Comments.-This second sentence is ambiguous and, in light of the clarifying provisions of this bill, unnecessary. The ambiguity derives from the fact that the sentence does not confer or recognize any presidential power; it merly states that if the President has certain inherent constitutional powers, subsection 2511(3) will not disturb that power (Keith, supra, 407 U.S. at 303308.)

From this construction, some individuals have maintained that the second sentence might tolerate the President's authorization of warrantless wiretaps against American citizens and others whom the government believes pose a threat to the nation's security.

The provisions of this bill make clear, however, that government cannot use warrantless wiretaps under any circumstance. The bill also provides that wiretaps to protect national security can be authorized by a court only when certain criteria are satisfied. (See Secs. 4(a) and 5(a).) In view of this clarification, and since the second sentence does not constitute an affirmative grant of power, it should be deleted.

(c) This subsection amends subsection 2511 (3) of title 18, United States Code, so that information obtained from foreign power or foreign agent wiretaps cannot be used in criminal proceedings but can be used in civil proceedings against foreign agents.

Fourth

Comment.-All aliens-even those engaged in espionage-enjoy Amendment protections in at least criminal matters. (Abel, supra. See Weeks, supra.) Therefore, if the government wishes to use wiretap information in a criminal prosecution, it must follow the stricter standards delineated in section 5 of the bill. However, the information gained from foreign power or foreign agent wiretaps could be used in deportation proceedings or other civil proceedings. (Abel, 362 U.S. at 237.)

SECTION 4A

This section amends section 2516, title 18 of the United States Code to remove "national security" crimes from the list of crimes for which a wiretap could be authorized under section 2518 or title 18.

Comment.-This section is purely a technical one to separate "national security" crimes from other crimes and make them subject to the procedures of section 2518A as delineated in section 5(b) of the bill.

SECTION 5 (a)

This section creates a new section, (2516A), in title 18, United States Code. The section provides that the Attorney General, or a specially designated Assistant Attorney General, may seek court authorization for a wiretap pursuant to section 2518A when (1) there is probable cause to believe a party has committed, is committing, or is about to commit a specific "national security" crime; and (2) the wiretap sought will probably provide evidence concerning the commission of that crime.

Comment. This subsection permits the government to obtain court authorization for a wiretap when there is probable cause to believe that the wiretap will produce evidence concerning the commission of a crime. This subsection does not in any way limit the President's power to obtain court authorization under a less rigorous standard when the subject of the wiretap is a foreign power or foreign agent. (See Sec. 4(a).)

Subsection 5(a) merely codifies the protections afforded to individuals under the Fourth Amendment. That amendment prohibits government searches and seizures which are unreasonable. A long line of Supreme Court decisions has held that in most circumstances a search must be supported by a warrant in order to be reasonable. (Coolidge v. New Hampshire, 403 U.S. 443 (1971); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970); Chimel v. California, 395 U.S. 752, 762 (1969); Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967); Chapman v. United States, 365 U.S. 610, 613-15 (1961); Johnson v. United States, 333 U.S. 10, 13-14 (1948); Agnello v. United States, 269 U.S. 20, 32 (1925).) Moreover, in most cases the warrant must be based on probable cause that a crime had been or was about to be committed. (Brinegar v. United States, 338 U.S. 160, 175-76 (1949); Husty v. United States, 282 U.S. 694, 700-01 (1931); Dumbra v. United States, 268 U.S. 435, 439, 441 (1925); Boyd v. United

States, 116 U.S. 616 (1886). See Lasson, The History and Development of the Fourth Amendment to the United States Constitution, 106-121 (Da Capo Press 1970).) As the Supreme Court stated in Berger v. New York, 338 U.S. 41, 59 (1967), "The purpose of the probable cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime as been or is being committed, Noncriminal warrants have been sanctioned only for social welfare purposes, such as in housing inspections. (Camara, supra.)

The Fourth Amendment protections also apply to invasions of privacy achieved through wiretapping. (Berger, supra; Katz v. United States, 389 U.S. 347 (1967).) Under these decisions, the government must obtain a warrant before it can wiretap an individual's telephone.

The Supreme Court also held, by a unanimous 8-0 vote, that the government cannot wiretap without a warrant even when the object is to gather intelligence about individuals whose activities threaten "domestic security." In fact, the Court stated that the warrant requirement is even more important when the real object of the wiretapping is intelligence-gathering. In such cases the government may have a tendency to view as "security threats" those who are critical of government policies. According to the Court, the judicial warrant would help insure that intelligence-gathering does not become an excuse for the government to suppress or punish constitutionally-protected speech:

"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society." 407 U.S. at 314. See Stanford v. Texas, 379 U.S. 476 (1965).

The Court reserved judgment though, for those situations where American citizens have a "significant connection" with foreign powers or their agents. The Fourth Amendment's protections against wiretapping should not be suspended merely because the citizens' activities may involve foreign intelligence activities or otherwise affect "national security." As noted above, the amendment itself does not provide an exception for cases involving "national security." Indeed, many thoughtful individuals have declared that no exception can be made for national security cases. In arguing that the Fourth Amendment's protections apply to national security cases, Supreme Court Justice William O. Douglas stated that "there is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes." (Katz, 389 U.S. at 360 (concurring opinion).)

Whatever the interpretation placed on the Fourth Amendment, however it is clear the Congress has the constitutional power to establish reasonable standards for authorizations of wiretaps. (Keith, supra; Katz, supra. See generally Youngstown, supra, 343 U.S. at 587, 589, 645-46.) The provisions of section 5(a) are reasonable and are consistent with the letter as well as the spirit of the Fourth Amendment.

(b) This subsection establishes a new section 2518A in title 18, United States Code. This new section, in turn, delineates a procedure by which the government can obtain a court warrant for a wiretap in a case concerning "national security." Essentially, the procedures parallel those contained in existing law for wiretaps for domestic crimes. (18 U.S.C. § 2518.) In certain areas, the new section 2518A includes new provisions which eliminate many of the constitutional infirmities and practical problems of existing procedures. (It should be remembered that the Supreme Court has not yet ruled on the constitutionality of existing wiretap procedures.) Generally, the standards incorporated within section 2518A conform with the guidelines issued by the Supreme Court in Berger, supra, and refined in subsequent cases.

(b) (1) This subsection provides that applications for an order authorizing a wiretap under title section 2511 (3) or section 2516A can be made to a judge of competent jurisdiction. The subsection provides further that in orders involving application of section 2511 (3)-wiretaps on foreign powers or their agents the application can. at the government's discretion, always be made to a judge sitting on the Federal District Court in the District of Columbia; the section thus enables the government to limit the number of judges who would have access to information relating to the need to wiretap foreign powers or their agents.

The subsection also specifies the information which must be furnished to the judge by the applicant. The information required includes (1) the facts which justify the need for the wiretap, (2) descriptions of the location where the wiretap should be installed, (3) descriptions with as much particularity as is possible of the communications sought to be intercepted, (4) the identity, if known, of the person(s) whose communications would be intercepted, and (5) in cases involving application of section 2516A, the particular crime which has been, is being, or will be committed. (NOTE: In cases involving application of section 2511 (3)-wiretaps on foreign powers or their agents-the government need not establish that the commission of a crime is involved in order to obtain authorization for a wiretap.)

The subsection specifies further that the applicant must provide information as to why use of a wiretap is more appropriate than some other investigative technique. The applicant must also state the length of time for which the wiretap should be maintained, whether any other applications have been made to wiretap the same location or the same persons and, if so, whether such previous applications were approved. If the application is for an extension of an existing wiretap authorization, the application must state the results obtained or explain the failure to obtain the results sought.

Comment. With few exceptions, the procedures delineated in the subsection parallel those included in the existing wiretap application procedures. (18 U.S.C. $2518.) To the extent changes are made, they are designed to require greater specificity by the applicant in describing the information sought and the purpose for which such information will be used.

The increased specificity is necessary in order to insure that wiretaps conform with the protection afforded by the Fourth Amendment. That amendment provides that warrant permitting searches by the government shall "particularly [describe] the place to be searched, and the persons or things to be seized." In the words of the Supreme Court,

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196 (1927). Accord: Stanford, supra; Kremen v. United States, 353 U.S. 346 (1957).

The amendment thus seeks to restrict government invasions of individual privacy to the minimum necessary. (See Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Wiretaps, of course, pose a special problem. When placed on a particular telephone, they permit monitoring of all telephone conversations, regardless of whether or not the conversation overheard is necessary or even relevant to the purposes for which the wiretap was installed. Wiretaps are, in effect, a broad dragnet which allows government surveillance of all who use the tapped telephone, however innocent or innocuous the use. As Justice Dougles observed in Keith, supra, "Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the government's data bank. See Laird v. Tatum, 1971 Term, No. 71-288." (407 U.S. at 326.) Indeed, litigation in wiretap cases has demonstrated that use of wiretaps results in government surveillance of vast numbers of irrelevant conversations. (See, for example, United States v. La Gorga, 336 F. Supp. 190, 195–97 (W.D.Pa. 1971); United States v. Scott, 331 F. Supp. 233 (D.D.C. 1971); United States v. Sklaroff, 323 F. Supp. 296 (C.D. Fla. 1971).) For this reason, the Supreme Court has emphasized the special precautions a court should take before approving any wiretaps:

"The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. By its very nature eavesdropping involves an intrusion on privacy that is broad in scope. As was said in Osborn v. United States, 385 U.S. 323 (1966), the 'indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments and imposes a heavier responsibility on this Court in its supervision of the fairness of procedures . . .' At 329, n. 7.“

Berger, 388 U.S. at 56.

In other words, unnecessary invasions of individual privacy cannot be entirely justified by reference to some pressing government need. As the Supreme Court stated in Berger, supra, “we cannot forgive requirements of the Fourth

Amendment in the name of law enforcement." (388 U.S. at 62.) Nor can those requirements be forgiven in the name of "national security." (See United States v. Brown, 484 F.2d 418, 427 (1973) (Goldberg, J., concurring opinion).)

Therefore, in view of these special problems related to government searches accomplished through wiretaps, care should be taken to insure that the invasion of individual privacy is restricted to the minimum necessary. Subsection (b) (1) provides that care.

(b) (2) This subsection states that the judge to whom application is made may require additional materials to support the application. The subsection stipulates further that the judge may not rely on conclusory opinions in ruling that a wiretap is justified under either section 2511 (3) or section 2516A.

Comment. This subsection parallels the existing provision in 18 U.S.C. $2518 (2). The stipulation concerning reliance on conclusory opinions is little more than a reaffirmation of the Fourth Amendment's protections. The amendment sanctions searches supported by a warrant based on probable cause. The probable cause requirement-if it is to afford any real protection for individual privacy-cannot be satisfied by a government official's mere assertion that the wiretap is justified. (Giordenello v. United States, 357 U.S. 480 (1958); Byars v. United States, 273 U.S. 28 (1927). See Aguilar v. Texas, 378 U.S. 108, (1964).) The government must be required to show wtih some independent evidence that its opinion is not mere conjecture but grounded in fact. Otherwise wiretap procedures could sanction the kind of unreasonable searches prohibited by the Fourth Amendment.

(b) (3) This subsection provides that a judge may authorize a wiretap within the territorial jurisdiction of his court. The subsection provides further that if, in cases involving foreign powers or their agents, application has been made to a judge in the Federal District Court for the District of Columbia (see subsection (b) (1) above), the judge may authorize a wiretap anywhere within the territorial jurisdiction of the United States. In either case, authorization may be granted only if the judge determines that (1) there is probable cause to believe that the information sought will serve one of the purposes set forth in section 2511 (3) or section 2516A; (2) there is probable cause to believe that the communications to be intercepted will provide the information sought; (3) the wiretap is the most appropriate investigative technique by which to obtain the information sought; and (4) there is probable cause to believe that the facilities (i.e. telephone) to be intercepted will be used for the communications to be intercepted.

Comment. This subsection essentially parallels the existing provision concerning authorization of wiretaps. (18 U.S.C. § 2518 (3).) The only change is to permit a Federal judge in the District of Columbia to authorize a wiretap anywhere within the territorial jurisdiction of the United States in cases involving application of section 2511 (3) (wiretaps on foreign powers or their agents). The reason for this change is explained in the section analysis of subsection (b)(1) of the bill.

(b) (4) This subsection states that each court order authorizing a wiretap shall specify (1) the identity of the person. if known, whose communications are to be intercepted; (2) the location of the facilities to be wiretapped; (3) a description of the communications to be intercepted; (4) the identity of the agency authorized to conduct the interception; and (5) the period of time for which the wiretap is authorized.

Comment. This subsection parallels existing provisions concerning court orders authorizing wiretaps for domestic crimes. (18 U.S.C. § 2518(4).)

(b) (5) This subsection provides that wiretaps may be authorized for as long as the court deems necessary but in no event longer than fifteen (15) days. The subsection provides further that the judge may authorize an extension of the wirrertap for as long as ten (10) days if the judge concludes that the wiretap still meets the criteria set forth in subsection (b)(3) of the bill. In all cases-except those involving wiretaps of foreign powers or their agents under section 2511 (3)-this conclusion can be drawn only if the government makes a de novo showing that the extension of the wiretap satisfies the criteria delineated in subsection (b) (3).

Comment. In large part, this subsection parallels existing provisions concerning the duration of wiretaps and the granting of extensions. (18 U.S.C. 82518 (5).) Two changes have been made, however.

First, the maximum time for initial wiretap orders is fifteen (15) days instead of thirty (30). Second, except in cases concerning wiretaps of foreign powers or their agents, the bill provides that a wiretap can be extended only if there is a new (de novo) showing by the government that the wiretap will continue to meet the statutory criteria.

These changes reflect the concerns expressed by the Supreme Court in Berger, supra, and in Katz, supra. In Berger, the Court strongly condemned a state statute which allowed wiretaps to be installed for 60 days on a single showing of probable cause by the government. The Court declared that wiretaps of any extensive length would be unconstitutional because such lengthy taps amount to general searches prohibited by the Fourth Amendment. (388 U.S. at 57-59.) In Katz, the Court again suggested that wiretaps of long duration would run afoul of the Fourth Amendment.

The basis of the Court's concern here is clear. A wiretap permits a monitoring of all telephone conversations, however innocuous. Under this bill, a wiretap would be permitted only after a showing that it will serve a legitimate government purpose. If the information sought is not obtained after a limited period of time (i.e. 15 days), a serious quetsion arises as to whether the wiretap is the kind of unreasonable search prohibited by the Fourth Amendment. Resort to the courts should be required at that point to insure that the wiretap still satisfies the statuory crieria defined in subsection (b) (3). Moreover, it should not be enough for the government to simply request an extension of the wiretap. Otherwise a single showing of probable cause could justify maintenance of a wiretap on a law-abiding citizen for an indefinite period of time-a result violative of the Fourth Amendment.

The considerations are somewhat different in situations involving surveillance of foreign powers or their agents. Unlike most situations involving American citizens and others, foreign intelligence wiretaps often include lengthy surveillances of embassies and those whose status as a foreign agent is clear.

These kinds of wiretaps should not be discouraged when they are designed to serve a legitimate public purpose. Consequently the government should not have to make a new showing to justify an extension of a wiretap on a foreign power or foreign agent.

The Congress has the constitutional power to establish different wiretap standards for different situations. The only requirement is that the different standards be reasonably related to the differences in the situations. As the Supreme Court stated in Keith, supra.

"Different standards for wiretap orders may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection." 407 U.S. at 322-23.

Under this reasoning, standards for extension of wiretaps on foreign powers or their agents can be constitutional even though those standards are less rigorous than the standards applicable to other situations.

(b) (6) This subsection requires the government to make reports to the authorizing judge concerning the progress of the wiretap. The report shall be made as often as the judge requires.

Comment. The progress report-which is optional under existing wiretap procedures (18 U.S.C. § 2518 (6))-is made compulsory to insure that the judge is kept informed of the progress made and that the wiretap order is implemented in a lawful manner.

(b) (7) This section states that the contents of any wiretap information shall be subject to the requirements of Section 2518(8)(a), a provision concerning the recording and storage of wiretap information. The section also provides that the judge shall seal the orders granted and provide for their safe custody.

Comment. This section merely provides for the applicability of housekeeping procedures contained in existing law for other kinds of wiretaps. (b) (8) This subsection provides that any individual-except a foreign agent whose conversations are intercepted by a wiretap authorized under this bill should be furnished a copy of the court order authorizing the wiretap, a transcript of the intercepted conversions, and the dates on which such interception occurred. This information shall be furnished within thirty (30)