This guest post was written by ACLU of Massachusetts legal fellow Nashwa Gewaily
This week, the Obama administration reached a deal with five major tech companies that allows for some degree of transparency regarding the approximate numbers of national security requests for user information. This announcement comes on the heels of transparency reports released by Google and Verizon detailing how many search warrants, wiretap orders, court orders, and subpoenas they received in 2013.
These developments are small steps in the right direction, towards more transparency and sunlight on invasive electronic surveillance. But there are many more layers to peel back in our quest for transparency, accountability, and proper public scrutiny of government access to our private lives. While the new disclosures offer a broad view of government data requests nationwide, we still don’t know some critical information necessary to assess the use, efficacy, and potential abuse of subpoenas and other law enforcement tools for accessing personal information.
One area in particular that has been largely overlooked in the push for more transparent accounting is the use of administrative subpoenas by state and local law enforcement agencies. In 2008, Massachusetts legislators gave the attorney general and district attorneys expansive powers to access personal information. Since then, prosecutors have been able to issue simple demand letters directly to telecommunications and other data-holding companies – bypassing the judicial process in a subpoena regime largely shrouded in secrecy. The vast majority of companies don’t bother to inform the targeted user—with at least one notable exception. Under the Massachusetts law, prosecutors don’t need probable cause, or even reasonable suspicion, to obtain our metadata. Instead, they are only required to promise they have a “reasonable belief” that the records sought are “relevant and material to an ongoing criminal investigation” – an extremely low and potentially easily abused barrier. Again, no outside entity provides oversight of this process.
In light of the serious privacy and due process implications of coupling secrecy and virtually unfettered prosecutorial discretion in this area, we need more sunlight on the state subpoena regime. And while we at the ACLU have been gathering as much information as possible on administrative subpoenas issued in Massachusetts, our experience has shown us that more often than not, district attorneys offices neither keep meaningful records accounting for their subpoena demands, nor feel obliged to disclose information about their use of this power to the public. That amounts to a major crisis in democratic accountability in the state.
Last year, we filed a second round of public records requests to the state attorney general and every district attorney in Massachusetts for an updated accounting of how frequently and for what kinds of investigations prosecutors exercise their administrative subpoena power.
Here are some highlights of what we found out:
· With the exception of the Suffolk County DA’s office, no DAs provided documents other than templates of administrative subpoenas or sample request forms used for internal approval. Two DA’s offices – Cape and Islands, and Bristol County – failed to respond to our request altogether.
· Some DAs don’t maintain separate logs of administrative subpoenas at all. Others claimed that almost all information related to their use is exempt from public disclosure – declining to reveal the broad categories of offenses investigated through this power, or even the bare number of subpoenas issued.
· The number of times that the Suffolk DA (whose jurisdiction includes Boston) sought personal information through administrative subpoenas has dramatically increased since being granted this power in 2008. In the first 2 years, Suffolk issued 514 demands for information. Between 2009-2010, this number more than doubled. This upward trend has continued, with over 1,300 administrative subpoenas issued in 2011 and 2012 (with an increase from 578 in 2011 to 734 in 2012). We don’t have enough 2013 data to approximate the past year’s numbers, but there is no indication that the DA’s hunger for our private records has diminished. The information from 2012 shows that prosecutors in Suffolk County alone were filing more than two of these warrantless demands per day, on average.
· Although Berkshire County previously accounted for its administrative subpoena use in response to our first public records request, this time it failed to do so. Here’s what we had concluded about Berkshire previously:“The DA made more than 1,000 requests in 2009 and 2010. Only 131,219 people lived in the county in 2010. That means either Berkshire County is the world hub of online predators, or prosecutors are using this secret power to invade the privacy of residents with unchecked abandon.” Contrary to its earlier stance, Berkshire’s DA office now holds the position that this is not a matter of public record even if such records are currently available.
Berkshire’s reversal demonstrates exactly why we are urging Massachusetts legislators to reform requirements for deploying this invasive power. While the number of administrative subpoenas has increased, transparency about the use of this invasive investigatory power has decreased.
Law enforcement agencies and tech companies alike will not open up their handling of customer information to public scrutiny unless legally bound to do so. Prosecutors will not deny themselves maximum exercise of the powers they’re given unless there are compelling reasons for restraint—like, for example, the probability that they will be publicly held to account for conducting fishing expeditions into our private lives for no good reason. We must shed light on the exercise of this extremely broad power, and it is our legislators’ responsibility to lift the curtain of secrecy. The post-Snowden reforms to intelligence procedures at the federal level must be accompanied by state-based legislative efforts.
The 21st century is an exciting time to be alive, but we must ensure that our amazing technology doesn’t flip the script on democracy. If the government doesn’t have a good reason to believe we’re up to no good, it should stay out of our private lives. And unless there is extremely serious reason to keep something secret, the government should automatically disclose lots more about how it uses its powers. In light of what we now know about the administrative subpoena regime in Massachusetts, the time for reform to restore that balance is now.