Tag Archives: Designated Offenses

Commonwealth v. Marcus Mitchell: When Can You Use What You Learn From A Wiretap?

sjc

The second Massachusetts Supreme Judicial Court case coming down the pike is Commonwealth vs. Marcus Mitchell. This deals with our favorite law here at Digital Fourth, Massachusetts’ electronic wiretapping statute, which forms part of the forbiddingly named Mass. General Laws Chapter 272: CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.

Electronic wiretapping was never intended to become a routine day-to-day tool of the police; now, this case asks whether the police can use electronic wiretaps to prosecute offenses outside the wiretapping statute.

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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.

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#MassWiretap: The AG’s Office Responds

After I posted an article giving Digital Fourth’s view on the wiretapping law on Blue Mass Group, Massachusetts’ largest Democratic blog, we got some attention from Mr. Brad Puffer, Director of Communications for the Mass Attorney General’s office. They seem put out. Maybe they didn’t like the lede, “Coakley Channeling the NSA?” :-)

The above blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law. Updating the wiretap law is a critical tool to combatting gang violence, gun violence, human trafficking, and many other violent crimes that undermine public safety in our communities. And equally important to what it does, is what it does not do. One thing it does not do is alter in any way the many safeguards already put in place under the current wiretap statute to protect against abuse.

I will explain some of the benefits of this new law further below, but first want to correct some of the inaccuracies in this blog post:
1) The proposed update to the wiretap law does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.
2) Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.

The current wiretap law has not been updated since 1968, back when criminal activity and technology was vastly different. In 1968, the law was focused on “organized crime.” A 2011 SJC decision that upheld the suppression of statements obtained by a wire interception during a murder investigation stated very clearly that the investigation and prosecution of some of today’s most destructive crimes, including street violence, are hampered by this antiquated statute. The SJC urged an update to the law.

The updates we seek are common-sense and concise, including:

• Bringing the law up to date with technology: The legislation acknowledges that today communication is largely electronic and wireless. By updating the definition of “wire communication,” the bill makes explicit the law’s application to cellular and text technology without tailoring the definition so narrowly as to foreclose future technological developments.
• Removing the organized crime requirement: Currently, criminal activity that is the subject of a wiretap must have a connection to organized crime. The majority of street violence and gun crimes today, though often tied to looser organizations, nevertheless lack the traditional hallmarks of organized crime.
• Including additional violent or egregious crimes as designated offenses: Prior to seeking a warrant for a wiretap, law enforcement must establish probable cause that a “designated offense,” as defined in the statute, has been committed. The current list of designated offenses does not include some of the most violent and egregious crimes that law enforcement must investigate and prosecute today—and that the Legislature has correctly passed since the law’s inception— including human trafficking; firearms offenses; and child pornography offenses.

The law also maintains extensive safeguards that already exist under current law. First, any wiretap must be requested and signed by either the elected Attorney General or District Attorney and then authorized by a Superior Court judge. The judge can only authorize a wiretap for serious felonies where there is probable cause that a designated offense has been committed, and after all other investigative techniques have been exhausted or will not be successful. There are additional safeguards that ensure that only the conversations with direct correlation to the alleged crime are recorded and then permissible in any legal action.

For all of these reasons, these updates are supported by district attorneys, police, mayors, and many other community leaders who know that the only way that we will be able to better keep our communities safe is to give our investigators effective tools, with proper safeguards, to take the most dangerous criminals off the streets.

You can find more information about the proposed bill here:

http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-28-wiretap-legislation.html

Sincerely,
Brad Puffer
Director of Communications
Office of Massachusetts Attorney General Martha Coakley

Did we hit a nerve here?

Let’s take the assertions in the Puffer piece one by one.

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Not A Clown Car Law: Comparing Massachusetts’ Electronic Wiretapping Laws to Connecticut’s

The way you hear Martha Coakley tell it, Massachusetts’ laws relating to when you can and cannot issue an electronic wiretapping warrant are about as effective as using a clown car to fly folks to the moon. They were passed in the 1960s, man! Don’t you know you can’t trust any law over 30?

Of course, the Bill of Rights is nearly 220 years old, and many people seem somehow to find it important despite being oldy oldy old old. So we figured, why don’t we take a look at what other comparable states do, and see if Massachusetts’ laws look comically outdated compared to them?

Let’s try our friends over in dull-but-wealthy Connecticut! What does Nutmeg State law enforcement have to do to get their donut-frosting-smeared mitts on one of those sweet, sweet electronic wiretapping warrants?

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Won’t Somebody Think of the Children!!!1!!!: Mass Law Enforcement Proposes Massive Expansion of Wiretapping Powers

Some folks might be ashamed to use the bodies of dead kids as cover for a power grab. That clearly doesn’t include Massachusetts Attorney-General and failed Democratic Senate candidate Martha Coakley.

The Globe reports that Coakley, along with state senator Gene O’Flaherty (D-Chelsea) and state rep John Keenan (D-Salem), have introduced a new bill to massively expand law enforcement’s power to conduct electronic wiretaps of our communications (S. 1726 / HD 1194).

In her press conference, Coakley cited the school shooting in Newtown, and a 2011 case where a murder conviction was overturned because it rested on evidence obtained under a wiretap that was not valid under current Massachusetts law. What the Globe doesn’t mention, but Waltham’s Daily News Transcript does, is that the murderer in question was convicted later anyway (good reporting, Andy Metzger!).

There is not one scrap of evidence that easier electronic wiretapping would have prevented the school shooting in Newtown, or would prevent school shootings here in Massachusetts. The Newtown shooter wasn’t on Facebook or Twitter, and nothing has emerged relating to his computer or cellphone use.

More importantly, if the best evidence Coakley and friends can come up with to justify expanding wiretapping powers is a case where they got a conviction in the end anyway, that changes their argument completely. Instead of “this will help us convict more criminals”, they’re really arguing “this will save us some time and expense”.

Sorry, guys. That won’t cut it. Any limit on government investigatory powers makes investigations longer and more expensive. That’s the point. If investigations are costless, everyone will be investigated, because why not?

Last, and most laughably of all, both Coakley and O’Flaherty breathlessly told the press that “criminals have the upper hand” here in Massachusetts. Here’s a graph showing crime rates per head in Massachusetts, using federal crime statistics:

crime

The facts show that crime has been steady at less than 3 reported crimes per 100 residents per year since around 2002, and that that level is the lowest since 1968. Criminals don’t have “the upper hand” here in Massachusetts. Crime is about as low as it’s ever likely to go.

Let’s not kid ourselves what this is about. This is not about reducing crime. Remember, they can’t think of a single case where there’s a criminal walking free today because electronic wiretapping is only allowed under narrow circumstances here in Massachusetts. This is about power. The AG’s office knows that it’s technologically possible for them to monitor more of our electronic communications, and it bugs them that it’s illegal to do, whether or not that monitoring will result in more convictions. So, they’re ginning up false fears of crime, calling this an “update”, and trying to get the people of Massachusetts to agree to join them in the brave new mass-monitored world – which they, not us, would control.

Guys, you’ve been rumbled. Your arguments don’t make sense. Find better ones or go home.

Why not let them know how you feel?

To contact the Attorney General’s office, try here.
To contact State Senator Eugene O’Flaherty, try here.
To contact State Representative John Keenan, try here.

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