#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blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law.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.

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.

Undoubtedly, each wiretap must be applied for and authorized individually. However, the bill seems to envision interception of communications on a mass basis, at phone company switching stations. An appropriate analogy here is with the recently disclosed FISC order to Verizon to disclose metadata on all calls to the NSA. It was one wiretap, “applied for and authorized” by a federal judge, but it covered every Verizon user’s calls.

The language in question in the bill is as follows:

Old language:

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

New language:

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.

Why does the bill contain language specifically revising the definition of a “wire communication” eligible for a wiretap order to include a “connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities”, if not to allow specifically this kind of interception? To say, Oh, it’s not mass interception because there would only be one wiretap order, in the light of recent revelations, is deeply misleading. We’d like to see a guarantee that a single wiretap order would not be used to collect data relating to multiple people’s communications passing through a switching station.

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.

A helpful BMG reader, seamusromney, provided his own analysis before we had time to:

As I read the bill, it does make possession of marijuana eligible for a wiretap. Section 4 expands the definition of “designated offenses” to “any violation of chapter 94C”. It does not require that they even be a crime. So as long as marijuana possession violates 94C, even as a technical violation, wiretapping is allowed. Federal restrictions on wiretaps are irrelevant because marijuana possession is still a felony under federal law.

So, does marijuana possession violate 94C? Yes. Even under the decriminalization statute, section 32L of 94C, possessing an ounce or less of marijuana is a civil offense. Thus, still a violation of 94C. And possession larger amounts is still a criminal violation of 94C.

Further commenters pointed out that it’s common for prosecutors to attempt to charge marijuana possession as possession with intent to distribute, which is a charge that would be covered even if what Mr. Puffer says is true.

It is, of course, possible that this is unintentional or a result of poor drafting, and that the AG’s office does not intend to take out electronic wiretapping warrants for such minor crimes. But Mr. Puffer simply asserts that the bill doesn’t cover marijuana possession, without showing language from the bill itself that would limit wiretaps to crimes carrying a one-year prison sentence or more. Perhaps the AG’s office did not feel such language was necessary to add to the bill. In the light of the revelation that the federal authorities certainly don’t seem to feel constrained by federal law in this matter, we believe that more clarity within the bill itself would be appropriate, to explicitly forbid such wiretaps for minor crimes.

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.

We appreciate that it is frustrating for law enforcement to be bound by the constraints of laws that are 45 years old. Indeed, it is no doubt frustrating for them to be bound by constitutional constraints that are over 200 years old. However, in order to have these constraints loosened, the AG’s office has to describe to the people of Massachusetts, with particularity, cases where the constraints of the law as it stands have actually prevented people being convicted of crimes. The only example they have publicly announced is the Paolo Tavares case. Tavares was accused of murder, and had to be retried after his initial trial fell apart on the exclusion of wiretap evidence that was not collected within the constraints of the existing Massachusetts statute. However, even in that case, the defendant was convicted at his retrial and is now serving a long sentence for first-degree murder.

They have simply presented no evidence to suggest that there are any criminals who are walking free as a result of having very limited circumstances where electronic wiretapping warrants are permitted. If the problem were as severe as they claim, they ought to be able to present plenty of examples, and we invite them to do so publicly.

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.

I’m sorry, but many firearms offenses are not in fact “violent and egregious.” Even setting aside the concerns over the fact that the law does not make explicit whether crimes carrying a sentence of less than one year are excluded or not, there are non-violent crimes that ARE covered that can carry longer sentences, such as knowingly filing a firearms license application containing false information (General Laws ch. 140 section 131(h)) – a dumb crime, to be sure, but not a violent one in itself.

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.

We would be interested in more specificity here, especially in the context of the switching station wiretaps. We appreciate that it is unlikely that everyone’s calls going through a switching station would be permissibly used in a legal action investigating a target’s calls at that time. However, our understanding of both the Fourth Amendment and its stronger state cousin Article XIV, is that collecting non-suspects’ phone call data even with an intent to discard it if it doesn’t prove relevant is also Constitutionally barred.

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.

There is no evidence presented by Mr. Puffer that such a change in the law will make us materially safer. Despite the bill’s supporters’ scare-mongering on this matter, criminals do not “have the upper hand” here in Massachusetts: crime per head is at historic lows. This is not the time to be giving law enforcement a freer hand to nose into people’s communications.

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