In recent years, it has become clear that the Massachusetts wiretap statute, G.L. c. 272 §99, which has existed in substantially the same form since 1968, is in need of reform. In 2011 and 2014, the Supreme Judicial Court issued opinions noting their concerns about the restrictions of the current statutory regime, which limits the use of designated offenses to those with a “connection with organized crime,” thereby preventing the use of a wiretap warrant in the investigation of many gang-related shootings. See Commonwealth v. Burgos, 470 Mass. 133, 149 (2014) and Commonwealth v. Tavares, 459 Mass. 289, 304-305 (2011).
This position was echoed by Attorney General Maura Healey in a statement before the Joint Committee on the Judiciary at its hearing in September 2015, when she called for “thoughtful and necessary updates” including “remov[ing] the connection to organized crime, update[ing] the list of designated offenses, and redraft[ing] the definition of what devices are subject to a wire interception warrant.”
Considering the pending bills on this issue, the BBA’s Criminal Law Section – along with the Civil Rights and Civil Liberties Section – drafted a statement of principles for the legislature. The statement was reviewed by all other BBA Section Steering Committees and approved by the BBA’s Council in March. It makes the following recommendations for any potential revisions to the wiretap statute:
(1) modernize the statute to recognize developments in wireless communications technology;
(2) add to the list of “designated offenses” the serious profit-driven organized crime offenses of human trafficking, trafficking in firearms, manufacturing child pornography, and money laundering; and
(3) add first-degree murder without regard to whether or not committed in connection with organized crime, so as to make wiretap authority and investigatory one-party consent recordings available in the investigation of any first-degree murder offense
In addition, it calls for updating and modernizing sub-section R to require that reporting on wiretap use be more accessible and informative for the public.
On March 21, the BBA sent its statement to the Chairs of the Joint Committee on the Judiciary, Representative John Fernandes and Senator William Brownsberger, whose committee is considering the handful of bills on this issue. We hope that they will keep our statement in mind as they work through this issue and look forward to keeping you apprised of any developments on this issue.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association