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‘Alicia’s Law’ raises serious constitutional concerns

By   /   January 19, 2016  /   News  /   No Comments

MADISON, Wis. — Alicia Kozakiewicz’s story is horrifying, heartbreaking.

A 13-year-old girl lured from her Pittsburgh home by an online predator, who kidnapped her, then raped and photographed her for four days. That is, until law enforcement was able to track the perpetrator online, crash into his home and rescue Kozakiewicz.

But the model legislation that bears her name and has been on a fast-track to passage in the Legislature raises some deep constitutional questions about how far cops and prosecutors can go in the name of protecting children from Internet criminals.

Critics of the unfortunately numbered Assembly Bill 666 fear the legislation as written would bypass judicial oversight to give law enforcement an extraordinarily powerful search and seizure tool.

“Alicia’s Law,” pushed by Wisconsin Attorney General Brad Schimel and co-authored by state Rep. Joel Kleefisch, R-Oconomowoc, and Sen. Van Wanggaard, R-Racine, would authorize the attorney general “or his or her designee” the power to issue an administrative subpoena. The new authority, Schimel and the bill’s advocates insist, would help the state Department of Justice’s Internet Crimes Against Children task force more quickly and nimbly go after predators and other online criminals in “real time.”

Photo by Search.org

KNOCK, KNOCK: A bill quickly moving through the Wisconsin Legislature aims to protect children from Internet predators, but it raises serious constitutional concerns.

As the law was originally written, an Internet service provider would be compelled to “produce documents or records helpful to an investigation of an Internet crime against a child.”

And administrative subpoenas would be issued without any judicial oversight, based on the wider standard of “reasonable cause,” not probable cause.

The Wisconsin State Public Defender’s Office has raised concerns about the potentially far-reaching nature of the subpoena power, asserting at a hearing last week before the Assembly Committee on Criminal Justice & Public Safety that, “no matter the worthiness of the goal,” such investigative tools would expand the “government’s ability to obtain information on people, who, at that moment, are still presumed innocent by law.”

The bill does include an amendment that removes language compelling ISPs to hand over a customer’s “records, information and documentary evidence,” but discretion on when to issue the subpoena remains in the hands of the Attorney General’s office.

That power doesn’t sit well with state Rep. Fred Kessler, D-Milwaukee. Kessler, a member of the Criminal Justice Committee, said he could not understand why Internet crime investigators need to bypass the current and effective judicial oversight-based procedure.

“Why do we need an administrative subpoena when we can just walk down the hall to the duty judge and swear a witness and have an actually constitutionally protected search warrant issued?” Kessler asked Schimel at the Jan. 13 hearing.

The attorney general said what investigators seek are subpoenas, not warrants, and they would be used to track the computer addresses of those suspected of engaging in Internet crimes.

“It takes days before we have a subpoena signed and shipped to Internet service providers,” Schimel said.

The most powerful testimony came from the model legislation’s namesake, Alicia Kozakiewicz.

Now 27, Kozakiewicz described how a teen who came from a protective, supportive family met a “friend” online who turned out to be a predator.

“I was that terrified little girl who was lured from my home, taken across state lines, chained by my neck, forced into a disgusting basement dungeon and tortured, raped and photographed by a sadistic pedophile for four days and nights,” she told the committee. “I was that little 90-pound girl who cried for my mommy and daddy, who prayed for somebody, anybody to come find and save me from this hell.”

Kozakiewicz said she turned out to be that “lucky girl” because a child rescue team was able to track the predator’s online whereabouts.

“There was no other way to find me. No trail, no footprints in the snow,” she said.

But while Kozakiewicz’s case may illustrate the need for rapid law enforcement action, does such power come at the cost of civil rights?

In 2014, Utah Attorney General Sean Reyes discontinued the office’s use of administrative subpoenas because of the potential for abuse, the Salt Lake Tribune reported. His investigators, in most cases, have to get clearance from a judge.

“The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous,” Reyes told the publication. “I think we can still win, but winning the right way is more important.”

He said the only time an administrative subpoena may be in order is an “emergency situation, like an Amber Alert with a predator whose information we absolutely had to access.”

Schimel said the number of referrals to Wisconsin’s DOJ from the National Center for Missing & Exploited Children has jumped from 266 in 2005 to 1,300 in 2015. Meanwhile, the resources to fight online predators hasn’t kept up, the attorney general said.

“Many child sex offenders go undetected because they cloak themselves in the anonymity of the Internet. Alicia’s law would give law enforcement and prosecutors tools to catch predators more quickly without compromising constitutional rights,” he said.

But Schimel and other supporters of the bill attempt to make their case by arguing Internet addresses and other online information don’t belong to the individual, but to the ISPs. That’s kind of like saying a homeowner who has a mortgage on her house has to open up the contents of her home to the bank anytime it wishes.

The bill also raises some questions of basic fairness.

To pay for the increased costs to administer the initiative, anyone convicted of a misdemeanor — any misdemeanor — would be assessed a $20 surcharge. Those convicted of a felony would be assessed a $40 surcharge.

A 2012 report by the Legislative Audit Bureau found the addition of surcharges and increasing court costs and fines decreased the likelihood the state would collect the full bill.

“More recent examination of this example of the law of diminishing returns has confirmed that as the monetary penalties levied as part of a sentence increase, the amount collected decreases,” the Public Defender’s Office wrote in testimony before the Criminal Justice Committee. “Surcharge revenue is proven to be an unstable funding source for important programs such as crime victim services or court operations at the county level.”

Another amendment would assess surcharges only on those convicted of Internet and child-related crimes.

Some also have expressed concern about the speed of “Alicia’s Law” moving through the Assembly. The bill was submitted for co-sponsorship Jan. 4, introduced Jan. 11, and two days later the Criminal Justice Committee held a hearing.

A vote on the bill could have come up for Assembly debate as early as Tuesday, but it was not on the calendar as of Tuesday morning.

Adam Plotkin, legislative liaison for the Public Defender’s Office, said it has been hard to get answers on the rapidity of the legislation. Kleefisch last week said he would like to pass the bill and have the governor sign it into law quickly because it “will save people like Alecia.”

The Public Defender’s Office has not taken a public position on the bill, only testifying in an information capacity.

But Plotkin said caution on the part of lawmakers is highly recommended.

“We thank the bill’s authors for addressing some of our concerns (through the amendments),” Plotkin said. “We want to make sure the Legislature is aware of those constitutional issues.”

He added that the goal of the bill is worthwhile, but “people need to make sure constitutional rights aren’t eroded over time.”

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M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.