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State police again seek free access to records

01:00 AM EDT on Monday, May 14, 2007

By Bruce Landis

Journal Staff Writer

PROVIDENCE — The state police have again drawn fire from privacy advocates by seeking legislation that would let them obtain Rhode Islanders’ telephone and Internet records without a warrant or other review by the courts.

Although its implications remain in dispute, identical legislation died last year amid a barrage of criticism that it would amount to an extraordinary invasion of privacy with no controls beyond the say-so of a police chief.

“It amounts to a wholesale invasion of Rhode Islanders’ privacy,” said Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union. There’s nothing in the bills to stop a police chief from secretly obtaining the phone records of thousands of Rhode Islanders, and nothing to ensure that the records are needed for a legitimate criminal investigation, he said.

The bills are currently before the House and Senate judiciary committees. Legislative officials said the issue has been referred to House Speaker William J. Murphy, and that the bills may be revised.

Although the legislation originated with the state police, whose new superintendent, Col. Brendan Doherty, Governor Carcieri just appointed, a spokesman for the governor said he will oppose the legislation if it doesn’t sufficiently protect citizens’ privacy.

The sponsor of the House bill, Rep. Richard Singleton, R-Cumberland, said the bill came to the Republican leadership from Carcieri’s office and was filed on his behalf. He said that he was surprised that the bill was identical to last year’s version, and that he opposes major elements of it, including giving so much authority to police chiefs.

The bills would allow any police chief, along with the state police superintendent and the attorney general, to issue “administrative subpoenas” that would require companies providing electronic communication services to turn over to the police the name, address, “local and long distance telephone connection records,” and a variety of other information including credit-card and bank account numbers.The police say they need to obtain the identity of suspects from companies supplying Internet service in order to investigate Internet cases.

Now, they need a warrant issued by a judge. The legislation would take away that review by the courts, allowing the police to go directly to the communication companies and requiring the companies to turn over the information.

The police say that going before a judge is too time-consuming and cumbersome to let them investigate a flood of complaints about Internet crime, which ranges from fraud to threats of violence. They have also argued that because of the nature of the Internet, they must make repeated inquiries to identify the person responsible for criminal activity on the Internet.

However, a spokesman for the state court system described a process that normally produces a search warrant in less than an hour, even in the middle of the night.

Craig N. Berke, the spokesman, said the police appear before a judge with an affidavit describing the justification for the search or wiretap.

“The judge has to look at this, take it in, and typically asks questions,” Berke said. The police swear to the truth of the information in the affidavit. Assuming the judge agrees with the legitimacy of the search, he issues the warrant. At night, Berke said, if time is pressing the police call a judge at home and appear before him there.

“Typically, it can take 20 to 30 minutes,” Berke said.

State police Maj. Steven O’Donnell, however, said the police won’t give ground on the judicial review question, because without eliminating that requirement, “We’d be right back where we are now.”

He said, however, that the police are willing to drop the inclusion of bank and credit-card information, adding, “We don’t need that information.”

The governor’s spokesman, Jeff Neal, said Carcieri has not yet taken a position on the central issue in the debate, whether the police should have to go before a judge to get the records, but that the governor would not support a bill that civil liberties groups strongly oppose.

There is also a continuing dispute about what information the police could get if the legislation passed. The police say they are only interested in tracing the identity of Internet users, but critics say the bills would also give the police a record of whom the target called, when and for how long.

“It speaks directly to ‘local and long-distance connection records,’ ” said Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a San Francisco-based organization devoted to free speech, privacy and other individual rights. That “clearly would reach phone records.”

The critics say law-enforcement officials don’t deserve the degree of trust in the police that the bills require, particularly in view of the series of revelations about official spying at the national level.

“With this bill, the Rhode Island State Police would like to institute at the state level what has been a scandal at the federal level,” Brown said.

blandis@projo.com

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