Years after Healey pushed for updates, he remained silent on wiretapping law – Sentinel and Enterprise

BOSTON — As attorney general, Maura Healey praised an effort to update the state’s wiretapping law, calling it “a significant issue.” But since becoming governor, Healey has remained silent on the issue, and the legislation she lobbied for has failed to gain support in the ensuing seven years.

The law in question dates back to 1968, meaning the concept of wiretapping comes from an era of technology like rotary telephones. And the crimes of the time were different, too, leading the original drafters to limit Massachusetts law enforcement to wiretapping “organized crime.”

“This is not just an effort to update and modernize the laws to give us the tools we need to do our job of investigating and holding accountable those who need to be held accountable, it is also a recognition of what our Supreme Court has been saying for some time, which is that the nature, structure and form of criminal activity and organized criminal enterprises have changed over time,” then-Attorney General Maura Healey said in 2017.

Healey spoke at a joint press conference in support of Gov. Charlie Baker’s bill to update the wiretapping law. Baker’s bill was crushed by the Joint Committee on the Judiciary the following year. He reintroduced it in 2022, when it was defeated by the same committee.

Now, attention is turning again to the wiretapping law, as the Supreme Court hears a case involving whether Boston police violated the wiretapping law by recording a conversation with a drug trafficking suspect via 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 “will be interesting.”

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

Healey said in 2017 that existing law could prevent detectives from using wiretaps to investigate “homicides, gangs, human trafficking, drug trafficking, gangs and other serious violent crimes.”

“We need to update these statutes to reflect the organizations and the infrastructure that we’re dealing with and fighting against in this state, and that’s what we have here in today’s bill,” Healey said of Baker’s legislation, which she called “a great example of collaboration.”

The current law is “clearly out of step with the evolution 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, reintroduced Baker’s text this session (S 1128/H 1786). Both bills were defeated by the Judiciary Committee earlier this year.

Massachusetts is an “outlier in terms of the obsolescence of our statutes and the need to update them,” Tarr said, pointing not only to technological advances but also to the reliance on proving an “organized crime” connection to obtain a wiretap warrant. That connection can be “difficult to establish,” the Gloucester Republican said.

“Murder, manslaughter, rape, drug trafficking, those things are not necessarily organized crime, but they are a serious threat to public safety, and so the law needs to be changed to include them, as is probably the case in many other states,” Tarr said.

Seven years ago, Healey agreed with Tarr.

In 2017, with district attorneys and police chiefs also present at the press conference, Healey noted that “this is a law that was passed in the late 1960s, and so much has changed. The technology that we use to communicate and that criminals use to do their jobs has changed dramatically.”

“In 1968, we had no cell phones, no text messaging, no instant messaging, and that’s what it’s all about today,” the attorney general said at the time.

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

In response, press secretary Karissa Hand said only that “the governor will review any legislation that comes across her desk.”

“Well, that’s obviously the standard answer,” Tarr said, responding to Hand’s statement. “But again, given (Healey’s) past public statements, I would hope that she continues to be an advocate for changing the law, and not just wait until a proposed statute comes across her desk.”

Tarr said the issue “has not come up” during the occasional meetings of State House leadership he attends with Healey and top Democratic and Republican lawmakers.

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

A spokesman for Attorney General Campbell acknowledged the law needs to be updated, but did not provide specific policy points or a timetable for action.

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

Campbell has not yet made any proposals for how the law should be updated. Her office cited the ongoing SJC case on the scope of the wiretapping law and said Campbell would consider the final SJC ruling.

The Senate added wiretapping provisions to its version of a 2012 bill on felony punishment, but the House’s chief negotiator, Rep. Eugene O’Flaherty, threw cold water on the provisions because they had never been discussed by the full House.

O’Flaherty and then-Senator Katherine Clark introduced a wiretapping bill the next session, but it was shelved without a vote by the Joint Committee on the Judiciary.

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

Tucker recalled that he “worked with Maura when she was attorney general” to record the wiretaps.

“I understand that people are concerned about it. And I think it can be written in a way that probably doesn’t address all of their concerns, but it does address most of them,” the prosecutor told the News Service, calling an updated law “a good tool to effectively combat crime.”

“We have gang problems in Massachusetts. We have gang problems all over the country. These are run as criminal enterprises, whether it’s drug trafficking with violent components, or murder, and often they’re sophisticated organizations. And an updated wiretap law would be, I think, critical to dismantling some of these organizations,” Tucker added.

Some are concerned about the expansion of wiretapping on the grounds of civil liberties.

When the Baker administration returned before the Joint Committee on the Judiciary in 2022 for another attempt to pass the bill, Rep. Chynah Tyler said “alarm bells go off” when she hears the word “wiretapping.”

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

Healey said in 2017 that Baker’s text was enough for her.

Baker’s bill provided “updates to the law that will help law enforcement better investigate the most challenging crimes, without compromising the strong protections of 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 “will take a good look at this and scrutinize it carefully.”

“And maybe, maybe, something can be brought forward that satisfies most people,” he said.