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.

What happened in Harrisburg?

So the dust has pretty much settled from budget month at the state capitol. What didn't happen is as noteworthy as what did happen.

No defund of Planned Parenthood. Although House Bill 2405 was introduced with great fanfare- because everything primary sponsor Rep. Daryl Metcalfe does is done with great fanfare- the bill was referred to the House Rules Committee and was never heard from again.

No preconviction DNA collection. There were murmurs throughout the spring that the House would take up Senate Bill 775, mandating the collection of DNA from all persons arrested- but not convicted- for a felony or one of several enumerated misdemeanors. In June, the House had already debated expanding the power of the government and civilians to wiretap us and a ban on "secret compartments" in vehicles. Taking up DNA collection of people who are innocent under the law may have been a bridge too far toward the police state, but we are on alert for the possibility that this bill comes back when the legislature returns to session in the fall.

No ID for public benefits. With the President Pro Tempore of the Senate, Joseph Scarnati, as the primary sponsor, it seemed that the passage of SB 9 was a foregone conclusion. But the bill went through a serious game of legislative ping-pong. It was amended and passed in the House, forcing it to return to the Senate. It was amended and passed in the Senate, forcing it back to the House. The bill was brought up for consideration on the House floor at 11:45pm on Saturday, just as the governor was preparing for the signing ceremony of the budget and related legislation. When the House Republicans returned from the ceremony, SB 9 wasn't taken up.

SB 9, in its current form, mandates applicants for public aid to show ID to be eligible for the aid, with some exceptions. No ID, no aid. As we've learned throughout the debate over voter ID, there are some citizens who do not have and who would have a difficult time obtaining ID. In the House, Rep. Metcalfe (that guy again) stirred the pot further by adding a provision that would create a third-degree felony if an undocumented immigrant possesses a benefits card, an obviously unconstitutional provision since there are legitimate reasons for an undocumented immigrant to possess a card. For example, he might have it because his citizen child participates in food stamps.

It's hard to predict where SB 9 will end.

No taxpayer-funded private school vouchers. Vouchers proponents are claiming victory after the passage of an enhanced version of the Educational Improvement Tax Credit program, in which private corporations can get a tax break for donating to a scholarship fund. But the fact is that "EITC 2.0," as it's been called, was Plan B after the defeat of vouchers, which would have given public funds directly to students to attend private and parochial schools....well, parochial schools because the amount of the voucher could only cover the tuition at a religious school and not at a secular private school.

We lost on a new E-Verify mandate for public contractors, Senate Bill 637, Pennsylvania's first E-Verify mandate. The governor has not yet signed the bill, but he is expected to do so.

All told, though, we escaped the torture of budget month in Harrisburg with civil liberties relatively unscathed. All in a day's, or month's, work at the ACLU of Pennsylvania..... And that sounds like a good reason for you to donate today!

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 Part III: You can record if you think they might admit to thinking about doing something bad in the future

“(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, which is due at the end of June, 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 allow anyone to record private conversations if they believe they will capture evidence of a crime of violence or first degree felony.

Part III: The Evidence Exception, or You can record if you think they might admit to thinking about doing something bad in the future.

Pennsylvania’s wiretap law requires that everyone in a private conversation consent before anyone can record it. The law protects everyone’s privacy by making sure that everyone has a chance to keep a private conversation private.

Legislators are proposing to create a new exception that punches a massive hole in the “all-party consent” rule—a hole with ragged, unraveling edges. This “Evidence Exception” would allow any person to record anything if they have a reasonable belief the recording will capture evidence of a past, present, or future crime. For now, at least, the exception is limited to “crimes of violence” and first degree felonies.

On its face, the law would give individuals permission to secretly record each other in many private conversations. For example, one person’s malice towards another can be good evidence in an assault case. Under this law, a person might record another person badmouthing a third person, just in case the third person was ever the victim of a violent crime sometime in the future.

The proposed law also puts a confusing burden on civilians to decide when the exception actually applies. You would only be allowed to record if you thought you would find evidence of a “crime of violence” or a first degree felony. Otherwise recording without consent is still a crime. Quiz: Sometimes burglary is a first degree felony and sometimes it is not; and sometimes it is a crime of violence and sometimes it is not. Do you know the difference?[1] How many people will be able to say whether the proposed law would allow them to record a private conversation or not? Not many, I suspect, without seeking advice from a lawyer first.

If this proposed exception seems broad by itself, consider also that it would be very likely to expand. Once we allow recording to capture evidence of “crimes of violence” and felonies of the first degree, preventing the exception from sweeping in other offenses as well will be almost impossible. Discharging a firearm into an occupied structure is pretty awful, but it is only a felony of the third degree. 18 Pa.C.S. 2707.1(b). If a legislator in the future votes against expanding the Evidence Exception to include that offense, is he or she supporting discharging firearms into occupied structures? Casting votes to keep the exception where it is would be politically very, very difficult. Inevitably, some legislator or some prosecutor will cite an emotional case to justify further expansion of this exception.

As it is now, the Evidence Exception is so large it could nearly swallow all-party consent by itself. And once created, it could easily grow even larger.

Instead, we should keep it off of Pennsylvania’s law-books entirely.

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[1] Does it help if I tell you that burglary is only a second degree felony “If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry”? 18 Pa.C.S. 3502. The definitions of “crimes of violence” are at 42 Pa.C.S. 9714(g).

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

Your government wants spying made easy

Across the pond, Great Britain is talking about extraordinary new spying power that would allow the government to monitor all communications without judicial approval. The British author George Orwell's nightmare could come true.

Here in Pennsylvania, no one is going quite that far. But don't give them any ideas. Using fear of crime (of course) and new technology as their wedges, government officials- specifically the commonwealth's prosecutors- are itching to open up the state Wiretap Act to make it easier to obtain our communications without dealing with those pesky courts.

For example, one proposal would allow the government to use illegal recordings made by civilians in its investigations. Go ahead and reread that. It is illegal for civilians to do it, but the government wants to be able to use what a civilian has illegally obtained. Translation: Your government is above the law.

Another proposal would allow a law enforcement official to intercept communications, without a warrant, and communicate back without identifying himself on a device he legally obtained, such as through an informant or through an arrest. Is that really your girlfriend on the other end of that text?

Mobile phone service providers archive your phone's location data. They know approximately where you've been for weeks. While one can understand the practical and benign reasons for collecting such data, e.g. tracking where to construct new towers, this data provides electronic footsteps of your every move. In their Wiretap Act proposal, government officials want to obtain that data with a standard less than probable cause. Their proposal has been changing and is something of a moving target, but essentially, they don't want to show a court that they have probable cause that a crime has occurred and that the phone was used in the commission of that crime. The ACLU of Pennsylvania believes that they must show probable cause and obtain a court order before getting that data, as mandated by both the federal and state constitutions.

Let's bottom line this: In their attempt to debase the Wiretap Act, these government officials want to gather more power for themselves, and they're using fear to convince lawmakers to go their way. 

No one should be fooled into believing that this is the end of their power grab either. At a hearing last month before the Senate Judiciary Committee, Chief Deputy Attorney General Erik Olsen told the committee "we'll be back" for more revisions in the future. Big Brother is watching. And he wants to watch more.