30-40 figure is misleading because it refers to the number in operation at any one time, in contrast with the figures for court-ordered surveillance, which are for the whole year. A check of 3 days chosen at random for court-ordered federal eavesdropping in 1970 shows far fewer than 30-40 at any one time: the figures for June 30, 1970, shows the following numbers of installation in effect, based on the figures in Table A for (1) date of installation and (2) number of days in effect: On June 30, 1970, 8 were in operation. On September 30, 1970, 13 were in operation. On December 31, 1970, 0 were in operation. These figures may be inaccurate, since the date of application may not be the date of installation, and the number of days of operation may not have been continuous; also the days chosen may be atypical. But the error is not likely to be so great as to overcome the gap between the three figures above and the 37 conceded national security surveillances. Some of these latter undoubtedly stayed in for the entire year, but other probably did not. Given the government's refusal to provide any further information, there is no way of knowing the total number of national security taps and bugs per year. All we do know is that figures supplied to Senator Edward M. Kennedy by Attorney General Mitchell indicate the federal government tapped and bugged three times as many days for national security purposes, as it did pursuant to court-order.* A high estimate for the total number of national security eavesdropping is suggested by the fact that in virtually every prosecution of a militant, or activist dissenter a "national security" tap or bug comes to light-Benjamin Spock, the Berrigans, the White Panthers in Michigan, Abbie Hoggman and the Mayday demonstrations, the Chicago 7 trial, Black Panther prosecutions in Connecticut and California, a Weatherwoman prosecution in Buffalo, the Jewish Defense League, apparently Daniel Ellsberg, etc., etc., etc., etc., to say nothing of the known taps on Martin Luther King, Jr., Elijah Muhammad and others. The brief for the respondent in United States v. U.S. District Court, U.S. Sup. Ct., Oct. 1971 term, 70-153, the domestic security wiretap case, contains a lengthy list of such cases. There is also reason to suspect that the "30-40 at any one time" figure is itself dubously low. As Fred Graham of the New York Times has recently shown, there is a long history of governmental duplicity in this matter. This history includes: (1) artful references in prior years by FBI Director Hoover to less than 100 wiretaps (all allegedly in "national security" cases) which carefully omitted reference to a huge number of bugs, i.e., room microphones; (2) replacement of taps by bugs to keep down the number of taps for purposes of the annual report; and (3) even assertions that some taps were disconnected the day before Mr. Hoover's testimony so that he could present a low figure as of the day he was testifying, an assertion which Mr. Hoover has, of course, indignantly denied. One FBI agent has described Attorney General Mitchell (who authorizes these national security taps and bugs) as "a signing fool. . . . We just ask him and he signs them," (Newsweek, 5/10/71, p. 30A), and there is some evidence to support this implication of less than scrupulously restrained authority. For example, in the Jewish Defense League case, Mitchell certified that the JDL was tapped in connection with foreign security matters and that "it would prejudice the national interest to disclose the particular facts contained in the sealed exhibits concerning this surveillance other than to the court, in camera." Yet, when the Court ordered that these logs be turned over to the defendant two weeks later, the Department complied, rather than face a dismissal of the case, even though it could easily have refused and appealed, the basis for the order being a rather novel (though to this observer, correct) legal position. Indeed, in that case, it was also disclosed that whereas the government initially asserted that the tapping of the JDL stopped when the indictment came down, the surveillance actually continued well after the indictment, almost up to the day the government agreed to turn over the logs. Inevitably, lawyer-client conversations were overheard, recalling the Judith Coplon case. *Senator Kennedy has not yet released the correspondence, but has publicly announced his conclusions as to the comparative time periods at a B'nai B'rith speech on October 19, 1971, and at the hearings on Supreme Court nomination of William Rehnquist. Not only may this surveillance be very widespread, but because of the alleged desire to obtain general intelligence for preventive purposes about dangerous groups, it continues for a very long time indeed, as the JDL case showed, and as congressional testimony and experience in other cases shows. See H. Schwarts, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich. L. Rev. 455, 468-72 (1969). Moreover, such surveillance is especially likely to catch numerous innocent people, as all such "strategic intelligence" surveillance is admitted by the FBI to do. Id. at 469-70. AMERICAN CIVIL LIBERTIES UNION REPORT ON THE COSTS AND BENEFITS (by Herman Schwartz, Professor of Law, State University of New York at Buffalo) The Electronic Eavesdropping Act has now been in operation some four and a half years. Hundreds of wiretaps and bugs have been installed, numerous court cases have been decided, millions of dollars have been spent, but the controversy over the value and dangers of electronic surveillance continues. In 1968 Richard M. Nixon promised to reverse Ramsey Clark's policies and use wiretapping to reduce crime-what kind of crime, and how that would be done, was not made clear. Four years, much money, and many crimes later, electronic surveillance is still being touted by its supporters as, in Frank Hogan's phrase, "the single most valuable weapon in the fight against organized crime." Wiretapping is given credit for major convictions in the drug area; Brooklyn District Attorney Eugene Gold promises to break the back of organized crime with his million and a half feet on a Canarsie junk yard trailer. Nevertheless, grave reservations about electronic eavesdropping continue. One of the more useful features of the rather pourous statute pushed through in the wake of Robert Kennedy's death in 1968 by Senator John L. McClellan and his friends, is a requirement that prosecutors and judges involved in authorizing court-order wiretapping and bugging make annual reports on this surveillance which would set forth the type of surveillance (telephone tap or microphone bug), where and how long it was in operation, the crimes it was installed for, the number of people and conversations overheard, how much it cost and the results. These reports are published every May by the Administrative Office of the United States Courts. Four of these reports have been issued so far. In the Spring of 1971, Senator McClellan announced he would hold hearings on the reports and what they showed. These have not yet been held or even scheduled; as of this writing (February 1973); one can only guess at the rea sons. The reports have nevertheless, been available, and though it is still too early to fully assess the results, certain conclusions have become clear. Some of these were published in December 1971 in report prepared by this writer for the American Civil Liberties Union on the 1968-1970 statistics. The 1971 figures became available in 1972 and it seems worthwhile to update that report, and also to add some statistical and other information that has come to light since December 1971. Again, it may still be too early for definitive conclusions the 1972 figures available in May 1973 will be particularly useful since they will probably contain fairly complete results on the heavy federal tapping and bugging in 1970. But, as noted, certain conclusions are beginning to take shape. The 1971 ACLU report opened with a disclaimer about the incompleteness of the reported figures, which omitted the so-called national security eavesdropping and the consent variety. Neither of these requires a court order, and thus 1 This study was made possible by a grant from the Playboy Foundation. I should also like to thank Marc Chodrow, who assisted in the statistical compilation and analysis. neither is reported to the Administrative Office. It was therefore necessary to make an educated guess at the former, with no information at all as to the latter. Those disclaimers are still in order, particularly as to the amount of electronic surveillance involving agents wired for sound. As to these, all we have are informed guesses that this is very widely practiced on both the federal and state levels. Thanks to data obtained and published by Senator Edward F. Kennedy, we now know something about the national security surveillance, however, and some of that will be discussed here. In addition, there have been some crucial legal developments in this area and they will also be reviewed. This paper will consist of the following: (1) an introductory section containing a summary of the various findings, as well as certain methodological caveats and qualifications; (2) a discussion of national security surveillance; (3) a summary of the statistical data on court-authorized electronic surveillance that is contained in the annual reports from 1968-71, broken down into: (a) The scope and variety of electronic surveillance, e.g., number of installations, people and conversations overheard, length of time of overhearing, and types of offenses involved; (b) the costs of such surveillance, both totally and broken down by offenses; (c) the results so far in terms of convictions, arrests and incriminating conversations. Throughout, information gleaned from the many court decisions already handed down, will be referred to where relevant; relevant information used in the 1971 report will also be worked in. I. SUMMARY AND METHODOLOGY 1. Amount of surveillance A. SUMMARY a. Court-ordered.-There is a vast amount of electronic surveillance of the American people, on both the federal and state levels. A great deal of this is performed in the name of national security, and is completely uncontrolled. Much of this surveillance lasts for very long periods of time; on the state level, it is concentrated in just two states. The bulk of this wiretapping and bugging is now used for gambling offenses, despite the original claims that it was necessary primarily for serious crimes like homicide, kidnapping and espionage: in three years, there has been only one federal device installed for kidnapping and none for either homicide or espionage; gambling installations accounted for about 90% of all the federal installations in 1971. In 1969-71. federal officials overheard 29,513 people in 442,157 conversations over 491 installations, as follows: STATE In 1968-71, state officials overheard 47,714 people in 676,755 conversations over 1,348 installations. The overwhleming bulk of this was in New York and New Jersey, with the major share in New York. To some extent, this is an estimate, but only to a very minor extent. 1. These figures differ somewhat from the ACLU 1971 Report because they are based on calculations derived from the reports of the individual installations and authorizations, rather than from the overall averages and summaries as in the 1971 Report. 2. Although the federal average was some 13.5 days per installations, a very high percentage of the New York installations lasted for many, many months. 3. Although the states, (which means largely New York and to a lesser extent, New Jersey) originally used the technique largely for drugs and nongambling offenses, by 1971, the states had shifted to overwhelming concentration on gambling. Despite the pleas of need for serious offenses, the federal usage concentrated on gambling right from the start, and indeed increased that concentration at the expenses of drugs and others. The breakdowns are as fol 1 Includes attempts, threats, solicitations and conspiracy to commit homicide (including manslaughter) as well as a few occasional instances of consummated murder. 4. During the four year period, only 2 applications were denied, (in 1969); there is also some independent evidence of judge-shopping. For this and other reasons, there is reason to doubt that the court-ordered system is imposing meaningful controls, particularly on the state level. b. National security.-Figures released by Senator Edward F. Kennedy indicate that at least the following number of national security wiretaps and bugs were installed: June 12, 1968 (50 taps and 6 bugs). 1969 (81 taps and 13 bugs). 1970 (97 taps and 16 bugs) – 56 94 113 1. On the basis of classified information provided the Senator, his staff has calculated that the average national security installations lasted from 78.3-209.7 days, or about 6 to 15 times the court-ordered variety of 13.5. During 1969-71, the latter caught an average of 56 perople and 900 conversations per installation lasting an average of 13.5 days. If the court-ordered averages are roughly comparable to the national-security type-and there is no reason to think otherwise then the 100 national security surveillances annually may well have been intercepted: From 31,000 to 84,000 people per year; from 546,000 to 1,350,000 conversations per year. 2. Electronic surveillance for domestic security purposes allegedly accounted for very little of the national security total since the Department of Justice claims it found it necessary to shut off less than 10 devices as a result of the Supreme Court's decision banning such electronic surveillance without a warrant. Thus, this vast amount of surveillance is likely to continue. 3. This known surveillance may not be all there is, since it does not include electronic surveillance by the Army (which was revealed last summer) or possible surveillance by the CIA and other agencies, or interception of teletype messages. 4. According to Ramsey Clark, such surveillance rarely produces anything of value. He has testified that if all were shut off, "the impact on our national security. would be absolutely zero." 2. Costs ... a. Court-ordered surveillance.-The State figures are approximations, but are fairly close since the state cost reporting approached but was not equal to 100%. b. National security.-Using the same 6-15:1 time ratio of national security court ordered surveillance as earlier, and on the premise that most of the costs are manpower costs which vary with time, one can roughly estimate the costs of an average national security installation as about 6-15 times the $9,500 of the 1969-71 federal installations, or about $47,000-$142,500 per national security installation. Since there have been about 100 national security installations each year, a rough estimate of the annual costs of national security surveillance is from $5.7 million to $14.3 million annually. c. Comments.-1. These figures do not include the very substantial amount of judges' and lawyers' time necessary to prepare the court-ordered applications, and the lawyers' and FBI time for the national security authorizations by the Attorney General. 2. (a) There are inexplicable differences among the different types of offenses for which federal surveillance is used, particularly between drugs on the one hand, and gambling and the other offenses on the other. Moreover, there are startling fluctuations in costs from one year to the next for, e.g., the drug surveillance: from $61,825 per installation in 1969 to $26,035 in 1970 and $12,772 in 1971. The gambling average remains relatively stable and relatively low, whereas the "Other" category drops steadily from $9,212 in 1969 to $5,794 in 1971. (b) The state figures vary and fluctuate so greatly, that no pattern is even discernible. Thus, the gambling average rises slightly, but drugs, and Other rises very steeply, while Homicide jumps up and down and kidnapping falls sharply. These fluctuations are so inexplicable that the only conclusion is that the reports are unreliable. 3. Results Because it takes close to two years for cases to be disposed of, at least on the federal level, the figures for convictions are still incomplete, except perhaps for 1969 convictions and the 1969-70 arrests; the incriminatory conversations are likely to be fairly complete. So far, the results seem to be as follows: |