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.
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blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law.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:
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.
Want to know the details of what the new Coakley bill, An Act Updating the Wire Interception Law, really includes? Wonderful. I can already tell we’re going to be friends.
Here’s an advance hint: What do marijuana possession, annoying telephone calls, burglary, neglecting to depart a public assembly on the orders of police, failing to display the correct posters relating to the illegality of firearms and explosives in your school, and the sale of arrowheads used for hunting, have in common?
If you guessed “It isn’t legal in Massachusetts right now to take out an electronic wiretapping warrant for offenses this minor, but it would be under this bill”, then congratulations, you win the Grand Prize.
On, to a more detailed discussion!
There are three main points of this legislation:
1) To remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally.
2) To legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.
3) To double the length of an authorized wiretap, from 15 to 30 days.
A long-standing frustration of law enforcement in Massachusetts has been that the electronic wiretapping statute was drafted in response to the problem of organized crime specifically, rather than being devised to cover a certain set of the most serious crimes. So, in order to take out an electronic wiretapping warrant, law enforcement has first had to demonstrate that there is an ongoing investigation connected to organized crime, of which the wiretap would be a part.
From Digital Fourth’s analysis of nine US states (CT, FL, NJ, NV, NY, PA, RI, VA, WA), it is not unusual for the list of offenses to only include offenses characteristic of organized crime; it is unusual to require a prior demonstration that the specific offense under investigation is connected to organized crime. However, neither the AG nor the bill’s sponsors have yet been able to point to any case where a criminal was not brought to justice because of the lack of connection of his crime to organized crime, suggesting that this limitation on police activity has little actual effect on convictions.
Going beyond this, the bill before us implements a much broader list of offenses for which electronic wiretapping with a warrant is legal than is currently the case. We’re no longer talking about arson, rape, murder and witness intimidation in connection with organized crime. We’re talking about a wide array of offenses, down to the very minor ones listed above. Coakley proposes expanding the designated offenses to cover every possible firearms and drug offense, down to simple marijuana possession, and also every kind of illegal threat, harassment and hazing, or conspiracy to commit such crimes. This could be read as a response not only to the Newtown massacre and associated calls for gun control, but also to the sad cases of cyberbullying that Massachusetts has seen in its schools.
The most worrying new element in this bill is the conscious inclusion of language allowing wiretaps to be placed at phone companies’ switching stations. Let me show you what I mean.
1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception
1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of such communications and shall include: any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, but shall not include: (i) any communication made through a tone-only paging device; (ii) any communication from a tracking device, defined as an electronic or mechanical device which permits the tracking of the movement of a person or object; or (iii) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.
Surveillance activists are well aware that one of the biggest surveillance-related cases of recent years has involved the activities uncovered by whistleblower Mark Klein, where the NSA installed an electronic intercept for all phone traffic at an AT&T switching station in San Francisco (Jewel v. NSA). The conscious inclusion of such language by Coakley here suggests that law enforcement in Massachusetts would like to be able to start doing such things under color of law. A ruling is still pending on this case, but it is hard to square such activities with the Fourth Amendment’s requirement that:
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This “particularity” requirement is a settled part of Fourth Amendment law, and there is no question that in trying to legalize this practice, Coakley is opening the AG’s office to being sued on constitutional grounds, which could cost the Commonwealth a bundle.
The provision to double the length of an authorized wiretap is unsurprising, and is pretty much a matter of convenience for law enforcement. Here at Digital Fourth, we have obtained through public records requests a complete list of the electronic wiretaps taken out in Massachusetts by the AG’s office and DAs’ offices during 2011 (information on 2012 is being collected). Of the total of 16 warrants issued, 9 had to be renewed, though none appear to have had to have been renewed twice. Presumably this fact is motivating the proposal to extend the date. However, neither the AG’s office nor the DAs’ offices report any denials of renewal applications. This implies that a renewal takes effort on the part of the prosecutor, but that there is no plausible doubt that an application to renew, once received, will be denied. Therefore, we are once again out of the zone of “reducing the ability of prosecutors to get convictions” and back into the zone of “increasing administrative convenience for prosecutors”.
Thankfully, relative to prior years, the AG appears so far to have dropped her previous suggestion to expand the list of “designated offenses” to an array of financial crimes, down to kiting checks and violating codes of ethics. For the moment, there’s also no sign of her previous unconstitutional proposal to substitute after-the-fact “certificates” for proper warrants signed before the fact by a judge. However, the bill still has serious defects as presented.
Here at Digital Fourth, we believe that if electronic wiretapping warrants are to be legal, they should be restricted to very serious crimes. While philosophically the organized crime requirement seems outdated, in practice it doesn’t seem to affect convictions. What it does do is to impose a high bar on launching an electronic wiretapping investigation, and that high bar is useful in itself. We feel that it would be a waste of police resources to mount electronic wiretaps of peaceful activists, conduct mass surveillance of traffic at phone switching stations, or turn every insulting comment on a schoolkid’s Facebook page into a criminal matter, all of which this bill would allow. Any surveillance that moves away from a particularized target towards generalized suspicion, or that chills people’s freedom of speech, is constitutionally suspect. The AG should accept, just as the federal government should accept, that there are activities that they and we may not like, that cannot realistically be suppressed by the government without violating the Constitution. Legislators thinking of cosponsoring this legislation should likewise be aware of the major problems it presents.
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:
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?