MADISON, Wis. – The bill known as ‘Alicia’s Law,’ is slated for consideration in the Senate Committee on Judiciary and Public Safety on Monday morning, and it looks like the legislation could be revised to deal with some constitutional concerns.
Senate Bill 546 grants the state attorney general’s office administrative subpoena power to help agents track down online predators.
Strapped with the unfortunate bill number AB 666 in the Assembly, the measure does not require judicial oversight of the subpoenas, a fact that is unsettling for public defenders and others concerned the law would leave the door open to prosecutorial mischief.
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.”
Administrative subpoenas would be issued 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 earlier this month before the Assembly Committee on Criminal Justice and 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.”
Scott Kelly, chief of staff for state Sen. Van Wanggaard, R-Racine, who chairs the Judiciary and Public Safety panel, said an amendment would “drastically narrow down” the administrative subpoena. It would give the attorney general or his designee the authority to ask Internet service providers to turn over Internet protocol addresses. The administrative subpoena would not allow law enforcement officials to dig into online content without a warrant, Kelly said.
“I think their concerns about the administrative subpoena were right on,” Kelly said. “We don’t want to get into civil liberties when talking about information like IP addresses.”
Asked if the amended bill would specifically state that the administrative subpoenas could not be used to search content, Kelly said, “that’s the intent.”
Schimel told Wisconsin Watchdog last week the bill’s documents and records provision would relate only to online addresses and the names of individuals on those accounts. He called it 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.
One proposed amendment would remove 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 has 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.
State Rep. Evan Goyke, D-Milwaukee, a vocal critic of the bill and member of the Criminal Justice and Safety Committee, did not return a call seeking comment.
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.
Kelly said a controversial provision that would create surcharges for all felony and misdemeanor convictions to help pay for the state Department of Justice Internet crimes initiative would be changed under the revised bill. Instead, the DOJ would use surpluses from two existing surcharges to fund the effort – to the tune of about $1 million. Kelly called it a stopgap to get the funding started.
If the bill moves out of committee, it would go to the Legislature’s Joint Finance Committee. Kelly said he is hopeful that ‘Alicia’s Law’ will move to the floor for a vote on Feb. 9.
“I suspect it will,” the aide said.
Click here for the committee agenda.