It's always been true: if you give a government agency increased powers for a limited purpose, the limitations and the purpose will soon be shrugged off. The ACLU of Massachusetts is trying to get some prosecutorial power reeled back in, thanks to administrative subpoena mission creep.
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.
In one case cited by the [ACLU], 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.
It is the same here as it is with everything else. Stingrays were supposed to be counterterrorism devices, what with them being repurposed war gear. But then it was homicides. Then drug dealers. Then pretty much anyone cops wanted to locate, even if all they'd done was steal $60 of fast food.
Likewise, National Security Letters. The clue is in the name. Maybe they're only being used for national security purposes, but if so, America is under constant threat from prolific terrorists. The FBI issues thousands of these a year. And we know very little about the underlying crimes, thanks to indefinite gag orders and loads of government court filings still under seal.
The subpoenas discussed here are also administrative. This means prosecutors write the paperwork themselves and run it past no one before serving it to internet service providers and phone companies. They also do this thousands of times a year.
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.
District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years...
All for serious crimes, right?
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.
This isn't just irritating the ACLU. It's also irritating legislators who felt they were misled by prosecutors during the push for expanded power. Senator Cynthia Creem says prosecutors said it would be used to tackle crimes against children. Instead, the subpoenas are being used to handle almost any criminal activity. In response to this prosecutorial abuse of a legislated privilege, Creem is now attempting a claw-back.
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.
Undoubtedly, this bill will face stiff resistance from prosecutors who've become accustomed to getting everything they want exactly when they want it. It's pretty difficult to convince investigators they don't need this, even though they apparently had no problem closing investigations prior to the law's passage in 2008.