Background

When the government wants to listen in on your phone calls, it needs to take an oath to a judge affirming that it believes you are involved in criminal activity. If the evidence looks good, the judge will provide it with a warrant. When everyone used landlines to communicate, this system worked.

But now that most people travel with and use their mobile phones everywhere they go, law enforcement’s interest in our telephones has changed substantially. Many times the actual spoken words — the content — of telephone conversations are less useful to investigators than the transactional details of the calls you make. Transactional records, also called ‘metadata,’ show the GPS location from where calls were made, the numbers called, and the dates and times the phone was used. Email metadata reveals the information in the ‘To,’ ‘From,’ and ‘CC’ fields, as well as the time and date when the email was sent, and the IP address assigned to the computer that sent it. This information, held by third parties like phone and internet companies, can often tell law enforcement a lot more than they’d be able to discern by listening to what you say over the phone. Unlike us, metadata doesn’t lie. And unfortunately for our privacy rights, metadata is also a lot easier for police to access.

In 2008, the provisions of G.L. c. 271, § 17B were amended to expand the power of Massachusetts prosecutors to obtain information about private communications and associations. As amended, the law allows the attorney general or a district attorney to issue an administrative subpoena to service providers for records concerning private communications if the prosecutor has “reasonable grounds to believe that [such records] are relevant and material to an ongoing criminal investigation.” The recipient of such a subpoena is required to deliver the records to the attorney general or the district attorney within 14 days. Although the statute expressly prohibits the disclosure of the content of electronic communications, information prosecutors may obtain under the statute can reveal substantial, sensitive information about the activities, communications, and associations of Massachusetts persons.

The purpose of this records request was to seek documents and information to understand how this authority was used in the Commonwealth of Massachusetts.