It was a moment of unity for Massachusetts’ Republican governor, Democratic attorney general, and elected district attorneys. The state’s old wiretap law, they told the Legislature, was hopelessly outdated and needed to be expanded to include more than those suspected of organized crime.
The year was 1992. The effort failed.
Three decades later, the state’s 1968 wiretap statute still hasn’t been updated, despite the fact that prosecutors today are much more concerned with offenses like human trafficking and gun violence than traditional organized crime.
So Governor Charlie Baker, Attorney General Maura Healey, and the state’s 11 elected district attorneys are trying yet again to persuade legislators to update the law in a so-far quixotic effort that has now spanned generations. But today’s political environment, more suspicious of amplifying police power, has made such efforts less likely to succeed, experts say.
Civil liberties advocates, who have long opposed the expansion of the state’s ability to listen in on private conversations, characterize any broadening of the law as an unacceptable overreach that would open the door to undue surveillance in communities that are historically overpoliced.
“For as much as there is a desire to disrupt or intercept criminal activity, we have got to be cognizant of the way that expansions of our criminal laws could lead to overreach and ensnare people who are not the intended targets and be misused,” said Democrat Rahsaan Hall, the former director of the state ACLU’s Racial Justice Program, who is running for district attorney in Plymouth County.
But proponents say an update is just common sense, noting that vast technological advancements and changes in types of crimes being committed since 1968 demand new language in the law.
They also point to a 2011 Supreme Judicial Court decision that concluded secretly recorded evidence could not be used against a man who was allegedly caught on tape admitting to a Brockton murder. The court suggested that lawmakers delete five words from state law — “in connection with organized crime” — so that state and local law enforcement could use what federal authorities have learned is an effective tool in solving cases.
“There’s been a heck of a lot of changes in the world since 1968,” said Timothy Cruz, the district attorney in Plymouth County, whose office prosecuted the Brockton murder. “It’s time for the Legislature to get together and get the changes we need to help us do our jobs and get guns, drugs, and people hurting other people off the streets.”
Last spring, Cruz and the other 10 members of the Massachusetts District Attorneys Association filed a bill similar to Baker’s proposal, suggesting an update to the wiretap law.
Under the current law, only the attorney general and the 11 district attorneys have the ability to request a wiretap warrant, which requires that a wiretap be used “as a tool of last resort” when there is a link to organized crime.
Casual street gangs often don’t count, and the law also limits what police can listen to once they are tapped into a telephone call.
In a letter to the Legislature proposing the wiretap update last year, Baker argued that Massachusetts law “unnecessarily and inappropriately” inhibits law enforcement from doing their job to the fullest extent.
His proposal, a version of which he has put forward once before, would expand the authority of law enforcement to use wiretaps to investigate certain crimes such as murder, rape, and human trafficking.
“As technology evolves and the public safety landscape changes, so too should the tools we use to keep our communities safe,” Baker said in a statement announcing the proposal.
In 2021, there were about 43 wiretaps conducted by state prosecutors, according to reports submitted to the state.
Twenty-eight of those were conducted by Healey’s office, through which 126 indictments were issued and 11 guilty pleas entered, according to a summary she submits each year to the Legislature.
“The wiretap law needs updates to better match the violent crimes we see in our investigations,” Healey wrote in a statement.
Gregory Sullivan, a former state inspector general, said the outdated law affected his decision-making when it came to referring criminal cases to state or federal investigators.
Federal law enforcement generally has less availability to investigate state cases, while state prosecutors have the resources but are hamstrung in their wiretapping abilities.
There were instances during his decade-long tenure, Sullivan remembered, when a whistle-blower would meet with the target of an investigation at a restaurant or café, and law enforcement would sit at a nearby table, leaning in in an attempt to listen to the conversation without any technology.
“It was absurd. It’s an extreme liability and an extreme weakness,” he said. “When it comes to investigating crimes that are complicated, state investigators are the juniors and the varsity is the federal government.”
Sullivan and others hope that a compromise version of Baker’s proposal will at least get consideration in the Democrat-led House and Senate, neither of which have ever voted in favor of such an update.
Senate President Karen Spilka and House Speaker Ronald Mariano wouldn’t say whether they support or oppose a bill to update the wiretap law.
State Representative Michael S. Day and Senator James Eldridge, co-chairs of the judiciary committee, said they look forward to hearing testimony on the issue, declining to weigh in on the chances of its success.
Former governor William F. Weld, a Republican, who unsuccessfully pushed the issue as part of a broader bipartisan effort to fill gaps in prosecutorial powers during his term in the 1990s, said finding legislation that Democratic lawmakers will get behind is “a balancing question.”
“I think when you give the government more crime-fighting tools, many people don’t want the government to have too much intrusive power,” he said
Critics of the proposal, such as the ACLU of Massachusetts, see such an update as an overreach and hope the Legislature keeps the statute unchanged.
A spokeswoman for the ACLU called the current law “among the best in the nation.”
Iván Espinoza-Madrigal, executive director of Boston-based Lawyers for Civil Rights, said the proposal doesn’t do enough to include community input on what an updated law should look like given a heightened awareness of race and racism in law enforcement. He suggested leaders spend more time on community involvement by way of forums and outreach before suggesting an update to the 1968 statute.
“There is a lot more concern about police powers within the community. The community is very sensitive to policing in general,” said Martin Healy, the chief legal counsel and lobbyist for the Massachusetts Bar Association.
Healy pointed to the sweeping 2018 criminal justice reform law, which he said did a good job of answering concerns about policing that had come up in communities across the Commonwealth.
In today’s world, when it comes to updating the wiretap law, he said, “this seems to be going in the opposite direction of that.”