Pennsylvania's outdated wiretap law hampers police

Posted: June 12, 2012

By Seth Williams and Risa Ferman

A 16-year-old Montgomery County girl was repeatedly raped for years by her stepfather. Fearing no one would believe her, this brave girl secretly recorded one of the assaults. She brought the sickening but critical evidence to authorities, thinking it could help end her ordeal. Instead, they had to tell her that under Pennsylvania statute, the tape could not be used in court — and that she, the victim, had actually broken the law by recording the assault without her rapist's permission.

This was not a unique case, and it showed why the state's Wiretap Act must be updated. The law does not adequately protect victims or reflect modern technology.

Legislation to update the Wiretap Act may be taken up by the state House this week. We urge lawmakers to approve the bill, help protect victims, and untie the hands of law enforcement.

The Wiretap Act plays a critical role in the investigation and prosecution of drug traffickers, organized crime, hate groups, terrorists, and sexual predators. It also protects the privacy of law-abiding citizens.

And yet the law has not been updated in 14 years, during which time we have seen an explosion of new technology not reflected in the act. The legislation at hand would address that while also humanizing the law with an exception for victims of crime.

The bill would modernize the law by adding procedures that reflect current technology, such as text messaging, GPS capability, and disposable prepaid cellphones. It would also allow law enforcement to use voluntary recordings sent legally to mobile devices.

For example, police in Pennsylvania recently arrested a drug trafficker and, with his consent, used his phone to pretend to be him so they could apprehend his accomplices. However, the state Superior Court held that this practice violated the Wiretap Act. The president judge was so disturbed by the result that he invited the legislature to "protect law-abiding citizens and to give police officers some leeway in cases where the criminal element is using technology to carry out their crimes."

When a child is victimized by an online predator, the same outdated law prevents police from assuming the victim's identity to apprehend the predator. Instead, the child must continue the dangerous relationship so that police can track the predator down.

The Wiretap Act also prevents the use of lawful wiretaps from other states, again thwarting the pursuit of justice when cases cross state lines. The bill being considered would remedy that.

Those opposed to updating the law like to scare people into thinking that the proposed changes will create an Orwellian state. In reality, the revisions sought by law enforcement are already accepted practice in most states. They're also rational, narrow, and focused on protecting victims and targeting criminals. They will help the criminal justice system achieve its most important goal: finding truth in justice.

Seth Williams and Risa Ferman are the district attorneys of, respectively, Philadelphia and Montgomery County.

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