Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1786 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2291 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1786
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jeffrey Rosario Turco
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act modernizing the Massachusetts wiretap law.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Jeffrey Rosario Turco19th Suffolk1/19/2023 1 of 8
16	16	HOUSE DOCKET, NO. 2291 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1786
18	18	By Representative Turco of Winthrop, a petition (accompanied by bill, House, No. 1786) of
19	19	Jeffrey Rosario Turco relative to the wiretap law. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act modernizing the Massachusetts wiretap law.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. Paragraph A of section 99 of chapter 272 of the General Laws, as appearing
29	29	2in the 2020 Official Edition, is hereby amended by striking out the third subparagraph and
30	30	3inserting in place thereof the following 2 subparagraphs:-
31	31	4 The general court further finds that in certain circumstances normal investigative
32	32	5procedures may not be effective in the investigation of specific illegal acts not associated with
33	33	6organized crime as enumerated in clause (b) of subparagraph 7 of paragraph B of this section.
34	34	7Therefore, law enforcement officials may be permitted to use modern methods of electronic
35	35	8surveillance, under strict judicial supervision, when investigating these specific enumerated
36	36	9crimes.
37	37	10 The general court further finds that the uncontrolled development and unrestricted use of
38	38	11modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the
39	39	12commonwealth. Therefore, the secret use of such devices by private individuals must be 2 of 8
40	40	13prohibited. The use of such devices by law enforcement officials must be conducted under strict
41	41	14judicial supervision and must be limited to the investigation of designated offenses as defined in
42	42	15subparagraph 7 of paragraph B of this section. Because the commonwealth has a substantial
43	43	16interest in the investigation and prosecution of designated offenses committed within its borders,
44	44	17this section shall authorize, under appropriate judicial supervision, the interception of electronic
45	45	18communications between parties located outside the commonwealth, so long as the designated
46	46	19offense under investigation is one over which the commonwealth has jurisdiction, and the
47	47	20listening post is within the commonwealth.
48	48	21 SECTION 2. Paragraph B of said section 99 of said chapter 272, as so appearing, is
49	49	22hereby amended by striking out the first subparagraph and inserting in place thereof the
50	50	23following subparagraph:-
51	51	24 1. The term “wire communication” means any transfer made in whole or in part
52	52	25through the use of facilities which allow for the transmission of communications by the aid of
53	53	26wire, cable, wireless, electronic, digital, radio, electromagnetic, satellite, cellular, optical or other
54	54	27technological means in order to achieve a connection between the point of origin and the point of
55	55	28reception, regardless of whether or not such communication travels in part within a switching
56	56	29station or other facility. The term “wire communication” shall also include: any transfer of
57	57	30signs, signals, writing, images, photographs, videos, texts, sounds, data or intelligence of any
58	58	31nature transmitted in whole or in part by using a cellular telephone, smartphone, personal data
59	59	32assistant or similar device, but shall not include: (i) any communication made through a tone-
60	60	33only paging device; (ii) any communication from a tracking device, defined as an electronic or
61	61	34mechanical device which permits the tracking of the movement of a person or object; or (iii) 3 of 8
62	62	35electronic funds transfer information stored by a financial institution in a communications system
63	63	36used for the electronic storage and transfer of funds.
64	64	37 SECTION 3. Said paragraph B of said section 99 of said chapter 272, as so appearing, is
65	65	38hereby further amended by striking out the third, fourth and fifth subparagraphs and inserting in
66	66	39place thereof the following 3 subparagraphs:-
67	67	40 3. The term “intercepting device” means any device or apparatus which is capable of
68	68	41transmitting, receiving, amplifying, or recording a wire or oral communication other than a
69	69	42hearing aid or similar device which is being used to correct subnormal hearing to normal; and
70	70	43other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a)
71	71	44furnished to the subscriber or user by a communications common carrier in the ordinary course
72	72	45of business under its tariff and being used by the subscriber or user in the ordinary course of its
73	73	46business; or (b) being used by a communications common carrier in the ordinary course of its
74	74	47business. No body-mounted camera with an audio recording feature shall be considered an
75	75	48intercepting device when such an instrument is worn openly by a uniformed investigative or law
76	76	49enforcement officer or one conspicuously displaying his or her badge of authority or other visible
77	77	50indicator of his or her status as an investigative or law enforcement officer. No vehicle-mounted
78	78	51camera with an audio recording feature shall be considered an intercepting device when it is
79	79	52mounted on a marked law enforcement vehicle, or when such an instrument is used to record a
80	80	53motor vehicle stop or other encounter involving a uniformed law enforcement officer, or one
81	81	54conspicuously displaying his or her badge of authority or other visible indicator of his or her
82	82	55status as a law enforcement officer. 4 of 8
83	83	56 4. The term ''interception'' means to secretly hear, secretly record, or aid another to
84	84	57secretly hear or secretly record the contents of any wire or oral communication through the use
85	85	58of any intercepting device by any person other than a person given prior authority by all parties
86	86	59to such communication; provided that it shall not constitute an interception (a) for an
87	87	60investigative or law enforcement officer to obtain information in real time concerning the
88	88	61existence of a communication and the identity of the parties to a communication, but not the
89	89	62contents of the communication itself, where such action has been specifically authorized by the
90	90	63order of a court of competent jurisdiction pursuant to the procedure prescribed by 18 U.S.C. §
91	91	643123; or (b) for an investigative or law enforcement officer, as defined in this section, to record
92	92	65or transmit a wire or oral communication if the officer is a party to such communication or has
93	93	66been given prior authorization to record or transmit the communication by such a party and if
94	94	67recorded or transmitted in the course of an investigation of a designated offense as defined
95	95	68herein.
96	96	69 5. The term ''contents'', when used with respect to any wire or oral communication, means
97	97	70any information concerning the contents, substance, purport, or meaning of that communication,
98	98	71including any spoken words, visual images or written material.
99	99	72 SECTION 4. Said paragraph B of said section 99 of said chapter 272, as so appearing, is
100	100	73hereby further amended by striking out the seventh subparagraph and inserting in place thereof
101	101	74the following subparagraph:-
102	102	75 7. The term ''designated offense'' shall include (a) the following offenses in connection
103	103	76with organized crime as defined in the preamble: 5 of 8
104	104	77 ; the illegal use, possession, theft, transfer or trafficking of one or more firearms, rifles,
105	105	78shotguns, sawed-off shotguns, machine guns, assault weapons, large capacity weapons, covert
106	106	79weapons as defined by section 121 of chapter 140, or silencers; any arson; assault and battery
107	107	80with a dangerous weapon; bribery; any felony burglary; money laundering in violation of chapter
108	108	81267A; enterprise crime in violation of chapter 271A; extortion; forgery; gaming in violation of
109	109	82sections 38, 39, 40, 41 and 43 of chapter 23K and sections 16A and 17 of chapter 271;
110	110	83kidnapping; any felony larceny; lending of money or things of value in violation of the general
111	111	84laws; perjury; any felony involving prostitution; robbery; subornation of perjury; any violation of
112	112	85section 13B of chapter 268; any violation of sections 29A, 29B and 105 of chapter 272; any
113	113	86violation of this section; being an accessory to any of the foregoing offenses; and conspiracy,
114	114	87attempt or solicitation to commit any of the foregoing offenses; and (b) the following offenses,
115	115	88whether or not in connection with organized crime, as referenced in paragraph 3 of the preamble:
116	116	89any murder or manslaughter, except under section 13 ½ of chapter 265; rape as defined in
117	117	90sections 22, 22A, 22B, 22C, 23, 23A, 23B, 24 and 24B of chapter 265; human trafficking in
118	118	91violation of sections 50 through 53 of chapter 265; any violation of chapter 94C involving the
119	119	92trafficking, manufacture, distribution of, or intent to distribute controlled substances; illegal
120	120	93trafficking in weapons; the illegal use or possession of explosives or chemical, radiological or
121	121	94biological weapons; civil rights violation causing bodily injury; intimidation of a witness or
122	122	95potential witness, or a judge, juror, grand juror, prosecutor, defense attorney, probation officer or
123	123	96parole officer; being an accessory to any of the foregoing offenses; and conspiracy, attempt or
124	124	97solicitation to commit any of the foregoing offenses. 6 of 8
125	125	98 SECTION 5. Paragraph I of said section 99 of said chapter 272, as so appearing, is
126	126	99hereby amended by striking out the second subparagraph and inserting in place thereof the
127	127	100following subparagraph:-
128	128	101 2. The date of issuance, the date of effect, and termination date which in no event shall
129	129	102exceed 40 days from the date of effect. The warrant shall permit interception of oral or wire
130	130	103communications for a period not to exceed 30 days. If physical installation of a device is
131	131	104necessary, the 40 day period shall begin upon the date of installation. If the effective period of
132	132	105the warrant is to terminate upon the acquisition of particular evidence or information or oral or
133	133	106wire communication, the warrant shall so provide; and
134	134	107 SECTION 6. Said paragraph I of said section 99 of said chapter 272, as so appearing, is
135	135	108hereby further amended by striking out the sixth subparagraph and inserting in place thereof the
136	136	109following 3 subparagraphs:-
137	137	110 6. The identity of the agency authorized to intercept the communications, and of the
138	138	111person authorizing the application; and
139	139	112 7. A statement providing for service of the warrant pursuant to paragraph L except that if
140	140	113there has been a finding of good cause shown requiring the postponement of such service, a
141	141	114statement of such finding together with the basis therefor must be included and an alternative
142	142	115direction for deferred service pursuant to paragraph L, subparagraph 2.
143	143	116 8. Every order and extension thereof shall contain a provision that the authorization to
144	144	117intercept shall be executed as soon as practicable, shall be conducted in such a way as to
145	145	118minimize the interception of communications not otherwise subject to interception under this 7 of 8
146	146	119chapter, and must terminate upon attainment of the authorized objective, or in any event in 30
147	147	120days.
148	148	121 SECTION 7. Paragraph J of said section 99 of said chapter 272, as so appearing, is
149	149	122hereby amended by striking out the second subparagraph and inserting in place thereof the
150	150	123following subparagraph:-
151	151	124 2. Upon such application, the judge may issue an order renewing the warrant and
152	152	125extending the authorization for a period not exceeding 30 days from the entry thereof. Such an
153	153	126order shall specify the grounds for the issuance thereof. The application and an attested copy of
154	154	127the order shall be retained by the issuing judge to be transported to the chief justice in
155	155	128accordance with the provisions of paragraph N of this section. In no event shall a renewal be
156	156	129granted which shall terminate later than 2 years following the effective date of the warrant.
157	157	130 SECTION 8. Said section 99 of said chapter 272, as so appearing, is hereby further
158	158	131amended by striking out paragraph K and inserting in place thereof the following paragraph:-
159	159	132 K. Warrants: manner and time of execution
160	160	133 1. A warrant may be executed pursuant to its terms anywhere in the commonwealth, or
161	161	134any other place that facilitates a wire communication to which at least 1 party is within the
162	162	135commonwealth; or which otherwise involves a communication regarding a criminal offense for
163	163	136which criminal jurisdiction would exist in the commonwealth.
164	164	137 2. Such warrant may be executed by the authorized applicant personally or by any
165	165	138investigative or law enforcement officer of the commonwealth designated by him for the
166	166	139purpose, or by any designated individual operating under a contract with the Commonwealth or 8 of 8
167	167	140its subdivisions, acting under the supervision of an investigative or law enforcement officer
168	168	141authorized to execute the warrant.
169	169	142 3. The warrant may be executed according to its terms during the hours specified therein,
170	170	143and for the period therein authorized, or a part thereof. The authorization shall terminate upon
171	171	144the acquisition of the oral or wire communications, evidence or information described in the
172	172	145warrant. Upon termination of the authorization in the warrant and any renewals thereof, the
173	173	146interception must cease at once, and any device installed for the purpose of the interception must
174	174	147be removed as soon thereafter as practicable. Entry upon private premises for the removal of
175	175	148such device is deemed to be authorized by the warrant.
176	176	149 4. In the event the intercepted communication is in a code or foreign language, and an
177	177	150expert in that foreign language or code is not reasonably available during the interception period,
178	178	151minimization may be accomplished as soon as practicable after such interception.
179	179	152 5. Upon request of the applicant, the issuing judge may direct that a provider of wire or
180	180	153electronic communications service, landlord, custodian, or other person shall furnish the
181	181	154applicant forthwith all information, facilities, and technical assistance necessary to accomplish
182	182	155the interception unobtrusively and with a minimum of interference with the services that the
183	183	156person so ordered by the court accords the party whose communications are to be intercepted.
184	184	157Any provider of wire or electronic communications service, landlord, custodian or other person
185	185	158furnishing such facilities or technical assistance shall be compensated therefore by the applicant
186	186	159for reasonable expenses incurred in providing such facilities or assistance.