State Sen. John Velis is hopeful that a refiled bill to expand and modernize the state’s wiretap law, last updated 57 years ago, will advance this legislative session. The issue, however, drew differing opinions at a recent public hearing by the Joint Committee on the Judiciary.
His billed filed, S1284, seeks to expand the list of designated offenses that law enforcement can request a wiretap for to include the unlawful use or possession of a firearm and murder in the first degree.
The current law, adopted in 1968, remains among the most restrictive in the country, limiting a prosecutor’s ability to seek a wiretap warrant unless it is specifically related to organized crime and approved by a judge. That factor prohibits law enforcement for seeking a wiretap in many cases, Velis argues.
Massachusetts also requires all-party consent for any recording, while federal law and many other states only require one-party consent.
“Our wiretap statute was created decades ago with the narrow intent of combating organized criminal enterprises,” he said. “At that time, lawmakers could not have anticipated the evolving threats we face today — particularly the devastating rise in acts of gun violence and homicides carried out by individuals or loosely affiliated groups outside of traditional organized crime networks.”
Velis said that gun offenses and first-degree murder pose “serious threats” to communities and that his proposed legislation would give law enforcement and investigators the tools to do their jobs more effectively.
“I firmly believe that reforms to this statute is a conversation we must have, to support law
enforcement and for the sake of victims of crimes throughout the commonwealth, and I urge the committee give this bill a favorable report,” said Velis.
Surveillance debate
The measure was met with pushback at the Sept. 9 public hearing on Beacon Hill last week.
“We are living in the golden age of the surveillance state,” said Kade Crockford of the American Civil Liberties Union (ACLU).
Crockford, who directs the ACLU’s Technology for Liberty Project, made the case that the state should increase restrictions on surveillance despite the current rigid regulations in place. Technology for Liberty works to ensure that new technology strengthens rather than compromises the right to free expression, association and privacy.
Referring to cellphones as “tracking devices” and pointing to new technology such as license plate readers, Crockford made the case that people are currently living in what would have been considered science fiction not so long ago.
She opposes, “new authority to violate our privacy in the most extreme way imaginable by wiretapping our phone calls, installing bugging devices in our bedrooms, in our kitchens, and our offices.”
She went on to say that, “Police have tons of information with and without orders and without warrants.”
But Lisa Fontes, a professor and international expert on domestic abuse, argued before the committee that there is an urgent need for Velis’ legislation.
Fontes, who teaches about child abuse and violence against women at UMass Amherst and Smith College, said that, “sometimes a recording of an abuser’s threats is the only evidence that a survivor has of the violence and abuse that has occurred behind closed doors.”
She said that this month she was dealing with an out-of-state case in which a mother reported that her now-separated husband had been whipping their children with a belt and telling the children to keep it a secret from their mother.
It was a secret recording that allowed the woman to collect evidence of the abuse, as he admitted to the whipping in the recording. That evidence would be illegal in Massachusetts and not be admissible in court due to only one-party consenting.
“The recording helped the mom to keep her children safe,” Fontes testified. “The father’s access to the children will be supervised until he learns how to be a more empathic and kinder father.”
It is unclear where Gov. Maura Healey stands on the issue. As then-attorney general, Healey supported efforts to update the state’s wiretapping law, calling it “an important issue.” She backed then-Gov. Charlie Baker’s 2017 legislation to modernize the statute, highlighting its outdated nature and the challenges it posed to investigating serious crimes like human trafficking and narcotics rings.
However, her gubernatorial administration has not advanced major efforts on the topic.
Velis hopes the legislation will receive a favorable report by the committee this legislative session.
“At the end of the day, this is all about keeping our communities safe. It is absolutely irrefutable that not only has the nature of crime changed drastically since this statute was created, but also that technology has evolved in countless ways over the past 57 years,” Velis said in a statement. “Not only has law enforcement advocated for the Legislature to revisit this statute, but our very own Justices have also shared concerns of how this antiqued law severely impedes investigations for some of the most heinous crimes.”