PAX Centurion - Summer 2017

www.bppa.org PAX CENTURION • Summer 2017 • Page 47 Legal Notes: Jennifer Rubin, Esq. Decker & Rubin, P.C., Counsel to Members of the Boston Police Patrolmen’s Association G overnor Charlie Baker has proposed an “Act modernizing the Massachusetts wiretap law.” The law, which has not significantly changed since its passage in 1968, has not kept pace with changes in technology, such as cellphones and the internet. In introducing the bill, Baker stated that “modernizing this statute will give law enforcement the tools and flexibility that they need to solve crimes and threats in the 21st Century”. 1 Attorney General Maura Healey, in supporting the bill, states that it reflects the changing nature of how criminals communicate, and that “updates to the statute will assist law enforcement to better investigate the most challenging crimes without compromising strong protections for civil liberties and civil rights.” 2 This joint bipartisan show of support by the Republican governor and Democratic attorney general is a sign that this bill might actually have a chance of passing. Even Commissioner William Evans has chimed in to say that “making these changes…is a necessary step that will allow law enforcement to effectively address crimes that are driving up violence in our neighborhoods…[and] will support our mission in addressing gang violence, reducing crime and improving the quality of life in our communities.” 3 Prior attempts at updating the state’s wiretap law have been stalled by opponents raising concerns about privacy for private citizens. For example, a representative of the Massachusetts ACLU has called Governor Baker’s “common sense” update to the law “a serious intrusion into people’s privacy.” 4 I reviewed the Bill to see what these “common sense” updates are. Take a look and form your own opinion. As context, keep in mind that the current law was written almost fifty years ago – before there were iPhones, text messages, or Facebook. 1. It gets rid of the restrictive wording that electronic surveillance “should be limited to the investigation of organized crime.” It broadens the range of offenses where a wiretapping warrant can be secured. Currently, wiretapping can be used in the following offenses in connection with organized crime: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming, intimidation of “Modernizing” the Massachusetts wiretap law – What are the actual changes? a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses The bill would increase the offenses in connection with organized crime to also include the following: the illegal use, possession, theft, transfer or trafficking of firearms, rifles, shotguns, sawed-off shotguns, machine guns, assault weapons, large capacity weapons, and covert weapons, felony burglary, money laundering, enterprise crime, forgery, gaming, kidnapping, felony larceny, lending of money or things of value in violation of the general laws, perjury, any felony involving prostitution, robbery, subornation of perjury, intimidation of witnesses, jurors or persons furnishing information in connection with criminal proceedings, posing, exhibiting, or disseminating child pornography, secretly recording a person including a child who is in a place where that person or child has a reasonable expectation of privacy while partially nude or in an attempt to view intimate parts, any violation of the wiretapping law, being an accessory to any of the foregoing offenses, conspiracy, attempt or solicitation to commit any of the foregoing offenses. The bill would also include the following offenses, whether or not in connection with organized crime: murder or manslaughter, rape, human trafficking, trafficking, manufacture, distribution of, or intent to distribute controlled substances; illegal trafficking in weapons, the illegal use or possession of explosives or chemical, radiological or biological weapons, civil rights violation causing bodily injury, intimidation of a witness or potential witness, or a judge, juror, grand juror, prosecutor, defense attorney, probation officer or parole officer, being an accessory to any of the foregoing offenses, and conspiracy, attempt or solicitation to commit any of the foregoing offenses. 2. The bill authorizes the interception of electronic communications between parties located outside the commonwealth, so long as the designated offense under investigation is one over which the commonwealth has jurisdiction, and the listening post is within the commonwealth. 3. It broadens the definition of “wire communication” to include 1 http://wwlp.com/2017/05/02/gov-baker-to-unveil-bill-to-update-states-wiretapping-law/ 2 http://www.masslive.com/politics/index.ssf/2017/05/gov_charlie_baker_ag_maura_ hea_1.html http://www.wbur.org/news/2017/05/02/massachusetts-wiretapping-rules 4 http://www.masslive.com/politics/index.ssf/2017/05/gov_charlie_baker_ag_maura_ hea_1.html Massachusetts Governor Charlie Baker See Wiretap on page 61