It might have been just another drug bust. An undercover Boston cop calls a man named Thanh Du, saying he’s looking to make a buy. A meeting is set near Maverick Square in East Boston.
They end up in a laundromat on Paris Street, the undercover cop equipped with marked bills for the buy. But he’s also equipped with the latest in surveillance technology — a department-issued cellphone app that can record audio and video in real time and transmit all of that information to, in this case, fellow officers “who were located nearby conducting surveillance,” as a recent Appeals Court decision put it.
The undercover officer conducted three meetings with Du in total — none with a warrant, but all recorded courtesy of the state-of-the-art Callyo cellphone app, being marketed to police around the country as an investigative tool that, as its website describes, is “hidden in plain sight technology [that] makes body wires a thing of the past.”
The Appeals Court ruled earlier this month the recordings were “unlawful interceptions” that would be “excluded from evidence.” It also noted in a footnote, “When police wish to use a novel surveillance tool such as Callyo, we encourage them to seek a search warrant beforehand.”
Days before the court handed down its decision in the Du case, a warning went out to the legal community from the Committee for Public Counsel Services, the state’s public defenders, that the “Massachusetts State Police has regularly been using covert surveillance technology resulting in audio and/or video to be recorded, even in cases where there was no wiretap warrant,” CPCS Special Projects counsel Ben Leatherman said in a memo. “The MSP has identified more than 250 cases where recordings exist and may not have been turned over [to defense counsel].”
The storm has been brewing since last March, when, as first reported by the Worcester Telegram & Gazette, Worcester County District Attorney Joe Early’s office discovered 28 previously unidentified recordings, involving at least three troopers and a multiagency drug investigation.
Early’s first assistant, Jeffrey Travers, fired off a letter to Colonel John E. Mawn Jr., interim head of the State Police, noting that reports provided to the DA’s office “did not memorialize the existence of the recordings” and demanding a “review of the process.”
An internal audit over the summer turned up some 250 cases from around the state and for a variety of offenses, Leatherman told the Globe editorial board.
“There has been no independent investigation” of the scope of the problem, he added. “But our suspicion is that it goes beyond the 250 State Police cases” and is likely to involve other police departments.
Now Boston is on that list.
The latest gadget in the law enforcement toolbox has now sent defense attorneys scrambling to file discovery motions looking for those cellphone recordings and may well force prosecutors to reopen, retry, or move to dismiss cases based on police failure to get a warrant.
“We weren’t fully aware of the extent of this until late in the summer,” Leatherman said. “Ideally there should be some systemic investigation. But it’s still too early to know what a global resolution would look like.”
Callyo, acquired by Motorola systems in 2020, has been marketed to law enforcement as, according to its website, a way to “record your mobile phone conversations with the community” and “export recordings for evidence or case recall” or more descriptively a “mobile bug.”
The city of Seattle’s publicly available “privacy impact assessment” of the technology notes “the technology can record all calls made to/from the masked phone, covertly record audio as well as GPS locate the phone of a caller.” But, it adds for all of those reasons, “the technology is used only with [a] search warrant.”
Not so apparently here — at least until rather late in the game.
It wasn’t until June 29, after the scope of the State Police misconduct was becoming clear, that Mawn issued a “general order” on “Covert Audio Recordings,” prohibiting such recordings without “documented supervisory approval” and requiring officers to “secure a wiretap warrant when seeking to make non-consensual recordings in either state or federal investigations.” Department spokesperson Dave Procopio confirmed that in the wake of the Du decision “we have directed all investigative units to obtain the appropriate warrant prior to using the Callyo app for audio or video surveillance during undercover transactions with the purpose of collecting evidence.”
Boston police haven’t yet responded to a public records request from CPCS on the issue of whether BPD has a written protocol for dealing with covert surveillance using the Callyo app. Neither has the BPD responded to a Globe editorial board inquiry about the extent of its use by the department.
Written protocols are at least better late than never in the case of the State Police. A mandated “privacy impact assessment” of any new technology ahead of purchase and deployment — à la the Seattle system — would be even better. The fact remains that no one knows how many police departments in Massachusetts are making use of the technology and with what guardrails.
As the Appeals Court noted, “Because our statutes and Declaration of Rights may be more protective of individual privacy rights than similar laws in some other States, the police should not simply rely on the fact that the tool has been used in other jurisdictions.”
State and Boston police would have saved themselves — and the legal system — a whole heap of trouble had they considered that before using the latest shiny object in the law enforcement catalogue.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.