Joint Committee on the Judiciary
October 17, 2017
Testimony of Kimberly West, Criminal Bureau Chief
(prepared for delivery)
Good afternoon Chairwoman Cronin, Chairman Brownsberger, members of
the Committee. My name is Kim West and I am the Chief of the Criminal Bureau
in the Office of Attorney General Maura Healey. The Attorney General was
unable to attend today’s hearing, but appreciates your willingness to allow me to
testify on her behalf, and alongside the Governor’s Office, in support of H. 3671,
An Act modernizing the Massachusetts wiretap law. And thank you to my copanelist, Lon Povich, and the entire Administration for their partnership on this
issue. As you know, reforming our antiquated wire interception law has long been
a top priority for the AGO.
When the Wiretap Act was passed in the late 1960s, the technology we all
now use to communicate did not exist – cell phones, instant messaging, text. And
in the intervening decades, the shape and structure of criminal enterprises and the
crimes we confront have also changed. The existing law has made it difficult or
impossible to use wiretaps to investigate homicides, gangs, human trafficking, and
other serious, violent crimes. So, our office has long recognized that we need
updated statutes and tools to match the organizations we face and to fight the most
violent and egregious crimes in the 21st century.
Take human trafficking for instance. In the current statute, human trafficking
is not a crime for which we can apply for a wire. Nor does it easily fit into the
category of having a nexus to organized crime. Because the fact pattern we
typically see involves one male pimp, with several women working for him.
Oftentimes, the women work for the pimp in exchange for drugs and are beholden
to him. So when we arrest, we can’t count on the women as witnesses. Further,
human trafficking happens behind closed doors, so traditional surveillance
methods don’t work. That’s why this bill matters. It makes updates to the statute
that will assist law enforcement to better investigate crimes like human trafficking
without compromising the strong protections for civil rights and civil liberties that
are also central to our office’s work.

 And finally, because privacy protections are a core concern of the AG’s
Office, I thought I might take a minute to just quickly review the rules for getting a
wire – to address any concerns from the Committee. You probably all know that
all wires must be approved by a Superior Court judge after a finding of probable
cause. However, even beyond the probable cause determination, there are several
other requirements that bear repeating.
First, the application for a wire may only be submitted by an elected
prosecutor (AG or DA). No other warrant has this requirement.
Second, the application must prove that normal investigative procedures
have been tried and failed or are unlikely to succeed. For example, we need to
show that we have tried to use a cooperating informant – and that failed; tried to
use an undercover officer – and that failed; tried to flip a co-conspirator or have
conducted surveillance – and that failed. In other words, we have to show that the
wire application is our last resort as we have already tried ALL other avenues of
investigation. Any investigative avenue that we have not employed – because it
would be ineffective in a particular case – we must explain our decision-making to
the issuing judge and the judge must agree with it.
Third, the conversations must be minimized. We are only allowed to listen
to pertinent, non-privileged conversations. If the target is speaking to a coconspirator about what they are having for dinner, we have to stop listening. If a
target is speaking to a friend about a football game, we have to stop listening. We
employ a 90 second rule. If, within the 90 seconds, the conversation does not
become pertinent to the crimes we are investigating, we have to stop listening.
And, if the target is speaking to his wife or his lawyer, we stop listening
immediately because those are privileged conversations. All the officers who
listen sign monitoring instructions which are submitted to the court.
Finally, I just want to note that wires are incredibly expensive to run. It costs
about $10,000 to go up for 15 days, so we only use wires for our most difficult,
complex criminal cases.
I hope this presents a more complete picture of how and when we use
wiretaps. On behalf of the Attorney General, I want to again thank the Committee
for your consideration of this important update to our law and ask that you report
this bill favorably out of Committee. These modest reforms will make a great
difference in our ongoing efforts to ensure public safety and the wellbeing of our
communities.