The Inside Game: On getting seven bills passed in one session

In the lobbying game, any association or organization or legislator that could get seven bills passed in one session would be ecstatic. I've been doing this lobbying thing for five years and have been hanging around the capitol as an activist for 12 years, and I can't think of anyone getting that kind of return in one session.

The supporters of HB 2400, the spying bill that loosens the state Wiretap Act, could get seven provisions that they want right now. HB 2400 revises the act in approximately 13 different ways. The ACLU of Pennsylvania has no position on seven of those changes, and we are not aware of any opposition to those seven revisions.

But that's not enough for the government officials who insist on gathering more power for themselves. They want more. And that's where the resistance begins. They want de facto repeal of Pennsylvania's "two party consent" rule that requires all parties in a private conversation to consent to recording with the following changes:

• Recording without consent if notice of possible recording has been posted. Somewhere.
• Recording without consent if the person thinks that maybe, possibly, they'll gather evidence of a past, present, or future crime
• Allowing the government to use recordings that civilians have made illegally
• Admitting wiretaps from other states or the federal government, even if that jurisdiction doesn't have the same privacy standards as Pennsylvania, i.e. two party consent versus one party consent

They also want to be able to seize mobile phones and then intercept incoming messages and send outgoing messages from those phones without ever telling a court what they're doing. And they want to be able to gather mobile location data from cell phone companies- both historical and in real time- with a loose "relevant to an investigation" standard.

This is why it is so important for Pennsylvanians to watch their government and why it is so important that the ACLU exists. Our founders understood that power in human hands must be checked. That's why we have three branches of government and why the first ten amendments to the constitution limit the powers of government. 

The supporters of HB 2400 could wave the flag of victory with seven revisions to law and walk away. But they insist on pushing for more. They must be stopped.

Noxious Creeping Part V: PA legislators to other states- "Please decide our laws for us"

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to allow Pennsylvania courts to consider wiretaps that were legally made under other states laws, even if they would have been illegal in Pennsylvania.

Part V: PA Legislators to other states—“Please decide our laws for us”

HB 2400 would require Pennsylvania courts to consider recordings that were legally made in jurisdictions other than Pennsylvania. For example, if a person legally recorded another in New Jersey, a Pennsylvania court would have to accept the recording as evidence. The Pennsylvania court would have to allow the recording, even if the recording would have been illegal if it had been made here.

Pennsylvania has a tradition of granting broader privacy rights than many other states. Even the United States Constitution offers less protection for personal privacy than does Pennsylvania law. Our state constitution’s guarantee against unreasonable searches is older than the Fourth Amendment in the Bill of Rights. In our wiretap statutes, Pennsylvania long ago decided that all parties to a conversation must consent to recording. In contrast, many states require only one party to consent. Our commonwealth’s robust privacy protections make a strong statement: We helped give birth to American liberty, and we want to enjoy as much of it as we can.

Unfortunately HB 2400 would contradict our tradition of assuring strong privacy rights. The bill would force Pennsylvania’s judges to open their courtrooms to recordings that would be illegal and inadmissible if they had been made here. The all party consent rule—a fundamental protection for all who appear in Pennsylvania’s courts—could disappear for some defendants.  Admissibility would depend merely on where their conversations were intercepted. The legislators of other states, as well as members of Congress, would have the authority to decide when Pennsylvania courts would have to admit certain recordings.

Our legislators in Harrisburg can talk a good game about states’ rights and Pennsylvania’s authority to govern itself. But when it is time to step up to the plate, do their votes follow their rhetoric? The supporters of HB 2400 must be hoping the answer is “No.”

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Noxious Creeping Part IV: By reading this, you've consented to audio surveillance

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to add a notice exception to the definition of “oral communications.” The new exception would allow anyone who gives notice of surveillance to record otherwise private conversations.

Part IV: By reading this blog post, you have consented to audio surveillance.

One of the most far-reaching proposals of HB 2400 creates a “notice exception” to the definition of oral communications.  Currently, the wiretap law bans recording most private oral communications. HB 2400 proposes a new rule that an oral communication isn’t private if the speaker has notice that it might be recorded.  In other words, as long as someone has notified you that surveillance may happen, you have no right to expect that your conversation is private.

This includes “actual notice,” which means you actually are aware that you may be recorded. It also includes “constructive notice.” That’s a jargony term meaning, “it’s written down on something that you were supposed to read.” Like a sign in the front office of a building, or in the back of the employee handbook. If HB 2400 passes, we can expect to see “you may be under surveillance” signs popping up all over. And you can expect to be under surveillance whenever you are not at home, whether you are out in public or not.

The notice exception makes it easy for anyone to remove any expectation of privacy in public and private space. Let’s consider a couple examples. An employer could post a sign about audio surveillance in the front office or in an employee handbook. Then the employees’ private conversations could be recorded in elevators, offices, shop floors, and lunch rooms. Don’t criticize the boss, and don’t talk about unionizing at work. 

The exception would apply in schools as well. The meetings of student groups such as the Gay-Straight Alliance might be recorded. Or administrators might decide to listen in on school newspaper meetings or student government meetings to make sure no one criticizes school policies.

             

Instead of the notice exception, the ACLU of Pennsylvania supports a different definition of “oral communications” that protects privacy rights. We ask the legislature to define “oral communications” as, “Any oral communication uttered by a person possessing a reasonable expectation of privacy in such communications.” Our proposal clarifies the current law rather than changing it significantly. Since 1998, Pennsylvania Courts have interpreted “oral communications” to cover only situations where the parties to a conversation had a reasonable expectation of privacy. See Agnew v. Dupler, 553 Pa. 33 (Pa. 1998). Our proposal would rewrite the current statute to make it crystal clear that a person’s “reasonable expectation of privacy” should remain the cornerstone of privacy rights in the wiretap act.

The “reasonable expectation of privacy” rule protects privacy where HB 2400 would threaten it. Instead of looking only to whether someone posted notice somewhere, courts interpreting the “reasonable expectation of privacy” rule look to all the circumstances surrounding a conversation. So even if the front office had a sign about audio recording, students might still be able to have a private conversation in a closed classroom, or employees might still be able to speak in an otherwise empty elevator without the boss listening. 

All of us—whether as employees, students, or in some other role—should have the right to hold private conversations from time to time, even if we are not at home. HB 2400, as it is currently written, would make this right a rare one. 

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Noxious Creeping: Amending the PA Wiretap Act (Part II)

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before the state budget passes and before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses the proposal to kill the rule that prevents prosecutors from using civilians’ illegally- made wiretaps in court.

Part II: Allowing prosecutors to use illegal civilian wiretaps

In Pennsylvania, it is a crime to record the private conversations of another person without his consent. If someone commits this crime, prosecutors cannot use the illegal recording in court.

Excluding illegal civilian wiretaps from court is a common sense rule. It guarantees that a person cannot be convicted of a crime based on evidence that someone got by committing an illegal act against the person. The Fourth Amendment to the U.S. Constitution already requires that if police illegally wiretap a person, the illegal recording cannot be used against him in court. Prohibiting illegal civilian wiretaps is a logical extension of the Fourth Amendment rule.

Imagine if the rule did not exist: A person could intentionally commit a crime—recording private conversations without consent—against another.  If a prosecutor used an illegal wiretap in court, would the prosecutor be likely to turn around and prosecute the person who made the illegal recording? And is it too farfetched to imagine a law enforcement officer, with a wink and a nod, telling a complaining witness, “If I recorded the suspect’s conversation, we couldn’t use it in court. But if somebody else did it…”?

It shouldn’t surprise you that prosecutors want to get rid of this “exclusionary rule” for civilian illegal wiretaps.  But it should surprise you that some legislators appear to be considering it. If the supporters of HB 2400 succeed, any illegal wiretap could end up in court as evidence against the victim of illegal, secret surveillance.

Excluding illegal wiretaps—by police or civilians—is how the law ensures that privacy rights in constitutional and statutory law are more than just words on paper. It is a sensible rule, and it should stay in the laws of Pennsylvania.

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Noxious Creeping: Amending the PA Wiretap Act (Part I)

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. In this post, I discuss the proposal to allow law enforcement to secretly intercept and send text messages using cell phones they obtain from civilians.

Part 1: Who is that text message really from?

Overturning Cruttenden

One of the changes they want would overturn the Pennsylvania Superior Court’s decision in Pennsylvania v. Cruttenden.  The case involved an informant who turned his cell phone over to police when he was caught with drugs in his car.  The police intercepted text messages from the informant’s alleged supplier and sent replies without revealing their identities. The supplier, thinking he was still talking to the informant, set up a meeting. But when he got there, instead of meeting the informant he was arrested and charged with criminal attempt, conspiracy, and other offenses.  On appeal, the Superior Court held that police violated the Wiretap Act when they failed to get a court order for using the cell phone. If police want to take a person’s cell phone, intercept text messages, and send text messages from the phone while pretending to be the intended recipient, they must get a court to say okay. 

Prosecutors want to pass a law to overturn the case.  They want to allow law enforcement to receive and send text messages on any phone that they “lawfully obtain.” They want law enforcement to be able to do this without any court oversight and without revealing their identities to the people they are communicating with.

Even if you think police should be allowed to use a phone that an informant voluntarily hands over for police to use, the proposed bill would go much farther. Police could intercept and send messages on any phone they “legally obtain.” This appears to allow police to seize the phones of people they arrest, and then use those phones to try to trick others into sending incriminating messages.  It even seems to create an incentive for law enforcement to arrest people in order to seize and use their phones. 

Prosecutors say that the court order requirement gets in the way of law enforcement.  That’s true. “Getting in the way of law enforcement” is also the purpose of the Fourth Amendment and much of the Wiretap Act.   It would be convenient for law enforcement to be able to read any text message anyone sends.  But we don’t want to live in a society where we are never sure if our private text messages will end up in a police dossier or if text messages we receive come from our friends or from the government.

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA