MA- JOE BURNS: Limiting limits on rights protects us all

8-16-2008 Massachusetts:

QUINCY — Nothing elicits e-mail like a column favoring gun control. More than one e-mailer has passionately pointed out to me that gun ownership is a Constitutional right just like freedom of speech, freedom of the press and freedom of worship, and cannot be restricted.

But of course those freedoms are restricted. If I were to slander someone in this column I can pretty much count on being sued for libel. If I practiced polygamy as some religions allow and encourage I would be violating the law in this country.

Some limitations are generally accepted as either common sense applications of the law or as being consistent with the moral values of the vast majority. Other limitations, such as gun control, continue to be controversial because some people see it as an infringement on Second Amendment rights and others see it as a way of protecting society.

Like the Second Amendment, the Fourth Amendment, which protects citizens against unreasonable search and seizure, has also recently been put to the test on Beacon Hill. It failed.

Last week Massachusetts became the 44th state to pass a version of “Jessica’s Law,” which takes its name and mission from the 2005 rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender. The crime was committed in Florida, which became the first state to enact laws calling for stiffer sentencing for the rape or sexual abuse of a child.

Democratic State Sen. Cynthia Stone Creem, representing Norfolk and Middlesex counties, was the lone senator to vote against the Senate version of the bill. Writing in the Massachusetts Lawyers Weekly, Creem defended her vote, criticizing the use of mandatory sentencing in general as being an ineffective tool that doesn’t deter crime and ties the hands of judges. It’s a view that many share.

While the wisdom of mandatory sentencing can be debated, all can agree that someone found guilty of a heinous crime deserves a loss of freedom. But another portion of the bill affects everyone’s freedom.

Under the new law, Massachusetts police and prosecutors no longer need a subpoena to check on who you’ve been sending e-mail to and who’s been sending e-mail to you.

A subpoena is still needed to read the contents of your e-mail.

Emily Lagrassa, a spokeswoman for Attorney General Martha Coakley, said that the measure was just an “updating” of existing laws that already allow police and prosecutors to look at phone records.

Creem disputes that interpretation, describing it as giving prosecutors “sweeping new powers to demand subscriber information from both telephone companies and Internet Service Providers ... and ultimately circumvent everyone’s Fourth Amendment rights.”

Remember The Patriot Acts that whittled away our rights of privacy in the name of the War on Terrorism? Now fear of pedophiles has become the new lever to pry away our rights, and fear shouldn’t be the back door to gain entry for laws that compromise the legitimate rights of the innocent.

“We’re concerned about the way that a measure like this has been snuck through in the name of protecting children. It gives this largely unchecked power to request this information about people who may not even know they’re being looked into,” said Chris Ott, communications manager for the Massachusetts ACLU chapter.

The Fourth Amendment guarantees us freedom from unreasonable searches and seizures. It ensures that law enforcement agents can’t go snooping into our personal effects without just cause. The bill that Gov. Deval Patrick signed gives police and prosecutors permission to violate that right.

Imposed limits on our freedom must exist if we wish to avoid anarchy. However, those limits must have their own limits and the threshold should be just cause, not just because. ..News Source.. by Joe Burns, Joe Burns is a columnist for The Register, a weekly GateHouse Media newspaper on Cape Cod. Email him at jburns@cnc.com.