Governor Baker’s wiretap bill stirs chorus of opposition

By Colin A. Young

FEB. 15, 2022…..The Baker administration’s bid to update the state’s 54-year-old wiretapping law to allow surreptitious surveillance of communications in more investigations ran headlong Tuesday morning into concerns from representatives who see the proposal as a broad expansion of police powers and did not appear to buy into the administration’s argument that there is an urgency to its proposal.

Public Safety and Security Secretary Terrence Reidy detailed Gov. Charlie Baker’s latest bill (H 4347) to allow police to use wiretaps in certain cases that are not connected to organized crime and told lawmakers on the Joint Committee on the Judiciary that it is about “modernizing” the 1968 law with “careful commonsense updates.” He and State Police Col. Chris Mason also addressed the privacy concerns of opponents right off the bat, highlighting what would not change if the bill is passed.

“I understand and appreciate the privacy concerns that are implicated in this discussion of electronic surveillance law. So let me first know what this bill will not change: Number one, the fact that only the attorney general’s office or the Massachusetts district attorneys can request a wiretap. And it does not change the fact that only one person can authorize a wiretap in response to such a request and that is a Superior Court judge,” Reidy said. “Lastly, it doesn’t change the fact that the high bar of exhaustion needs to be met in order to grant a request for a wiretap.”

Current law allows for electronic surveillance only when an offense is committed “in connection with organized crime” and Reidy said Tuesday that those five words “have a dramatic effect repeatedly inhibiting the commonwealth’s ability to solve” difficult cases. The governor’s bill would allow law enforcement to use wiretaps in certain cases that are not connected to organized crime, like cases of murder or manslaughter, rape, human trafficking, drug trafficking, the manufacturing or distribution of drugs and weapons trafficking.

Rep. Jay Livingstone, a former assistant district attorney in Middlesex County, told Reidy and Mason that he thinks they are being “deceptive” by describing Baker’s bill as a targeted proposal that seeks to address only the most heinous of crimes.

“This, to me, is the most sweeping expansion of police authority that I’ve seen in any bill in the nine years I’ve been in the Legislature and describing it as incredibly targeted or only involving heinous crimes, I don’t think that’s accurate,” Livingstone, a Boston Democrat, said.

Livingstone said many of the crimes that Baker’s bill would expand wiretapping authority for were the types of crimes that he prosecuted as a first-year assistant district attorney just gaining experience, like a case in which someone hit another person with a shoe and was charged with assault with a dangerous weapon, and not necessarily the worst of the worst offenses.

Reidy pointed out that the cases Livingstone was prosecuting had already been solved and that Baker’s bill is looking to make wiretaps more available as a tool as investigators attempt to solve crimes. He said an agency seeking a wiretap has to show that it has exhausted all normal avenues of trying to obtain the information it is seeking.

“What we’re talking about are specific instances where exhaustion has been used and there’s no other way to be able to get at potential suspects,” the secretary said.

Mason agreed with Reidy and told Livingstone that he knows the “frustration that investigators feel when they’re dealing with families where a loved one has been murdered” and they are attempting to get to the bottom of the homicide.

“They’re asking why aren’t all the tools available to law enforcement?” Mason said.

Livingstone was not so convinced.

“You should be very careful with your statements. Because if you wanted an expansion to deal with murder, you could have filed that. But that’s not what you filed,” he told the colonel. “For Secretary Reidy, you’re right in that there are limits on the procedures that police need to follow to get wiretaps. But you’re still greatly expanding the list of crimes … And the reason I mentioned those crimes is to show people the breadth of expansion that you’re proposing, far beyond the most quote-unquote most heinous crimes.”

Reps. Chynah Tyler and Brandy Fluker Oakley, both also of Boston, expressed concerns with the proposal Tuesday and said they wanted more information from the Baker administration. Tyler, who serves as vice chair of the Judiciary Committee and as chairwoman of the Black and Latino Legislative Caucus, wanted to know about any outreach the administration had done with communities, law enforcement officers and others.

“When I hear wiretapping, some flags start going off and I started thinking of issues of privacy, civil rights and human rights and all the things under that umbrella. And so, when we’re talking about wiretapping, I just think that any issue when it comes to wiretapping needs to be fully vetted,” Tyler said.

Fluker Oakley questioned Reidy about how the governor’s bill would protect people who are not the target of a law enforcement investigation or wiretap but who might be in communication with someone who is, like a lawyer, member of the media or a government official.

Saying she didn’t see any of those protections in the bill, Fluker Oakley added, “I think it goes without saying there’s some pretty severe concerns that I have with the government appearing to want to do deeper overreach into folks’ personal communication.”

Judiciary Committee co-chair Rep. Michael Day pressed Reidy on an issue that Livingstone had initially broached — that the governor’s bill also seeks to create the ability for law enforcement to conduct wiretaps of communications outside Massachusetts.

“That is a huge red flag for us,” Day said.

Representatives also questioned Reidy about how great of a priority the bill really is for the governor and his administration given that the proposal was filed two sessions ago but not at all last session, and was filed very late in the process this time around.

“Why did you and the governor choose to go this route if this is a priority for the administration,” Rep. Adam Scanlon of North Attleborough asked Reidy.

The secretary said he was “not sure on the timing of the filing of the bill.” Baker’s bill was filed Jan. 21, less than two weeks before the deadline for committees to wrap up most of their hearings and deliberations. Day suggested it was too late for the Judiciary Committee or the Legislature as a whole to give the bill its due consideration before significant legislative work ends for the year by July 31.

“I think it highlights … the concerns here, the kind of rushed nature that you’ve heard from a number of reps and colleagues here today, about trying to digest this proposal which is not, to be fair, a small correction or update of our wiretap laws. I think it is fairly expansive,” Day said. “We’ve heard from traditionally over-policed communities with their concerns, and I think we did our best to try to get this hearing in given the timing of this piece. But certainly, I think we’re welcoming a longer discussion on this given the intrusive nature of what a wiretap is.”

Governors from both parties, attorneys general, district attorneys and state lawmakers have made numerous unsuccessful bids to update the state’s 1968 wiretapping law.

Though she was not part of the administration’s testimony or presentation Tuesday, Attorney General Maura Healey has previously supported Baker’s efforts to amend the wiretapping law and Sen. Sonia Chang-Diaz, who is competing against Healey for the Democratic Party’s gubernatorial nomination, took aim at the AG over that support Tuesday.

“The wiretapping bill backed by Governor Baker, Attorney General Healey, and district attorneys shows that talk is cheap when it comes to racial justice and criminal justice reform. They have repeatedly proposed legislation that would significantly expand police surveillance, while failing to seriously consult racial justice leaders and advocates from overpoliced communities,” Chang-Diaz, who is also a member of the Judiciary Committee, said in a statement.