Amendment ID: S2185-87-R1
Redraft Amendment 87
Modernizing the Massachusetts Wiretap Law
Messrs. O'Connor and Ross move to amend the bill by striking out, in lines 62, 129, 152, 156, 158, 197, 233, 237, 242, 246, 251, 256, 277, 486 and 574, the word “wire” and inserting in place thereof, in each instance, the following words:- wire, electronic.
SECTION 177. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out, in lines 92 and 201, the word “wire” and inserting in place thereof the following words:- wire or electronic.
SECTION 178. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out, in lines 141, 143, 285, 290, 294, 296, 301, 304 and 305, 307, 313, 378, 432, 477, 480 and 589 the words “oral or wire” and inserting in place thereof, in each instance, the following words:- wire, electronic or oral.
SECTION 179. Paragraph A of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out the last subparagraph and inserting in place thereof the following 2 subparagraphs:-
The general court further finds that in certain circumstances normal investigative procedures may not be effective in the investigation of specific illegal acts not associated with organized crime as described in clause 7 of paragraph B. Therefore, law enforcement officials may use modern methods of electronic surveillance, under strict judicial supervision, when investigating those specific crimes.
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 shall be prohibited. The use of such devices by law enforcement officials shall be conducted under strict judicial supervision and shall be limited to the investigation of designated offenses as defined in clause 7 of paragraph B. Because the commonwealth has a substantial interest in the investigation and prosecution of designated offenses committed within its borders, this section shall authorize, under appropriate judicial supervision, the interception of electronic communications between parties located outside the commonwealth so long as the designated offense under investigation is one over which the commonwealth has jurisdiction and the listening post is located within the commonwealth.
SECTION 180. Paragraph B of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out clause 1 and inserting in place thereof the following clause:-
1. “Wire communication” shall mean any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station
SECTION 181. Said paragraph B of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out clauses 3 to 5, inclusive, and inserting in place thereof the following 6 clauses:-
3. "Communications device" shall mean a device or apparatus which is capable of transmitting, receiving, amplifying or recording an electronic, wire or oral communication.
4. "Intercepting device" shall mean a communications device other than a device the ordinary purpose of which is not interception of wire, electronic or oral communication; provided, however, that no body-mounted camera with an audio recording feature shall be considered an intercepting device when such an instrument is worn openly by a uniformed investigative or law enforcement officer or an officer conspicuously displaying the officer’s badge of authority or other visible indicator of the officer’s status as an investigative or law enforcement officer; provided further, that no hearing aid or similar device which is being used to correct subnormal hearing and no telephone or telegraph instrument, equipment, facility or any component thereof: (i) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (ii) being used by a communications common carrier in the ordinary course of its business shall be considered an intercepting device; and provided further, that no vehicle-mounted camera with an audio recording feature shall be considered an intercepting device when it is mounted on a marked law enforcement vehicle or when such camera is used to record a motor vehicle stop or other encounter involving a uniformed law enforcement officer or an officer conspicuously displaying the officer’s badge of authority or other visible indicator of the officer’s status as an investigative or law enforcement officer.
4A. ''Interception'' shall mean to secretly hear or secretly record or to aid another to secretly hear, view or otherwise inspect or secretly record the contents of a wire, electronic or oral communication contemporaneously with its transmission or conveyance by any person other than a person given prior authority by all parties to such communication; provided, however, that it shall not constitute an interception: (i) if no communications device is used to accomplish the interception; (ii) for an investigative or law enforcement officer to obtain information in real time concerning the existence of a communication and the identity of the parties to a communication but not the contents of the communication itself, where such action has been specifically authorized by the order of a court of competent jurisdiction pursuant to the procedure prescribed by 18 U.S.C. § 3123; (iii) for an investigative or law enforcement officer to record or transmit a wire, electronic or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein; or (iv) for any person to record a government actor in the performance of official business in public except when such recording unreasonably invades the privacy of a citizen informing on criminal conduct or reporting criminal conduct or a confidential informant.
4B. ''Contents'', when used with respect to any wire, electronic or oral communication, shall mean any information concerning the contents, substance, purport or meaning of that communication, including any spoken words, visual images or written materials.
4C. "Electronic communication" shall mean any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photoelectronic or photooptical system, but does not include (i) any wire or oral communication, (ii) any communication made through a tone-only paging device, (iii) any communication from a tracking device, or (iv) electronic funds transfer information stored by a financial institution in a communication system used for the electronic storage and transfer of funds
SECTION 182. Said paragraph B of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out clause 7 and inserting in place thereof the following clause:-
7. The term “designated offense” shall include (a) the following offenses in connection with organized crime as defined in the preamble:
; the illegal use, possession, theft, transfer or trafficking of one or more firearms, rifles, shotguns, sawed-off shotguns, machine guns, assault weapons, large capacity weapons, covert weapons as defined by section 121 of chapter 140, or silencers; any arson; assault and battery with a dangerous weapon; bribery; any felony burglary; money laundering in violation of chapter 267A; enterprise crime in violation of chapter 271A; extortion; forgery; gaming in violation of sections 38, 39, 40, 41 and 43 of chapter 23K and sections 16A and 17 of chapter 271; kidnapping; any felony larceny; lending of money or things of value in violation of the general laws; perjury; any felony involving prostitution; robbery; subornation of perjury; any violation of section 13B of chapter 268; any violation of this section; being an accessory to any fo the foregoing offenses; and conspiracy, attempt or solicitation to commit any of the foregoing offenses; and (b) the following offenses, whether or not in connection with organized crime, as referenced in paragraph 3 of the preamble: any murder or manslaughter, except under section 13 ½ of chapter 265; rape as defined in sections 22, 22A, 22B, 22C, 23, 23A, 23B, 24, and 24B of chapter 265; human trafficking in violation of sections 50 through 53 of chapter 265; any violation of chapter 94C involving the trafficking, manufacture, distribution of, or intent to distribute controlled substances; illegal trafficking in weapons; the illegal use or possession of explosives or chemical, radiological or biological weapons; civil rights violation causing bodily injury; intimidation of a witness or potential witness, or a judge, juror, grand juror, prosecutor, defense attorney, probation officer or parole officer; being an accessory to any of the foregoing offenses; and conspiracy, attempt or solicitation to committ any of the foregoing offenses.
SECTION 183. Paragraph I of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out clause 2 and inserting in place thereof the following clause:-
2. the date of issuance, the date of effect and the termination date which shall not exceed 40 days after the date of effect; provided, however, that if physical installation of a device is necessary, the 40-day period shall begin upon the date of installation; provided further, that a warrant shall permit interception of wire, electronic or oral communications for a period not to exceed 30 days; and provided further, that if the effective period of the warrant is to terminate upon the acquisition of particular evidence or information or wire, electronic or oral communication, the warrant shall so provide.
SECTION 184. Said paragraph I of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out clause 6 and inserting in place thereof the following 3 clauses:-
6. the identity of the agency authorized to intercept the communications and the identity of the person authorizing the application;
7. a statement providing for service of the warrant pursuant to paragraph L; provided, however, that if there has been a finding of good cause shown requiring the postponement of such service, a statement of such finding together with the basis therefor shall be included and an alternative direction for deferred service pursuant to subparagraph 2 of said paragraph L; and
8. every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter and shall terminate upon attainment of the authorized objective or in 30 days, whichever first occurs.
SECTION 185. Paragraph J of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out the subparagraph 2 and inserting in place thereof the following subparagraph:-
2. Upon such application, the judge may issue an order renewing the warrant and extending the authorization for a period not exceeding 30 days from the entry thereof. The order shall specify the grounds for the issuance thereof. The application and an attested copy of the order shall be retained by the issuing judge to be transported to the chief justice in accordance with paragraph N. No renewal shall be granted that shall terminate later than 2 years following the effective date of the warrant.
SECTION 186. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out paragraph K and inserting in place thereof the following paragraph:-
K.1. A warrant may be executed pursuant to its terms anywhere in the commonwealth or any other place that facilitates a wire, electronic or oral communication to which at least 1 party is within the commonwealth or which otherwise involves a wire, electronic or oral communication regarding a criminal offense for which criminal jurisdiction would exist in the commonwealth; provided, however, that the listening post is located within the commonwealth.
2. A warrant may be executed by the authorized applicant personally or by an investigative or law enforcement officer of the commonwealth designated by the applicant for that purpose or by any designated individual operating under a contract with the commonwealth or a political subdivision thereof acting under the supervision of an investigative or law enforcement officer authorized to execute the warrant.
3. A warrant may be executed according to its terms during the hours specified therein and for the period authorized therein or a part thereof. The authorization shall terminate upon the acquisition of the wire, electronic or oral communications, evidence or information described in the warrant. Upon termination of the authorization in the warrant and any renewals thereof, the interception shall immediately cease and any device installed for the purposes of the interception shall be removed as soon thereafter as practicable. Entry upon private premises for the removal of such device shall be deemed to be authorized by the warrant.
4. If an intercepted communication is in a code or foreign language and an expert in that code or foreign language is not reasonably available during the interception period, minimization shall be accomplished as soon as practicable after such interception.
5. Upon request of the applicant, the issuing judge may direct that a provider of wire or electronic communications service, landlord, custodian, or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to acomplish the interception unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party whose communications are to be intercepted. Any provider of wire or electronic communications service, landlord, custodian, or other person furnishing such facilities or technical assistance shall be compensated therefore by the applicant for reasonable expenses incurred in providing such facilities or assistance.SECTION X. Said section 99 of said chapter 272, as so appearing, is hereby further amended by adding, in line 291, after the words “and premises” the following:-
“or through a particularly described electronic account or identity”
SECTION Y. Said section 99 of said chapter 272, as so appearing, is hereby further amended by adding, in line 376, after the words “telegraph line”, the following:-
“, or electronic account or identity”
SECTION Z. Said section 99 of said chapter 272, as so appearing, is hereby further amended by adding, in line 436, after the words “telegraph line”, the following:-
“, or the owner or user of the electronic account or identity”
SECTION XX. Said section 99 of said chapter 272, as so appearing, is hereby further amended by adding, in line 471, after the words “if any,” the following:-
“the electronic account or identity,”