Privacy rights versus public safety: the debate is heating up nationwide, especially over orders that allow police to quickly obtain your cellphone and Internet records without needing a warrant.
How easily investigators can get ahold of some of your digital activities may surprise you.
Within minutes, police can learn who you communicated with, when, where and for how long. Police can obtain that information without a warrant while investigating a crime in your area that you didn’t even know about.
It’s all done through what’s called an ex-parte order.
Wethersfield Police Chief James Cetran said ex-parte orders streamline the often tedious process of obtaining a warrant.
“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.
Like warrants, ex-parte orders do require a judge’s signature. The difference is the standard of evidence. Warrants require probable cause while ex-partes need only a “reasonable, articulable suspicion” that a crime has been or will be committed.
An example of how an ex-parte works: if you are near bank or store at the time of a robbery or a location where an assault or murder occurred, police could submit a one-page request to a telecommunications company, Internet service provider or remote computer service and collect the exact time, duration and location of any phone call, text message or email connected to your phone or IP address.
Kevin Kane, Connecticut’s Chief States Attorney, stresses that while police can learn that you made a particular communication, the details of what you say, text or write remain private.
“We’re looking for specific communications that relate to a specific period of time as to who may have been with a murder victim last or who may have talked to a murder victim last,” said Kane. “Contents of communications can only be granted through a search warrant.”
While police call ex-parte orders an important investigative tool, privacy rights advocates have a lot of concerns.
The first is with a requirement that police notify you within 48 hours of collecting your information. State law allows a 90-day delay in notification if it could impact the investigation, but the American Civil Liberties Union of Connecticut is finding that some departments are not letting people know.
“What we have found through records requests that we’ve been giving is that departments have been uniformily getting that 90-day extension, and even past the 90 days, not notifying people they’ve been tracked,” said Connecticut ACLU Staff Attorney David McGuire.
Annual Chief State’s Attorney’s reports show 13,516 ex parte orders granted since 2005.
Of those, at least 4,065 notifications were delayed. That number could be considerably higher.
Interestingly, while the ACLU would like to see a tightening of the law based on notification requirements, police would like to see it expanded.
“Time restrictions are way too constrictive,” said Cetran. “We need more time.”
There is another, possibly more troubling issue for privacy rights advocates. No records show any of the 13,000-plus orders ever being denied.
“We don’t keep records but if prosecutors and police don’t believe we have enough evidence to apply for one we don’t apply for one,” said Kane.
Documents do show the orders have helped fight crime, resulting in more than 3,500 arrests over nine years.
A review of the annual reports shows that ex-parte orders were issued for more than 150 alleged crimes, the majority being for homicide and manslaughter investigations, followed by burglary and robbery investigations and harassment and threatening.
There could be a bigger challenge to ex-parte orders on the horizon. Last week, the Massachusetts Supreme Court ruled that warrantless collection of cellular data over an extended period of time is unconstitutional.
Kane expects Connecticut defense attorneys are looking closely at that ruling, but is confident police aren’t overreaching with their use. He added that no one has a right to expect complete privacy in public places.
“It is important and too important to lose by abusing it,” said Kane, who rarely agrees to television interviews but said he felt this issue was one to speak out about. “We have been careful I think and every so often we better be a little more careful.”
Kane said two bills to expanding police surveillance capabilities will likely be raised this session. One would give police the ability to obtain search warrants for out-of-state companies doing business in Connecticut. The other would give police the right to place tracking devices on your vehicles.
Annual Chief State's Attorney's Reports
Chief State's Attorney Report