Microscope Monday: Analysis of Massachusetts’ proposed Free Speech Act, S. 642 / H. 1357


Have you ever wondered why your Mondays have become an unending bliss of delight, falling upon you like Zeus visiting Danae in a shower of gold? It must surely be because of Microscope Monday, your weekly look at notable surveillance-related bills on Beacon Hill.

This week’s bill, tying in with our new Campaign to Close the Fusion Centers, is “An Act to protect freedom of speech and association”, more conveniently referred to as the “Free Speech Act”. The bill updates last legislative session’s “Act to protect privacy and personal data”, covered in October 2012 on this blog here. It was proposed by Assistant Majority Leader Sen. Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester). Its basic purpose is to deal with the fallout from the Policing Dissent scandal, where the Boston Police Department, in concert with the Boston Regional Intelligence Center, was found to have been spying on peaceful groups like Veterans for Peace and defining them as “extremists.” Protesters, including one person I knew, were hauled in and interrogated about their associates, without any actual crime having been committed.

We’re glad to see some action being taken to deal with these problems. But, what does the bill actually say?

[Previous Microscope Mondays covered: the Electronic Privacy Bill; the Drone Privacy Bill; and the infamous Act Updating the Wire Interception Law.]

(1) A new section requires “criminal intelligence systems”, including the fusion centers, to make a matter of public record:

  • How many authorized users each intelligence database has, each user’s level of access, how much data is collected from each source, and how often it is used.
  • How many investigations authorized and denied on the basis of such data, how many investigations remain open, how long they have been open and why the data should continue to be kept; how many of these investigations that have led to indictments or prosecutions, and the names and docket numbers of resulting court proceedings. The data concerned is essentially “records of the source of communications sent to or the recipient or destination of communications sent from a customer”, which in an electronic context means metadata including IP addresses and possibly subject lines.
  • To whom the data in the intelligence database was shared, and how many times it was shared.

(2) The “criminal intelligence systems” are required to cooperate with the inspector-general if the inspector-general decides to investigate and report on them.

(3) Section 3 of the bill deals with information held by “criminal intelligence systems” about organizations operating in Massachusetts.

Section 1A. (a) No state or local law enforcement agency, prosecutorial office, criminal intelligence system, police or peace officer, or agent thereof shall track, collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership or other entity unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is involved in criminal conduct.”

Also, no such illegally gathered information shall be “knowingly accessed, received, maintained, or disseminated”; it must be evaluated for reliability, with the evaluation being placed in the investigation file; and even within law enforcement, the dissemination of protected information shall be rigidly controlled, monitored and reviewed for continuing relevance. All investigations shall be recorded and signed off on by the head of the relevant agency.

These reforms are sorely needed, given the abuses uncovered in “Policing Dissent”, and covered in a previous article here. It would be our preference at Digital Fourth to see the fusion centers closed entirely, based on their track record of wasting money and abusing civil liberties. The bill also lacks any enforcement mechanisms against employees of “criminal intelligence systems” who are found to have misused data or to have hounded people without evidence. However, it is a step in the right direction, and our respects to Sen. Chandler and Rep. Lewis for introducing it.

CAVEAT: The one concern I have with it relates to the fact that the bill repeals the existing Section 1A of Massachusetts General Laws chapter 276, to replace it with the language above. On the face of it, the previous article seems like an old-fashioned Red Scare law (its title was “Articles belonging to subversive organizations”). However, if you chase down the definition of “subversive organization” in Massachusetts law, as opposed to what the Boston PD has been doing in practice, then the definition is narrow, relating only to organizations formed for the purpose of “advocating, advising, counseling or inciting the overthrow by force or violence, or by other unlawful means, of the government of the commonwealth or of the United States.” The old Section 1A permitted the funds, assets or membership lists of such organizations to be seized if a court determined in an adversarial hearing that a particular organization was “subversive” in this narrow sense.

I am generally speaking very reluctant to grant the government the power to suppress any organization, even one that is formed for the purpose of overthrowing it. I could, however, support maintaining the previous text of Section 1A, if “by other unlawful means” were deleted; in other words, it would be surprising if the government did not act to suppress an organization formed expressly for the purpose of violent, rather than peaceful-but-still-unlawful, overthrow of the government.

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