A grand bargain on revising the Wiretap Act

I realize using the phrase "grand bargain" could be perceived as a sign of imminent doom (thank you, John Boehner and Barack Obama), but in this case, it actually fits. Yesterday the Pennsylvania Senate Judiciary Committee passed an amendment to a bill to revise the state Wiretap Act, and the amendment properly balances Pennsylvanians' right to privacy with the government's need to conduct surveillance. We arrived at this point because the ACLU of Pennsylvania worked with legislators, legislative staff, and other stakeholders, including the Pennsylvania District Attorneys Association, over the summer to find a middle path to getting this done.

When House Bill 2400 moved through the House in the spring, the ACLU of PA was in the middle of the opposition. The bill makes more than a dozen changes to the Wiretap Act, the state law that governs how law enforcement conducts surveillance and how citizens can and cannot record. We always said that we were fine with about half of the bill but had problems with several provisions. We rang the alarm bells and told the government to back off. See here, here, here, here, and here.

The bill passed the state House in June but with an intriguing, bipartisan mix of representatives voting no, 52 in total. If you follow state politics, you may find it unusual to find Republicans Daryl Metcalfe, Kathy Rapp, Gordon Denlinger, and Bryan Cutler voting with Democrats Babette Josephs, Dan Frankel, Mark Cohen, and Mike Sturla, but that's exactly what happened.

By the time the bill landed in the Senate Judiciary Committee, we had zeroed in on four outstanding issues. The amendment passed by the committee yesterday addresses all of them.

• Government use of illegal civilian wiretaps. The original bill allowed the government to use recordings made illegally by civilians, i.e. recordings of private conversations made without the consent of all parties, in its investigations and prosecutions. As one rep said on the House floor, the provision allows civilians to become wannabe detectives. The amendment deleted this provision altogether.
• Redefining "oral communication." The definition of "oral communication" controls "two-party consent" in Pennsylvania law, the principle that all parties to a private conversation must consent to being recorded. The original bill altered the definition to allow recording anywhere- school, the workplace, retail stores- as long as notice is posted somewhere or recording equipment is visible. The amendment deleted the revision and reverted the definition to current law.
• Evidence exception to two-party consent. In the original bill, anyone who thought he would collect evidence of a first-degree felony or a crime of violence could record another person without his knowledge or consent. The amendment narrows that exception by allowing it only for victims, witnesses, and private investigators (which are defined in law) and only for crimes of violence, which are listed in the bill.
• Government use of seized mobile phones. HB 2400 allowed the police to use mobile phones they've seized in some way, such as from an informant or from an arrestee. The bill provided no check on that sweeping power. The amendment added a requirement that police first receive approval from the district attorney or attorney general before using the phone. We would have preferred that the approval come from a court, but this change at least gives some oversight.

We're thrilled about the first two changes and willing to accept the latter two changes as part of the process of legislative negotiating.

So it's true. Sometimes parties with different views can come together and reach agreement. Boehner, Obama, you listening?

The ACLU of Pennsylvania only has the leverage and ability to work in this way at the state capitol because our 19,000 members support what we are doing. Not a member? Please consider becoming one today.