Critics say the meaures, sought by the state police and currently before the General Assembly, would also give the authorities warrantless access to subscribers local and long-distance phone records as well.

04:03 PM EDT on Monday, June 12, 2006

BY BRUCE LANDIS
Journal Staff Writer

PROVIDENCE -- The General Assembly is close to giving the police the right to obtain any Rhode Islander's Internet and "local and long-distance telephone connection records," along with credit card and bank information, without a warrant or other court review.

Lawyers familiar with that area of law say the police would be able to get the records of any person's phone calls without a warrant, including who was called, when and for how long.

The state police deny that, saying they only want warrantless access to Internet-session records and the identity of persons using the Internet.

The critics, however, say the measures would give Rhode Island police the same information that some of the nation's biggest telephone companies have been accused of illegally giving to the National Security Agency.

The difference, according to Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, is that the state bills would make it legal.

Either way, the legislation would dramatically expand the ability of the police to obtain information about private communications without review by a court.

The critics say the bill includes no standards the police would need to get the customers' information other than the assertion by a chief of police that the information "is necessary for an investigation."

To get a warrant, the police must convince a judge that they have a legal basis to get the information. The bills would let police issue an "administrative subpoena," a written demand by the police chief, directly to the communications carrier.

There are two similar bills. One, sponsored by Sen. Leo R. Blais, R-Coventry, has been passed by the Senate and is before the House Judiciary Committee. A House bill, sponsored by Rep. Richard W. Singleton, R-Cumberland, is before the same committee, which has scheduled a hearing, and possibly a vote, on both bills for tomorrow afternoon.

Blais said he filed his bill at the request of the state police and was told that it would apply only to Internet sessions.

Michael J. Healey, spokesman for Attorney General Patrick C. Lynch, said his office wasn't involved in drafting the bills and has taken no position on them.

State police Maj. Joseph Miech and Cpl. John Killian, a detective who is the department's computer crime specialist, said Friday that going before a judge to get a warrant to discover who is behind an Internet "screen name" is too cumbersome and time-consuming.

"We're in gridlock," Killian said, with victims' complaints coming in faster than the four-member computer-crime unit can handle them. He said it can take "three to four hours of work" to obtain a warrant, and that a case can require multiple warrants.

"There's a balance between privacy and police authority," Killian said. "The current situation is weighted too far on the side of privacy."

The officers said they want warrantless access only to records of Internet sessions and the identity of Internet users from Internet service providers, including the portions of telephone companies that provide Internet service.

The purpose is to help track down the growing amount of Internet-based crime, including fraud and the exploitation of children.

They said that the bills would not yield information on the contents of customers' communications, such as e-mail and Web browsing.

The communication companies would also have to disclose credit card and bank account numbers to the police to show the "means and sources of payment" for communication service.

But the bills also refer to "local and long-distance telephone connection records." The state police said a reference the bills make to a federal law on computer crime would restrict its scope to Internet sessions, not telephone calls.

However, lawyers familiar with the law involved said the bills would do exactly the opposite, giving access to records of who called whom, when and for how long, without notice to the customer or permission from the courts. They said the bills would eliminate any independent review, before or after the fact.

Kevin Bankston, a lawyer with the Electronic Frontier Foundation who works regularly with federal surveillance and electronic records law, said the state police are "absolutely incorrect" and that their legislation contains language from federal law "that clearly reaches local and long-distance phone records." Bankston specializes in the law on government surveillance and communication intercepts, and is handling the foundation's lawsuit against AT&T for turning its customers' records over to the National Security Agency. He said he regularly works in the area of law that the state police bills involve.

The 16-year-old San Francisco-based foundation says it defends free speech, privacy, innovation, and consumer rights in the high-tech arena. The Journal e-mailed a copy of the Senate version of the legislation to the foundation.

Providence lawyer Amato A. DeLuca, one of the lawyers who sued Verizon and AT&T last month on behalf of their Rhode Island customers for giving the customers' records to the National Security Agency, draws the same conclusion.

DeLuca said the state police bills are "scary" and would give the police "carte blanche to get phone records on anybody in the state of Rhode Island" without having to give a reason to anybody.

"There is no provision that provides for any oversight whatsoever," DeLuca said of the state police bills.

DeLuca said the police are trying to escape from judicial oversight to avoid having to explain to a judge why they need individuals' telephone and Internet records.

"The only thing that inhibits police abuse is judicial oversight," DeLuca said.

The state police, meanwhile, are backing away from at least part of the bill, indicating a willingness to let the attorney general's office control issuance of the "administrative subpoenas" that the police would use to demand information from the communication companies.

blandis@projo.com / (401) 277-7487