Tag Archives: Electronic Wiretaps

Alex Marthews, Digital Fourth President, and Jamie O’Keefe of the Mass Pirates, on Two Hotheads Radio discussing the Mass. electronic wiretapping bill

Transcript runs from around 11-20 minutes:

HEATHER MACK (host): We have some guests in the studio. We have Jamie from the Mass Pirates Party, whom we’ve had on before. We also have a new guest, Alex Marthews, from the Campaign for [Digital] Fourth Amendment Rights, also from the Pirate Party [sic], here to talk a little bit about Massachusetts and the new Coakley bill, “An Act Updating the Electronic Wiretapping Laws”, and generally about Fourth Amendment rights, particularly online. So tell us a little about that, about this new Coakley bill, and why we should be very afraid!

ALEX: The main thing to understand about this bill is that this is not a new thing. This is something that the Attorney-General’s office in Massachusetts and law enforcement in Massachusetts tries to do very regularly. Every two-year session, they try to what they call “update” the electronic wiretapping law. And, by “update”, they mean, “remove all reasonable constraints on” electronic wiretapping in Massachusetts. They’ve been trying to do this for a long time. Every time it comes back, it comes back a little different. Last session, it was all about financial crime. This time, because of the terrible tragedy in Newtown, it’s all about gun crime…

HEATHER: Oh, yep.

ALEX: …and keeping us safe from school shootings. It’s exactly the same ideas. So what they want is removal of all constraints on electronic wiretapping, but they’ll hang it on whatever the controversy of the day is, in order to get it done.

HEATHER: Absolutely.

ALEX: So what the law involves, what they’re proposing, is that it won’t just be that they can do electronic wiretapping when it’s in connection with organized crime or other very serious crimes. It could be in connection to things that are not really terribly serious. Simple marijuana possession is one. Manufacturing…

HEATHER: You know how much of a threat that is. [laughs]

ALEX: It’s an incredible threat, and anyone who possesses marijuana is a terrorist by definition.

HEATHER: [Laughs] We all know that.

ALEX: I know, I know.

HEATHER: It’s quite the terrorist bunker we’re operating out of here.

ALEX: I, for one, welcome our new attorney-general overlords, and I hope they’ll be doing something about that. The…if you manufacture arrowheads in the Commonwealth, then that will count as a weapon, and therefore make you subject to an electronic wiretapping warrant…

HEATHER: What is the point? What is the point? [Laughs]

ALEX: The point? Well, they like to say…

MIKE CANN [host]: Unlimited government power.

ALEX: Yeah, that is exactly it. It is not about reducing crime. Crime is about as low in the Commonwealth as it has ever been.

MIKE: Record lows.

ALEX: It’s lower than at any time since before 1968. And so, you gotta ask yourself, it’s gotta be about the power. It’s not the case – they try to argue that criminals have “got the upper hand” here in Massachusetts. Well first, if they have the upper hand, doesn’t that reflect poorly on them? Isn’t that their job?

JAMIE: But they don’t have the tools, is what they’ll say.

ALEX: Ach. But they do not need these tools!

HEATHER: Where’s the evidence of these far-reaching underground criminal syndicates that are…

MIKE: Well, now it’s about the guns. Now they’re saying that because of the school shootings and the gun violence…

HEATHER: Oh, because Adam Lanza needed the Internet…

ALEX: Adam Lanza basically didn’t use the Internet.

HEATHER, MIKE: No.

ALEX: He didn’t even have a Facebook profile. Electronic wiretapping would not have done a thing.

HEATHER: Exactly.

ALEX: But let me tell you one thing that is in this law that is very interesting that I’ve come across. They’ve introduced specific language trying to legalize electronic wiretaps in “switching stations”. Switching stations are phone company facilities.

MIKE: Wow.

ALEX: What they wanna do, it appears, is to be able to put a wiretap in your local AT&T facility which will then tap everything coming through that facility. We are a long way here from the protections of the Constitution.

HEATHER: Yeah, it’s true.

MIKE: And that means no oversight by a judge, right? You see, that’s what –

ALEX: Well –

MIKE: – a warrant is, having a judge having some reasoned suspicion to look through your papers, right?

ALEX: Well, let me be clear about this. The electronic wiretapping warrants would be reviewed by a judge. They’ve backed off from the stuff they were doing in previous sessions, where they were saying, no, no, it doesn’t really need to be done by a judge. But this is the first time they’ve introduced this idea of mass surveillance at phone company facilities, and I am very disturbed by this.

MIKE: And what rules would they have about how long they would keep those files, and the record-keeping, I mean…

ALEX: Well, I’m sure they will have rules…

MIKE: Right.

ALEX: but they’re not telling you what they are yet.

MIKE: I know.

JAMIE: Neither does the NSA, and they already do that.

MIKE: I know. Isn’t that a problem with a lot of this stuff, that there’s no…you know, to back into the TSA thing we’re doing today, it’s about the oversight. I mean, the fact that we had this protest, we found out more information on what they’re doing, because now they have to answer to the press, ’cause they’re being asked about it, and I think a lot of this activism is all about that – is to get them to give us information, ’cause we never – when the Feds do stuff, and now the states wanna be like the Feds, I mean, this is what it comes down to in a lot of respects, is these federal laws have been around for awhile now, and now states are doing civil practices, no warrant needed. They’re gonna be able to spy on us, on anyone they want. I mean, look at the marijuana movement that we – Heather and I have been, you know, championing and part of. You have medical marijuana in Massachusetts. How easy is it for them to claim that anyone involved in medical marijuana – supplying cannabis to patients – now I’m a money-launderer – they’re gonna trace all your phone calls, they’re gonna read all your emails, they’re gonna document everything about you with no warrant needed, in the State of Massachusetts. Is that what we want?

JAMIE: Well, it’s not what we want, but one of the things you have to remember of course is that the Attorney-General now, or even…

MIKE: Right now…

JAMIE: …can go, in different counties even, can go to Twitter, and say, “Give us all of your direct messages”, can go to Facebook and say, “Give us all this information”, and they don’t even – Facebook, or Google, or Twitter, doesn’t even need to tell you that all of this information is being gotten.

MIKE: Yeah, this is what’s so…you know, I’m glad you brought that up, Jamie, ’cause it seems like in so many of these cases, not only should we be saying no to the government, allowing them more of a reach, allowing them more power in this situation. We should be hassling them to help us and protect us, and come up with some laws to actually protect our privacy, protect our rights, from a lot of the – like, there’s no oversight on any of this, anywhere, and it’s just getting out of control.

JAMIE: But that makes their job harder, and they certainly don’t want their job to be harder.

MIKE: I know, it’s a Catch-22, isn’t it? [crosstalk]

ALEX: But we’ve gotta get…we’ve gotta develop the discussion. We gotta make it a more mature discussion. It can’t be simply the discussion that we’ve been having here in Massachusetts, where law enforcement comes up with something that will make their life easier, and we all go, oh, it makes life easier for law enforcement, therefore we must do it. No. The Fourth Amendment would not exist, and the Fifth and Sixth and Eighth Amendments would not exist, if all that mattered was making life easy for law enforcement. If…There are plenty of things that law enforcement wants to be able to do, there are plenty of things that would make life easier for them to do, that are not allowed because of the Constitution. And I’m sorry guys, it takes you longer, it costs you more money, but them’s the breaks. You’re in America, you’re not in North Korea, you have to put up with it.

HEATHER: [laughs] Not yet.

The new Coakley bill, “An Act Updating the Wire Interception Law”, under a microscope

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.

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. 

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.

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