At a time when rolling back federal surveillance programs seems particularly challenging, we can still have a major effect here at the state level. Recently, Attorney-General Martha Coakley proposed a new bill that would actually loosen Massachusetts’ wiretapping laws – by a lot. The bill, called “An Act Updating The Wire Interception Law” (S. 654 / H. 3261), is coming up for a hearing before the Judiciary Committee of the Massachusetts legislature on July 9, along with a stack of other privacy-related legislation that might actually be good.
The wiretapping bill’s major provisions:
1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.
2) Double the length of an authorized wiretap, from 15 to 30 days.
3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.
The mass interception provisions in this bill are new, and are especially worrying. Both the Fourth Amendment and our own state constitution’s Article XIV forbid ‘general warrants’ that tap entire streams of personal information without specifying ahead of time what’s being searched for and whose records are being searched. So my group Digital Fourth, in coalition with the ACLU of Massachusetts, Demand Progress, Fight for the Future, the Bill of Rights Defense Committee and the Electronic Frontier Foundation, has launched a petition to oppose this bill.
I’d be very grateful to you as a member of the BMG community, if you’d sign it and tell your friends! Don’t be one of those Democrats who opposes this stuff only when the other side does it!
UPDATE (by David): I received the following response to this post from the Attorney General’s office today. I have reprinted it in its entirety.
The above blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law. Updating the wiretap law is a critical tool to combatting gang violence, gun violence, human trafficking, and many other violent crimes that undermine public safety in our communities. And equally important to what it does, is what it does not do. One thing it does not do is alter in any way the many safeguards already put in place under the current wiretap statute to protect against abuse.
I will explain some of the benefits of this new law further below, but first want to correct some of the inaccuracies in this blog post:
1) The proposed update to the wiretap law does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.
2) Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.
The current wiretap law has not been updated since 1968, back when criminal activity and technology was vastly different. In 1968, the law was focused on “organized crime.” A 2011 SJC decision that upheld the suppression of statements obtained by a wire interception during a murder investigation stated very clearly that the investigation and prosecution of some of today’s most destructive crimes, including street violence, are hampered by this antiquated statute. The SJC urged an update to the law.
The updates we seek are common-sense and concise, including:
• Bringing the law up to date with technology: The legislation acknowledges that today communication is largely electronic and wireless. By updating the definition of “wire communication,” the bill makes explicit the law’s application to cellular and text technology without tailoring the definition so narrowly as to foreclose future technological developments.
• Removing the organized crime requirement: Currently, criminal activity that is the subject of a wiretap must have a connection to organized crime. The majority of street violence and gun crimes today, though often tied to looser organizations, nevertheless lack the traditional hallmarks of organized crime.
• Including additional violent or egregious crimes as designated offenses: Prior to seeking a warrant for a wiretap, law enforcement must establish probable cause that a “designated offense,” as defined in the statute, has been committed. The current list of designated offenses does not include some of the most violent and egregious crimes that law enforcement must investigate and prosecute today—and that the Legislature has correctly passed since the law’s inception— including human trafficking; firearms offenses; and child pornography offenses.
The law also maintains extensive safeguards that already exist under current law. First, any wiretap must be requested and signed by either the elected Attorney General or District Attorney and then authorized by a Superior Court judge. The judge can only authorize a wiretap for serious felonies where there is probable cause that a designated offense has been committed, and after all other investigative techniques have been exhausted or will not be successful. There are additional safeguards that ensure that only the conversations with direct correlation to the alleged crime are recorded and then permissible in any legal action.
For all of these reasons, these updates are supported by district attorneys, police, mayors, and many other community leaders who know that the only way that we will be able to better keep our communities safe is to give our investigators effective tools, with proper safeguards, to take the most dangerous criminals off the streets.
You can find more information about the proposed bill here:
Director of Communications
Office of Massachusetts Attorney General Martha Coakley