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blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law.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:
http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-28-wiretap-legislation.html
Sincerely,
Brad Puffer
Director of Communications
Office of Massachusetts Attorney General Martha Coakley
This is all too typical of Martha Coakley.
I think it also needs to be said that this issue seems to transcend party lines. All too many Democrats support these programs (including at least some of our own participants here), and at least some of the truly conservative Republicans oppose them.
…she’s in a race with Karen Spilka, who has just introduced a bill discussed here that seems to move in very much the opposite direction.
Item #3 above strikes me as unconstitutional, but #1 and #2 I always assumed were judged on an ad hoc basis anyway.
The lead sponsor appears to be Katherine M. Clark with these co-sponsors: Barry R. Finegold, Angelo J. Puppolo, Michael R. Knapik, Thomas M. Stanley, Bruce E. Tarr. Tarr and Knapik I get. But I’d love to hear the rest of their explanations for supporting this bill.
just lost some support in the Congressional race.
Is this a “be best friends with law enforcement” deal I guess?
This is infuriating from the AG who years ago filed photo Op front page legislation, An Act to Combat Economic Crime that the wiretapping laws needed to be updated prior to any casino legislation (from the archives) and then laid-down…..did nothing but lay-down as the expansion of gambling went through without the criteria she laid-out needed to be in place. This is an abysmal record for an AG of the Commonwealth of MA.
Well, if the co-sponsor list is correct, the western MA boys are true to form and no substance…..Tarr…..whatever……and the MA-5 Congressional primary just lost one of two women contenders.
But truthfully, she’s way off on this one. She launched it in Feb in a way different political environment, post-Newtown, and didn’t figure people would get riled up about surveillance like they are getting.
This speaks to a career of political actions based on calculated outcomes not a leader with a true inner compass.
Remember what Coakley had to say about that? You don’t, because she had nothing to say about it. The closest thing I could find was this:
So – people were being harassed, arrested, and prosecuted for exercising a right that a federal court ruled was theirs*. The harassment and prosecutions were fine with Coakley.
She does not display any commitment to the rights of citizens in the hands of police. So many of her efforts have been aimed at making prosecutions easier while ignoring the impact those changes would have on the public. Too much politics; far too little justice.
* Note: if you’re going to record cops, do not conceal that you’re doing it.
“This office has not issues any advisory or opinion…” most certainly does NOT equal her being fine with the harassment and prosecutions. Do you always put “no comment” in the worst possible light? Do you assume that one who exercises 5th amendment rights must be guilty? It sounds like you are doing that here.
I put in the context of her unbroken record of supporting increased police power, while ignoring the effects on the rest of us. Here were cops blatantly abusing their power and misinterpreting a law against clandestine audio recording to prevent their activities being made public. Coakley had no opinion on their doing it. Her spokesman said it was somebody else’s job. To me, that says she was fine with it.
She’s the most powerful enforcer in the state, choosing to ignore harassment and prosecution. This has zero to do with the fifth amendment.
The comparison was only to the extent that somehow silence is supposed to imply something. I say it doesn’t. Others apparently disagree.
Comparing an elected official’s failure to express an opinion on something – which expression is part of her job – with arrested persons’ refusal to incriminate themselves is really reaching way past anything reasonable. Are you Elasticman?
No police officer has a constitutional right to abuse and harass anyone.
Silence DOES mean something. When a person sees a crime happening and says nothing, that silence most certainly does mean something. The fifth amendment is needed precisely because, in its absence, a refusal to answer could be misinterpreted.
Your comparison to the fifth amendment is both false and offensive to anyone who treasures liberty and freedom.
I just think we can make a laundry list for a lot of people of, “Why didn’t you speak on…?” I can see the value of the AG saying something on this, but it is completely unfair for us to assume what she believes or put words into her mouth.
Not when the issue in question is directly within her responsibility and authority as the AG.
Given the rather lengthy list of her past transgressions against commen sense and justice, I don’t think the assumption is unfounded at all.
If her silence cannot be the basis of an assumption of what she believes, then it can certainly be the basis of a conclusion that she is in complete deriliction of her duties as AG.
I think it would be one thing to say the AG should speak up. The original comment in this subthread was kirth intepreting her silence in a way I found, and still find, to be unfair.
she desperately wants to be A.G. She can taste it. Total nazi-ista. Loves prosecuting poor slobs and turning the thumbscrews to them because she could.
She’s also the smartest person in the room. She’s from Colorado you know, and us Bostonians don’t know nothin’. Ask her.
Anyway, if you loved the Cahill fiasco, the probation disgrace, the Tookie torture, or any other prosecutorial over-reach and headline grabbing than you will love Catherine Clark.
She wants to tell you and me and everyone else how to live our lives and if we don’t there is a criminal charge for not falling in line.
The Catherine Clarks and martha Coakley’s are the biggest problem facing our country. Not terrorism.
Not just those two, either.
The liberty-smashing privacy-shredding hysteria for “security” is, in fact, the most immediate fruit of the terrorist attacks against us. Like an auto-immune disorder (which is how ALL terrorism should be treated), the attacks turn our “protection” capabilities against ourselves.
The Catherine Clarks, Martha Coakley’s, Diane Feingolds, and their ilk are doing precisely what Osama Bin Laden and the terrorists desire.
This is how the tiny number of Muslim extremists in the world destroy the freedom and liberty of our American society.
I cannot speak to your accusations about Clark other than to say I hope no one in support of the AG’s bill goes to higher office.
I do not agree that Coakley’s major flaw is over-reach. That may be a tactic she has employed, but her major flaw is not having a belief system that is deeply and unshakably founded in justice and democratic values…..at least not one that rules her priorities and actions. Her political needle leads her values and a decent, let alone good AG, needs it wrapped the other way around.
Add the POTUS’ blatant lack of disclosure to the American public about drones, surveillance, “in bed with the fed,” renditions…..and the SCOTUS’ “values” based justice to your last line.
Downgraded for your use of the term “nazi-ista.” Look, I disagree with Senator Clark on this one, but she’s not a “nazi-ista,” we just disagree strongly on what powers the state / police should have. (And, not for nothing, as a progressive Jew I’m pretty tired of the comparisons to the Third Reich running around lately. And yes, I know that Godwin’s Law “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”
That said, this legislation is *deeply* troubling and I would be really interested to see Senator Clark, AG Coakley or any of the co-sponsors come here to BMG and explain it to us.
See the update in the post for a response from the AG’s office.
That is helpful and more or less what I was looking for.
The AG’s response is appreciated and I am glad that they are watching BMG reactions to the bill. Isn’t it ironic that the tactic of watching and measuring responses is how the office is led and priorities are set. Not so much on principles – proved my point up stream.
The statute needed updating years ago as I have cited above, particularly to incorporate current technology and language pertinent thereto. Most reasonable folks can agree with that premise.
Mr. Puffer’s reply however, left me with a taste of gloss covered by ambiguity. I hope ACLU will find the opportunity to provide their reasoning for opposing the bill. I noticed that some of the points in the original post about the potential impacts of the proposed legislation were not in fact answered, but left to interpretation and that is a slippery slope.
Let’s start with, “what’s a street gang?”
http://www.youtube.com/watch?v=pq28qCklEHc
What are “the traditional hallmarks of organized crime,” beyond being organized and committing crimes? Does organized crime require having lawyers, or wearing suits, or what? Nice shoes? Do the Hell’s Angels qualify?
The “response” disturbs me as much or more than the original summary.
No matter how much lipstick is applied, this proposal is still very much a pig.
1. Would this law give power to all local police departments in the state to seek a warrant if they are investigating any crime or potential crime that can carry at least one year non-mandatory sentence? This of by definition would include many misdemeanors.
2. What is the definition of a gang or the words used in the bill which would apply to what is commonly referred to as a gang.
Thank you
As I read the bill, it does make possession of marijuana eligible for a wiretap. Section 4 expands the definition of “designated offenses” to “any violation of chapter 94C”. It does not require that they even be a crime. So as long as marijuana possession violates 94C, even as a technical violation, wiretapping is allowed. Federal restrictions on wiretaps are irrelevant because marijuana possession is still a felony under federal law.
So, does marijuana possession violate 94C? Yes. Even under the decriminalization statute, section 32L of 94C, possessing an ounce or less of marijuana is a civil offense. Thus, still a violation of 94C. And possession larger amounts is still a criminal violation of 94C.
Please, AG Coakley, show us a little more respect.
In terms of wiretapping, there would be little distinction between simple possession and possession with intent to distribute. They could just argue there was intent to distribute, which is something the police and DAs have been doing to get around the decriminalization statute. “Oh, you have three joints on you? You must be a dealer.”
I just served (last Thursday) as a juror where this is precisely what happened.
The defendant was charged with possession with intent to distribute, and a key factor emphasized by the prosecution was that the defendant was in possession of three one-ounce bags of marijuana. Say what? I submit that just about anybody who partakes of the evil weed has had three (or more) lids in their possession for personal consumption at one time or another. I grant you that somebody caught with a dry-cleaning bag full of weed probably intends to distribute it — but a few ounces is for many a modest one-month supply. BTW, we found the defendant guilty of the lesser offense (possession) — the prosecution utterly failed (they didn’t seriously try) to prove “intent to distribute”.
Don’t forget school-zone violations as well — this provides an additional prize to tempt a resume-building prosecutor. The prosecution in my case charged that as well. That violation provides draconian penalties for possession with intent to distribute (but not simple possession) if the violation occurs within 1,000 feet of a school or public park. We, of course, found the defendant not guilty of the school violation because the prosecution failed to prove intent to distribute.
The bill put forward is bad enough on its face — the second update is at best a misleading distortion of what actual prosecutors do every day.
Cops intentionally pull over kids near schools to add that charge. A mandatory minimum,
Outrageous. Not too many places in dense urban settings not within a school zone.
It’s a joke used to discriminate and control.
The D.A.’s a as narrow minded as ever and keep demanding more. Time to give them less.
What an interesting response from the AG’s office. Did we hit a nerve here?
Let’s take the points one by one.
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.
Undoubtedly, each wiretap must be applied for and authorized individually. However, the bill envisions single wiretap orders that would intercept communications on a mass basis, at phone company switching stations. An appropriate analogy here is with the recently disclosed FISC order to Verizon to disclose metadata on all calls to the NSA. It was one wiretap, “applied for and authorized” by a federal judge, but it covered every Verizon user’s calls.
The language in question in the bill is as follows:
Old language:
New language:
Why does the bill contain language specifically revising the definition of a “wire communication” eligible for a wiretap order to include a “connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities”, if not to allow specifically this kind of interception?
To say, Oh, it’s not mass interception because there would only be one wiretap order, in the light of recent revelations, is deeply misleading, in the absence of a guarantee that the single wiretap order would not be used to collect data relating to all people’s communications passing through a switching station.
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.
I refer interested readers to the analysis of seamusromney above, who is not affiliated with Digital Fourth, but who believes, I think accurately, that the bill does leave space for marijuana possession to be eligible for electronic wiretapping warrants.
It is, of course, possible that this is unintentional or a result of poor drafting, and that the AG’s office does not intend to take out electronic wiretapping warrants for such minor crimes. But Mr. Puffer simply asserts that the bill doesn’t cover marijuana possession, without showing language from the bill itself that would limit wiretaps to crimes carrying a one-year prison sentence or more. Perhaps the AG’s office did not feel such language was necessary to add to the bill. In the light of the revelation that the federal authorities certainly don’t seem to feel constrained by federal law in this matter, we believe that more clarity within the bill itself would be appropriate, to forbid such wiretaps for minor crimes.
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.
We appreciate that it is frustrating for law enforcement to be bound by the constraints of laws that are 55 years old. Indeed, it is no doubt frustrating for them to be bound by constitutional constraints that are over 200 years old. However, in order to have these constraints loosened, the AG’s office has to describe to the people of Massachusetts, with particularity, cases where the constraints of the law as it stands have actually prevented people being convicted of crimes. The only example they have publicly announced is the Paolo Tavares case. Tavares was accused of murder, and had to be retried after his initial trial fell apart on the exclusion of wiretap evidence that was not collected within the constraints of the existing Massachusetts statute. However, even in that case, the defendant was convicted at his retrial and is now serving a long sentence for first-degree murder.
They have simply presented no evidence to suggest that there are any criminals who are walking free as a result of having very limited circumstances where electronic wiretapping warrants are permitted. If the problem were as severe as they claim, they ought to be able to present plenty of examples, and we invite them to do so publicly.
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.
I’m sorry, but many firearms offenses are not in fact “violent and egregious.” Even setting aside the concerns over the fact that the law does not make explicit whether crimes carrying a sentence of less than one year are excluded or not, there are non-violent crimes that ARE covered that can carry longer sentences, such as knowingly filing a firearms license application containing false information (General Laws ch. 140 section 131(h)) – an inadvisable crime, to be sure, but not a violent one in itself.
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.
We would be interested in more specificity here, especially in the context of the switching station wiretaps. We appreciate that it is unlikely that everyone’s calls going through a switching station would be permissibly used in a legal action investigating a target’s calls at that time. However, our understanding of both the Fourth Amendment and its stronger state cousin Article XIV, is that collecting non-suspects’ phone call data even with an intent to discard it if it doesn’t prove relevant is also Constitutionally barred.
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.
There is no evidence presented by Mr. Puffer that such a change in the law will make us materially safer. Despite the bill’s supporters’ scaremongering on this matter, criminals do not “have the upper hand” here in Massachusetts: crime per head is at historic lows. This is not the time to be giving law enforcement a freer hand to nose into people’s communication.