July 8, 2013 | By Adi Kamdar

Massachusetts' Legislature Considering a Step Forward, and Backward, for Privacy

When it comes to making progress around privacy, it's sometimes best to look at what individual states are doing. Unfortunately, faster legislative changes on the state level can be a double-edged sword. Massachusetts is the latest example: while they are considering a bill implementing strong warrant requirements around electronic communications, they are also looking to unnecessarily expand wiretap laws.

Following in the footsteps of Texas' HB2268, Massachusetts' Joint Committee on the Judiciary is about to vote on S.796/H.1684. This bill, "An Act updating privacy protections for personal electronic information," sets out strong warrant requirements when law enforcement wants access to your personal electronic information. This includes details around your emails and telephone calls, as well as your location information. The bill also features important reporting requirements, bringing transparency to such requests, and has carve-outs for specific situations such as emergencies. EFF supports this bill, and we submitted written testimony (PDF) urging Massachusetts legislators to vote in its favor.

Why are states taking action? Because federal laws are behind the times. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 and has not kept up with technological changes. For example, it allows law enforcement to bypass warrant requirements for communications older than 180 days (a provision that the Sixth Circuit Court of Appeals ruled in the Warshak case violates the Fourth Amendment). While ECPA reform is urgently needed on the national level (and seems to be slowly moving forward), it is heartening to see states getting on the fast track to protecting electronic privacy.

Unfortunately, Massachusetts is dragging, too. The legislature and attorney general are looking to expand the state's wiretapping powers (S.654). The bill allows law enforcement to wiretap individuals, roping in countless callers who are not suspected of being complicit in any sort of coordinated crimes. The bill also expands the type of crimes subject to wiretapping, no longer limiting the police from wiretapping only in the most serious and violent of criminal offenses.

As if that weren't enough, the bill strips the current law of its preamble, which includes language warning of the "grave dangers to the privacy of all citizens of the commonwealth" posed by law enforcement officials' use of electronic surveillance. The new bill's striking of such language transcends mere symbolism, leaving privacy protections on the cutting room floor. If it weren't obvious by now, EFF strongly opposes this bill (PDF). And over 4,000 Massachusetts residents have spoken out against this bill in a coalition effort between EFF, ACLU of Massachusetts, Bill of Rights Defense Committee, Demand Progress, Digital Fourth, and Fight for the Future.

Massachusetts' warrant requirement bill is a very important step towards providing its residents with necessary privacy protections—especially when ECPA falls short. However, Masschusetts must not, at the same time, fall into the trap of greatly and unnecessarily expanding law enforcement's wiretap powers.

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