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Ky. GOP lawmakers, Louisville's Democratic mayor push to expand wiretapping powers

The halls in Kentucky's capitol building in Frankfort
Alix Mattingly
/
LPM
The hall in Kentucky's capitol building

Kentucky is one of just four states where local and state law enforcement can’t get a warrant to wiretap a criminal suspect’s communications, leaving only federal officials with such powers.

Republican state legislators announced this fall they were looking to change this in Kentucky’s upcoming legislative session, but are now changing course on how they go about doing so after some resistance within their own GOP caucus.

Members of Louisville’s House GOP delegation unveiled their Safer Kentucky Act proposal in September – an 18-point omnibus bill to crack down on violent crime, including new local wiretapping powers they said would help the city investigate “heinous crimes and gangs.”

The wiretapping proposal even received praise from Louisville’s Democratic mayor, as Craig Greenberg said such a change to state law would give the Louisville Metro Police Department a vital tool to address gang-related violence that has risen over the past five years.

"Young people who are committing crimes are talking a lot about it on their phones,” Greenberg said at a public forum in October. “They're posting a lot, they're texting, they're Snapchatting. And so we need more tools if we are truly going to crack down on some of the gang violence that is plaguing – particularly certain neighborhoods in our city."

Now just a month away from the beginning of the 2024 legislative session, legislators in the Republican supermajority are set to finally reveal a public draft of their omnibus crime bill at a Dec. 15 interim committee meeting – though indications are now that it will no longer include the wiretapping provisions.

Instead, Republicans will try to pass the not-yet-finalized wiretapping provisions as a stand-alone bill, according to state Rep. Kevin Bratcher, a GOP supporter of the measure from Louisville.

Bratcher said the shift on wiretapping was made because “there's some resistance to it” in the House GOP caucus, but said the new measures are “not dead by any stretch.”

“I would bet that it’ll pass,” Bratcher said of a stand-alone wiretapping bill, adding that “you're probably gonna see a lot of things in the Safer Kentucky Act kind of spin off, because it is quite bloated right now.”

The summary of 18-point public safety bill presented this fall was sweeping, including increased penalties for many types of violent offenders, restrictions on charitable bail organizations, allowing business owners to use "reasonable" force to detain shoplifters, banning street camping, involuntary confinement of the mentally ill and creating a new Kentucky State Police outpost in Louisville.

State Rep. Savannah Maddox, a Republican from Dry Ridge, an early critic of the wiretapping proposal when the crime bill’s highlights were first unveiled, said she was initially encouraged to hear at their caucus retreat in Hopkinsville this week that wiretapping was being pulled from the larger crime bill – only to be dismayed to learn it would still be pushed by the caucus as its own bill.

“Regardless of whether or not it's a standalone bill or part of the Safer (Kentucky) Act, I'm going to be opposed to that regardless,” Maddox said.

Maddox publicly raised concerns this fall that expanding wiretapping powers for state and local law enforcement could lead to the abuse and violation of Kentuckians’ right to privacy and other constitutional protections, no matter how narrowly tailored the law would be.

“I think that if it is significant enough of a division that they cannot pass a bill with it in the original proposal, that it does not stand to reason that they would try to pass it as a stand-alone bill,” Maddox said during a recent interview.

Asked if wiretapping is being removed from the larger bill, Louisville Republican Rep. Jared Bauman, who is taking the lead on the crime bill in the House, told Kentucky Public Radio the bill is still in flux.

“There are many provisions that we are still discussing,” Bauman stated via text message. “We are working hard on it and will have a final decision on it before the December 15 hearing.”

Kevin Trager, a spokesman for Greenberg, said the Louisville mayor is aware and supportive of the plan to pass the new wiretapping measures as a stand-alone bill, but has not yet seen a copy of that bill’s language.

U.S. wiretapping warrants have proliferated at federal, state levels

The scope and specifics of the wiretapping bill have not yet been disclosed to the public, but if Kentucky joins the 46 other states that allow local prosecutors to seek such warrants, it is likely to resemble a landmark federal bill that passed 55 years ago – and ushered in a dramatic increase of the law enforcement tactic.

The modern legal framework for law enforcement wiretapping and electronic surveillance was set up in Title III of a crime bill passed by Congress in 1968, commonly referred to as the Wiretap Act. States that subsequently passed their own wiretapping laws largely modeled theirs after the federal legislation.

This framework set up limits on “super warrant” applications prosecutors and law enforcement submit to judges to surveil subjects. The measure attempts to ensure targets are only suspected of certain crimes, that wiretaps are a necessary tool and that intercepted communications are minimized as much as possible to the target, instead of unrelated individuals.

Jennifer Granick, the surveillance and cybersecurity counsel of the American Civil Liberties Union, says these protections have significantly eroded, both at the federal and state level.

“It's like the camel’s nose under the tent, where you start with these lofty ambitions of using these techniques in a restrained way, and then over time those safeguards are worn away,” Grancik said. “And that's the history of the federal Wiretap Act.”

Granick said wiretap warrants are now approved for a wider array of suspected crimes, with judges less likely to require law enforcement to prove wiretapping is necessary over other methods and minimize interceptions of unrelated persons.

Other protections have eroded as well, including mandatory notices for people who have had their communications intercepted and requiring the suppression of evidence obtained outside the parameters of the warrant, according to Granick. She also said penalties aren’t enforced against law enforcement officials whose surveillance methods don’t comply with the law.

While federal, state and local prosecutors and judges must annually submit a record of every wiretapping application to the Administrative Office of the U.S. Courts, Granick noted that this reporting requirement is also regularly skirted by law enforcement agencies due to no enforcement mechanism being in place.

Granick said if a state like Kentucky wanted to add new wiretapping powers, citizens should worry about the degradation of legal safeguards that has taken place in other states.

“The safeguards that are out there, you can enumerate them, but they have to be for real, and they have to not erode over time,” Granick said. “And that's the thing that is especially hard for you to get any kind of credible promises about.”

Many of the weaknesses in wiretapping oversight were acknowledged in a 2021 study conducted by the Federal Judicial Center, the research branch of the same federal court system that compiles the annual report of federal and state wiretap applications.

While the combined total of state and federal applications reported annually to the court has typically ranged between 3,000 and 4,000 in recent years, the study noted that this is likely a massive underreporting of such warrants.

Private phone service providers now publicly disclose how many wiretap orders they receive, which typically exceed 10,000 in a given year – roughly three times what judges and prosecutors report.

Though 46 states have local wiretapping authority, most recent annual reports released by the federal court show wiretap applications from jurisdictions in just more than 20 states. The Federal Judicial Center study also notes there is no set requirement for law enforcement to report warrants using new types of surveillance, such as geofencing (obtaining a list of all cell phones present in specific locations at specific times from Google) and stingrays (devices that mimic cell phone towers to collect users’ data).

Of the data reported by judges and prosecutors, nearly all of the wiretap applications in 2021 and 2022 involved surveillance of a cell phone, while an overwhelming majority of them listed drugs as the most serious suspected offense requiring surveillance.

Roughly 85% of federal warrant applications listed illegal drug and narcotics offenses, with conspiracy far behind at 10%. On state applications, roughly 75% were for drug offenses, with murder being listed in roughly 8% of them.

While prosecutors and law enforcement across the country often talk about wiretapping being needed to fight violent crime, Granick noted that the data shows the targets are “almost always drug dealers."

The annual wiretap reports also confirm that law enforcement wiretapping is taking place in Kentucky, but only conducted by federal officials and approved by federal judges.

In the past decade, there have been nearly 400 wiretapping applications requested in Kentucky, a large majority in the state’s western judicial district. Nearly all of them tracked cell phones and were initiated as a drug or narcotics investigation.

Prosecutors in only half of those applications reported details on how the wiretaps were used, as they collectively intercepted nearly half a million communications involving more than 10,000 people, with 22% of those intercepted communications deemed as incriminating.

Louisville mayor wants local authority for police wiretaps, with narrow scope

When Republicans state lawmakers first unveiled their crime plan in September, their press release said wiretapping would be used to fight violent crimes and gangs, but then went on to list a much broader range of crimes that could trigger a warrant, such as drugs, gambling and prostitution.

In mid-November, Greenberg said the wiretapping provisions would be much more “narrowly-tailored, narrowly-targeted” in the scope of crimes that could trigger such surveillance.

“The opportunity to use wiretapping to solve crimes will be only available for certain types of crime, certain types of violent crimes,” Greenberg said.

Bratcher said he wants the wiretapping proposal to not be used for investigating drug crimes, but only “violence and gang activity that includes violence.”

“I mean, we're not going to allow this to be used willy-nilly,” Bratcher said. “It rides right up next to the Constitution, in my opinion, as an invasion of privacy. But sometimes you need to step over that line if people are not acting in good faith with the law.”

There is also a question of what specific state actors would be allowed to submit a wiretapping application under the proposed law.

The original press release for the Safer Kentucky Act said it would allow the state attorney general or any commonwealth’s attorney to apply for a wiretap, while local law enforcement would “partner with the federal government to obtain wiretaps.”

On the other hand, Greenberg said last month the new wiretapping provisions would follow “the Tennessee model,” where such applications are only allowed in local jurisdictions of the high-population Nashville.

“They’d also be narrowly-targeted where it's only available for use in jurisdictions above a certain percentage, above a certain population size, say a quarter million people,” said Greenberg, the mayor of one of only two cities in Kentucky, along with Lexington, to have a population of that size. “Because doing this constitutionally takes resources and takes following a very serious process, so maybe only larger jurisdictions can do that.”

Bratcher said lawmakers are looking at the possibility of a Tennessee model, as “wiretapping is very expensive, so only a certain amount of police departments across the state would be able to use it.”

However, Bratcher added that they are considering a process where LMPD must first receive approval from top state prosecutors if they want to request a warrant.

“We really want some safeguards... that say if LMPD wants to use it, that they've got to get the attorney general's permission or a commonwealth's attorney's permission and work together,” he said.

Granick of the ACLU noted that LMPD already extensively uses geofencing warrants in murder investigations, and that normal search warrants are capable of picking up much of the unencrypted communications on phone apps that Greenberg referred to.

“It doesn't make a lot of sense to say that we need to be able to wiretap because of the internet,” Granick said. “In fact, the internet has provided a bonanza of information available with just a plain old warrant.”

State Rep. Nima Kulkarni, a Democrat from Louisville, is skeptical of the need for new local wiretapping authority. She’s not heard any specifics from law enforcement about why the current system of warrants is insufficient to combat crime, she said.

“I am very curious as to why this is happening now,” Kulkarni said. “Where is law enforcement on this? Is this something that they asked for? Are they somehow being denied by the federal agencies, if they go to try to get a warrant?”

Asked how Louisville police could specifically use wiretapping to solve gang-related violent crime, LMPD spokeswoman Angela Ingram said the department does not comment on proposed legislation, but “appreciates any additional assistance to help mitigate violent crime in Louisville’s communities.”

Michael Stansbury, the FBI’s special agent in charge of the Louisville field office, said wiretaps are already used by their federal agents to combat violent crime, calling them “a great tool” to bust up organized criminal elements – but adding they are still difficult to get.

"I don't want people to think we're just flipping on phones," he said.

Stansbury added that wiretapping powers would “absolutely” benefit a police force that is the size of LMPD.

There is still uncertainty about whether a draft of the stand-alone wiretapping bill will be released to the public or presented to the legislature’s interim joint judiciary committee on Dec. 15.

This lack of a publicly-available draft on wiretapping concerns Chris Wiest, a constitutional attorney and small government advocate from northern Kentucky behind several lawsuits challenging pandemic-era orders of Democratic Gov. Andy Beshear’s administration.

“My concern is, if they were going to be doing the right thing, and they were really trying to build in appropriate procedural and substantive safeguards, I think we'd have seen the draft by now,” Wiest said.

Kulkarni is also concerned there may not be a publicly-available draft of the bill until the session begins, saying she doesn’t want legislation that is a “knee-jerk reaction” to crime that is not thoroughly vetted.

“That is always when bad policy is made, when you do not think through the consequences and you are not careful with the language and how it could be interpreted,” she said.

Bratcher said the delay in making a bill public is a sign that lawmakers are taking the issue seriously and making sure it is done in the proper way.

"We're really worried (that) it could be used irresponsibly, and that is what is taking the time,” Bratcher said. “We want to get this language down pat and squared away.”

This story has been updated.

Joe is the enterprise statehouse reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Richmond, WKU Public Radio and WKMS-Murray. Email Joe at jsonka@lpm.org.
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