Attorney General Martha Coakley is renewing her push to update the state’s more than 40-year-old wiretap law, hoping legislators this session feel the need to broaden law enforcement’s electronic surveillance capabilities.
“This Massachusetts law has not been updated since 1968. Not only has there been a huge change in the reality of criminal activity in our streets, in our communities, in fact, large and small – but the realities of electronic communication have left our police and prosecutors literally trying to fight some of these battles with one hand behind our back,” Coakley told reporters during a press conference Monday morning. “It’s really like saying, ‘We’re going to ask our local police to still ride on horses after criminals have taken over automobiles.’”
The update would remove the requirement that wiretaps be used only for “organized crime,” would broaden the number of crimes that can be investigated with wiretap technology – expanding it to include rape and human trafficking – and it would allow wiretaps on cell phones, text messages and other forms of wireless communication. The bill would also extend the term of a wiretap from 15 to 30 days.
A House-Senate conference committee last July dropped enhanced wiretap provisions from legislation loosening sentences for non-violent drug offenders and making repeat violent offenders ineligible for parole. The Senate included the wiretap plan in its bill but the House’s sentencing bill did not include it.
Coakley was joined by law enforcement representatives and the bill’s co-sponsors, the expected returning House Judiciary Chair Eugene O’Flaherty (D-Chelsea), expected returning House Telecommunications, Utilities and Energy Chair John Keenan (D-Salem) and Sen. Katherine Clark (D-Melrose).
After Coakley’s press conference, O’Flaherty expressed some reservations about the legislation.
“We want to be careful that we’re not extending this and literally giving a fishing rod for a fishing expedition. It needs to be narrowly tailored,” O’Flaherty told reporters. Asked if he had ever supported such a bill before, he said, “I have not. I’ve had great trepidation about intrusions into privacy.”
O’Flaherty also expressed the need to not allow criminals to have the upper hand, and said a constituent told him she is afraid to allow her son to walk to the store for fear that he will be recruited by a gang.
"We should be very, very wary of law enforcement claims that it needs more and broader powers to listen in on our private conversations - by phone or email or text. 'Updating' wiretap and other laws should mean fuller protections for our privacy rights, not an expansion of government surveillance powers,” said Gavi Wolfe, legislative counsel for the ACLU of Massachusetts.
Local police praised the way the legislation would update the technology that could be used by investigators, and addresses criminal enterprises that may be less centralized than traditional organized crime rings.
“I am unsure of the last time where we had a report where La Cosa Nostra fired a round inside the city of Boston, but we had a significant takedown of violent youth gangs last week,” said Boston Police Superintendent in Chief Dan Linskey.
Coakley said under the new legislation wiretap warrants would still require a warrant and probable cause, oversight by a judge and a significant outlay by investigators.
“I think people have some sense that we can just listen in on everything that happens. That’s not the case. It’s never been the case. It won’t be the case, here or in Massachusetts ever,” Coakley said. She also said, “It’s not something that’s ever done lightly or frivolously, but it is done as a last resort in some instances for an organization on the streets that continues to commit crimes that we can’t get at any other way.”
While land-line phones may have fallen out of fashion with criminals and others, phone technology has also made advancements since 1968. The phones of that earlier era did not record incoming and outgoing phone numbers, receive texts, store emails, photos or geographic tracking data, as modern phones do.
Coakley and O’Flaherty both said they thought a 2011 Supreme Judicial Court ruling would sway the pendulum toward passing legislation to update the law.
That ruling upheld a Superior Court judge’s ruling to suppress surreptitious recordings made by a police informant in a 2011 Brockton murder case. The SJC ruled that the murder, which was allegedly done as retribution against someone who had stolen a gun, did not meet the “organized crime” definition that would have allowed a wiretap. Defendant Paulo Tavares was subsequently convicted of first degree murder.
“In short, the legislative inclusion of five words, ‘in connection with organized crime,’ means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation,” the court ruled. “If the Legislature wishes to avoid this result, it should amend [section] 99 to delete those words.”
That deletion is one of the main elements of the wiretap bill.
“It seems ironic that a defendant’s own words can be used against him if he’s a loan shark or a bookmaker but not if he’s a killer,” said Norwood Police Chief William Brooks.
O’Flaherty said he thinks the bill should stand on its own rather than being meshed with sentencing reforms proposed by Gov. Deval Patrick.
“I always thought that it should have been treated as a standalone piece,” O’Flaherty said.
Asked if she believes criminals today have the upper hand, Coakley said, “Yes.”
In arguing for the wiretap proposal last session, Senate Ways and Means Committee Chairman Stephen Brewer said during a November 2011 floor debate, “If we’re going to get after these people who wreak poison and mayhem in our society, then we need to be strong on behalf of our citizens.”