AS SUPERINTENDENT of the Rhode Island State Police, and with the legislative process under way, I would like to address the State Police’s position on privacy as it relates to Internet-service-provider records.

Cyber crime has increased at an epidemic rate. Law-enforcement administrators now need to take initiatives that will support our cyber investigators with the proper technology and legislation to combat cyberstalkers, financial criminals, identity-thieves, whose activities are surging, and on-line sexual predators, including pedophiles.

The Rhode Island State Police has a Cyber Unit, part of the Detective Bureau. We have detective troopers and a Providence Police detective within that unit who have the requisite skills and training to attack nefarious cyber-criminals who come before us. While we are making great strides in acquiring the training and technology that let us better investigate these crimes, without the laws to assist us in this endeavor, we will lack the tools to be fully effective.

As a leader in law enforcement, it is incumbent upon me to seek the requisite tools. Since the advent of the Internet, law enforcement has found itself playing catch-up. We need legislation to let our investigators address the huge growth and volume of online crime. To date, legislation has failed miserably at keeping pace.

Our job, as protectors of the safety of Rhode Islanders, and the legislature’s responsibility, as overseer of the quality of life of Rhode Islanders, is to rectify this disturbing situation. In February 2008, state Sen. Leo Blais introduced Senate Bill 08-2746 and Rep. Carol Mumford introduced House Bill 08-7762, which I believe can do just that.

In the past we have been faced with constant challenges to this type of legislation for its allegedly being too far-reaching and potentially too intrusive. During the first week of May 2007, I realized that Senate Bill 07-0329, which was submitted before my appointment, was being held up. Recognizing the concerns provoked by the bill, I visited Sen. Michael McCaffrey and other senators to say I would be amenable to and, in fact, would prefer a change in the language.

I indicated that I would agree that any chief of local police or the superintendent of the State Police would only have access to the name and address of a subscriber in an Internet correspondence that merits criminal investigation. The currently proposed legislation strikes a balance that satisfies law enforcement’s needs and allays the public’s concerns.

Also, these versions of §39-2-20 strictly prohibit the acquisition of any content-based information. Just as §39-2-20 does not allow for law enforcement to obtain voice mail, phone records, or other content-based information relative to communications common carriers through administrative subpoenas, this bill would prohibit law enforcement from obtaining e-mails, records of sessions, and other subscriber-type information from service providers.

Moreover, an even greater concession being made by law enforcement is the addition of proposed section §39-2-20(b)(6), which provides that an annual report be submitted to the state attorney general detailing the number of subpoenas issued, their role in assisting an investigation, and any resulting arrests, indictments or other criminal informations that ensued. These reports are to be compiled by the Department of the Attorney General and forwarded to the General Assembly on an annual basis. At such time, the reports would become public record.

With the passage of these bills, if someone sends a tacitly implied threat, a perceived threat, or a sexually explicit message, which may violate state and/or federal law, the police chief or the superintendent would be authorized to send an administrative subpoena to obtain the name, address and Internet protocol number of the alleged perpetrator.

Often, at the beginning of an investigation into a potentially criminal e-mail, a complainant (often a mother or father) does not possess enough information that may rise to probable cause for a search warrant. As a result, we do not possess the investigative tools to pursue further action, unless it is considered an emergency.

The reality is that most cases, although criminal in nature, are not emergencies, and so do not require either a search warrant or grand jury subpoena. An administrative subpoena for the type of basic subscriber information that S-2746 and H-7762 requests would let an investigation continue and create the building blocks for probable cause.

The increasing volume and demanding nature of these types of cases creates a tremendous burden on investigators, who are simply looking to acquire basic information, such as a name and address, in many cases when time is of the essence (but not rising to the level of emergency). I have been the author of nearly 100 search warrants during my career, and I can tell you that from start to finish, including the additional hardship of obtaining a late-night signature at the home of a judge, the process can take up to three hours.

Courts have found that there is no Fourth Amendment violation, as there is no privacy interest in non-content information obtained pursuant to an administrative subpoena (United States of America v. Scott Marshall Hambrick, 55 F.Supp. 2d 504 (W.D.Va 1999), aff’d 225 F.3d 656 (4th Circ. 2000), cert. Den, 531 U.S. 1009, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001)).

Historically, our laws have empowered law enforcement to access motor-vehicle registration data after the creation of the highway system, as well as basic telephone-account information, after the birth of the telephone network, without a search warrant.

I, too, value the necessary constitutional safeguards and the need to preserve privacy rights. With the changes in this year’s proposed legislation, and the addition of the reporting requirements, we can satisfy the concerns of Internet-access legislation’s opponents and, at the same time, meet the needs of law enforcement in addressing the very real threat of cyber crime.

Col. Brendan P. Doherty is superintendent of the Rhode Island State Police.