State House News Service

ACLU Hopes Policy Agenda Will Get Boost From Privacy Concerns

BOSTON — As governmental surveillance revelations stoke worldwide debate on the balance between privacy and security, civil liberties advocates in Massachusetts are pushing their own agenda to regulate law enforcement’s investigatory abilities.

“We hope the time is right,” said American Civil Liberties Union of Massachusetts spokesman Chris Ott. “We had been working on this for quite a long time.”

A test for the ACLU and its allies will be a Tuesday hearing of the Legislature’s Committee on the Judiciary, where three bills that would limit law enforcement’s ability to probe individuals are among the 209 bills on the agenda.

The three bills concern prosecutors’ ability to demand records from phone and Internet providers, law enforcement’s monitoring of political speech, and the ability of employers to demand access to an employee or job applicant’s social networking accounts.

“We had to sue to get information from the Boston Police Department about what they were doing to peaceful protesters in the Boston area,” Ott said. “Police were actually spending resources on monitoring these peaceful groups.”

An October 2012 report by the ACLU of Massachusetts and the National Lawyers Guild Massachusetts Chapter found that the Boston Regional Intelligence Center monitored the late academic Howard Zinn, former Boston City Councilor Felix Arroyo and others, labeling as a “criminal act” a March 2007 talk at the Congregational Church in Jamaica Plain and subsequent rally. Citing a report by the U.S. Senate Subcommittee on Investigations, the ACLU said “millions of dollars” went into intelligence fusion centers around the country that have “failed to uncover a single terrorist plot.”

Twin bills (S 642/H 1457) filed by Senate Assistant Majority Leader Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester) would require such fusion centers to produce annual reports and prohibit them from monitoring the “political, religious or social views, associations or activities” of individuals or groups unless that information relates directly to criminal activity.

“I just don’t see the need for this,” said Cape and Islands District Attorney Michael O’Keefe, who said he was skeptical that law enforcement investigates political speech.

“That would be news to me, unless you’re talking about people who are advocating overthrow of the government or violence against the United States,” O’Keefe told the News Service. “If in fact anything like that was happening, then I would agree that it shouldn’t be happening.”

According to the ACLU, Massachusetts law changed in 2008 to allow law enforcement to issue an administrative subpoena for phone records — but not the content of phone calls — without approval by a judge.

Bills (S 796 / H 1684) filed by Sen. Karen Spilka (D-Ashland) and former Rep. Martha Walz would require a warrant for police to collect information such as contacts, locations where a phone was used and email.

O’Keefe said he was open to the idea of requiring warrants in those situations, but said that would add a burden on prosecutors and the police detectives they work with to solve serious crimes.

“That would be fine if we want to increase the cost of law enforcement by probably 50 to 100 percent of what it costs now,” O’Keefe said. He said in the case of a murder, information about who a victim spoke to last on the phone is invaluable to an investigation, and said the administrative subpoenas are only used for major crimes.

“These things aren’t done willy nilly. They’re done when and if a phone number or any other piece of electronic information is in the orbit of a serious crime, such as murder,” O’Keefe said.

Two other bills filed by Rep. Cheryl Coakley-Rivera (D-Springfield), a member of House leadership, and Sen. Cynthia Stone-Creem, the former Senate chair of the Judiciary, would bar employers from requiring, suggesting or requesting that employees or job applicants provide password access to their social networking accounts.

“We think that no one should be compelled to do that,” Ott said. Twitter and Facebook provide a window into individuals’ personal lives and associations, and occasionally postings by employees that are embarrassing to the employer have reached mass audiences.

“This has always been possible,” Ott said, “It’s always been possible for someone to say something at a party for instance, to trash their employer.”

The civil liberties group has legislation in other committees that would regulate the use of aerial surveillance vehicles, or drones, and limit the storage of information obtained through automatic license plate readers.

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