For Immediate Release - August 09, 2013

SJC issues ruling on cell phones and text messages

The Commonwealth’s highest Court rules that police may monitor cell phones and text messages.

The Supreme Judicial Court has ruled that the Massachusetts wiretap law authorizes Superior Court Judges to issue search warrants permitting the interception of cellular telephone calls and text messages.  The Court answered two questions submitted by Berkshire Superior Court Judge Daniel A. Ford, who presided over a motion to suppress evidence consisting of cellular telephone calls and text messages.  Ford ruled that the Massachusetts wiretap statute permitted law enforcement to monitor cellular telephone calls, but not text messages.  After issuing his decision, Judge Ford asked that the Appeals Court review his order.  The Supreme Judicial Court transferred the case to its docket, heard arguments on April 1, 2013 and issued its decision today. 

Berkshire District Attorney David F. Capeless commented, “The SJC’s decision is a sound one, utilizing both a careful reading of the legislative intent behind our wire communication law and a healthy dose of common sense.  It is imperative that those of us in law enforcement entrusted with ensuring public safety have the same tools and technology as those who would attempt to undermine it, but we must be empowered to employ those tools against all serious and violent felons.” 

The Court’s ruling is significant because it addressed, for the first time, the application of the 1968 wiretap statute to modern cellular communications.  

“This decision today clarifies an important aspect of the wiretap statue.  What remains to be strengthened is the statue’s use as a tool in the fight against loosely organized street gang violence and murder.  We hope the legislature does that this year,” said Cape and Islands District Attorney Michael O’Keefe, President of the Massachusetts District Attorney’s Association. 

Presently, the Massachusetts wiretap statute requires that the target of an interception be engaged in certain specified offenses “in connection with organized crime.”  That requirement was criticized by SJC Justice Ralph Gants in a 2011 decision, Commonwealth v. Tavares, 459 Mass. 289 (2011), in which he authored a concurring opinion that concluded, “In short, the legislative inclusion of five words, ‘in connection with organized crime,’ means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation. If the Legislature wishes to avoid this result, it should amend § 99 to delete those words.”