MA, Feds Behind The Curve on Warrants for Email Searches

Back in the days of DEC and Wang Computer, there was serious doubt whether California’s Route 101 or Massachusetts’ Route 128 would be at the forefront of the digital economy. My aunt immigrated to Massachusetts to stake out her part of the new digital frontier. And round about that time, when I was seven years old, is also the last time Congress passed an email privacy bill. Called the “Electronic Communications Privacy Act“, by now it might as well be called the “Ordinance Describing Rules Regarding the Transportation of Speedy Telegrams Via Means Faster Than The Horse” for all the good it does. Among other ridiculously outdated provisions, it treated holding onto your emails for more than six months as a crazy-expensive thing only crazy people would ever do, so emails older than that are considered “abandoned” like your curbside trash. Law enforcement therefore don’t need to get a warrant to search it.

Fast-forward to now, and a federal bill to solve this, the Email Privacy Act, now has more than 300 sponsors in the House. That would be more than enough to pass it if it got to the floor, and is more cosponsors than any other bill still being held up in committee. It’s being held up essentially because the SEC and FTC want a free hand to not get warrants:

In a hearing before the Senate Judiciary Committee, representatives of the SEC and FTC claimed that other other types of court orders provide a comparable standard to a warrant based on probable cause. Nothing could be further from the truth. A search warrant – the standard in the constitution – allows access to information only when there is a strong likelihood it will show evidence of criminal violations of the law. That is a high standard that applies only in a narrow class of cases. By contrast the SEC and FTC are seeking access to email whenever it is relevant to civil violations of the law – such as mistakenly filling out a tax form. That is a low standard which applies in many cases. This rule would then apply to every agency – from the IRS to the local health inspector. Agencies shouldn’t be able to highjack reform to seek a digital power grab,” said Chris Calabrese, Vice President for Policy at the Center for Democracy & Technology (CDT)

In reaction to these roadblocks, organizers at the state level, including our fellow chapters of Restore The 4th – SF Bay Area and Restore The 4th- LA, have advocated for stronger state privacy laws, and in California, they just succeeded in passing Cal-ECPA, the strongest email privacy law in the nation.

In Massachusetts, our path to Warrant Protection for Email City has resembled so far, far more the federal path than the one California just chose. Last session, a bill was reported out favorably from committee, and got dropped only on the last day of the session, amid the usual flurry of the close of business. It just came up again at this week’s Judiciary Hearing, the ACLU testified on it, and we support it too. But California has now lit the path for us to follow, and it will matter greatly whether we follow it. Massachusetts residents should not enjoy lesser protections for their emails than California residents, any more than the Sox deserve to lose to the Giants.

MA Senate Maj. Leader Strongly Opposes Fusion Centers. So Do We.

In its October 7 hearing on “Protected Classes. Privacy, and Data Collection Legislation”, the Massachusetts legislature heard impassioned testimony on the fusion centers from Senate Majority Leader Sen. Harriette Chandler. She argued that they represent an illegitimate intrusion of federal surveillance into our everyday lives.

The fusion centers gather a vast array of data on law-abiding Massachusetts residents whom they believe to have been behaving “suspiciously” in some lawful way. This violates the Fourth Amendment, and is also bad policy. Right now, as far as we have been able to determine, no external body ever evaluates the accuracy or appropriateness of the data the fusion centers hold. DHS evaluates them every five years to certify their adherence to DHS procedures for fusion centers; the fusion centers self-certify annually that they are ramping up according to plan, and that they respect privacy and civil liberties. (They give themselves full marks, naturally). That’s it.

We too dislike the fusion centers, and also see them as sinisterly ensnaring Massachusetts residents in a web of surveillance. To us, the question is not so much whether we as a state should regulate the fusion centers, but whether we should fire all their employees, blow up their buildings, and then salt the earth beneath them as a mark of horror for future generations. Still, still, we love that there is a fusion center reform bill, and we warmly support it.

Our five-year vision for the Massachusetts fusion centers differs sharply from theirs.

The bill’s provisions make good, if incremental, sense. They require the fusion centers to audit themselves annually to determine whether they have investigations open that shouldn’t be, and make the report of that a public record; they empower an inspector-general to conduct outside audits; and they specify some metrics whereby the fusion centers can determine how well they are respecting people’s privacy. These are important first steps toward establishing whether anything that the fusion centers do, actually does the rest of us any good; and will prepare the ground better for us to have discussions in future years about closing them entirely.

How Much Does The Press Care About Race and Policing?

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On October 7, the Joint Committee on the Judiciary of the Massachusetts legislature held a marathon hearing on “Protected Classes. Privacy, and Data Collection Legislation”.

To be fair, Boston.com and the Boston Herald both reproduced an AP wire report from Steven LeBlanc that there was a hearing. But the AP mentioned only the part of the agenda dealing with a bill to ban transgender discrimination in places of public accommodation.

I’m not going to argue that transgender rights aren’t important. They matter a lot. But it’s astounding that, in a year when race and policing have been, you know, kind of in the news, only the Bay State Banner gave decent coverage to the fact that the vast majority of the bills considered at the hearing were about police, profiling, warrants and race. In the Boston Globe’s “Politics” section, they had room for two fawning profiles of elected Democrats (Attorney-General Maura Healey has “indefatigable drive and charisma“, and House Speaker Bob DeLeo has a “slimmed-down and healthier” look), but race and policing didn’t get a look in this time.

So this is what happened regarding racial profiling.

Continue reading “How Much Does The Press Care About Race and Policing?”

New Judiciary Senate Chair Will Brownsberger

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The Joint Committee on the Judiciary handles most of the bills relating to privacy and surveillance in Massachusetts. Its most senior member is the Senate Chair. In a press release today, Senate President Therese Murray announced that Sen. Will Brownsberger (D-Belmont) would become the new Senate Chair of the Joint Committee on the Judiciary, replacing Sen. Katherine Clark, who was elected to Congress in Massachusetts’ Fifth District. She writes:

Senator Brownsberger is a deliberative and thoughtful leader in the Senate and has a strong work ethic. I am confident that he will continue to do great work in this new position.

Having seen Sen. Brownsberger’s work as my own senator, he is indeed thoughtful, deliberative and hard-working. He is genuinely concerned about transparency, and is very willing to communicate and discuss with constituents on a wide array of topics. Sen. Brownsberger ran for Congress as well in the Fifth District, and during the race his openness and willingness to see and consider both sides of many sensitive questions made it harder for him to appeal to a highly partisan Democratic primary electorate. In the Senate Chair position, his reflective disposition may be a significant advantage. The Senate Chair is often called upon to weigh carefully the competing claims of law enforcement and civil liberties advocates, and every indication is that he will weigh them with care.

We have documented already on this blog Sen. Brownsberger’s views on national surveillance issues like the Amash Amendment, the Electronic Communications Privacy Act, and the Surveillance State Repeal Act. At the state level, he has been supportive of warrant protections for email and digital data. On the wiretapping bill, he believes that the organized crime requirement is outdated and should be dropped, but also believes that the list of designated offenses suggested by the Attorney-General is too broad. On fusion centers, his skepticism of law enforcement claims is very welcome.

We don’t expect that Sen. Brownsberger will always and unambiguously vote the way we would like on the bills before the Judiciary Committee. However, we appreciate the Senator’s intellect and sense of professionalism. We hope that as Senate Chair, very often he will side with the Constitution, and opt to protect the residents of the Commonwealth from the growing pressure to subject them at every turn to unnecessary and intrusive surveillance.