Clark and Coakley Push Wiretapping Law Update That Supreme Judicial Court Never Really Asked For

Senator Katherine Clark, the Senate Co-Chair of the Judiciary Committee who is also running for Congress in Ed Markey’s old district, is penning op-eds in defense of her positions on privacy legislation. She supports warrant protection for electronic communications, which is great news for the Fourth Amendment here in Massachusetts.

However, she also supports the Attorney-General’s proposed “update” to the wiretapping laws. Both she and the Attorney-General make the case for an update by relying heavily on a comment by Justice Gants in the Supreme Judicial Court’s 2011 ruling in Commonwealth v. Tavares. This decision overturned a (first) conviction of murderer Paulo Tavares, on the ground that the state’s evidence had been gathered in violation of the state’s electronic wiretapping laws.

Let’s look at that decision a little more closely.

Clark creates the impression in her op-ed that the Supreme Judicial Court is urging the Legislature to go back and rewrite the law. This is not the case. Justice Gants’ contention in Commonwealth v. Tavares was that the five words “in connection with organized crime” should be deleted, and that if they were, that change of itself would help prosecutors to better address the problem of poorly organized gang crime. But his opinion was not the majority opinion. That opinion was written by the Chief Justice and 3 others, and said nothing about rewriting the law. Justice Gants’ concurring opinion was joined by only one other Justice.

It’s on this slender reed – a non-binding statement that only two of seven Justices signed onto – that the Attorney-General is resting her much larger proposed expansion of electronic wiretapping. This is not even an “update” like Justices Gants and Cowin wanted. It’s their “update”, plus an enormous expansion of the number of offenses that can be wiretapped on top.

We can do better than this. Just because it gets marketed as an “update” doesn’t mean it’s worth doing.

It might be different if they had made any sort of a case that they were in fact having trouble prosecuting gang crimes, as Justice Gants thought they were. But right about the same time as he was writing his opinion, law enforcement was also boasting of its prowess in convicting gang criminals:

For the past three years, law enforcement agents have swept through this city every May, rounding up dozens of gang members following lengthy and complex investigations that aimed to cripple the Latin Kings, Monte Park and United Front street gangs.

Local, state and federal officials credit the cooperation among their agencies in building strong cases against the city’s most violent gang members. Not a single person arrested in the roundups since 2007 has yet been acquitted in the state superior or federal courts, records show.

“I think one of the major reasons why people are pleading guilty in these cases is because we really meticulously develop these cases and the evidence,” said U.S. Attorney Glenn Mackinlay, a federal prosecutor who has been closely involved with the gang investigations.

Guys, guys, you can’t have it both ways.

Either (a) you’re managing to keep crime low and convict gang criminals under current law, which I think is the truth and which you should get full credit for. Or, (b), current wiretapping law is inadequate and you’re having to let gang criminals rove freely who ought to be in jail, in which case we should be seeing increasing rates of gang violence in our cities, which we’re not.

I don’t buy it. And neither should you.

Please sign and share our petition, and contact your legislators to ask them to oppose S. 654 / H. 3261, the “Act Updating the Wire Interception Law.”

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