MADISON, Wis. – Attorney General Brad Schimel insists there is nothing unconstitutional about a bill that would give his agency administrative subpoena power to help agents track down online predators.
Assembly Bill 666, also known as “Alicia’s Law,” does not require judicial oversight over the subpoenas, a fact that is unsettling for public defenders and others concerned the law would leave the door open for prosecutorial mischief.
Schimel tells Wisconsin Watchdog that 19 other states have full administrative subpoena authority, and three others use a kind of hybrid form. Federal prosecutors also have used the tool for years.
“This has been tested in the courts, because it doesn’t involve content, it doesn’t authorize police to search and seize anything,” the attorney general said. Therefore a “lower standard is acceptable.”
The intention of the subpoena power is to compel Internet service providers to turn over online addresses of suspected predators and child pornographers.
But the wording of the bill raises questions about how far investigators would be allowed to go in their search for a suspect.
As the legislation 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.”
Schimel said the bill’s documents and records provision would only relate to online addresses and the names of individuals on those accounts. He said it’s a “phonebook” measure. Besides, the AG said, federal law makes it illegal for ISPs to turn over content without a search warrant, and the administrative subpoena is not a search warrant.
The bill includes 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.
Schimel said he is open to having language that clearly states the subpoenas are to be used for Internet address searches, not for obtaining online content.
The model legislation is named after Alicia Kozakiewicz. Now 27, Kozakiewicz was 13 when she was lured from her Pittsburgh home by an online predator, who kidnapped her, then raped and photographed her for four days. Law enforcement agents were able to track the perpetrator online, crash into his home and rescue her.
To pay for the increased costs to administer the initiative, anyone convicted of a misdemeanor would be assessed a $20 surcharge. Those convicted of a felony pay an extra $40.
The Legislative Fiscal Bureau this week estimated the surcharges could generate about $1.62 million in annual revenue. That figure assumes 70 percent of surcharges are paid.
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.
Another amendment would assess surcharges only on those convicted of Internet and child-related crimes. That, of course, would bring in less money. Some lawmakers have suggested Schimel ask for a boost in the Department of Justice budget to cover the costs. The AG said he would welcome that funding source, but isn’t counting on it.
Schimel doesn’t have much sympathy for convicts forced to help pay for the cost of crimes.
“The question comes down to, is it going to be taxpayers who pay for (the initiative) or people who commit the crimes,” the attorney general said.
AB 666 had been on a fast track to the Assembly floor. It now awaits scheduling from the Rules Committee.