From Geoff Schoos, lawyer and Democratic candidate for Rhode Island State Senate:
On June 1, 2006, the Rhode Island State Senate, without comment or debate, and without one dissenting vote, passed S-2450 entitled â€œAn Act Relating to Public Utilities and Carriers.â€? This seemingly innocuous bill poses a clear and distinct threat to the privacy rights of all Rhode Islanders.
If enacted into law, this legislation would permit any â€œgovernment entityâ€? to obtain the â€œname, address, local and long-distance telephone connection records, or records of session times and durations, telephone or instrument number or other subscriber number or identity including any temporarily assigned network address, length of service (including start date), and means and sources of payment for such service (including any credit card or bank account number), of a subscriber to, or customer of, such service when the governmental entity uses an administrative subpoena authorized by the superintendent of the state police, a chief of police, or the attorney general.â€?
As defined in the legislation, the term â€œtypes of service utilizedâ€? includes information concerning the actual provision of electronic communication service or remote computing service such as cable, modem, dial-up, digital subscriber line, but does not include content based information that would otherwise be subject to a state or federal search warrant.
From the language of the bill and the lack of any discussion by any state senator, I would have to conclude that the state senate has determined that a personâ€™s privacy interests do not attach to oneâ€™s bank account, credit card number, telephone number, internet use, records of telephone calls, or any other subscriber information.
The legislation passed by the state senate expands the scope and power of a statute already in effect. R.I.G.L. Â§ 39-2-20 requires carriers to â€œdisclose to the attorney general, or any assistant attorney general specially designated by the attorney general or any chief of police, the director of the statewide fugitive task force or the superintendent of state police the names, addresses, and telephone numbers of persons to whom nonpublished service is furnished upon written certification â€¦â€? (italics added for emphasis) that the information is necessary for the investigation of or prosecution of criminal violations of the laws of Rhode Island.
Compare the existing statute with S-2450: the statute permits a limited grant of power to specific government officials to obtain limited information on persons certified to be targets of a criminal investigation or a criminal prosecution. The senate bill permits any governmental entity, without any certification of any kind, to obtain information beyond the scope of a customerâ€™s usage of a carrierâ€™s service.
This ambiguous and overbroad grant of power to a â€œgovernment entityâ€? is rife with the potential for abuse. For example, just what is a governmental entity â€“ is it a state or local entity? For what purpose is this information obtained? Why is it necessary to obtain credit information and bank account numbers and how will that information be used? The senate bill never says.
Perhaps the most egregious part of the legislation is that the primary means for gathering information for use in an investigation is the issuance of an administrative subpoena. There is no requirement that a search warrant, based on probable cause and approved by a neutral third party magistrate be issued and properly served in order to obtain the desired information.
Moreover, in S-2450, there is no provision for any third party review of the facts to determine whether there is any basis to invade the privacy of a customerâ€™s telephone and internet records. Rather, the senate bill permits law enforcement officials to authorize the issuance of an administrative subpoena. But, permitting law enforcement officials to act in an â€œoversightâ€? capacity is misleading â€“ these same law enforcement officials are most likely going to be involved, in some manner, with any investigation being conducted by the â€œgovernment entity.â€? In other words, law enforcement officials are charged with the responsibility of determining the merits and legality of their own investigations. That is blatant bootstrapping and stands over two hundred and fifty years of developed legal doctrine on its head.
Perhaps most abusive of all is the fact that an administrative subpoena is being used as a substitute for a search warrant. Under Rhode Islandâ€™s statutory scheme and relevant case law, such subpoenas are issued by administrative agencies pursuant to hearings or disputes that come before them. In such instances, all relevant parties are aware of the dispute and are able to contest the validity of the subpoena. However, under the provisions of S-2450, the true target of any investigation, the telephone or internet customer, may never be aware that his/her records are subpoenaed, let alone have an opportunity to protest the invasion of his/her privacy.
Proponents of S-2450 argue that the legislation is needed because it is too cumbersome to obtain a search warrant through established processes. But, thatâ€™s the point; the â€œcumbersomeâ€? nature of the process is deliberate and serves as a check on the misuse of governmental authority against the citizens.
The state senate, rather than protecting the public from a possible abuse of governmental power, ignored a citizenâ€™s privacy interests and obliterated the requirement that probable cause be determined prior to any seizure of a citizenâ€™s papers. And all this without the utterance of one question or the casting of one dissenting vote.
In February, 1761, James Otis of Massachusetts argued in court against the enforcement of writs of assistance that permitted customs officials, without a warrant, to enter the homes of citizens. Otis considered the invasion by government officials of a personâ€™s home, and thus his privacy, to be the supreme form of arbitrary government power. It was the argument that Otis made in 1761 that served as the basis for the Fourth Amendment to the Constitution.
Nearly two hundred and fifty years later, the Rhode Island state senate enacted its own version of the old writs of assistance. Rhode Island was the last of the thirteen original states to ratify the Constitution, in part because the original document contained no specific protections against the arbitrary use of government power. The Bill of Rights helped overcome Rhode Islandâ€™s reluctance to ratify the Constitution, and thus a nation was born. Now, in its zeal to combat crime, the state senate granted government entities broad unspecified powers to conduct investigations.
The state senate would have done well to remember the admonition of Benjamin Franklin: Any society that would give up a little liberty to gain a little security will deserve neither and lose both.
I urge you to call or email your state representative and fight for your right to privacy.