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A problematic new bill wants to expand Massachusetts wiretapping laws

Amidst national conversations about the NSA's surveillance programs, authorities in Massachusetts are trying to pass problematic legislation that would expand and loosen our state’s own wiretapping laws. "An Act Updating the Wire Inception Law" would allow local cops and legislatures to more easily tap into people's phone calls and emails. Currently in order to access a person's phone calls and electronic communications, the police need to have evidence that they are involved in organized crime. The new bill would expand wiretapping powers and allow authorities to access phone calls and emails for a "wide variety of offenses down to simple drug possession and other less serious offenses," according to a petition organized by Digital Fourth, ACLU of Massachusetts, the Bill of Rights Defense Committee, Demand Progress, the Electronic Frontier Foundation, and Fight for the Future. "If this bill passes in Massachusetts, millions of people's privacy will be at risk, and it will only be a matter of time before other states follow." For context and clarification on this pending bill, we called Alex Marthews, the President of Digital Fourth, to talk about the fourth amendment, the major threats this bill poses, and surveillance culture in general.

Digital Fourth is my own organization. I founded it a year ago. We are applying for designation as a 501c4 non-profit. We have a small board that consists mostly of academics who have an interest in surveillance policy. Our interest is in affecting surveillance policy at the state level. We are interested primarily in governmental privacy issues rather than commercial privacy issues. At the moment it is entirely through my own funds, and research I do for third parties. So we don’t get funding from any tech companies or any external foundations or members at this point.

We’ve been working for about a year here in Cambridge. We have identified two major issues to be working on. One of them is one that this petition is about – the proposal to extend Massachusetts wiretapping laws. The other is fusion centers – which are entities that are loosely state-funded, some federal funding, that gather together a whole heap of information about the public to supposedly thwart terrorist attacks before they happen.

Let’s distinguish the federal wiretapping from the state wiretapping.

With federal wiretapping, there’s been a lot of reporting about and it’s very comprehensive. We’re talking about universal collection of data on people’s phone calls and what they write and how they communicate on the internet, provided that those communications go through certain companies that participate in the NSA’s PRISM program.

When it comes to the state level, the [law about] wiretapping is relatively strict. It only allows the state to take out an electronic wiretapping warrant if investigating cases that have connections to organization crime. Looking at things like bribery, kidnapping, murder … So state law enforcement offices, they now see what the federal government is doing, and the wide variety of information the federal government has access to through surveillance, and they kind of want in on the party. They don’t see why there should be legal barriers they have to deal with that the feds don’t have to deal with.

So they are bringing forward – and have been trying to bring forward for a long time – laws that would loosen Massachusetts’ wiretapping laws. They always hang it off whatever the controversy of the time is. A couple of years ago they were trying to loosen wiretapping laws and they were hanging it off of financial fraud and Bernie Madoff and making sure they could investigate financial crimes. When they launched an effort in January they were hanging it off the Newtown school shootings and the couple sad cases of suicide from bullying in Massachusetts schools, saying that the ability to wiretap more freely would help thwart those situations before they happen. And then of course we had the Boston Marathon bombings, and it became about that. But really this is just something they want anyway, irrespective of what happens to be the most recent thing happening in the news. They have not presented any evidence that these new wiretapping laws would help with any of that.

The commitment that we have is historical in that the fourth amendment to the U.S. constitution is based on Article 14 of the Massachusetts constitution, which is older and stronger than the fourth amendment. We’ve had strong restrictions in the state constitutionally for a very long time. The idea that you can simply go around the fourth amendment is a relatively new one. You won’t find there are many states that have broad wiretapping powers. In some ways we have a special duty to keep to the principals that Massachusetts has held for so long.

Let me explain a little bit about what those constitutional protections are, because not everybody knows them. What the fourth amendment of the US constitution says is that “no warrant shall issue – for a person’s somebody’s person, paper, or effects, except upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, what the founders were trying to do with that, is that -- the British colonial government was using a kind of general warrant to search sometimes whole neighborhoods and to ransack people’s houses and try to look for evidence of sedition, evidence of opposition to the British government, evidence of smuggling. And they really didn’t like that. They thought that was not a power that the government ought to have. And so they made it a priority in the Bill of Rights that there should be language that said warrants had to be specific. They had to describe particular people, they had to describe individual cases and be based on actual suspicion and probable cause, evidence that the person was involved in an actual crime. So what we see with the NSA and what it is doing federally is a gross and explicit violation of the fourth amendment because they are collecting everything on everyone in case someday those people turn out to be guilty of something.

On a state level, the language is even stronger in some respects: “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation.” That means law enforcement needs to swear to a judge that this is legit and show why. Then it says: “if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure - and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.” So what it’s saying is a warrant is not valid unless it specially designates what it is [searching for]. It’s got to have a specific target in mind ahead of time before they do a search. So part of what is troubling about this proposed expansion of wiretapping in Massachusetts is that there’s language in there that seems to envision that state law enforcement would be able to place wiretaps at phone company switching stations. And if they do that, then of course they would collect everything that passes through that switching station. A lot of people’s communications will be collected on no greater basis than they happen to share a communications company with a suspect. That’s worrisome.

I think the biggest threat is that they’re proposing to expand out the number of crimes that would be covered by this. And therefore they’re no longer talking about a small-scale program that would be used in limited and exceptional cases. This is a dangerous power for the government to have. They’re talking about making electronic wiretapping a routine part of law enforcement by state and local authorities in the state of Massachusetts. That is not appropriate. It doesn’t fit with what is in the state of federal constitution says. They should not be treating Massachusetts citizens as suspicious unless they prove otherwise.

I think people should be aware that their communications are insecure. They should explore ways to make their communications more secure, by using secure browsers or encryption. They should be aware that they want to do anything that anyone in authority wouldn’t like, they need to be particularly careful to keep those communications confidential. Because we have already seen a variety of people who have been very aggressively investigated for things they have done, even when those things have not hurt anybody. I’m thinking here of people like Aaron Swartz, the technology activist who committed suicide after coming under investigation by the FBI. I’m thinking of Barrett Brown, the journalist who started digging into national security affairs and is now facing over a centuries worth of criminal charges. And I’m thinking also of the people of color who have been harassed and [spied on] for a long time before this became salient in the press.

The Boston Police department has a long track record of harassing peaceful protesters. This has been documented in a report called “Policing Dissent” that the ACLU came out with last year. We know now that when the Boston Fusion Center was receiving reports about a guy named Tsarnaev who looked like he might be plotting some stuff, from the Russian intelligence, they were too busy trying to disrupt the peaceful Occupy Boston protests, to pay any particular attention to what was going on.

If you have universal surveillance then law enforcement will not focus only on the people whom there is legitimate cause to suspect as involved in planning acts of terrorism – because there aren’t very many of them. They will instead focus on activists who are peaceful but pose a threat to what they are doing, and people who they don’t like anyway. That is unfortunately what has been seen time and time again with government surveillance programs. I don’t think we can trust that this time around, if we loosen wiretapping laws in Massachusetts, its somehow going to be different.

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