The official system of electronic wiretaps in the US predates and is separate from the unconstitutional mass surveillance conducted by the NSA and other surveillance agencies. Typically, electronic wiretaps comply fully with the Fourth Amendment by requiring an individualized warrant based on probable cause before the wiretap begins. But it’s still interesting to look at how they operate and what they target, and this week’s Wiretap Report 2013 from the Administrative Office of the U. S. Federal Courts allows us to do exactly that.
The first thing that jumps out from the data is how much the electronic wiretaps system is an instrument of the War on Drugs. Though the report’s categories allow for many types of crime (“Conspiracy”, “Corruption”, “Gambling”, “Homicide and Assault”, “Kidnapping”, “Larceny, Theft and Robbery”, “Narcotics”, “Racketeering” and “Other”), fully 87% of the 3.576 wiretaps across the country were for drug investigations.
The second is that New England is, let’s say, an unenthusiastic participant in this particular aspect of the drug war. Only 1.8% of wiretaps were for jurisdictions in New England, which covers states comprising 4.7% of the US population.
The third fact is that out of the 64 electronic wiretaps in New England, absolutely no convictions resulted. In Maine, 17 people were arrested – for drugs, naturally – but no-one was convicted. In Massachusetts, eleven wiretaps (ten in Berkshire County and one in Middlesex) – all, again, for drugs – resulted in no arrests or convictions at all.
The argument Martha Coakley makes is that our wiretapping law is too restrictive and gives criminals the “upper hand.” But it turns out that even under the current law, which allows wiretaps in connection with organized crime and as part of investigations of “arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, illegal gaming, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses”, it’s really only worth using when you’re investigating drugs.
Folks, if you’re trying to understand the connection between the War on Drugs and the current epidemic of surveillance, I think we have found Exhibit A. I’d be all for this kind of scrupulously Fourth Amendment-compliant surveillance if it was about focusing on the worst of the worst violent crimes. But even here, its remit is clearly too wide.