Archive for July 2013

On July 9, 2013, at the Massachusetts Judiciary Committee Hearing, the NLG Massachusetts Chapter presented the following statement in opposition to a bill that proposes expansion of government electronic eavesdropping and wiretapping under “An Act Updating the Wire Interception Law” (S. 654/H. 3261).

June 9, 2013

 

OPPOSITION OF THE NATIONAL LAWYERS GUILD, MASSACHUSETTS CHAPTER

TO THE PROPOSED EXPANSION OF GOVERNMENT

ELECTRONIC EAVESDROPPING AND WIRETAPPING UNDER

 “AN ACT UPDATING THE WIRE INTERCEPTION LAW”

(S. 654 / H. 3261)

The proposed expanded electronic eavesdropping legislation poses an enormous threat to our citizens’ sense of privacy during a period when much of our personal right to privacy has been greatly eroded in the name of “security”.  Moreover, it is highly debatable as to whether or not all of the security measures instituted over the last decade have actually made us safer or merely increased our fear.

One of the basic principles upon which our country was founded was the right to “be left alone” by our government in the course of our daily lives.  That freedom was enshrined in both the U.S. and the Massachusetts constitutions which, in the Fourth Amendment and in Article XIV, respectively, forbid the government from secretly and without our consent obtaining personal information about each of us,  without specifying ahead of time what criminal acts we are accused of, what information is needed and can be searched for, and whose records are being searched.  This bill would greatly dilute those protections of our basic rights and freedoms.

 

Moreover, the Massachusetts legislature has long recognized the dangers to our citizenry of secret warrantless electronic surveillance by the government.  As it stated 54 years ago in 1959, in the preamble to the first modern wiretapping statute enacted in Massachusetts, General Laws chapter 272, § 99:

 

“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.  Therefore, the secret use of such devices by private individuals must be prohibited.  The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.”

 

Our Massachusetts courts have also noted the unique threat to individual privacy posed by the particularly intrusive nature of electronic surveillance.   In Commonwealth v. Blood, 400 Mass. 61, 69-70 (1987), the court, quoting the U.S. Supreme Court, stated, in no uncertain terms, that “ ‘it must be plain that electronic surveillance imports a peculiarly severe danger to the liberties of the person….’ Lopez v. United States, 373 U.S. 427, 469-470 (1963) (Brennan, J., dissenting)…. [B]ecause the peculiar virtues of these techniques are ones which threaten the privacy of our most cherished possessions, our thoughts and emotions, these techniques are peculiarly intrusive upon that sense of personal security which art. 14 commands us to protect.”  Former S.J.C. Chief Justice Liacos also directly addressed the threats posed by electronic surveillance to constitutionally protected privacy rights in his dissent in Commonwealth v. Price, 408 Mass. 668, 678-679 (1990)(Liacos, J. dissenting):

“The citizens of this Commonwealth should not have to live with the fear that at any given moment they might be the subject of unauthorized covert electronic surveillance by the police.   […]   I would hold that, regardless of an individual’s expectation of privacy, art. 14 forbids the covert use of electronic surveillance by the police in the absence of an appropriate warrant specifically authorizing such activity.  In my view, such a holding would be consistent also with the clear limitations on electronic surveillance set by the Legislature by enacting G. L. c. 272, § 99.”

 

The bill currently being considered would significantly dilute the privacy rights of our citizens by (a) making it much easier for government agents to obtain a wiretapping warrant, in order to (b) spy upon a much greater number of activities, instead of limiting such eavesdropping to very serious criminal activity like organized crime, murder, and armed robbery.

 

This body should give heed to what was said by the legislature 50 years ago and the warnings sounded by our courts concerning the erosion of the right to privacy which has been wrought by the greatly expanded use of electronic surveillance over the past decades.  Massachusetts citizens should not have to live in fear of their government simply because the government claims that giving it broader powers to spy upon its own citizens will make us more safe and secure, when there is o concrete evidence to support such a claim.  Do we feel safer now than we did fifteen years ago, before the NSA began its massive secret wiretapping and data mining program?

 

Therefore, the National Lawyers Guild, Massachusetts Chapter, in the name of freedom and to protect our right to what little privacy still exists in our society, opposes the proposed expansion of government electronic eavesdropping and wiretapping under the proposed legislation entitled  “An Act Updating The Wire Interception Law” (S. 654 / H. 3261).

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