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we will do it to a fictional address if they so request. In fact, we will do this for any subscriber if he asks, and his name is Smith and he asks us to bill it to the Jones Publishing Co., assuming that we have no knowledge of any impropriety in such request, we would normally bill as requested.
Mr. KASTENMEIER. Am I correct in assuming since 1969, that your subscriber in that connection has been the Department of Justice, or the FBI however otherwise billed? You do not have, I take it, White House, CIA, or other sources of requests that have not, in fact, gone through the Department of Justice or the Federal Bureau of Investigation? Is that correct?
Mr. CAMING. Assuming we are talking in the area of national security, the answer is unequivocably we only deal with the Department of Justice and the FBI. We have had no requests, to my knowledge, in that area, and we do not even make any particular-well, if we did receive such a request, we would immediately contact the Department of Justice about it. To my knowledge, it has always been my conception and it is limited, intelligence activities within the United States supposedly are to be confined to the Federal Bureau and we act upon
that. We do have, of course, the normal communication services with the White House, the CIA and, of course, these would be the normal provision of service to any customer.
Mr. KASTENMEIER. Yes, of course. I understand that.
One last line of questions. On page 10 of your statement you indicated that eavesdrop devices, lawful and unlawful, are found on company lines at an average of 21 a month. What percentage are unlawful?
Mr. CAMING. To tell you the truth, Mr. Kastenmeier, the number has always been so infinitestimal that we have never attempted to break it out. I was just looking through because I thought it might be of interest to the committee. That figure I gave of
21, being a lawyer and not really advanced in mathematics, and several of my college teachers could affirm that, I worked on the basis of the highest figure but actually the figure has turned out to be lower than that. Last year, for example, with 163 throughout the Bell System of devices of any type, lawful or unlawful, that we have discovered. The prior year was 174 and, in fact, since 1967, because I thought it would give the committee a better feel of it, if I may, and I am sure Mr. Lehman can take these down. 1967 we estimate we found 195 devices in all 24 of our companies aggregated of all types. 179 in 1968, 218 in 1969, 195 in 1970, 249 in 1971, which explains my high figure. One hundred seventy-four and then 163. So, because they have been so small and often-we are never quite certain on those devices whether they are lawful or unlawful, because some of those may be lawful, but once they are discovered the law enforcement authorities say, you know, well, we do not know anything about them and remember, too, that all of the State and local authorities in 22 States have the right to engage in wiretapping. So, we have never broken out a percentage of that minuscule amount out of the 138 million telephones, just giving a proportion.
Mr. KASTENMEIER. Do you have a procedure for reporting these, a portion of which would be unlawful presumably and a portion of which would be lawful to the law enforcement authorities?
Mr. CAMING. As I just alluded to in our statement, we report all cases because even if we find a device and have a court order on file, unless there was a little thing which was placed here by the New York State Police Department or the Boston Police Department, we would not know whether it was a coincidence, or whether this was actually a lawful device. It could be that more than one party is tapping the same line.
Mr. KASTENMEIER. In the case of what would be assumed to be unlawful bugs, and you may not know whether they are, have you found the Department of Justice responsive in investigating these cases? Certainly, the unlawful bugs are a menace to your subscribers, and are unwanted by you as a company and presumably you would like to see title II enforced.
Mr. CAMING. I would like to make a comment which probably means I have arrived at a position that I can make comments on my own. As I say, I have personally cooperated in overseeing this program for some 9 years. The Department of Justice, that I deal with is the Criminal Division, and very frequently the organized crime and racketeering groups which has oversight over title III and we do not get into national security very much, as you could see. It is not necessary. But, throughout from the inception in 1968 and the passage of title III the Criminal Division, under Mr. Petersen, has been aware of our concern, of the encroachments on privacy that title III made, and the fact that we do all necessary to effectuate the particular requests, but give them the minimum assistance and he has, and his staff has respected this, although they have disagreed on a number of occasions, such as with our recent measure in further restricting toll billing records. But we have, for instance, discussed at the time of the passage in February 1971 of the directive amendments to title III, which put us in the position of having to respond to a court order, which could direct us to do things, we said, and I said it personally, that it would be best to maximize privacy if they used only the statutory language in their court orders and we would then do the very minimum amount necessary and insure that the title III tap would be effectuated. But, in as restrictive a way as possible. I would say to that, that whenever we have brought their attention to any questions of the nature you address on wiretapping that they have been utterly responsive and utterly cooperative and, in fact, I think that some of their task forces in the field have complained at times that they were too solicitous.
Mr. KASTENMEIER. I appreciate that response, although there is some concern, and I shall it, that generally speaking, the Justice Department, is not pursuing prosecutions under title III.
Mr. CAMING. I see.
Mr. KASTENMEIER. To dissuade people, in some cases unauthorized Government officials, from engaging in these practices.
Mr. CAMING. I can appreciate that. My remarks were addressed to what I thought was your earlier statement as to their general attitude with respect to our procedures, when we find a device, whether lawful or unlawful. If it is a lawful device, as far as it appears, by our having a court order, we would
then contact the agency concerned and if it is a State agency or the FBI, we would contact them. Now if it was an unlawful device, we would contact first the Federal, local agency, remembering it is our local telephone company that finds it in each case and we contact the local agency of the FBI. And, in addition, we contact the appropriate local authority whether it is the State or the county or a city, and we have the coordinates to do that with, because the Federal authorities might say this is unlawful and we do not know that that is a lawful tap, and it might turn out to be a State or a local tap, so we contact both. Then if they both declare or all parties declare that they do not know of it being lawful, we then say we intend to remove it and keep it under surveillance, and if it is trouble-inducing, we immediately disable it anyway, but, we leave it in place. But, we will if you wish permit you 24 to 48 hours, and I do know at least in a number of cases, the ones I think happened to be with State police or local police, where they have actu
undertaken a surveillance, and then, if within a reasonable period it proves fruitless, we really remove the device.
Now, if they do not want to investigate we, in some of our companies, attempt, because it is rather difficult to investigate this source. Our main concern is if you just remove the device but do not apprehend the wiretapper, it is virtually like picking up some burglary tools but leaving the burglar free. So, we do cooperate but usually only to the extent of 48 hours and the customer is advised that an unlawful device has been found.
Mr. KASTENMEIER. Thank you.
Mr. DRINAN. Thank you, Mr. Chairman, and thank you, Mr. Caming. This is very, very informative. I have listened here fascinated at all of your problems.
Let me try to clarify something for myself.
Dr. DRINAN. If the Department of Justice puts a tap on, unbeknownst to the A.T. & T. and unbeknownst to the subscriber, would that be illegal?
Mr. Caming. In my opinion, if it were not it the area of national Security and I could not pass the comment upon the legality, but assuming arguendo the legality of that type of tap, apart from that, it is clearly
Mr. DRINAN. Assuming
Mr. CAMING. I am sorry. If they place a tap on the line without our knowledge but have a valid court order, for example, we have argued among ourselves with the company, what is this, and it seems that it is not a technical trespass on the ground that it is court authorized. In fact, some State statutes have expressed it but assuming there is no title III, I would say this: That the Department of Justice or any other branch of Government, Federal or State or local, is just as liable under the proscriptions of title III.
Mr. DRINAN. Therefore, since your figures show substantially less than 100 wiretaps, we can make an inference that the Department of Justice is, in fact, engaging in warrantless wiretaps without the
knowledge or consent of the A.T. & T. If one of those taps were discovered, what would the A.T. & T. do?
Mr. CAMING. OK. Now, perhaps in my attempt to say substantially, or perhaps the term significantly would be—but if we discovered a national security device, Mr. Drinan, first there may be some serious question whether we would know that it is that. They would have to tell us about it.
Mr. DRINAN. Let me back up. That just tells us about the practice. How easy is it for this never to be discovered ? It is conceivable that they could have dozens or even hundreds of them now, and that in the nature of things they would never be discovered?
Mr. CAMING. Welī, the sophistication and technology today, the continual advances, it is very difficult in certain areas, such as inductively couple devices, which may not be actually touching our line, and our people are instructed to be constantly on the alert--for example, any installer or repairman that goes in normally would check over the facility. However, if they had concealed them at some distant point, it is conceivable, at least, if it is well done, that neither we nor the subscriber would be aware of it.
Mr. DRINAN. But coming back to my original question, I am not certain that I got that clear, as to what would the A.T. & T. do if it did discover a warrantless tap placed there by the Department of Justice ?
Mr. CAMING. Well, all right. Well, the first thing would be that we would discover the device. We would not know at the moment what it was. If it was discovered as a result of a customer complaint, it would probably have been found by our security forces, or plant forces, under their direction, checking out the complaint, or it could have been stumbled upon by a repairman or installer. And in that case it is required that any employee do nothing but report it immediately through his lines of supervision to Security.
Mr. DRINAN. All right. All of that has gone by. I am asking-
Mr. DRINAN. And they admit openly, yes, we did it, and we are sorry you discovered it?
Mr. CAMING. In that case, we would leave the tap in place, I would assume.
Mr. DRINAN. Yes. Why? This is a trespass. This is illegal. Why do you do that? You are cooperating in evil, now.
Mr. CAMING. Well, no, I guess we may be misunderstanding each other because I certainly would not say we are cooperating in evil. I guess I did not understand your question. I was assuming that they said the following to us: This is a national security tap. It is in a very sensitive area. It has been expressly anthorized by the Attorney General and if you wish, we will give you the proof. We did not wish to bring this to your attention in order to maximize the security of the operations, and we wish you would leave it in place. In that case, assuming we have no customer complaint, for example, we would probably do so if we had the necessary proof adduced. In other words, if we got a national security letter saying yes, this was, and we did not desire it, there is no reason for the Government to bring it to our attention in national security taps and that is lawfully put, on by them.
Mr. DRINAN. Would the subscriber in such a situation have a claim against the A.T. & T. because they had allowed his wire to be tapped unbeknownst to him?
Mr. CAMING. Well, you mean after the discovery when it was continued? No more so than if ab initia we had received a letter request, assuming the same situation. And we have established after discovery that it is a national security tap.
Mr. Drinan. This is a pretty permissive attitude on your part to allow the Department of Justice to give you a letter any time they want. In other words, you are really not demanding a letter ahead of time.
Mr. CAMING. Oh, no.
Mr. CAMING. We are in a position almost as a stakeholder, Mr. Drinan. We are required to venture into areas that are quite foreign to us. We do not wish to participate in any of this any further than the Congress, and the necessity of the situation warrants. I can assure you of that. When we get a letter from the Director or from the Attorney General, we have no knowledge other than the facial letter of the validity of the contention. We merely assume that a man of that stature in the Government, and we have no alternative, but to assume that he would not
Mr. DRINAN. But legally, you could refuse to cooperate?
Mr. DRINAN. Has it been considered at the highest level that maybe the A.T. & T. should refuse to collaborate in warrantless taps?
Mr. CAMING. I think it is fair to say that that has been considered ever since the inception in 1941, as of necessity, that it was recognized that frequently our assistance may be almost indispensible to effectuate a wiretap. The number of requests have never over the years been at such volume to
Mr. DRINAN. That is immaterial if it violates the fourth amendment.
Mr. CAMING. I agree with that, and am not talking about that aspect. We have always had recognition, you might say from the Congress, when we testified in 1966 and 1967, we brought the National security question to the attention of Congress in our testimony. In 2511.3 of 18 United States Code, the Congress, and in its underlying Senate Report 1097 of April 1968, took cognizance of the importance of the national security and its constitutional significance. These are only guideposts.
Mr. DRINAN. And they did not require you to cooperate. The Congress did not require you to cooperate.
Mr. CAMING. No, the Congress did not require us to cooperate.
Mr. DRINAN. That is right. You are free agents. Has the Board of Directors of A.T. & T. ever been given the question of whether they will cooperate in warrantless taps ?
Mr. CAMING. I think we could take that legal position.
Mr. DRINAN. I am asking you why has not the A.T. & T. ever gone above management with this question ? Has it ever gone to the policy