For decades, Massachusetts prosecutors have urged lawmakers to grant them broader power to conduct wiretaps to fight crime. For decades, the lawmakers have refused.
These days, updating the state’s 1968 wiretapping law is supported by every elected district attorney, and also by the Republican governor, the Democratic attorney general, and the progressive chief justice of the Supreme Judicial Court.
Standing in their way: the Massachusetts Legislature, which this fall killed a measure to make it easier for prosecutors to wiretap suspected criminals.
“When I speak to legislators one-on-one, the conversations are good and promising,” said Suffolk District Attorney Dan Conley. “But for some reason, year after year after year, this ends up rotting on the vine.”
At its core, the debate speaks to a key tension in every democracy: How much power should the government have to breach citizens’ privacy in attempts to keep the public safe?
The current law allows wiretapping only when a judge finds probable cause that a serious crime is being committed in connection with organized crime and normal investigative procedures have been exhausted. Law enforcement officials say the organized crime requirement makes the law too narrow, and prevents them from being able to gather key evidence to stop murderous street gangs, human trafficking rings, and other bad actors.
Former attorney general Martha Coakley, who once served on a federal task force that went after the mob and similar groups, said she saw how important wiretaps were to break the back of organized crime.
But when criminal activity shifted more to street gangs that use cell phones for drug dealing, violent crime, and human trafficking, the state’s wiretap law remained mired in the past, she said last week.
“In 2017, almost 2018, the unwillingness of the Legislature to give law enforcement the tools they need to keep Massachusetts residents in our cities and towns safe is” — Coakley paused to find the right phrase — “a little inexplicable.”
But many lawmakers, defense attorneys, and civil libertarians argue that the changes being sought are a vast expansion of police surveillance authority without expanded privacy protections. That constitutes “a broad overreach,” said Rahsaan Hall of the American Civil Liberties Union of Massachusetts.
And for all the paperwork law enforcement officials must go through to ask a judge to approve surreptitious eavesdropping, the courts rarely tell prosecutors no, they note. In 2016, according to data compiled by the Globe, Massachusetts prosecutors applied for 59 warrants to wiretap. Superior Court judges granted all of them.
But 59 wiretaps — that’s fewer than 59 individual telephone numbers tapped because some warrants for the same number were renewed — is not very many in a state of 6.9 million people.
Eight Massachusetts district attorneys did not conduct any wiretaps at all in 2016, according to filings.
The result is that many investigations seen as requiring surreptitious eavesdropping — extortion, public corruption, racketeering — are conducted and prosecuted by federal authorities. There were about 100 federal wiretaps in Massachusetts that concluded in 2016, according to official data.
Martin W. Healy, chief legal counsel of the Massachusetts Bar Association, which includes many defense attorneys, said his group is opposed to updating the wiretap law.
“There are enough tools already available to federal prosecutors, and we worry about the erosion of people’s privacy rights and due process rights if we expand the wiretap law here in Massachusetts,” he said.
He called the supposition, spoken privately in the State House and in law enforcement circles, that legislators don’t want to update the law for fear it would make their own phones more vulnerable to being tapped by cops, a “cynical view.”
Cambridge lawyer Harvey Silverglate, a noted civil libertarian, said lawmakers’ reticence to update the law should be seen through a historical lens:Massachusetts legislators and courts traditionally have been more protective of civil liberties than in other states.
“They refuse to be steamrolled by what I call the law-and-order crowd,” he said.
Massachusetts lawmakers wrote the state’s current wiretapping law in response to a 1967 US Supreme Court ruling that found law enforcement’s use of wiretapping without robust judicial oversight unconstitutional.
“The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime,” state law says.
The law codified the high bar that still exists today.
■ Only 12 people in the state can apply for a wiretap warrant: the attorney general and the 11 elected district attorneys.
■ The official has to prove to a Superior Court judge that there is probable cause that the wiretap will show the target has committed or is committing one of several specified serious crimes, and it’s connected to organized crime, such as the mafia. Casual street gangs often don’t count.
Prosecutors must also convince the judge reviewing a request for a wiretaps that all other investigative procedures have been exhausted — one of the highest hurdles they say they face.
Furthermore, the law limits what police can listen to once they get permission to secretly intercept someone’s telephone calls: pertinent information.
“If the target is speaking to a co-conspirator about what they are having for dinner, we have to stop listening,” Kim West, the chief of the criminal bureau in the attorney general’s office testified this year. “If a target is speaking to a friend about a football game, we have to stop listening. We employ a 90-second rule. If, within the 90 seconds, the conversation does not become pertinent to the crimes we are investigating, we have to stop listening.”
Supporters of proposals to update the law point to a 2011 decision by the Supreme Judicial Court that secretly recorded evidence could not be used against a man who was allegedly caught on tape admitting to a Brockton murder.
In the ruling, Ralph D. Gants, now the chief justice, wrote, that the requirement that the law be limited to investigating organized crime makes it “unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve.”
He continued: “If the Legislature wishes to avoid this result, it should amend [the law] to delete those words.”
A bill proposed by Governor Charlie Baker, and backed by Attorney General Maura Healey and all the DAs, would effectively do just that.
But Hall, of the ACLU, warns it would also go much further, allowing prosecutors to ask a judge for a warrant to tap someone’s phone not just for alleged acts like murder and human trafficking, but also for more petty crimes, such as small-time drug dealing. It would double to 30 days how long a wiretap is allowed before a police and prosecutors have to check back in with a judge. And it would allow judicially approved wiretapping of phones outside of Massachusetts if it’s connected to an alleged conspiracy to commit a crime in the state.
Hall cautioned the interception of new types of digital communications mean police will see citizens’ private messages even when they are not pertinent to the investigation.
In November, a version of Baker’s proposal that was considered during the House debate of a wide-ranging criminal justice measure was ruled beyond the scope of the bill.
And it was after midnight one Friday in October when a similar measure came before the Senate.
The vote, insiders said, might be close.
With some urgency, Senator Harriette Chandler approached Arline Isaacson, a lobbyist for the state ACLU. Chandler, now the acting Senate president, asked for talking points. Isaacson handed them to her. Chandler walked to the Senate floor to convince her colleagues to kill the measure.
“We’re rushing it through now,” Chandler said, looking down at the ACLU memo. To pass the amendment “would be a grave mistake.”
When the vote was taken at 12:29 a.m. , the language was rejected — just as some version of it has been regularly for decades — with 14 votes in favor and 22 votes opposed.Joshua Miller can be reached at firstname.lastname@example.org. Follow him on Twitter @jm_bos.