How far is too far? Legal analyst dives into privacy concerns in Massachusetts wiretapping proposal

A new proposal before the state Legislature would expand Massachusetts’ wiretapping law. But privacy advocates, and GBH legal analyst Daniel Medwed, worry that it could signal government overreach and open up what’s available to law enforcement too much. Medwed, a Northeastern Law professor, joined Morning Edition Tuesday to break down the arguments for and against amending the existing law, what it would change and where the Massachusetts courts have drawn the line in the past with technology and privacy.

What follows is a lightly edited transcript.

Jeremy Siegel: This is Morning Edition. I'm Jeremy Siegel.

Paris Alston: And I’m Paris Alston. Gov. Charlie Baker is pushing a bill that aims to modernize the wiretapping law in the commonwealth, which was passed decades ago in an effort to grapple with the threat of organized crime. Joining us to talk about the bill and how it fits into broader questions of technology and privacy is Northeastern Law professor and GBH legal analyst Daniel Medwed. Hi Daniel, how's it going?

Daniel Medwed: Good morning, Paris.

Siegel: So, Daniel, before we talk about this new bill that Gov. Charlie Baker introduced, let's talk about where things currently stand. What are the key features of the wiretapping law in Massachusetts as it stands now?

Medwed: Sure thing, Jeremy. So it was enacted in 1968 and has several key features. The most important one is that the target of the monitoring, the surreptitious recording, must be a member of "organized crime," which is defined under the law as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." That certainly is a mouthful, but it's also a crucial substantive limitation on the scope of this law. The law enforcement can't just engage in a fishing expedition to go after low-level criminal actors who are acting on their own.

In addition, the law contains a series of procedural protections. For instance, you have to get judicial authorization for the wiretap. There are time constraints on how long it can be up and running. And there's also a provision for continual judicial monitoring.

Alston: Now, Daniel, I gotta say any time I hear wiretap, my mind immediately goes to the HBO series "The Wire."

Siegel: One of us had to bring it up.

Medwed: The best show ever.

Alston: Somebody had to bring it up! We're huge fans of "The Wire" here.

Medwed: As am I.

Alston: Of course, in the show, we see law enforcement instituting, probably, what was depicted as one of the first uses of a wiretap into a local drug ring. And there are all of these concerns that are raised about legality and consent because they're doing this wiretapping but, of course, unbeknownst to the people involved in the drug trade, they don't know what, they don't know that. They're picking up phones and just talking like they usually would without knowing that they're being surveilled. So how are those concerns coming up here?

Medwed: Those concerns are being raised right at the moment by opponents of this bill. So this new bill would basically modernize or expand the law. It would drop the phrase "organized crime" and make it much easier for law enforcement to wiretap disorganized groups, so to speak, but also individuals. For instance, maybe a low-level drug trafficker.

So Paris, as you indicate, there are a lot of privacy concerns, as well as general concerns about government overreaching, the growth of government power.

For purposes of full disclosure, I should acknowledge that I've gone on the record in opposition to this bill. I even testified against it at a Judiciary Committee hearing last week. And one of my concerns is the paradox of seeking to expand government power at this unique moment in time. We're in the aftermath of the rise of the Black Lives Matter movement and progressive prosecution. Many people are questioning whether excessive police and prosecutorial power actually makes us safer and instead think that it imperils many people, especially members of vulnerable and marginalized communities.

There's also the fear that this could be what law professors like to say is a slippery slope. If you amend this law to get rid of the phrase "organized crime," then where does the reach stop for law enforcement? Basically they could target a huge swath of activity without people being aware of what's going on. Those are some of the major concerns.

Siegel: We're talking with GBH legal analyst Daniel Medford about a proposed amendment to the state's wiretapping law that's currently being considered by the Legislature. Daniel, what's the argument in favor of this legislation?

Medwed: Well, the argument in favor — which has been advanced by Gov. Baker and some of his allies — is that the phrase organized crime is too rigid and that law enforcement should have greater leeway, more flexibility, in going after serious crime like murder, rape, hate crimes that might be perpetrated not by members of organized crime, but by loose affiliates of people and/or by individuals. That's sort of the chief argument.

There's also an argument that the term electronic communications should be amended to reflect the more recent technology that's available.

Alston: Now, Daniel, some advocates of the change have cited a 2011 opinion of the late SJC Justice Ralph Gants to suggest that our state's highest court also supports altering the law. But have you seen that opinion, and what's your read on it?

Medwed: I have read that opinion, and I have a slightly different interpretation of it. It's a 2011 case — Commonwealth v. Tavares — and in that case, the SJC suppressed or excluded evidence from a wiretap that was put on a man affiliated with a criminal street gang in Brockton. And the argument for the SJC was essentially: his affiliation didn't rise to the level of "organized crime" as defined in the wiretapping law.

In his concurring opinion, then-Associate Justice and later Chief Justice Ralph Gants expressed misgivings with this result, and suggested that the phrase organized crime is too rigid and that it should capture what he called "disorganized crime" — street gang activity.

However, I think the tenor of that opinion would not support the full amendment that's being proposed here because Justice Gants was concerned about group criminality and not necessarily individual criminality, which in theory could be targeted if this bill were to pass.

Siegel: So we're specifically talking about wiretaps here, but there is a broader conversation about technology and privacy and law enforcement. One example of that is automatic license plate readers, cameras that could track the movements of vehicles. What is the status of that?

Medwed: Well, the SJC, I think it was in 2020, took that issue head on. In that case, a man was driving across the Bourne and Sagamore Bridges. And the police, without a warrant, were getting real time data alerts about this person's comings and goings based on the idea that they suspected of drug dealing, that he was dealing drugs on the Cape.

He claimed that this was a Fourth Amendment violation, that this invaded his privacy and that the police should have had a warrant to get this information. The SJC rejected his argument and said, "Essentially, you don't have a constitutionally protected right to privacy in your movements on a public highway, especially when there's some suspicion of criminal activity afoot." The court said, "Hey, maybe in other circumstances we wouldn't be so magnanimous to law enforcement, but here it was OK."

The bigger problem, I think, Jeremy, with these automatic license plate readers, is that the technology is often flawed. I think about a year ago, the state police suspended its use of that technology because of evidence of inaccuracies in the data collection.

Alston: And what about other types of cameras, Daniel? I mean, I know sometimes law enforcement will put up cameras on telephone poles or other type of electronic poles to sort of monitor someone's comings and goings outside of their home, maybe? But are there any restrictions on that? Because that also seems a little intrusive.

Medwed: Absolutely. And the SJC has drawn a distinction between those automatic license plate readers — which basically they say it's OK for the police to use with some possible constraints — and these pole cameras, which the SJC has held you have to get a warrant for.

There was a really important case where the SJC said [that] if you set up a pole camera and trained it on someone's house, that is an intrusion of their privacy — the constitutional intrusion, because it creates what the court called, "a mosaic of their life." I love that word. A mosaic of their life.

Alston: You could see, like, a life flashing before the camera.

Medwed: Exactly. Sort of a composite of these various data points of your behavior that is, on the whole, too intrusive, and you do need a warrant to set up a pole camera.

I think this is a good sign, Paris and Jeremy, of how conflicted the courts are with law and technology and policing, and this is a conversation that I think all of us will continue to have in the years ahead.

Alston: All right. Northeastern Law Professor in GBH News Legal Analyst Daniel Medwed. Thank you so much, as always.

Medwed: Thank you both. It was a pleasure.

Siegel: This is GBH News.