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On Tuesday, the Joint Committee on the Judiciary heard testimony and took questions from lawmakers regarding Gov. Charlie Baker’s recent filing of an act to modernize Massachusetts’s wiretap laws (H.4347). The more than two hour hearing featured both supporters and opponents of the bill.
At its core, the bill proposes an update and expansion to the wiretapping law from 1968. The original bill, which has not been updated since its adoption, limits wiretapping to “organized crime.” Baker is proposing that law enforcement should be able to use wiretapping to investigate other crimes, like murder, rape, and trafficking.
Baker’s bill also expands the list of communications covered to include forms of communication that were not as prevalent, if not all, when the bill was originally authored, like “wireless, electronic, digital, radio, electromagnetic, satellite, cellular, optical or other technological means.”
The bill does not change that any wiretapping has to be approved by a Superior Court judge, or that only the attorney general’s office or a district attorney’s Office can request a wiretap.
Massachusetts’s current wiretapping law is one of the most restrictive in the nation, and it details not only how police can use wiretaps to collect evidence, but also what citizens can and cannot record. The 1968 version of the law makes organized crime the main target of police electronic surveillance. It also says that secretly recording interactions violates the statute.
The federal wiretapping statute, as well as most states, requires only one-party consent to record. Massachusetts, along with a handful of others, however, requires all-party consent.
The push to update Massachusetts’s wiretap rules is not a new one. In fact, it has spanned decades — in 1992, the governor, attorney general, and elected district attorneys pushed the Legislature to update it to no avail. Now, Baker, Lt. Gov. Karyn Polito, Attorney General Maura Healy, and the state’s 11 elected district attorneys are among supporters of the update. It’s not even Baker’s first time filing this legislation — he also filed it in 2017.
Advocates of the bill agree that expanding when wiretapping can be used will help law enforcement solve crimes in a modern world, while opponents say it is an unnecessary overreach of government surveillance.
“As technology evolves and the public safety landscape changes, so too should the tools we use to keep our communities safe,” Baker said in a Jan. 21 press release. “The commonsense changes to the wiretap statute we are again proposing today would finally update this 50-year-old statute to recognize that law enforcement should be able to use the same tools to solve a murder committed because of racial hatred or gang affiliation that they use to solve a murder committed in connection with organized crime.”
In the virtual Joint Committee on the Judiciary hearing Tuesday, Massachusetts State Police Col. Christopher Mason expressed his support of the bill, saying although he is aware of privacy concerns, the bill maintains the high level of review required to authorize a wiretap.
“This bill will be a valuable tool to be used towards securing justice for victims of some of the most heinous crimes we investigate, while not retreating one inch from the rigorous safeguards and established authorizations currently in place to ensure appropriate collection of wiretap evidence,” Mason said.
Other supporters at the meeting brought up the circumstance in which expanded wiretapping abilities could help victims and witnesses of crimes — it may not be necessary to call a witness who may fear for their safety if law enforcement could instead rely on wiretap information. Many also pointed out that both the technology and crime landscapes have changed dramatically in the last 50 years, and said the law should be updated to reflect that.
Kade Crockford from the American Civil Liberties Union testified in opposition to the bill and said it could have “far reaching negative effects and open up a Pandora’s box of potential unintended consequences, including political harassment and intimidation.”
“Monitoring the content of personal communication is a tool that is best suited to identifying and disrupting serious criminal activity that is coordinated among multiple parties, which is exactly what the current statute enables,” Crockford said. “Unfortunately, the bill before this committee represents a sweeping and gravely dangerous expansion of the wiretap statute.”
Crockford said the ACLU of Massachusetts asked the committee to recommend the legislation does not pass.
Opponents also brought up that the new proposal opens the door for surveillance for any number of crimes that they don’t believe warrant the invasion of privacy. Others, like Harvard Law School professor Kendra Albert, pointed out the plethora of other tools at law enforcement’s disposal for collecting information without a change to the wiretap rules, including access to GPS data from cellphones and the placement of cameras outside a suspect’s home with a warrant.
“I understand that law enforcement would prefer to have more tools at their disposal and that there will always be cases where the ability to gather wiretap evidence would seem to have made the difference between a successful prosecution and a defendant that walked or maybe was never charged,” Albert said. “Nonetheless, Massachusetts wiretap laws stand as it is, as it strikes a compromise between a uniquely invasive form of surveillance and the need to gather evidence.”
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