Mass Judiciary Committee Holds Privacypalooza, Will Report Out Bills By March 2014

Alex Marthews (Digital Fourth), Pat Scanlon (Veterans for Peace), Kit Walsh (Harvard Law) and Carol Rose (ACLUm) testifying at Judiciary hearing
Alex Marthews (Digital Fourth), Pat Scanlon (Veterans for Peace), Kit Walsh (Harvard Law) and Carol Rose (ACLUm) testifying at Judiciary hearing

Yesterday, starting at 1pm and stretching long into the night, the Massachusetts Legislature’s Joint Committee on the Judiciary held a hearing on pending legislation, including on many privacy and surveillance-related bills. Members of the public started lining up more than an hour beforehand, trying to get on the list to testify not just on the privacy bills but on domestic violence protections, transgender rights, immigrant rights and animal cruelty. By 1pm, the crowd numbered in the hundreds, and the room was obviously not going to hold all of us, so we got moved to the much larger Gardner Auditorium which (just about) held everybody.

First up of all was Martha Coakley, the attorney-general, with two uniformed law enforcement officials and Mayor of New Bedford Jonathan Mitchell. She expressed frustration at the reporting on some blogs (oh hai Martha!) that had drawn parallels between her proposal to loosen Massachusetts’ wiretapping laws and the NSA surveillance programs that have been the subject of so much scandal over the last month. She emphasized that her bill preserved all of the previous procedural constraints relevant to the Fourth Amendment, such as warrant requirements, going before a judge before the fact, and so on (though I note that it does in fact double the length of time a warrant can run without renewal from 15 to 30 days). The other law enforcement officers also emphasized the procedural protections, and talked about how important it was to update the wiretapping law because it had been written when Massachusetts’ biggest law enforcement problem was “La Cosa Nostra”. They talked about the fact that the Supreme Judicial Court has made suggestions for revising the wiretapping laws as part of their ruling in Commonwealth v. Tavares, which held that in order for a wiretap to be valid, it must be connected to organized crime in the sense that the crime must have been committed “in pursuit of organized efforts to supply illicit goods or services,” a criterion which presumably most drug enterprise crime would meet.. They asserted that they have trouble prosecuting drug and gang violence that doesn’t rise to this level of “organized crime.”

Representative Christopher Markey, whose district covers Dartmouth and parts of New Bedford, strongly challenged the panel. His perspective was that it would be possible to reform the wiretapping law such that for the most serious crimes, like murder, no nexus with organized crime would need to be demonstrated, but that the nexus with organized crime could remain for less serious crimes. He expressed concerns that wiretapping would violate the privacy of people suspected of less serious crimes like dealing marijuana, and that the bill went too far in expanding out the list of offenses for which one could take out an electronic wiretapping warrant.

After their presentation, it was the turn of the legislators with bills before the Judiciary Committee. Senator Karen Spilka spoke compellingly about the Electronic Privacy Act, which she is cosponsoring. There were so many bills that it was 4pm, three hours into the hearing, before the legislators had finished testifying. Unfortunately, many great people who had turned out to testify weren’t able to stay long enough for their turn to come. After 4pm, panels of speakers went up in turn, till at 7:15pm it was our turn.

The privacy testimony panel was organized by the ACLU of Massachusetts, and consisted of Carol Rose, Gavi Wolfe and Kade Crockford of the ACLUm; Kit Walsh of Harvard Law School; Pat Scanlon of the Veterans for Peace; and myself, speaking for Digital Fourth. Carol spoke on Massachusetts’ tradition of protecting liberties, and particularly the Fourth Amendment. Gavi talked about the Electronic Privacy Act and the need for warrant protection for digital data. Kade Crockford brought up the important topic of drone privacy. Pat Scanlon told the sorry story of government surveillance of our local chapter of Veterans for Peace. I spoke on the wiretapping bill, and challenged the narrative of the Attorney-General from earlier in the afternoon. At this point in the hearing, Representative Markey was not there, but the pro-privacy mantle was taken up by Representative and former primary candidate for US Senate Dan Winslow, who cheerily described himself as “the legislature’s only libertarian” and offered to broker meetings between the panel and the Attorney-General. That call was echoed by Senate Co-Chair Katherine Clark, who as a sponsor of the wiretapping bill had trouble seeing any liberties that the bill would threaten. Her approach was essentially the formalist one that if the procedural constraints remained largely intact, it did not matter how many offenses were wiretappable; her perspective was that law enforcement would use its discretion wisely to wiretap only for serious crimes. Representative Carlos Henriquez of Dorchester expressed ambivalence: he could see the privacy concerns, but was also very concerned about the number of unsolved violent crimes in his district, and felt that perhaps broader wiretapping laws might help solve them. I observed to the panel that the bill was not popular, as evidenced by the over 4,000 signatures in our petition; that the defendant in Commonwealth v. Tavares was actually convicted of murder at retrial, meaning that the Attorney-General had presented no example of anyone walking free today who could have been convicted under looser laws; and that press reports suggest that prosecutors have no real trouble under current law in securing convictions for the kind of loosely organized criminal activities that were concerning them.

After the panel, other privacy activists, including Kinetic Theorist of #MassOps, waited their turn and had their say. I left around 9pm, and it was clear even then that the hearing would go several hours longer.

It appears that the Joint Committee now has until March of 2014 to report out bills favorably or unfavorably, and they have in the past asked for extensions. The sheer volume of bills is so large that it creates serious logistical headaches for both legislators and members of the public. We found ourselves wondering whether it would be possible for the list of people to testify to be posted publicly, so that people testifying could estimate how many hours it would be before they were due to testify. Those testifying were not sorted by bill, so the order of testimonies was jumbled in a way that made the pros and cons of each bill hard to follow. I felt a lot of sympathy for the people who had come with their children, because there was nothing for the kids to do and no way to foresee how long their parents would have to be there. But we’re very grateful to the ACLU of Massachusetts and particularly to Gavi Wolfe for working so hard to bring people to testify, and grateful too for the patience of the committee members in wading through so many important issues.

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