Privacy SOS

Massachusetts prosecutors want dangerous new surveillance powers. We have less than 48 hours to stop them.

Video cameras inside bedrooms. Informants wearing tiny wires, capturing video and audio of everything you say. A government bug hidden somewhere in your office’s conference room, exposing your business to the listening ears of police and prosecutors.

For decades in Massachusetts, these invasive surveillance tactics have been strictly limited by our state’s wiretap statute, usable in only the most serious investigations of highly organized criminal conspiracies. But now, Massachusetts District Attorneys (DAs) are pushing for a vast expansion of their surveillance authorities, which would make it easier than ever before for them to use these techniques in a wide range of criminal investigations, even into low-level offenses like petty drug distribution.

We must act immediately to stop the biggest surveillance power grab Massachusetts has seen in decades. Take action now. The state senate will vote on these dangerous measures on Thursday, October 26, so time is of the essence.

Wiretap “modernization” would be an unprecedented power-grab by District Attorneys

Prosecutors in Massachustts have been working behind the scenes to expand their wiretapping authority for years. The legislature has thus far rejected their attempts to rewrite state wiretap authorities, but now, with criminal justice reform central in the minds of legislators, the DAs are closer than ever to realizing their dream.

Massachusetts wiretap law was passed in 1968, in order to give prosecutors the ability to listen in on the phone calls of organized criminals in the mafia. Now, prosecutors want to expand that authority to include a range of low-level offenses not connected to organized crime or other conspiracies. And equally dangerous, they want to be able to wiretap digital and electronic communications.

Two amendments filed to the state senate’s omnibus criminal justice reform package would give prosecutors unprecedented new powers to wiretap phone calls, emails, instant messaging services, and potentially even internet connected devices like personal assistants (think Amazon’s ‘Echo’) and televisions. These poison pill amendments (#24 and #87) must be voted down.

What’s the matter with wiretap expansion?

Prosecutors say they need the expansive new authorities to properly investigate 21st century crime. But law enforcement is not “going dark.” In fact, prosecutors in Massachusetts have greater access to sensitive information about us than ever before—and they don’t even need a warrant to get some of the most revealing information we leave behind. In that context, the DAs’ push for these new surveillance powers is both confounding and deeply troubling.

The wiretap amendments considered this Thursday would do the following:

  • Eradicate the organized crime requirement, enabling prosecutors to use wiretaps in a wide-range of criminal investigations, including petty drug distribution and even solicitation to distribute drugs. That means even drug users could be wiretapped should one of these amendments become law.
  • Grant prosecutors the power to coerce drug users into wearing wires to document drug deals, putting them at risk of extreme violence. Drug users and others picked up on lower-level offenses across the country have been murdered because of these operations.
  • Enable prosecutors to demand technology companies provide “technical assistance” to facilitate wiretapping, plunging Massachusetts into a highly controversial debate about the ability of government to force companies to compromise the security of their own products. We can’t be sure how courts will interpret this language, but the prosecutors may view it expansively, meaning District Attorneys could try to force companies to turn their products into bugs for the government. Think Amazon ‘Echo,’ internet connected TVs with microphones and cameras, and internet connected home security systems.
  • Eliminate the existing jurisdictional requirement, enabling prosecutors to wiretap people outside the state of Massachusetts—potentially anywhere in the world.
  • Enable law enforcement to hand off wiretapping operations to private corporations. Under current law, only government employees working for law enforcement agencies may conduct authorized wiretaps.

In 2015, Boston’s District Attorney, Dan Conley, told Congress that Apple’s disk encryption system was a “dangerous extreme.” He said that by creating secure technology for its users, Apple was—however unintentionally—creating a “safe space for terrorists.”

Now, Conley and other Massachusetts prosecutors are pushing the state legislature to expand the state’s wiretap statute, to enable District Attorneys to get wiretap orders compelling technology companies to provide “technical assistance” to effectuate wiretap orders. That’s a bridge too far.

If prosecutors want to expand the wiretap statute, they should welcome a robust debate, involving technology experts and other stakeholders. The legislature should not pass such a drastic expansion of state surveillance power as an afterthought, by tacking it onto a bill meant to address mass incarceration and racial injustice.

Contact your state senator now and tell them to oppose these dangerous amendments.

UPDATE: Thanks to your advocacy, the Massachusetts Senate rejected the dangerous wiretap expansion in a 22-14 vote, early in the morning on Friday, October 27. We’ve won this battle, but this will be a long fight yet. The prosecutors won’t give up, and neither can we. Stay tuned to this blog and the ACLU of Massachusetts on Facebook and Twitter to make sure you’re in the loop when the issue comes up again. When we fight, we win.

© 2017 ACLU of Massachusetts.