Controversial New Pennsylvania Wiretapping Bill Discussed by West Chester Criminal Defense Attorney

The Pennsylvania House of Representatives recently passed a revised wiretapping bill that would expand on the ability for law enforcement agencies to track suspected criminals. House Bill 2400 was voted through with overwhelming support, 145 to 52 on June 13, 2012. The bill contains some helpful provisions that would aid in developing a more effective law enforcement system, but also contains wording that is a direct assault on the privacy and individual rights of Pennsylvania citizens.

The bill amends Act 18 of the original 1989 wiretapping law through a dozen new provisions and updates, and will move to the state Senate in the fall. Among the changes, HB2400 broadens the legal circumstances under which civilians and law enforcement can record oral communication without consent and how recordings can be used as evidence in the criminal court system.

The most glaring examples of this includes the expansion on a resident’s capacity to make secret recordings of alleged criminal activity, the new capacity for police to open and respond to messages on a cell phone if they suspect the communications relate to crime, and the ability to wiretap a person as opposed to just a phone line.

These provisions, while singularly beneficial from a law enforcement perspective, have the potential to seriously infringe on the rights and privacy of free citizens while also creating an environment of fear, distrust and paranoia within communities. HB2400 gives law enforcement unprecedented power to spy on individuals who they suspect are engaging in criminal activity, such as drug trafficking or possession with an intent to distribute.

For example, under HB 2400, only one party would need to be aware of a wiretap or recording for it to be legal, if they believed that the other party would speak about committing a crime, or confess to one. This can also include a “third party” which means that telephone companies, internet providers or computer technicians could be used as interception agents without a warrant. In the bill’s wording, it is legal for “Any individual to intercept the contents of any wire, electronic or oral communication if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a serious crime.”

This Orwellian provision may help in certain cases where crime victims need to gather evidence of wrongdoing, such as sexual assault, but it is a near certainty that there will be exponentially more situations where privacy is improperly invaded. This will likely produce a climate of distrust that degrades the ability for our society and community to operate without fear of privacy invasions.

The other primary source of contention is the ability to now wiretap a person as opposed to just the phone. The bill also allows for what is known as “target-specific wiretaps,” which prosecutors say will allow them to track drug dealers and criminal suspects who allegedly use more than one pre-paid mobile phone to throw off law enforcement. This presents many issues that could complicate matters in a criminal investigation and defense of the charges, by allowing for inter-jurisdictional surveillance and interception of communications without a warrant, even if the individual had not yet committed a crime and the judge has not been notified of the activity.

This bill presents specific privacy and individual rights abuses for those being investigated for drug crimes, while also hampering the ability for a West Chester drug defense attorney to effectively and fairly do their job and protect the rights of their clients. This precedent will lead to a major advantage to the prosecution while the defense will have to compete with intrusive and constitutionally ambiguous evidence presented.

With this erosion of constitutional rights, there is greater possibility for individuals accused of drug crimes having to deal with the already harsh penalties in Pennsylvania law. An example would be the sentencing for possession with intent to distribute, which according to §7508 of the Pennsylvania Consolidated Statutes, could bring up to 15 years in prison and fines of up to $250,000. With stakes this high, it is dangerous to give one party such expansive liberties during criminal investigations.

It is justified and expected for legislators to help police keep pace with suspected criminal activity, but not to hasten the attack on privacy that has already begun through to the proliferation of visual and audio recording devices. This bill is bad news for citizens of the state, as it legalizes total surveillance without any specific crime, without court orders, without a warrant, all while throwing out constitutional protections. This will bring undue burden to suspected criminals, particularly those accused of drug crimes. The Senate should strip the unnecessarily invasive aspects of the bill and focus on strengthening our justice system without it being at the expense of the citizens of Pennsylvania.


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