Proposed Changes In Massachusetts Wiretapping Statute

Legislators and law enforcement officials are pushing for a tougher Massachusetts wiretap law to crack down on gun violence, the Boston Globe reported January 28, 2013. A bill has been filed that would dramatically expand the scope of the law, which is presently limited to cases involving organized criminal activity, to cover drug and gun crimes, child pornography, money laundering and human trafficking. The law would also extend wiretap duration from 15 days to 30 days and would expand the definition of “wire communication.” Police and prosecutors claim that the law is necessary because they need more “muscle” and due to the fact that organized crime is “outdated.” Attorney General Martha Coakley referenced the Newtown tragedy in support of her position that the wiretap law needs to be changed.

There is a reason, clearly set forth in the preamble to G.L.c. 272, § 99 (the Massachusetts wiretap law) why such intrusive electronic surveillance is limited to cases involving organized crime: “[O]rganized crime carries on its activities through layers of insulation and behind a wall of secrecy… Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime.” Massachusetts courts have said that there are certain “signatures” of organized crime, such as discipline. In other words, organized crime is often sophisticated, whereas regular crime is usually not. This rationale, that normal investigative procedures do not work well in the investigation of organized crime, does not apply to cases involving “garden variety” criminal activity. This law should not be changed simply because police and prosecutors don’t want to do their jobs. The law currently provides that a warrantless interception violates G.L.c. 272, § 99 where the requisite organized crime connection is not shown. The law already encompasses a huge range of criminal activity, including possession and sale of drugs, provided that these types of crimes are connected with organized crime. Wiretapping may also violate article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment. Our courts have cautioned that wiretapping and other forms of electronic surveillance are a serious threat to privacy because this type of surveillance is “peculiarly adapted” to search of emotions and thoughts. The Supreme Judicial Court has held that electronic surveillance of conversations taking place in private homes, in the absence of evidence that the participants intended the conversations to be public, violates article 14, which provides more protection than the Fourth Amendment in some circumstances.

The current definition of “wire communication” is broad, covering any communication made by cable, wire, “or other like connection,” whether in whole or in part. The new law would, absurdly, re-define “wire communication” to include wireless communications.
Those who have been subject to a wiretapping may move to suppress on both statutory and constitutional grounds. The statutory suppression provision is G.L.c. 272, § 99P. Section 99Q also makes civil remedies available to those aggrieved by privacy violations not authorized by the statute.