The Cautionary Instruction: DAs argue no expectation of privacy for criminal conduct

The Pittsburgh Post-Gazette/Ipso Facto
April 20, 2012

Pennsylvania’s Wiretapping and Electronic Surveillance Control Act  has not been updated since 1998. Since that time, there have been sweeping technological advances that have, at times, thwarted the efforts of law enforcement. The Pennsylvania District Attorneys Association wants to do something to level the playing field.

"To do nothing is not an option," said Risa Vetri Ferman, Montgomery County district attorney and member of the Pennsylvania District Attorneys Association. "Right now, we are woefully behind the times."

One technological issue that consistently comes up during drug and organized crime investigations is the use of prepaid or throw-away cell phones. Under the current version of the Wiretap Act, law enforcement is required to apply for separate court approval for each device to be intercepted. If a target has eight cell phones then the police need eight court orders.

Prosecutors want target-specific wiretaps to circumvent efforts to defeat surveillance by suspects discarding and obtaining throw-away cell phones. Prosecutors are also interested in using cell phone towers to locate suspects and the ability to intercept email, text and voicemail from devices legally obtained by the police.
The most interesting Wiretap Act amendment proposed has nothing to do with modern technology. Prosecutors are seeking the ability to use audio recordings made by civilians, including crime victims, during both investigations and at trial.

Audio recordings of crimes, as they are committed, represent powerful evidence of guilt or innocence, particularly in cases where victims of rape, as well as witnesses to murder and child abuse, have recorded evidence of such violent crimes.

Pennsylvania’s Wiretap Act provides strong privacy protections. A fundamental provision of the Act is called “two-party consent,” which requires all parties in a private conversation or setting to consent to being recorded. Recording a private conversation without consent of all parties is a crime.

During her recent testimony before the Senate Judiciary Committee, District Attorney Ferman cited a Montgomery County case in which a 16-year-old girl, repeatedly raped by her father since she was eight, recorded one of the assaults so that people would believe her.

A judge barred the use of the recording, explaining that it violated the Wiretap Act because the individual who was taped had not given his permission and because the recording was not obtained through a court order.

According to Ferman, not only was the recording inadmissible but the teen had actually broken the law.
“A rapist does not have a reasonable expectation of privacy in rape,” said Ferman. “The need for change is clear. The law should protect the victim, not the rapist.”

House Judiciary Committee Chairman Ron Marsico, a Republican, is working on a wiretap bill that he intends to introduce in the near future. "In the current law, the criminals and organized crime … have a decided advantage over law enforcement," he said.

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