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may involve threats from domestic groups as well as from foreign powers, and
it was revealed that Federal agencies had tapped the telephones of political
dissidents without court order. On June 19, 1972, the United States Supreme
Court ruled, by a vote of 8 to 0, that presidential authority to protect the
nation does not give the Government power to tap without court order the
wires of domestic radicals who have “no significant connection with a foreign
power, its agents, or agencies" (United States v. District Court, 407 U.S. 297).

The opinion in the case against the District Court was written by Justice
Powell. While the decision was hailed as a victory by civil libertarians, the
objections to warrantless eavesdropping in national security cases have by
no means subsided, nor are the problems fully resolved. The Government may
still claim that some radicals whose phones have been tapped without court
do have "a significant connection with a foreign power, its agents, or agencies,"
thus removing them from Fourth Amendment protection. The decision of the
Supreme Court may also have left a loophole by suggesting that traditional
warrant requirements were not “necessarily applicable" in domestic security
cases.

United States v. District Court is a first step in outlawing government
eavesdropping without court order in domestic security cases. Warrantless
interception circumvents the “probable cause” requirement, and no disclosure
to a judge or anyone else need ever be made. There is no way for Congress or
the public to know how much eavesdropping is going on if no court order is
obtained. “Domestic security” is a vague concept, and it may be difficult to
determine if a threat is foreign or domestic without first tapping or bugging.
If adequate delineation is impossible, then the warrant procedure should be
required in all cases and no "national security! exception to a court order
should exist. For a detailed discussion of warrantless eavesdropping in so-called
national security cases, see “Eavesdropping on Trial,” page 96 et seq. Since
publication of the book, I have come to the conclusion that Congress must
make it impossible to engage in illegal eavesdropping under the shield of
“national security” by requiring a court order in this type of investigation. H.R.
9781 introduced by Mr. Kastenmeier on March 28, 1974 in the House of Repre-
sentatives appears to effect such a change in Title III by defining a “foreign
agent" and requiring a court order in national security cases.

CONSENT EAVESDROPPING

One of the exceptions from court order requirements of Title III is "consent"
eavesdropping. Section 2511(2) (c) declares that it is not unlawful for a law
enforcement officer to intercept a wire or oral communication if he is a party
to the communication or if one of the parties gave prior consent to the inter-
ception. This provision of the law was no innovation in policy. If reflected the
decisions of the United States Supreme Court which, over a period of two
decades, had generally sanctioned eavesdropping without a warrant if one of
the parties to the conversation gave his consent to the interception.

Prior to enactment of Title III the leading cases on the subject of consent
eavesdropping were On Lee v. United States, 343 U.S.747 (1953) and Lopez v.
United States, 373 U.S.427 (1963). On Lee involved third-party monitoring of
conversations; Lopez ruled on single-party informant "bugging." In On Lee,
the Supreme Court upheld the right to wire an informant for sound in order
to transmit statements of a suspect to police officers listening at a receiver out-
side the building. In Lopez, a government agent was equipped with a pocket
wire recorder which recorded conversations of a cabaret operator offering a
bribe to an agent to help him conceal tax liability. The Supreme Court ruled
that the evidence and that there was no violation of the Fourth Amendment to
the Constitution, although no warrant had been obtained.

The traditional principle on which the validity of consent eavesdropping with-
out a warrant rests is that a party to a conversation takes his chances that the
other participant may increase his present or future audience. Justice Brennan,
dissenting in Lopez, protested that “in a free society people ought not to have
to watch their every word so carefully."

Since enactment of Title III, the Supreme Court has help that the Fourth
Amendment is not violated by governmental electronic eavesdropping effected
by wiring an informant for sound, having him talk to the suspect, and then
having agents to whom the conversation is transmitted repeat the communi-
cations at the suspect's trial (United States v. White, 401 U.S.745 (1971)).

Deep cleavages in the Supreme Court on the subject of consent eavesdropping were revealed by the opinions of the Justices in White. The Court reversed the judgement of the Court of Appeals and upheld White's conviction by a vote of 6 to 3, but no agreement could be reached on a majority opinion.

The plurality view in White, expressed by Justice White, had the support of Chief Justice Burger and Justices Stewart and Blackmun. Justice Brennan, who had dissented in Lopez concurred in the result, but only on the technical ground that Katz v. United States was not retroactive. Justice Black concurred in the judgement, but only because of his view that electronic surveillance is not a search and seizure subject to the Fourth Amendment. Dissenting opinions were filed by Justices Douglas, Harlan, and Marshall.

According to the plurality opinion, the question to be decided was this: what expectations of privacy are constitutionally “justifiable”—what expectations will the Fourth Amendment protect in the absence of a warrant? A police agent who conceals his identity may write down his conversations with a defendant and testify concerning them without a warrant. No different result, said the Court, is required if the agent records the conversations with electronic equipment carried on his person (as in Lopez) or carries radio equipment which tranmits the conversations to recording equipment located elsewhere or to agents monitoring the transmitting frequency (as in On Lee and in White).

The three dissenters, Justices Harlan, Douglas, and Marshall, objected to equipping agents with ea vesdropping devices in the absence of a court order, but approved of use of informants without judicial supervision. Some critics suggested that "a far greater danger to our free society is presented by the prospect that friends and associates may be employed as government spies" than by equipping informants with electronic transmitting devices. The issue as Justice Harlan saw it in his dissenting opinion was whether "uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system.” He considered third-party monitoring a greater invasion of privacy than single-informant bugging. Third-party bugging, he believed, undermined that confidence and sense of security in dealing with one another that is characteristic of individual relations between individuals in a free society.

The dissent of Justice Douglas in United States v. White was much sharper than that of Justice Harlan. Justice Douglas could see no excuse for not seeking a warrant in the White case. He based his dissent not only on the Fourth Amendment ban on unreasonable search and seizure, but also on freedom of speech guaranteed by the First Amendment. Must everyone live in fear that every word he speaks may be transmitted or recorded, he asked. He could imagine nothing that has a more chilling effect on people expressing their views on important matters. (Consent eavesdropping and White are discussed more fully in "Eavesdropping on Trial", p.28 et seq.).

Several bills have been introduced in the House of Representatives to eliminate the exception of "consent eavesdropping” from court order requirements of Title III, and to permit a person to record electronically or otherwise intercept a wire or oral communication only where all parties to the communication have given prior consent to such interception (H.R. 9667; 9781; 9698; 9973; 10008; 10331). This is an ideal solution to a troublesome problem, but a proposal to outlaw warrantless consent eavesdropping will undoubtedly meet with fierce resistance by law enforcement officials and others. This type of electronic surveillance is reported to be used in tens of thousands of investigations each year. The practice is so firmly entrenched in law enforcement and the burden of dealing with crime is so great that public support for outlawing one-partyconsent eavesdropping is far from certain. Businessmen and private individuals who routinely record telephone conversations can be expected to join in defending the practice.

DEFECTS IN COURT-ORDERED EAVESDROPPING

Seven problem areas of court-ordered eavesdropping have been identified that require attention by Congress or the courts and that must be solved if wiretapping and electronic surveillance by law enforcement officials is to be permitted to continue:

1. Offenses for which an order may be obtained are practically unlimited, and are not restricted to those characteristic of organized crime or serious offenses, despite the avowed purpose of the law.

2. The provision that the application and order shall describe the type of communication sought to be intercepted does not comply with Supreme Court requirements as to particularity.

3. Judge-shopping is possible, and there is opportunity for laxness in supervising interception of conversations.

4. Overhearing of innocent conversations and privileged communications under present procedures appears to be unavoidable and may be constitutionally impermissible.

5. The thirty-day period allowed for listening in, with an unlimited number of extensions each up to thirty days, may protract eavesdropping excessively and violate requirements of the Supreme Court.

6. The law is ambiguous as to who is to be notified of the eavesdropping, who may object, and when motions to suppress evidence may be made.

7. Reports required to be filled are inadequate to inform the public and to form the basis for evaluation of operation of Title III.

Both legal and practical problems are involved in these weaknesses of courtordered eavesdropping under Title III, and each one of the seven problem areas will be discussed separately.

OFFENSES COVERED

The resaon for enactment of Title III of the Omnibus Act of 1968 offered most frequently and with greatest fervor by its supporters was, and still is, that it is an indispensable tool in fighting organized crime, Congress acknowledged this need in its introductory findings in the law. Critics of government eavesdropping insist that the law permits eavesdropping in investigation of many offenses that are not and will not be associated with organized crime. A long list of offenses for which Federal officers may seek a court order appears in Sec. 2516(1) of Title III :

(a) Offenses relating to espionage, sabotage, treaşon, riots, and enforcement of the Atomic Energy Act of 1954.

(b) Violation of Federal law restricting payments and loans to labor organizations, or offenses in labor racketeering.

(c) Bribery of public officials and witnesses and sporting contests, unlawful use of explosives, transmission of wagering information obstruction of. law enforcement. Presidential assassinations, kidnapping and assault; interference with commerce by threats or violence; interstate and foreign travel or transportation in aid of racketeering; influencing operations of employee benefit plan ... etc.

(d) Counterfeiting.

(e) Bankruptcy fraud; manufacture, importation, receiving, concealment, buying, selling, or dealing in narcotic drugs, marihuana, or other dangerous drugs.

(f) Extortion, including extortionate credit transactions.
(g) Conspiracy to commit any of the enumerated offenses.

These offenses were selected, according to the Senate Report on Title III, because they were characteristic of the activities of organized crime or because of their seriousness (No. 1097,p.97). However, eavesdropping in any offense seems to be sanctioned on the theory that organized crime has not limited itself to the commission of any particular offense.

The list of offenses in which State officials may obtain a court order is shorter, but perhaps even broader than that of the Federal government [Section 2516(2)]. The State list appears to be practically unlimited. State statutes may authorize eavesdropping in connection with: .... the offense of murder, kidnapping, gambling, robbery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year (or any conspiracy to commit any of these offenses.]

Except for the one-year imprisonment limitation in certain cases, the law appears to contain no limitation as to the nature of the offense covered. It may be argued that there is no need to limit the nature of the offenses. On the other hand, it must be recognized that there is great potential for abuse inherent in permitting eavesdropping over a wide spectrum of offenses. The open-ended clause “punishable by imprisonment for more than one year" has been attacked as an inaccurate way of distinguishing between serious and petty offenses.

Have court orders been obtained only for offenses characteristic of organized crime or serious offenses, the avowed targets of Title III? The nature of the offense for each court order granted and a summary of these offenses appear in each annual report to Congress by the Administrative Office of the United States Courts. At both Federal and State level, eavesdropping has been used most extensively in gambling and narcotics cases. Combined, these two offenses accounted for 85 percent of all court orders during 1971 and 1972. The reports do not reveal whether organized crime was involved or the seriousness of the offense. It is possible that many of the targets were small-time gamblers and narcotics peddlers, investigation of whom does not justify costly wiretapping or electronic surveillance.

Congress should take another look at the offenses for which a court order may be obtained. Invasion of privacy of innocent persons is inevitable in wiretapping and electronic surveillance. It may be justified in cases of organized crime and serious offenses where other investigative techniques are inadequate, but not in ordinary cases. Meanwhile, some self-restraint on the part of prosecuting officials and voluntary curbs on indiscriminate use of this powerful tool would seem to be in order.

SPECIFIC OFFENSE OR STRATEGIC INTELLIGENCE

An application for a court order must show that a particular offense has been, in being, or is about to be committed [Sec. 2518(1)(b)(1)]: This would seem to limit applications to those seeking specific information about a particular crime—that is, tactical as distinguished from strategic intelligence. Strategic intelligence consists of general information on the criminal activities of an individual that may enable officials to link him to other suspects or to some specific crime. Is strategic intelligence gathering outlawed by Title III? There is some justification for the view that it is banned. Perhaps Congress should reexamine this problem and attempt some clarification. The use of electronic devices to obtain strategic intelligence admittedly has great potential for abuse.

Eavesdropping for strategic intelligence is further complicated by Sec.2517 (5) which permits interception and use of a communication relating to an offense other than that specified in the order if the judge finds, on subsequent application, that the contents of conversations were intercepted as provided by Title III. The United States Court of Appeals for the Tenth Circuit upheld this provision in United States v. Cox (449 F.2d 679 (1971)). In May 1972 the United States Supreme Court refused to hear an appeal, over the objection of Justice Douglas, Brennan, and Marshall (Cox v. United States, 405 U.S.932).

For a more detailed discussion of strategic and tactical intelligence, see "Ea vesdropping on Trial,” p.76 et seg. A bill introduced in the House of Representatives on December 7, 1973 (H.R.11838) appears to deal with this problem, but its purpose and wording require clarification.

THE PARTICULARITY REQUIREMENT

Title III requires that the application and order shall contain a particular description of the type of communication sought to be intercepted [Sec. 2518 (1) (b) and Sec. 2518(4) (c)]. In Berger v. New York (388 U.S.41) however, one of the two 1967 landmark decisions of the Supreme Court with which Title III purports to comply, the Court made it dear that it was necessary “to describe with particularity the conversations sought," otherwise the officer would be given a roving commission to seize any and all conversations.

In litigation attacking the constitutionality of Title III, it is almost invariably claimed that merely describing the type of conversation does not comply with Berger. Since it is practically impossible to describe a particular conversation sought, especially in offenses of a continuing nature such as gambling and bookmaking, the prosecuting official is faced with a real dilemma. To comply fully with Berger, the particularly requirement of Title III would have to be narrowly construed, and strict enforcement would make the law practically unusable. Justice Black anticipated the problem of “particularity” in his dissenting opinion in Katz v. United States (389 U.S.347); he could not see how one could "describe" a future conversation. Justice Douglas has repeatedly observed that it would be extremely difficult to name a particular conversation to be seized and therefore any such attempt would amount to a general warrant,

the very abuse condemned by the Fourth Amendment (See United States v. District Court, 407 U.S. at p.333).

What does "type of communication" mean? If all that Title III requires is a statement of the nature of the offense to which the conversation is to relate, then the provision is meaningless, for details of the particular offense have already been set forth in the application and stated in the order. If it means a particular description of a particular conversation, then compliance may be impossible. The meaning of “type of communication” takes on added importance by the requirement in Title III that interception must end automatically when the described type of communication has first been obtained, unless the application shows probable cause to believe that additional communications of the same type will occur later [Sec.2518(1)(d)).

The issue of “particularity” may eventually be settled by the United States Supreme Court. Meanwhile, Congress might effect some clarification by requiring that an applicant for a court order describe the communications sought to be intercepted as specifically and in as detailed a manner as possible. This would discourage the practice of merely repeating the nature of the offense that is being investigated.

JUDGE-SHOPPING FOR COURT ORDERS

A heavy burden is placed on Federal and State judges to whom applications for court orders are presented. Before he signs an order to wiretap or conduct electronic surveillance, the judge must determine whether all the requirements of the law are satisfied. He must make findings as to "probable cause" and decide if the facts in the application show that normal investigative procedures have been tried and failed, or reasonably appear to be unlikely to succeed if tried or to be too dangerous (Sec.2518(3) (c)]. An order may require periodic reports to the judge showing what progress has been made and the necessity for continued interception. Judges have responsibility for safeguarding the records. The law also gives the judge discretionary power to decide whether certain individuals shall be notified of the eavesdropping, and what portions of the recordings shall be made available for inspection.

The onerous duties and responsibilities of the judge in government eavesdropping make it an unattractive job to sign an order, even for those Federal or State judges who favor this technique of law enforcement. The prosecuting official who wants a warrant to wiretap or use electronic surveillance must find a judge who is willing to issue it and take on all the judicial duties imposed by the law. A wide choice is open to the applicant, for an order may be signed by any judge of competent jurisdiction. This is defined in Sec. 2510(9) as : (a) A judge of the United States district court or a United States court of appeals; and (b) A judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire or oral communications.

No safeguard against “judge-shopping” is provided by Title III. Practical necessity forces applicants to pick a judge who is known to be receptive to eavesdropping and at least reasonably lenient in signing orders. Selection of a friendly judge is almost always possible, particularly in State practice. If law enforcement officials can shop around for a complaint and undemanding judge, the dangers of abuse of privacy through eavesdropping may be greatly increased. How is this to be remedied? Competent, alert, and aggressive judges are the key to maintaining the safeguards provided by law.

Congress cannot control the caliber of State judges, or even the Federal judiciary. It can, however, remedy one obvious gap in judicial supervision of courtordered eavesdropping: progress reports to judges should be mandatory and not discretionary. The Act now provides that an order may require periodic reports to the judge showing what progress has been made and the necessity for continued interception (Sec.2518(6)). Progress reports are intended to serve as a check on the continuing need to conduct the surveillance and to prevent abuse. Federal judges are reported generally to require progress reports. Few, if any State judges have specified in the court order that progress reports shall be submitted, although some say that they receive oral progress reports from time to time. This may seriously undermine judicial supervision of the operator who is listening to intercepted conversations and of the law enforcement official who is handling the investigation.

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