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.

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: 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