For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.
Investigative Subpoena One Person Grand Jury Reform Bill
S.B. No. 488 (RAISED) AN ACT CONCERNING GRAND JURY REFORM. (JUD)
A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.
And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.
The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.
What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitly removes a requirement of probable cause and replaces it with this interest of justice nonsense.
What’s worse is that there’s no limitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.
This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.
But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.
The “revenge porn” bill
S.B. No. 489 (RAISED) AN ACT CONCERNING UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE OF ANOTHER PERSON. (JUD)
This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.
Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.
But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.
As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.
As Mark explains, the bills don’t seek to criminalize all pictures posted, only pictures posted that meet certain criteria: nudity, non-consensual.
That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos” were illegal.
But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized. What would a bill look like? CT’s proposal is:
(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.
I’m just going to list the problems with this in bullet format, because it’ll be easier:
- The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?
- “Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?
- “The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.
- This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?
The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media
H.B. No. 5587 (RAISED) AN ACT CONCERNING SEARCH WARRANTS. (JUD)
It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.
As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.
So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.
Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.
If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?
Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.
Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.
Who’s to say they can’t read your emails and go on fishing expeditions to find other things that may be evidence of other crimes? Who’s to say they can read your emails and try to find crimes to fit what they see?
Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.
The Wiretapping/Eavesdropping Bills
S.B. No. 487 (RAISED) AN ACT CONCERNING THE RECORDING OF TELEPHONIC COMMUNICATIONS. (JUD)
This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:
(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;
One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.
H.B. No. 5585 (RAISED) AN ACT CONCERNING SURVEILLANCE OF CELL PHONE COMMUNICATION BY LAW ENFORCEMENT OFFICIALS. (JUD)
Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:
when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.
There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.
So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?
More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?
Now you know. Call your legislator.