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 policeillegally 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
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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
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State Attorney General Refuses to Investigate NYPD Surveillance of Muslims in PA

In August 2011, the Associated Press (AP) began publishing a series of investigative reports about an intelligence-gathering program by the New York Police Department (NYPD) that specifically targeted American Muslims. The AP reported that the NYPD had monitored about 250 mosques, universities and businesses, without any evidence of wrongdoing.  In February 2012, the AP reported that the NYPD was monitoring Muslim college students at over a dozen universities far beyond the New York city and state limits, including at the University of Pennsylvania.  In light of these disturbing reports, the ACLU-PA and Muslim Advocates, in coalition with 20 civil rights, student, faith-based, and civic groups, sent a letter to Pennsylvania Attorney General Linda Kelly requesting that her office undertake an immediate investigation of the NYPD’s surveillance of law-abiding Muslim communities in Pennsylvania. 
The Attorney General refused our request.  In a letter to the ACLU-PA, the Office’s Civil Rights Enforcement Section claimed that it lacked any legal authority to investigate the NYPD’s disturbing and discriminatory actions and that there was no “evidence” the NYPD breached anyone’s civil or constitutional rights in the commonwealth.  The Office later confirmed that its decision is not appealable.

The Office’s disavowal of any authorization to investigate NYPD’s practices in Pennsylvania is not only deplorable but inconsistent with its own mandate.  The Attorney General’s own websitestates that the Civil Rights Enforcement Section is authorized to issue reports and publicize findings concerning civil rights abuses in the commonwealth.  Indeed, the Office uses an informal set of criteria to determine whether to intervene in any particular matter.  Among those criteria are:  the extent of pervasiveness of the discrimination; the degree to which the discriminatory treatment or incident sets forth a novel issue or an issue of importance in the commonwealth; and the extent to which a particular situation, if not addressed, could escalate into a more serious problem.  The Office states that it “will review these and other factors in determining” whether its intervention is appropriate. 

The NYPD’s targeting of Muslim communities in Pennsylvania for surveillance without any evidence of wrongdoing is pervasive discrimination in violation of the U.S. and Pennsylvania Constitutions.  Singling out University of Pennsylvania students for monitoring based solely on their religious beliefs and practices or associations infringes upon core First Amendment rights to freedom of religion, speech and assembly and Equal Protection rights to be free from discrimination on the basis of religion, race, ethnicity, and national origin.  Wholesale targeting of an entire faith community is a clear violation of civil and constitutional rights in our commonwealth that could escalate if not properly investigated. 

Our Attorney General’s response is even more suspect when compared to the principled actions taken by leaders in other states:  In response to a request to investigate the NYPD’s surveillance in New Jersey, the Office of the New Jersey Attorney General stated that it is “thoroughly examining the underlying facts and circumstances relating to both the nature and scope of NYPD’s operations in New Jersey.”  The NJ Attorney General’s Office emphasized that it “take[s] this matter very seriously” and was “collaborating with the Department of Justice to ensure that a comprehensive fact finding review is conducted.”  We applaud this thoughtful and coordinated action. 

The NJ Attorney General is not alone in expressing grave concern over the NYPD’s practices.  Attorney General Eric Holder stated that reports that the NYPD conducted broad surveillance of Muslims outside New York City were “disturbing” and that the Justice Department was reviewing the matter.  Moreover, just last week, Rep. Rush Holt (D-N.J.) introduced a resolution condemning the NYPD’s “unreasonable, suspicion-less surveillance and investigations of mosques, college campuses, restaurants, businesses, and individuals without evidence of wrongdoing or criminality.”  The resolution calls upon the Justice Department to investigate whether the NYPD violated the Constitution or any federal laws and whether any agency of the federal government facilitated NYPD profiling or surveillance against members of the Muslim American community.  The NYPD’s targeting of faith-based communities, says the resolution, “undermines the Nation’s commitment to religious liberty and equal protection of the law” and “stigmatize[s] innocent members of the Muslim community merely because of their religion.”  Holt was joined by several other members of Congress in introducing this resolution, including Reps. Judy Chu (D-Calif.), Keith Ellison (D-Minn.), Michael Honda (D-Calif.), Jesse Jackson, Jr. (D-Ill.) and Jan Schakowsky (D-Ill.). 

Targeting entire communities for investigation based on religious, racial or national origin stereotypes is not only wrong, it is a waste of law enforcement resources and produces flawed intelligence.  Attorney General Linda Kelly’s refusal even to acknowledge that the NYPD’s practices could be a violation of civil or constitutional rights of law-abiding Muslims in the commonwealth is shameful and risks jeopardizing the rights of all Pennsylvanians

–Seema Saifee, ACLU-PA Legal Fellow 

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A swab in the cheek while the State Police cracks

Today the Pennsylvania Senate Law and Justice Committee and the House Judiciary Committee held a joint hearing in Gap, Lancaster County, on the plans by the Pennsylvania State Police to close its barracks in Ephrata and to downgrade the status of Troop J, the local PSP headquarters, to a substation. The latter move would lead to numerous services of the state police moving elsewhere.
PSP Commissioner Frank Noonan testified and was followed by several local leaders. Noonan said that the state police is currently 435 troopers short of its full complement, statewide, and expects to be at 500 short by the time the next class of cadets graduates from the academy. The locals, including the chairman of the county commissioners, the district attorney, and the chief of police in the city of Lancaster, protested PSP’s planned closure.
Could PSP use $13 million? That’s Noonan’s estimated cost of Senate Bill 775, a bill to collect DNA from people who have not been convicted of a crime but who have been arrested for a felony or one of several designated misdemeanors. We oppose this bill because taking a DNA sample from someone is a search, and in order to conduct this search, the government needs a finding of probable cause that it will produce evidence of a crime. The high state court in Maryland recently came to the same conclusion. DNA collection from people who have not been convicted of a crime turns innocent-until-proven-guilty on its head.
The pricetag isn’t the only significant practical problem with this bill. PSP’s DNA caseload will increase from 23,000 samples per year to 121,000 samples per year, according to an article published in the Philadelphia Inquirer in February. Under current law, in which DNA is taken from those convicted of a felony or one of the designated misdemeanors, it takes eight months to analyze a DNA sample. The wheels of justice could come to a grinding halt if SB 775 becomes law.
Incredibly, in this environment, the House Judiciary Committee is rumored to be taking up SB 775 before the end of June. While local leaders gnash their teeth over the closure of a nearby state police barracks and while PSP leaders decry their shortage of troopers, the legislature may take up this bill to place a new and expensive burden on the state police.

How many troopers could the state hire with $13 million?

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It’s Time to Reform Indigent Defense in Pennsylvania

Last month, the ACLU of Pennsylvania filed a lawsuit against Luzerne County because adult defendants are not receiving constitutionally required counsel due to an underfunded the Office of the Public Defender (OPD).  The attorneys are so overworked that they rarely have time to meet with clients before hearings, investigate clients’ cases, or adequately prepare for trial.  The situation had grown so dire by December 2011 that the OPD started declining representation to individuals charged with less serious crimes.  Over 300 individuals with pending criminal charges in Luzerne County are now facing the criminal justice system without an attorney when they are constitutionally entitled to one.

Today our attorneys are in court seeking a preliminary injunction that would authorize filling vacancies in the Luzerene OPD, increase the budget for the OPD, and provide private lawyers for those 300 criminal defendants who face criminal trials without counsel.

The right to an attorney–no matter one’s ability to afford one–has long been established. This past March marked the 49th anniversary of the Supreme Court’s decision in
Gideon v. Wainwright, where the court declared that individuals with pending criminal charges have a fundamental right under the 6th Amendment to the U.S. Constitution to legal representation even when they cannot pay for it.  Despite this ruling, many people are forced to navigate the criminal justice system effectively unrepresented because public defender offices across the nation are overworked and underfunded.  A lack of representation can mean that no counsel is present or that the attorneys are so under-prepared that their efforts are essentially meaningless.

In Pennsylvania, we have witnessed the startling consequences of the failure to adequately fund public defender offices so that they can provide the representation required by the U.S. Constitution.
From 2003 to 2008 during the infamous “kids for cash” scandal, nearly 50% of the juvenile defendants who appeared in court in Luzerne County did not have attorneys because the Public Defender’s Office lacked the resources to represent them.  This lack of representation coupled with two corrupt judges resulted in at least half of these juveniles being sent to detention facilities, many for offenses that didn’t warrant such harsh punishment.

The reason that many of Pennsylvania’s counties have a poor track record when it comes to providing constitutionally required counsel is because indigent defense (legal representation for individuals with pending criminal charges who cannot afford an attorney) is solely funded by the individual counties.  Pennsylvania is the only state that does not provide at least some state funding for indigent defense.  This leaves fundamental rights to the competition and whims of local political battles over meager resources in cash-strapped counties.  Clearly, it is time for the General Assembly to step in and vindicate the constitutional rights of indigent defendants in Pennsylvania by providing at least some funding for county public defender offices.  

For an in-depth look at the state of indigent defense in Pennsylvania, please see the December 2011 report of the Joint State Government Commission’s Task Force and Advisory Committee on Services to Indigent Criminal Defendants entitled
A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania:.

–Hilary Emerson, ACLU-PA Legal Fellow

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