For Immediate Release - May 02, 2017

Baker-Polito Administration Proposes Bill To Update Wiretap Law, Crack Down On Violent Crimes

Statutory revisions would update wiretap law to fit the current criminal landscape

BOSTON – The Baker-Polito Administration today filed legislation to substantially update the Commonwealth’s wiretap statute to recognize the major evolution in communication technologies over the past 50 years and provide law enforcement with better resources to pursue violent and heinous crimes, including gang-related homicides and rape.  By making modest adjustments to a statute written in 1968, drafted with the assistance of the Attorney General’s Office, this bill will give law enforcement and the courts the ability to solve more cases and was announced at a State House press conference with the support of the Attorney General, District Attorneys and members of the law enforcement community.

“Our priority is to keep our communities safe, and this bill is aimed at modernizing state law to give law enforcement more tools to investigate and prosecute some of the most heinous crimes, such as murder and human trafficking,” said Governor Baker.  “As several state judges have noted, overhauling this law to address 21st century technology will help law enforcement better protect the people of Massachusetts.”

“This legislation overhauling our wiretap laws is a commonsense proposal to ensure investigators have the tools to solve some of Massachusetts’ most difficult crimes,” said Lt. Governor Karyn Polito. “Just as law enforcement officers must adapt to evolving situations, our statutes should adapt to address the range of crimes being committed.”   

Attorney General Maura Healey acknowledged the importance of updating the statute to assist law enforcement with criminal investigations while protecting privacy rights.

“This legislation has been a priority of my office for years, as we have long recognized that we need updated statutes and tools to match the organizations we face and to fight the most violent and egregious crimes in the 21st century,” Attorney General Maura Healey said. “I want to thank our partners in law enforcement, EOPSS, and the Governor’s Office for their commitment to this issue by filing this bill today, and to my team for their work in shaping the language reflected in today's revisions.”

The existing language of the state wiretap statute provides that electronic surveillance may only be employed when an offense is committed “in connection with organized crime,” phrasing which has dramatically restricted the Commonwealth’s ability to solve difficult cases. Massachusetts Supreme Judicial Court (SJC) justices in two different cases have noted in their written opinions that amendments to the wiretap statute could have avoided the supression of critical evidence.

  • In 2011, the SJC suppressed recordings of incriminating statements made by a suspect in a Brockton shooting homicide, after ruling that the murder had not been committed “in connection with organized crime.”[1]
  • In 2014, the SJC suppressed recordings of the suspect in a New Bedford shooting homicide admitting his role in the murder “without indication of remorse or even regret,” again because the murder had not been committed in connection with organized crime.[2]

“Making these changes to the current law is a necessary step that will allow law enforcement to effectively address crimes that are driving up violence in our neighborhoods,” said Boston Police Commissioner William Evans. “These updates will support our mission in addressing gang violence, reducing crime and improving the quality of life in our communities.”

“We are grateful for the leadership of the Governor and the Attorney General on the first reform of this statute since 1968,” said Cape & Islands District Attorney Michael O’Keefe. “The state’s district attorneys unanimously support this measure which brings our statute into the 21st century while continuing to safeguard privacy rights by restricting electronic surveillance to certain narrowly drawn offenses and only under judicial supervision.”

The Baker-Polito Administration’s proposal calls for expanding the list of “designated offenses” that may be investigated with a wiretap when they are committed in connection with organized crime: the illegal use, possession, theft, transfer or trafficking of firearms, including machine guns, or of silencers; money laundering; enterprise crime; certain illegal gambling offenses; violations of the Intimidation statute; and crimes involving the manufacturing or dissemination of child pornography.

The bill also specifically defines some of the most serious crimes as designated offenses even when they are not committed “in connection with organized crime,” including murder or manslaughter, rape, human trafficking, drug offenses involving trafficking, manufacture or distribution,  trafficking in weapons, civil rights violations causing bodily injury, intimidation of witnesses, and use or possession of explosives or chemical, radiological or biological weapons. The plot to carry out the Boston Marathon bombing, for instance, would not have been susceptible to a wiretap investigation under existing law, but would be under these revisions.

Additional aspects of the governor’s proposed legislation:

  • Makes explicit that the Superior Court has the authority to issue a search warrant to monitor modern wireless and computer-facilitated electronic communications, and not merely traditional land-line telephones;
  • Allows the Superior Court to authorize monitoring for up to 30 days prior to the submission of a renewal application, consistent with longstanding federal practice; and
  • Allows a Massachusetts court to grant the authority to investigate a conspiracy to commit a designated offense in the Commonwealth, even if the conspirators themselves may be outside the Commonwealth when they are communicating (e.g., two individuals in New York plotting to import heroin into Massachusetts).   

“In crafting this proposal we made sure it would bolster and modernize electronic surveillance law while still protecting individual privacy,” said Secretary of Public Safety and Security Dan Bennett.

The bill retains the requirement that the employment of electronic interception technology for the content of communications is allowed only as a last resort, when a prosecutor can satisfy a neutral judge that no lesser means will allow them to gather evidence of the crime. This requirement, referred to as “exhaustion,” requires that an applicant for a wiretap search warrant run down every other possible lead before filing their application with the court.  Unlike other search warrants, only a Justice of the Superior Court is authorized to issue this type of warrant, and an application can be made only with the personal authorization of the elected District Attorney or the Attorney General of the Commonwealth. 

 

[1] Commonwealth v. Tavares, 459 Mass. 289 (2011)

[2] Commonwealth v. Burgos, 470 Mass. 133 (2014)