Years after pushing updates, Healey silent on wiretap law

BOSTON (SHNS) – As attorney general, Maura Healey lauded a bid to update the state’s wiretapping law and flagged it as “an important issue.” But since taking office as governor, Healey has been mum on the topic and the legislation she lobbied for has gained no traction in the ensuing seven years.

The law at issue dates back to 1968, meaning its concept of wiretapping comes from an era of technology like rotary phones. And the crimes of the day differed, too, leading the original drafters to limit Massachusetts law enforcement to wiretapping “organized crime.”

“Not only is this an effort to update and modernize the laws to give us the tools that we need to be able to do our work in investigating and holding accountable those who need to be held accountable. It’s also a recognition of what our Supreme Judicial Court has signaled for a while now, that the nature and the structure and the shape of criminal activity and organized criminal enterprises has changed over time,” then-Attorney General Maura Healey said in 2017 .

Healey was speaking at a joint press conference in support of Gov. Charlie Baker’s bill to update the wiretap statute. Baker’s bill was squashed by the Joint Committee on the Judiciary the following year. He refiled it again in 2022, when it was killed by the same committee.

Now, attention is focusing once more on the wiretap law as the Supreme Judicial Court considers a case related to whether Boston police violated the wiretap law in recording a conversation with a drug trafficking suspect using a phone app.

The SJC heard oral arguments last Friday in Commonwealth v. Thanh Du . Essex County District Attorney Paul Tucker, a former police chief and state representative, said the SJC’s findings are “going to be interesting.”

“And people with various opinions will be watching closely the SJC’s decision, as will we,” Tucker said Wednesday.

Healey said in 2017 that the existing law on the books can hamstring investigators trying to use wiretaps to probe “homicides, gangs, human trafficking, narcotics, rings and other serious violent crimes.”

“We need to update these statutes to match the organizations and the infrastructure we face and fight across this state. And that’s what we have here in today’s bill,” Healey said of Baker’s legislation, which she called “a terrific example of collaboration.”

The existing law is “clearly out of touch with the development of technology and the changes in circumstances that have occurred since it was originally enacted in 1968,” Senate Minority Leader Bruce Tarr said this week.

Tarr and Rep. Jeffrey Turco, a Winthrop Democrat, refiled Baker’s text this session (S 1128 / H 1786). Both bills were killed by the Judiciary Committee earlier this year.

Massachusetts is an “outlier with regard to the obsolescence of our statute and the need to modify it,” Tarr said, pointing not just to technological advancements but also to the reliance on proving an “organized crime” connection in order to obtain a wiretap warrant. That nexus can be “difficult to establish,” the Gloucester Republican said.

“Murder, manslaughter, rape, drug trafficking. Those things do not necessarily involve organized crime, but they pose a serious threat to public safety. And so the law should be changed to encompass them as it is likely the case in many other states,” Tarr said.

Seven years ago, Healey agreed with Tarr.

Joined by district attorneys and police chiefs on the press conference stage in 2017, Healey observed that “this is a law that was passed in late 1960s and so much has changed, the technology that we use to communicate and that criminals use to do their work has changed drastically.”

“In 1968 we didn’t have cell phones, we didn’t have text messages, we didn’t have instant messaging, and that’s what today is all about,” the then-attorney general said.

The News Service asked Healey’s office several questions this week about the governor’s current position on the wiretap law and whether she had discussed it with either legislative leadership or Attorney General Andrea Campbell.

In response, Press Secretary Karissa Hand said only that “the Governor will review any legislation that reaches her desk.”

“Well, that clearly is the standard response,” Tarr said, reacting to Hand’s statement. “But again, given [Healey’s] public pronouncements in the past, I would hope that she would continue to be an advocate for changing the law, and not merely await the arrival of a proposed statute on her desk.”

Tarr said the issue “has not come up yet” in the occasional State House leadership meetings he attends with Healey and top Democrat and Republican legislators.

“But given her expertise in prosecution and law enforcement, I would think she would remain committed to modernizing the law, but I cannot say specifically. I wouldn’t want to speak for her,” Tarr said.

A spokesperson for AG Campbell agreed that the law needs to be updated, but offered no specifics for policy points or a timeline for action.

“Our wiretap law must balance individual party rights with the importance of conducting thorough law enforcement investigations that enhance public safety. Because of the changes in technology and public safety since 1968, we believe the consideration of updates to the law is timely, and that all stakeholder views should be taken into account,” the Campbell spokesperson said in a statement to the News Service.

Campbell has not, at this point, put forward any proposals for how the law should be updated. Her office referenced the ongoing SJC case dealing with the scope of the wiretap law, and said that Campbell would take the eventual SJC ruling into consideration.

The Senate added wiretap provisions to its version of a 2012 criminal sentencing bill, but lead House negotiator Rep. Eugene O’Flaherty poured cold water on those sections because they had never been debated by the full House.

O’Flaherty and then-Sen. Katherine Clark filed a wiretap bill the following session, but that was shelved without a vote by the Joint Committee on the Judiciary.

Senate President Karen Spilka, who was then a rank and file senator, spoke out at the time against the O’Flaherty-Clark bill. “Simply put, our Fourth Amendment rights should not be subject to fishing expeditions,” Spilka said in 2013.

Tucker recalled “working with Maura when she was the AG” to file wiretap language.

“I get that folks are concerned about it. And I think that it could be written in such a way that it would satisfy probably not all their concerns, but most of them,” the district attorney told the News Service, calling an updated statute “a good tool to help effectively fight crime.”

“We have gang issues in Massachusetts. We have gang issues across the country. These are run as criminal enterprises, whether it’s drug trafficking with violent components to it, and murder, and oftentimes they are sophisticated organizations. And an updated wiretap statute I think would be key in dismantling some of these organizations,” Tucker added.

Some have raised concerns with wiretap expansion on civil liberties grounds.

When the Baker administration went back before the Joint Committee on the Judiciary in 2022 for another stab at moving the bill forward, Rep. Chynah Tyler said “flags start going off” when she hears the word “wiretapping.”

“And I started thinking of issues of privacy, civil rights and human rights and all the things under that umbrella,” the Boston Democrat said.

Healey, in 2017, said that Baker’s text passed muster for her.

The Baker bill provided “updates to the statute that will assist law enforcement to better investigate the most challenging crimes, without compromising the strong protections for civil liberties and civil rights that are also central to our office’s work,” Healey said at the time.

Tucker said he hopes the Legislature “would take a good hard look at this, and scrutinize it.”

“And maybe, maybe, something could be brought forward in a way that satisfies most people,” he said.

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