Jun 20 2013

Proposed wiretapping bill would grant police broad snooping powers

Dr. Q

Martha Coakley

Martha Coakley

While a recent survey shows that many Bay Staters do not support the NSA’s massive surveillance programs, Attorney General Martha Coakley has proposed a bill that would amend the state’s wiretapping statute to allow police in Massachusetts to conduct surveillance using basically the same methods as the NSA.

Alex Marthews of Digital Forth writes that the bill — which is called the “An Act Updating The Wire Interception Law” — would do the following:

1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.

2) Double the length of an authorized wiretap, from 15 to 30 days.

3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

According to Brad Puffer, a spokesman for Coakley, Marthews’ summary of the bill “includes inaccuracies that are highly misleading about the changes our office has proposed.”

Puffer insists that the bill “does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.”

Furthermore, according to Puffer, “Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.”

Marthews shows that both of these claims are false.

With respect to the mass interception of communications at telecommunications switching stations, Marthews observes the following:

Undoubtedly, each wiretap must be applied for and authorized individually. However, the bill seems to envision interception of communications on a mass basis, at phone company switching stations. An appropriate analogy here is with the recently disclosed FISC order to Verizon to disclose metadata on all calls to the NSA. It was one wiretap, “applied for and authorized” by a federal judge, but it covered every Verizon user’s calls.

Why does the bill contain language specifically revising the definition of a “wire communication” eligible for a wiretap order to include a “connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities”, if not to allow specifically this kind of interception? To say, Oh, it’s not mass interception because there would only be one wiretap order, in the light of recent revelations, is deeply misleading. We’d like to see a guarantee that a single wiretap order would not be used to collect data relating to multiple people’s communications passing through a switching station.

With respect to claims that the bill would allow police to wiretap people suspected of marijuana possession, Marthews quotes a reader who points out the following:

As I read the bill, it does make possession of marijuana eligible for a wiretap. Section 4 expands the definition of “designated offenses” to “any violation of chapter 94C”. It does not require that they even be a crime. So as long as marijuana possession violates 94C, even as a technical violation, wiretapping is allowed. Federal restrictions on wiretaps are irrelevant because marijuana possession is still a felony under federal law.

So, does marijuana possession violate 94C? Yes. Even under the decriminalization statute, section 32L of 94C, possessing an ounce or less of marijuana is a civil offense. Thus, still a violation of 94C. And possession larger amounts is still a criminal violation of 94C.

Furthermore, as Marthews points out, “it’s common for prosecutors to attempt to charge marijuana possession as possession with intent to distribute, which is a charge that would be covered even if what Mr. Puffer says is true.”

The bill is scheduled to have a hearing before the Judiciary Committee of the Massachusetts legislature on July 9.

Digital Fourth, the ACLU of Massachusetts, Demand Progress, Fight for the Future, the Bill of Rights Defense Committee and the Electronic Frontier Foundation have launched a petition to oppose the bill which can be signed here.

What stands out most about this is that even as the government in Massachusetts seeks to expand its surveillance powers, it’s still possible in this state to be prosecuted — under the same wiretapping statute that Coakley is trying to expand — for recording one’s interactions with the police. The recent ruling in Glik v. Cunniffe confirmed that people have the right to openly record the police, but secretly recording the police is still considered unlawful.

In the case Commonwealth v. Hyde, a musician’s felony wiretapping conviction was upheld by the Massachusetts Supreme Judicial Court after he recorded police during a traffic stop with a hidden tape recorder and brought the tape to police headquarters to file a complaint.

“The problem here could have been avoided if, at the outset of the traffic stop, [Hyde] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight,” wrote the court. “Had he done so, his recording would not have been secret, and so would not have violated” the wiretapping statute.

Justice Margaret Marshall was not convinced by the majority’s logic. In her dissent, she expressed concern that the court’s ruling would “allow police officers to conceal possible misconduct behind a cloak of privacy.”

During the past few years, there have been at least three cases quite similar to Hyde which have been reported on by media.

In 2011, Robert Mansfield was arrested and charged with wiretapping by Whitman police after he went to the police station with a recording of a traffic stop to ask for a citation to be dropped.

That same year, Chelsea Orr, the daughter-in-law of former Bruins player Bobby Orr, was charged with felony wiretapping for recording her conversations with Cohasset police officers after she was allegedly involved in an OUI-related accident.

In 2012, Irving Espinosa-Rodrigue was stopped by Shrewsbury police for allegedly speeding (he denied the accusation). After a video of the traffic stop — which reportedly showed Espinosa-Rodrigue instructing a female passenger to record the stop — was uploaded to YouTube, police raided charged Espinosa-Rodrigue with wiretapping.

I haven’t been able to find follow-up reports about any of these cases, so I’m not sure if or how they’ve been resolved. However, the Hyde decision makes it clear that people can be convicted of wiretapping in Massachusetts simply for recording their own interactions with the police if a prosecutor can convince a judge and jury that the recording was “secret.”

I hope it’s obvious why this is a problem. If a police officer is willing to commit a crime or engage in some other form of misconduct, what’s to stop the officer from trying to cover up evidence? A recent incident in which California deputies have been accused of seizing phones from witnesses who recorded them beating a man to death shows how important it can be to record the police without their knowledge.

It’s quite infuriating to see government officials push to increase their surveillance of the public even as they use try to stop the public from gathering and disseminating information about the government.

The state’s wiretapping statute need is certainly in need of reform, but not the kind of reforms Martha Coakley envisions.