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It is clear that there is a real need for legislation in this area. U.S. citizens, only because they are situated abroad, are being denied their constitutional rights, not by any foreign nation but by an arm of the U.S. government. This the DOD has admitted. With respect to Defense Department activities in this country, it should be clear by now that we can no longer rely on the military to observe its own regulations. I urge you to give favorable consideration to this bill, not onl to rectify the situation in the Defense Department, but to guarantee to all U.S. citizens their First Amendment rights.
TESTIMONY OF REPRESENTATIVE PATSY T. MINK
Chairman Kastenmeier and distinguished members of the Subcommittee, I appreciate this opportunity to speak in support of legislation to protect our citizens' right to privacy.
I am a co-sponsor of H.R. 9973, the principal sponsor of which is Congressman Long of Maryland. This legislation is the same as his own bill, H.R. 9667, and is one of those being taken up in these hearings.
The purpose of this bill is to require the consent of all persons whose communications are intercepted under certain provisions relating to types of eavesdropping. Specifically, it would amend Title 18 of the United States Code to provide "It shall not be unlawful under this chapter for a person to electronically record or otherwise intercept a wire or oral communication where all parties to the communication have given prior consent to such interception unless such communication .. (was) for the purpose of committing any criminal or tortious act..."
We are seeking to forbid any taping or other listening-in on conversations until all parties involved have been informed of it. Courts would still have the power to authorize wiretaps for investigations of criminal activities or because of urgent national security needs.
The need for this change was made clear by the disclosure of the White House taping system, in which recordings were made of Government officials, members of Congress, foreign diplomats, and White House staff members without their knowledge or consent.
Unfortunately, the development of our laws as construed by various court rulings is that it is now perfectly legal to tape record the conversation of someone else as long as one party knows of and consents to such recording. In other words, I might call another person on the telephone, tape our conversation, and use it for my own purposes and use it without fear of violating the law.
Obviously, this practice poses grave danger to our historic concept of the Right of Privacy. Every American assumes he has a legal, constitutional right to a certain privacy in his conversations whether in his own home, office, or elsewhere. Yet this is not the case, since the law as construed by courts permits interceptions as I have outlined.
The only way we can restore guaranteed privacy, and at the same time permit criminal investigations where authorized by a court, is to enact this change in our laws. If somebody wished to record a conversation for legitimate, non-criminal purposes, such as to keep a historic record, he would need only so advise the other parties and secure their permission.
I believe this legislation is sorely needed to close a deplorable gap in our laws adversely affecting each American's rights. I urge its adoption by the Subcommittee.
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
Washington, D.C., April 10, 1974. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, Washington, D.C. DEAR BOB: First, you are to be congratulated for scheduling public hearings on pending legislation relating to wiretapping and other forms of electronic surveillance. It is a subject on which Congress bas not moved for far too long.
I am forwarding herewith a Statement on this subject matter, specifically 'on my bill, H.R. 11838, to require prior court approval on all wiretap and electronic surveillance orders. I would appreciate it if this Statement could be put into the record of your proceedings on the first day of the hearings.
If there is anything which I can do to mobilize colleagues on this matter, please let me know. Until then, I am, Sincerely,
STATEMENT OF REPRESENTATIVE JACK KEMP OF NEW YORK
Mr. Chairman, the subject of wiretapping and other forms of electronic surveillance is a matter intertwined with the right to privacy-the right to be let alone, the right to be left alone. It is a right which forms the basisserves so to speak as the common denominator of such protections as those shielding the individual against unwarranted searches and seizures, snooping investigations and fishing expeditions by authorities, the inspection of personal papers, records, and effects.
Support for this right runs deeply in the spirit of Anglo-American jurisprudence. As Mr. Justice Brandeis observed in his 1928 opinion in Olmstead against United States, the makers of our Federal Constitution recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of man's spiritual nature the pain, pleasure and satisfaction of life—is to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensitivities. They conferred, over and against the Government itself, a right to be left alone—a right to privacy-the most comprehensive of rights and the right most valued by civilized men. From that awareness arose the adoption of our Bill of Rights, containing the essential protections of the individual, giving to the individual the force of law to say to an agent of the Government, “No, you cannot come into my house or into my life, by any means, without my consent or the full requirements of law and due process."
Certainly, on some issues before this House and the Congress, there must be no retreat from our resolve. The insuring of adequate safeguards to protect the individual's right to privacy, in all its myriad of forms, is such an issue. That is why I am so impressed with the Subcommittee moving at this time towards the consideration of legislation to remedy the shortcomings in present law as to wiretapping and electronic surveillance.
THE PROVISIONS OF H.R. 11838
Mr. Chairman, on December 7, 1973, I introduced the measure H.R. 11838 a bill to amend sections 2516 (1) and (2) of title 18 of the United States Code to assure that all wiretaps and other interceptions of communications which are authorized under those sections have prior court approval. The key here is “prior court approval."
The bill is short in length but long in importance, for the obtaining of court approval as an afterthought when one perceives that evidence gathered might have to be introduced in court on one hand and the obtaining of prior court approval in all instances before information is gathered on the other hand is difference between inadequate protection of rights and more adequate protection. This is, therefore, a crucial distinction.
Why is this legislation desirable?
THERE IS A LOOPHOLE IN THE PRESENT LAW
Chapter 119, Wire Interception and Interception of Oral Communications, of title 18 of the United States Code is the applicable Federal law governing the interception and disclosure of wire and oral communications.
In short, this law prohibits such interceptions and disclosures, except in those specifically defined instances in which the Attorney General of the United States, or any Assistant Attorney General specifically designated for such purpose by him, obtains authority, upon application to a Federal judge of competent jurisdiction to make an interception. It also authorizes the principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of the State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications.
There is a loophole or escape valve built into the present text in each instance, to wit: The language-"an order authorizing or approving” and “when such interception may provide or has provided”—allows a Federal agency or a State or local prosecutor to first intercept, then thereafter get a retroactive approval. Clearly, the language permits retroactive approval of wiretaps and other interceptions. One is left with an impression that these agencies may, in fact, seek a court approval only if they determine that the evidence gathered might be used in court and therefore ought to be safeguarded by an appearance of having been proprietous and in compliance with due process requirements.
I must state for the record that I have no specific knowledge of particular instances of government wiretaps where subsequent approval, after the fact, was obtained. The Department of Justice has not provided the Congress, to the best of my knowledge, with a disclosure on the ratio between interceptions which are done pursuant to a prior court order and those which are approved retroactively. But, it is not unreasonable to assume, since such retroactive approval is customarily sought when the government wishes to proceed in open court with the disclosure of information obtained through the interception, that there might be some instances, perhaps many, where because information is not to be used in open count, the government does not obtain even retroactive approval-no approval at all—thereby failing to meet the requirements of the law. It is, further, interesting to note that the disclosures made by the government on the extent of interceptions during recent years have been couched in terms of court-approved interceptions.
Mr. Chairman, I do not intend to offer testimony today on the more basic subject of whether interceptions should be authorized at all, or under what particular circumstances. My purpose is to draw to the attention of the Subcommittee the loophole in the present law, for surely, irrespective of what else is decided by the members of this Subcommittee and your parent body, this loophole ought to be plugged.
Only when there is prior approval-requiring full prior disclosure to a member of the Bench, giving him thereby an opportunity to refuse to grant such approval if he deems it unwarranted-are the rights of our citizens more adequately protected against intrusion and interference by government. The history of the Bench and Bar in our country shows clearly that certain restraints flow naturally from an awareness on the part of law enforcement officers that certain procedural requirements must be met in order to successfully conclude an investigation or prosecution. These restraints are one of the most effective guarantees of the rights and liberties of our people, collectively and as individuals.
I respectfully request the Subcommittee to act favorably upon the provisions of the bill which I have introduced. I am aware that its provisions may well be incorporated wholly in a bill of larger scope; that is understandable and it may be desirable. But the point is clear: We must tighten this loophole.
STATEMENT OF DR. EDITH J. LAPIDUS, PROFESSOR OF CONSTITUTIONAL LAW AT
QUEENS COLLEGE OF THE CITY UNIVERSITY OF NEW YORK Mr. Chairman, members of the Committee: My name is Edith J. Lapidus. I am a member of the New York Bar and am admitted to practice before the United States Supreme Court. I teach Constitutional Law at Queens College of the City University of New York and hold a Ph.D. degree in Political Science from the City University. My book, "Eavesdropping on Trial," with a Foreword by Senator Sam J. Ervin Jr., was released by Hayden Book Company Inc. of Rochelle Park, New Jersey, in January 1974. It presents an analysis and evaluation of the law and practice under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 in which Congress, for the first time in the history of the United States, sanctioned wiretapping and electronic surveillance by government officials.
I deeply appreciate this opportunity to appear before you and to discuss the problems associated with government eavesdropping and the conflict that it raises between the individual's right to privacy and society's need for effective law enforcement in dealing with crime. This complex and controversial subject has suffered in the past from ideological and political partisansbip, and (at least before "Watergate") from public indifference. In my study of wiretapping and electronic surveillance under Title III of the 1968 Act, I have tried to be as objective, unbiased, and impartial as possible, and to offer some constru tive and realistic proposals.
This Statement is based largely on my findings as reported in "Eavesdropping on Trial", but it also includes proposals suggested by events that have occurred since the book went to press and further reflection. Problems of court-ordered wiretapping and electronic surveillance by law enforcement officials are emphasized in this Statement and discussed in detail. Criticism of warrantless eavesdropping, a serious loophole in Title III considered fully in my book, is merely outlined here.
PURPOSES AND PROVISIONS OF TITLE III
Title III is one of eleven "Titles" in the Omnibus Crime Control and Safe Streets Act of 1968, passed by Congress in the wake of a nationwide fear of crime and clamor for "law and order.” It purports to serve a dual function :
1. To protect the privacy of individuals by banning private eavesdropping, and prohibiting manufacture, sale, possession, or advertising of eavesdropping devices designed primarily for surreptitious interception.
2. To combat organized crime and other serious offenses by giving law enforcement officials an effective tool-interception of wire and oral communications, under specified conditions and with proper safeguards.
The 1968 law is an attempt to balance "liberty” against "law and order." It prohibits interception of wire and oral communications and then makes certain exceptions : designated Federal and State officials are authorized to intercept such communications in the case of specified offenses, provided they comply with procedures detailed in the law. The heart of this procedure is the obtaining of a court order from a judge of designated courts, similar to a warrant for search and seizure. In some instances, eavesdropping by law enforcement officials in permitted without court order.
The safeguards to individual privacy sought to be provided by Title III consist of requiring a court order before a government official may intercept a wire or oral communication. A judge is to decide whether or not an order shall be issued, and the interception is subject to supervision by him. Title III lists a wide variety of offenses for which a court order may be obtained, the Federal officers who may apply for a court order, the judges to whom applications must be presented, and the necessary findings by the judge of "probable cause" on which orders are to be based. State officials may also apply for court orders to wiretap or conduct electronic surveillance provided the particular State enacts a law conforming to Title III.
An order may be granted for a period not exceeding thirty days, with an indefinite number of renewals, each for a period up to thirty days. Notice of the interception must be given to the persons named in the order or application, and to others in the discretion of the judge, within ninety days after termination. Judges and prosecuting officials are required to file reports on each order with the Administrative Office of the United States Courts in Washington, D.C., and this agency, in turn, must file an annual report with Congress.
Heavy penalties are provided for violations of Title III: imprisonment up to five years and a fine of $10,000 or both. Civil damages are also recoverable actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher; punitive damages and counsel fees and other litigation costs are also recoverable. Conversations intercepted unlawfully are barred from introduction in evidence.
These seemingly simple provisions for court-ordered eavesdropping by government officials have raised some difficult legal and practical questions and generated much heated discussion. They purport to comply with requirements of the United States Supreme Court laid down in two landmark decisions handed down in 1967, Berger v. New York (388 U.S. 41) and Katz v. United States (389 U.S. 347), and law enforcement officials claim that their practices follow the mandates of the Supreme Court. Berger struck down as unconstitutional a New York law permitting court-ordered eavesdropping on the ground that the statute was "too broad in its sweep" and failed to provide adequate judicial supervision or protective procedures. In Katz, the Supreme Court held for the first time that electronic surveillance constitutes a "search and seizure" subject to the protections and limitations of the Fourth Amendment to the United States Constit ion which provides :
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Critics of Title III protest that the safeguards sought to be provided by the court order requirements are inadequate; that many terms and clauses in the law are ambiguous; that State and Federal officials are misinterpreting some provisions and failing to carry out others. My study of the law and practice under Title III has led me to the conclusion that there is validity in these criticisms, and I shall discuss them in detail later in this Statement. Even the most ardent proponents of government eavesdropping will admit, I think, that no acceptable balance between liberty and "law and order" can be achieved without clarity in the law, existence and observance by law enforcement officials of proper standards and guidelines, and scrupulous adherence to the safeguards sought to be provided by Title III.
EAVESDROPPING WITHOUT COURT ORDER
In addition to court-ordered eavesdropping, the Federal law permits wiretapping and electronic surveillance by government officials without court order in two broad types of cases: (1) during a forty-eight-hour emergency, and (2) to protect "national security" under authority of the President. Emergency situations are described as involving two types of conspiratorial activity: 1 Threatening national security, and 2 characteristic of organized crime.
The emergency clause [Sec. 2518 (7)) has been widely attacked as vague, open to abuse, and unconstitutional. The term “national security” is not defined, and the law does not indicate what offenses are “characteristic of organized crime.” No report is required to be filed, and there is no way of knowing how much "emergency" eavesdropping has been going on. The law requires that all conditions necessary for issuance of an order under Title III be present before emergency surveillance begins, but it seems unrealistic to assume that these conditions will always be satisfied. The conclusion is compelling that if emergency eavesdropping without court order should be permitted at all, it should be restricted to cases involving a threat to actual or potential attack by a foreign power, collection of foreign intelligence information, or investigation of esp age activity,
In addition to the emergency clause, exemption from court order requirements is provided for national security related eavesdropping undertaken "by authority of the President" [Sec. 2511 (3)]. Title III declares that nothing in the Act shall limit the constitutional power of the President to take measures hat he deems necessary : 1. To protect the Nationa against actual or potential attack or other hostile acts of a foreign power; 2. To obtain foreign intelligence information deemed essential to the security of the United States; or 3. To protect national security information against foreign intelligence activities.
Nor is any limitation to be placed on the constitutional power of the Presi. dent to protect the United States against: (1) overthrow of the Government by force or other unlawful means, or (2) any other clear and present danger to the structure or existence of the Government. Interception without court order must, however, be “reasonable," if the communications are to be received in evidence in any trial, hearing, or other proceeding.
Warrantless eavesdropping under presidential authority has raised a storm of protest that has not yet fully subsided. Many who were willing to accept court-ordered eavesdropping to combat crime denounced the provision dispensing with judicial sanction as highly ambiguous and unconstitutional. Objections increased in bitterness when the Government claimed that national security