Editorial: Bay State FISA

Staff Writer
Mount Shasta Herald

While some are still fuming over Congress' refusal to rein in warrantless wiretaps and its vote to grant retroactive immunity to telecom companies who have turned over confidential customer information to federal agents, a similar piece of business has been quietly moving toward becoming law in Massachusetts.

A provision in a law now sitting on Gov. Deval Patrick's desk would give state prosecutors a tool given federal agents under the USA Patriot Act: "administrative subpoenas" demanding Internet service providers and other telecommunications companies provide investigators with records of phone calls, e-mails and Web browsing. There is no requirement that the subpoenas be filed with a court, or that the target of the investigation be notified. The provision also grants blanket immunity to telecoms that cooperate.

While the war on terror is used to justify the infringements on privacy allowed under the amendments to the FISA act signed into law by President Bush this month, the state law comes with another popular justification: protecting children from sexual predators.

The provision for "administrative subpoenas" is included in a bill setting mandatory minimum sentences - with exceptions possible - for six crimes involving sexual abuse of a child. We agree that prosecutors need tools to track down those responsible for heinous crimes, but we're not convinced that freedom from oversight by the courts is essential to that effort.

"Administrative subpoena" seems to us an oxymoron, since a subpoena, by definition, bears the authority of the courts. That definition connects directly to the Fourth Amendment, which protects the "houses, papers and effects" of citizens against unreasonable searches and seizures without a warrant issued after "probable cause" has been demonstrated.

Police procedures that threaten constitutional rights shouldn't be signed into law, either by the president or the governor.