As we suspected, there’s yet another attempt to expand the wiretap law. Even though the Senate, when they passed the criminal justice reform bill, voted 14-22 against expanding the wiretap law, that isn’t stopping law enforcement trying again via the House version. Minority Leader Rep. Bradley Jones has introduced three amendments expanding the wiretap law to the House version of the criminal justice reform bill (H. 4011) which is being debated today, tomorrow and Wednesday. These amendments are #53, #115 and #174. Please call your Rep before Nov. 15 and let them know that they should vote against all three of these amendments.
Since Digital Fourth began in 2012, we have advocated that warrant-authorized wiretaps should be treated as an extraordinary, not an ordinary, instrument for law enforcement; that they should be reserved only for the most serious of crimes; and they should not, as these amendments do, be expanded to cover a vast array of ordinary criminal investigations. Amendments #53 is especially pernicious, in mandating technical assistance by tech firms to break their encryption to assist law enforcement; #53 and #174 both also expand wiretaps to cover interceptions enabled by “pen register” orders; this could greatly expand ordinary people’s vulnerability to surveillance just by communicating with someone whose communications are considered relevant to a crime.
Amendment #53 expands the wiretap provisions to cover electronic methods of surveillance in addition to recording phone calls or wearing a physical wire. Wiretaps may be conducted of people not located in Massachusetts. The definition of what is a “wire communication” is greatly expanded to cover the whole panoply of modern communications, excepting tone-only pagers, GPS trackers, and electronic funds transfer information. The definition of an “interception” is expanded to cover the kinds of interception enabled by a “pen register” order, for which a showing of reasonable suspicion or probable cause is not required, and which covers the interception of location and header metadata. The definition of “contents” is clarified. The “designated offenses” for which you can conduct a wiretap are greatly expanded. Police body-worn cameras are excluded from needing a wiretap warrant. The default length of a wiretap warrant authorization is lengthened from 30 to 40 days. Some useful precision is added to how a warrant should be issued, requiring that it identifies the issuing agency, that the warrant be executed as soon as is practicable. that it must minimize incidentally collected information, and that it must end at the end of the investigation. Warrant renewals are extended from 15 to 30 days; the maximum time a warrant can run is extended from one year to two. Warrants can now be executed by contractors reporting to law enforcement instead of only by law enforcement officers designated by the applicant for the warrant. Last, the amendment requires tech firms to break their encryption if necessary in order to assist law enforcement in the execution of a warrant, rendering all of our communications more insecure.
Amendment #115 is narrower; it amends the preamble to indicate a general expectation that law enforcement can use “modern methods of electronic surveillance” and greatly expands the designated offenses to the same list as Amendment #53.
Amendment #174 is almost identical to Amendment #53, though it excludes the “technical assistance” provision.