Friday, March 14, 2014
By Michael Shepherd email@example.com
State House Bureau
AUGUSTA — The state’s top criminal prosecutor said Wednesday his office estimates that a bill that would require police to get warrants to get cellphone records could cost the state $500,000 over the next several years.
The attorney general’s office has been monitoring geographic location data from hundreds of Mainers’ cellphones as part of criminal investigations, Deputy Attorney General William Stokes said Wednesday and requiring warrants for that work will cost money.
But civil libertarians and other proponents of the measure, which recently passed the Legislature, question whether the cost estimate is inflated.
The bill, L.D. 415, would put Maine in a select vanguard of states considering legislation to regulate access to cellphone records. Sponsored by Assistant Senate Minority Leader Roger Katz, R-Augusta, an attorney, the measure would force police to get a warrant to access location information from cellphones or other GPS-enabled devices, except in emergencies, such as imminent threats of bodily harm.
The major dispute between supporters — led by the American Civil Liberties Union of Maine — and Stokes, isn’t the warrant requirement, but the bill’s notification provision.
The measure would require police to tell people within three days if they have obtained location information about them from their cellphone service providers. If that disclosure could jeopardize an investigation, police could ask the judge to delay notification for 180 days.
Although the bill has won initial approval from the Legislature, it has been placed on the Special Appropriations Table for bills the budget-writing committee must fund in the upcoming state budget. Many bills die on that table for lack of funding.
In a fiscal note attached to the bill, the attorney general’s office estimated it will need nearly $514,000 to handle the notification provisions in the next four budget years. Of that, more than $234,000 would have to be funded in the next two-year budget.
That money, it says, would fund two research assistant positions in the attorney general’s office to monitor notifications, and the cost would go up each year, from just more than $100,000 in the 2013 fiscal year to nearly $142,000 in the 2016 fiscal year. Stokes said those assistants would work as a liaison between the office and two Maine State Police analysts, who process location information working with the office.
Shenna Bellows, executive director of the ACLU of Maine, said the fiscal note should be revised because the projected cost it isn’t credible. “Either this fiscal note is an overstatement or there are a huge number of Mainers being tracked,” she said.
But Stokes said the group is oversimplifying the issue. As time goes on, he said his department will be monitoring more and more complex cases, with an ever-increasing amount of oversight to monitor notification if the bill passes.
“This is what I do for work. The ACLU, do they do homicide investigations?” he said. “It’s a burden that has never existed before.”
He said complex cases — especially drug-related homicides — can involve many different players and many different cellphones, as potential suspects can have wide circles of associates and have different personal phones.
“We’re trying to rule in or rule out whether this phone was near the scene of a murder,” Stokes said. “Some we’re going to exclude. ... Some will be nearby.”
Timothy Feeley, a spokesman for the attorney general’s office, said one current homicide case involves information from approximately 60 cellphones. Stokes said that isn’t common, but it can happen occasionally.
He said when his office can, it seeks a probable cause warrant to get cellphone location information. When it doesn’t have probable cause, it seeks a court order, such as a subpoena, which has a lower burden of proof. In emergency situations such as missing-person cases, police can invoke an exception that allows companies to give up data immediately, he said.
Law enforcement cannot legally listen to phone calls without a warrant, which requires showing probable cause of a crime. A warrant is not required, though, to get a list of numbers called and the times calls were made. In those instances, if officers demonstrate that the data they are requesting is relevant to an investigation — only a subpoena is needed.
Recently, Stokes said cellphone location information was used to great effect in the case of Nichole Cable, 15, of Glenburn, who was found dead in Old Town on May 20. Kyle Dube, 20, of Orono, is accused of murder and kidnapping in the case.
Cellphone providers like Verizon Wireless and AT&T have no choice but to comply with police requests, although they can charge a fee.
“We comply with legal processes when dealing with requests from law enforcement,” said Michael Murphy, a regional spokesman for Verizon.
Cellphone towers can triangulate a user’s location at any moment, but most smartphones are now GPS-enabled as well. Cellphones use location data for a growing variety of applications, including weather, mapping and websites that customize information based on geography.
According to an April story by ProPublica, an online investigative journalism news site, the country’s major carriers responded to at least 1.3 million requests from law enforcement for locations, text messages and other data in 2011.
Other states, including Delaware, Maryland and Oklahoma have proposed laws similar to the law proposed in Maine, but none have passed. Last September, California Gov. Jerry Brown vetoed a bill that would have required police to obtain a warrant to get location data.
CTIA — The Wireless Association, a national trade group that represents wireless companies, has opposed these types of bills on the basis that they would burden companies and their employees.
Stokes said location information is particularly useful in homicide cases, but it helps investigators of other crimes as well. Geoffrey Rushlau, district attorney for Knox, Waldo, Sagadahoc and Lincoln counties, said cellphone location data is used sparingly.
He said it would have to be a pretty serious crime to warrant use of historical information in a case in his area, such as a major burglary or theft or a strong-arm robbery.
The bill got overwhelming initial approval from both houses of the Legislature in late May — passing the House of Representatives 113-28 — despite high hurdles for passage, including opposition from a legislative committee, the attorney general’s office, the Maine State Police and the state Department of Corrections.
Though the fiscal note gives the bill another hurdle, Katz, the sponsor, said the budget-writing committee has plenty of options. They could fund it, not fund it or direct the attorney general’s office to absorb the cost of the bill in the office’s existing budget.
He said he doesn’t buy the cost estimate, but even if it does cost that much, “it’s a small price to pay” for privacy.
“I would be very surprised if it costs that much,” Katz said. “I’m hoping that the Appropriations Committee will take a hard look at the fiscal note and see if these costs will indeed be needed.”
Portland Press Herald Staff Writer Eric Russell contributed to this report.
Michael Shepherd — 370-7652