The following story was originally published in the November 2012 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.

Amendments to Pennsylvania’s Wiretap Act Give Law Enforcement Teeth

Law enforcement has always had to keep up with the use of technology in criminal activities, but sometimes it is the law that hampers its ability to keep pace with crafty criminals. One such example of technology that has outpaced law enforcement in criminal investigations is the use of modern mobile technology. New “smart phones” and communication technology has presented law enforcement with a host of new issues, including the fact that call history, text-messaging and social media can be important evidence in the investigation of crime. But, sometimes the law has handcuffed law enforcement’s ability to use evidence of intercepted communications in court and to track a suspect’s communications in furtherance of a criminal enterprise.
In an attempt to ensure the preservation of evidence and its admissibility in court, House Bill 2400 of 2012, signed into Pennsylvania law on October 25th, 2012 (effective 60 days thereafter), expands the ability of law enforcement officers and private individuals to intercept wire, electronic and oral communications under the Wiretapping and Electronic Surveillance Control Act (WESCA). The bill was first introduced in the spring of this year, and it suffered much wrangling through amendments because it dilutes many privacy rights in communications that Pennsylvanians have enjoyed for a long time. The final version of HB2400 is the result of an attempt to balance law enforcement’s needs with individuals’ rights to privacy in communications.
Some of the amendments to WESCA that expend the exceptions on the usual prohibition of interception and disclosure of communications include:
  1. One-party consent to intercept a wire or oral communication involving suspected criminal activities where there is reasonable cause to believe that a party may resist with the use of weapons or is threatening suicide or harm to himself or others, and
  2. Any victim, witness or licensed private detective may intercept the contents of a 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 crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception (crimes of violence are defined under WESCA).
HB 2400 also makes it a felony of the third degree to intentionally possess a telecommunication identification interception device. Importantly for law enforcement, it expands its ability to obtain a court order to intercept wire, electronic or oral communications with the aid of devices providing caller ID, deluxe caller ID or any other features available to ascertain the telephone number, location or subscriber information of a facility contacting the facility whose communications are to be intercepted.
What is most intriguing in the HB2400 amendments to WESCA is the ability of law enforcement to obtain court orders to track targets, and not just a specific telephone at a specific location. This “Target-Specific Orders” amendment, permits law enforcement to obtain an order to intercept communications from a specific target (or suspect) under certain circumstances. This will be particularly useful in situations where criminals are using throw-away phones to get law enforcement off their trail.
It will be interesting to see how much law enforcement uses WESCA in light of the HB2400 amendments. After all, in 2011, authorized interceptions were down nationwide, with just 13 authorized wiretaps in Philadelphia County. (Source: Forbes.com athttp://www.forbes.com/sites/andygreenberg/2012/07/02/as-reports-of-wiretaps-drop-the-governments-real-surveillance-goes-unaccounted/ and United States Courts Wiretap Report 2011 at http://www.uscourts.gov/Statistics/WiretapReports/WiretapReport2011.aspx) Maybe the new law is just what the doctor ordered for police to get the job done in our age of fast-paced mobile technology. On the other side, criminal-defense lawyers need to be mindful to procure full and complete discovery in cases involving target-specific orders, because HB2400 places the burden on law enforcement to take proper steps in obtaining the order and to properly preserve evidence and documentation in carrying out the order.
To view the full text of HB2400 (final amendment at printer number 4083), click on the following link: http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2011&sessInd=0&billBody=H&billTyp=B&billNbr=2400&pn=4083
Have a happy and safe new year, and thank you for reading.