Highest Court in Massachusetts Approves Police Interception of Text Messages

By Brain Pasquale

With the ability of law enforcement to monitor suspects increasing daily due to technology, courts all over the country have seen a significant increase in the amount of privacy cases being heard.  On August 9th, the Supreme Judicial Court sought to answer the question of whether the Massachusetts wiretap statute authorizes a Superior Court Judge to issue a warrant permitting state law enforcement officers to intercept cellular telephone calls and text messages.  The Court answered in the affirmative.

The Federal wiretap statute at hand (Title III) was enacted in 1968 by Congress to balance law enforcement’s need to intercept wire and oral communications to obtain evidence and the need to protect the privacy of innocent individuals.  Title III protected individuals against the willful interception of any wire or oral communication unless a Federal or State Judge authorized such interception through a warrant.  The term “wire communication” was interpreted to mean any communication made involving a wire or cable.  The statute did permit States to adopt legislation of their own to permit warrants involving wiretapping, but the legislation must provide a minimum level of protection that was provided under Title III.

Massachusetts enacted their own wiretap statute, G.L. c. 272 § 99, which was substantially the same as Title III.  However, interception was interpreted to mean “to secretly hear or secretly record..the contents of any wire…communication through the use of any intercepting device.” The issue in this case is based on the impact the Electronic Communications Privacy Act (ECPA), adopted in 1986, had on the Federal wiretap statute.  Congress, realizing that advancements in technology had created the need to update the statute, enacted the ECPA to provide protection for text messages as well as oral communications.

The defendants in the present case argued that the warrant went beyond the power granted under the Massachusetts wiretap statute and also that because the Massachusetts wiretap statute provides less protection than Title III; it is preempted by federal law.  The SJC did not accept either argument made by the defendants.  The reasoning was that Massachusetts was never required to amend their legislature regarding wiretapping because the original statute provided protection for text messages as well as oral communications.  While the original Title III only protected oral communications, G.L. c. 272 § 99 provided protection for all communications, thus when the ECPA was enacted, Massachusetts already provided protection for text messages.

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