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Leonardo Angiulo: MA Supreme Court Brings Wiretapping To Your Cellphone

Monday, August 12, 2013

 

The Massachusetts Wiretap Statute was originally written in 1968 and hasn't changed much since. This is important because the technology of communication has changed dramatically. In 1968, there were no cell phones, there were no text messages, and there were no emails. As far as I know Al Gore hadn't even invented the internet yet.

In the recent case of Commonwealth v. Corey A. Moody the Massachusetts Supreme Judicial Court basically said the statute is an oldy but a goody. This decision fundamentally expanded the power of the Superior Court to issue warrants for the interception of communications. Specifically, state wiretap warrants can now be issued for the interception of cell phone calls and text messages.

In reaching this decision, the court had to deal with the fact that the Federal statute dealing with wiretaps was amended in 1986 and stated that the various states had two years to update their own statutes. This matters because when Congress passed its own wiretapping statute, it did so claiming primary authority over the subject and allowing states to have concurrent authority for wiretaps so long as the state laws were at least as protective as the federal law. This two year deadline was set, and the federal amendments occurred, in order for new technologies to be addressed by the state legislatures. To be plain, Massachusetts never got around to doing this. Not before 1988, 1998 or 2008.

So, the defense argument goes, if the feds say states can only wiretap if their laws are as protective as theirs, and the Massachusetts statute does not protect cell phone calls or text messages, then the Massachusetts law is invalid. And if the Massachusetts law is invalid then any communications intercepted pursuant to it were done illegally. Since illegally seized evidence is inadmissible at trial the defendants in Commonwealth v. Moody and others like them should not, therefore, have to face stuff like this at trial.

The court chose not to accept this logic, and instead, decided the law as written in 1968 was broad enough to be valid. First, the court decided cell phone calls were covered because the original language of the Massachusetts Wiretapping statute addressed any call using any wire, cable, or other like connection even if limited to a switching station. This means, by the courts opinion, that even if cell phone calls only use a limited amount of phone company hardware they are still covered by the Massachusetts statute which, therefore, affords the same amount of protection as the federal wiretapping statute. And since it gives the same level of protection no amendment was needed after the 1986 Amendment.

The same facts and circumstances were used by the court in justifying the use of Massachusetts warrants to intercept text messages. Since cell phone carriers transmit text messages through switching stations, which use wire or cable, the text messages themselves are wire communications as considered by the original Massachusetts statute and the updated federal statute.

The court in Moody also took the time to define the term “record” as used by the Massachusetts Wiretap Statute. The term “record” was found to mean "to set down in writing" or "to cause (sound, visual images) to be transferred to and registered on something [by] electronic means in such a way that the thing so transferred and registered can . . . be subsequently reproduced."

Now, when the court interpreted the Massachusetts Law as consistent with its federal counterpart it put the Commonwealth in the game with modern law enforcement. Think about it: the 1968 statute permitted police to investigate crimes committed on rotary phones. Most importantly, proponents would say, nothing about this decision exceeds the scope of what's permitted by the federal law and so there is no harm or impropriety about the Moody decision. In fact, some people might say tying the hands of law enforcement because of a couple missing words would be ridiculous.

An issue presented whenever a court interprets a statute is where are the limits of that interpretation? In this case the court ruled communications, both aural and written, can be legally recorded by state law enforcement with a warrant so long as they are transmitted by wire at some point. Under this statute wouldn't emails be interceptable so long as the communication is transmitted by the carrier through switching stations or other hardware covered by the 1968 statute? Does it make sense that a cell phone call and text message sent from a smartphone would be interceptable, but an email from the same device would not? Does it make you want to start writing honest to goodness letters again instead of using a phone at all? Without further amendment of the state statute itself we can only wait for the next court case to answer this and many other questions presented by this ruling.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

 

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