of the spying.

Secrecy Reigns Over Thousands of Subpoenas Issued Annually in Mass.

We know far too little about the use of administrative subpoenas in Massachusetts. But we do know that prosecutors issue thousands of them each year, in investigations ranging from check fraud to prank phone calls.

The ACLU of Massachusetts has filed multiple public records requests to District Attorneys and the Attorney General in an effort to find out how often, under what circumstances, and how prosecutors are using this unchecked and secret subpoena power.

Too often, DA offices refused to provide information about how many subpoenas their offices file per year, or the types of investigations in which they are issued. But a few did. The table below, based off of records obtained via public records requests, shows how many subpoenas each District Attorney’s office filed in Massachusetts during the years 2014, 2015, and 2016 (some offices did not provide this information). It also includes information about whether or not a District Attorney’s office requests the recipient of the subpoena not to disclose the surveillance demand to the target of the spying. Finally, it includes a transparency rating, which is based on three factors:

1. Basic compliance with the public records law. If an office failed to respond to the request, they got an “F.” Offices that responded to the request but failed to provide the majority of information sought—either because they do not keep internal records (see below) or because they refused to provide them—also scored badly.
2. Internal record keeping to enable external oversight. Most of the prosecutors’ offices claimed they do not keep records showing how many subpoenas they issue in what types of investigations. A failure to keep these internal records makes meaningful public transparency about the use of the subpoena power impossible. Offices that provided us no records on their use of subpoenas scored the worst in this category; those that provided numbers of subpoenas but failed to provide the categories of investigation scored in the middle; and those that provided us records showing both how many subpoenas were issued and in what types of investigations scored the best.
3. The existence—and disclosure—of internal policy memoranda describing how and under what circumstances prosecutors may issue subpoenas. Only one office, DA Ryan’s Middlesex County, disclosed official policy memos outlining to Assistant District Attorneys the proper procedure for issuance of administrative subpoenas. DA Early’s Worcester County office claimed that such policy memos are exempt from public disclosure. No other DA’s office, nor the AG, has policy memos outlining how prosecutors may use the administrative subpoena power.

District Attorney, County	Subpoenas Filed	Gag request	Transparency
DA Blodgett, Essex	Refused to provide	Yes	D-
DA Capeless, Berkshire	2014: 303 2015: 201 2016: 302	Yes	C
DA Conley, Suffolk	N/A	Yes	D-
DA Cruz, Plymouth	2014: 260 2015: 231 2016: 235	Yes	C
DA Early, Worcester	2016: 564	Yes	D
DA Gulluni, Hampden	Refused to provide	Yes	D-
AG Healey	2014: 421 2015: 391 2016: 421	Yes	A-
DA Morrissey, Norfolk	Refused to provide	Yes	D-
DA O’Keefe, Cape & Islands	2014: 120 2015: 170 2016: 160	Yes	C
DA Quinn, Bristol	Did not respond to request***	N/A	F
DA Sullivan, Northwestern	Did not respond to request	N/A	F
DA Ryan, Middlesex	2014: 384 2015: 926 2016: 1133	Yes	A

Many DAs told us they do not keep centralized records about their use of administrative subpoenas. Other offices claimed those records are exempt from public disclosure. But the Middlesex County District Attorney and the Attorney General’s office keep those records, and disclosed them to the ACLU with limited redactions. You can see some of the results in the charts at the bottom of this page. 

View all the documents.

Conclusion

Under the pretense of fighting online child exploitation, the 2008 administrative subpoena statute gave Massachusetts county and state prosecutors far-reaching powers to obtain our cell phone and internet records, with woefully inadequate due process protections. These subpoenas are issued secretly, extensively, and without any judicial oversight or accountability. No judge ever sees or approves them before they are served.

Moreover, there is no requirement that such subpoenas be based on probable cause of involvement in criminal activity; they need only be “relevant and material” to an investigation—an extremely low bar. The proponents of these prosecutorial powers said they were needed to “track online predators.” But the powers are not limited to those types of cases, and as the ACLU’s investigation illustrates, they have been used far more broadly, notably, in fraud, drug, larceny and other routine criminal cases.

Nearly ten years after the Massachusetts administrative statute became law, it’s obvious that the legislature needs to impose a basic level of accountability and transparency on the use and misuse of administrative subpoenas.

An Act relative to law-enforcement access to communications records, S.801 (Senator Creem) would restrict use of the administrative subpoena law to child sex abuse investigations, require that the communications device be an instrumentality of the crime, limit the type of subscriber information ISPs could turn over, and establish basic accountability mechanisms regarding transparency and reporting. Tell your state lawmakers to support it.

***UPDATE: On August 31, 2017, the ACLU received a response from the Bristol County District Attorney’s office to our February 8, 2017 records request. The response stated that the Bristol DA office issued 107 administrative subpoenas in the year 2016, but that the office could not account for how many subpoenas it issued in the years 2014 or 2015. The sample subpoena provided asks the recipient not to disclose the existence of the subpoena to the target of the surveillance.

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Administrative Subpoenas in Massachusetts: Charts

Note that for charts that show the types of investigations in which subpoenas were filed, they do not represent every subpoena documented by the Middlesex County District Attorney or Attorney General. There were many other investigative categories—too many to document in a chart. In Middlesex County, the type of investigation in which subpoenas were used the most was in drug investigations, followed closely by larceny cases. Similarly, the charts that show the companies to which these subpoenas were sent are not comprehensive, either. They show the companies that received the largest number of requests.

View the documents to learn more.

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[1] Former Speaker Salvatore F. DiMasi introduced the legislation, which bore the names of Coakley, all of the then-serving District Attorneys in Massachusetts, and the Massachusetts District Attorney’s Association. Representative Eugene O’Flaherty was another sponsor. O’Flaherty currently serves as Corporation Counsel for the City of Boston.