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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 partisanship, 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 constructive 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.

COURT-ORDERED EAVESDROPPING

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 Constitution 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 espionage 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

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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-calleri
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

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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 eavesdropping 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, treason, 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.

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