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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. 82518(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. Teras, 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 expla ed in the section alysis 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 anthorizing 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 wire. tap 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 timea 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)
days after the last court-authorized interception occurs. In no event, however, need the government disclose the identity of a foreign power or foreign wiretapped pursuant to Section 2511(3). Moreover, the disclosure of the wiretap can be postponed if the government satisfies the judge that the individual tapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests. The judge would have the discretion to determine the length of any postponement.
Comment.—Existing law concerning wiretaps for domestic crimes provides that a wiretap must be disclosed only prior to the use of wiretap information as evidence in a legal proceeding. This provision offers little protection for the individual tapped for national security reasons.
In most cases, those wiretapped for national security reasons are not prosecuted in a legal proceeding. (See Laird v. Tatum, 408 U.S. 1 (1972).) In those cases where prosecution is initiated, the government usually abandons the case rather than disclose the wiretap.. (See, for example, Salpukas, "Weathermen Case is Dropped by U.S.," N.Y. Times, Oct. 16, 1973, P. 1.). In either case, individuals involved are usually deprived of an opportunity to seek redress in court for violations of their Constitutional rights.
This result conflicts with the original understanding of how constitutional rights would be safeguarded. From the beginning, it was presumed that individuals who were the subject of a government search would learn about it. (Berger, 388 U.S. at 60. See Lasson, The History and Development of the Fourth Amendment to the United States Constitution, Chapters 3 & 4.) Having knowledge of the government search, to the individual could have his day in court to argue that the search infringed on his rights. In proposing adoption of the Bill of Rights in the first Congress, James Madison acknowledged this fundamental role of the courts in protecting constitutional rights :
"Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights."
1 Annals of Congress 440 (1789).
This role is equally important in protecting constitutional rights against national security wiretaps. As Circuit Court Judge Goldberg explained in United States v. Brown, supra.
"It remains the difficult but essential burden of the courts to be ever vigilant so that foreign intelligence never becomes a pro forma justification for any degree of intrusion into zones of privacy guaranteed by the Fourth Amendment.”
484 F.2d at 427 (concurring opinion).
It is beyond dispute, then, that an individual's constitutional rights to privacy and speech can be violated by national security wiretaps. A violation is no less real or dangerous because the government does not prosecute the individual tapped.
It is obviously impractical to provide advance notice of the wiretap to the individual who is the object of the surveillance. As the Supreme Court observed in Katz, 389 U.S. at 355, n.16, advance notice might “provoke escape of the suspect or the destruction of critical evidence." Such concerns have little force after the wiretap is completed and removed. Therefore, except in “exigent circumstances" (Berger, 388 U.S. at 60), an individual should be informed of completed national security wiretaps of his conversations so that there is an opportunity for legal redress even if the government does not prosecute.
Subsection (b) (8) of the bill achieves this constitutional purpose. It provides for disclosure of national security wiretaps after the tap has been removed. Disclosure could be postponed only when the authorizing judge is satisfied that the individual tapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests. This disrretion for postponement would insure that important national security interests are not compromised unnecessarily.
(b) (9) This subsection provides that any aggrieved person may prevent the use of wiretap information as evidence against him in any legal proceeding if such information was obtained unlawfully or is being used in an unlawful manner. The subsection also provides the government with a right for immediate appeal to a higher court if the presiding judge should prevent the use of wiretap information.
Comment.—This provision simply parallels existing law concerning the use of information obtained from wiretaps for domestic criminal purposes. (18 U.S.C. 82518(10).) This section is in part a codification of Supreme Court decisions that evidence secured by the government as a result of an unconstitutional search is “poisoned" and cannot be used in a legal proceeding. (Weeks, supra. See Alderman v. United States, 394 U.S. 165 (1969).)
This section provides for the codification of the bill's two new titles, 2516A (application for wiretaps for national security purposes on those other than foreign powers and their agents) and Section 2518A (procedures for obtaining a court order authorizing a wiretap for national security purposes).
This section provides that certain information concerning wiretaps authorized under the new Section 2518A shall be reported to the Administrative Office of the United States Courts within thirty (30) days of the last authorized interception.
Comment.—The existing law provides that all wiretaps for domestic criminal purposes must be reported to the Administrative Office of the United States Courts. (18 U.S.C. $ 2519(1).) Wiretaps authorized under the new section 2518A also should be reported so that there can be accurate records of all wiretaps. There should be no concern that this reporting requirement will in any way compromise sensitive information. Past experience has demonstrated that any confidential information transmitted to the Administrative Office remains confidential.
[From the Congressional Record, Feb. 4, 1974) SURVEILLANCE PRACTICES AND PROCEDURES OF 1973–AMENDMENT
AMENDMENT NO. 960
(Ordered to be printed and referred to the Committee on the Judiciary.)
INDIVIDUAL PRIVACY AND THE NATIONAL SECURITY Mr. NELSON. Mr. President, the time has come to end the wiretapping abuses perpetrated in the name of national security. These national security taps today are not authorized by a judicial warrant. The Government is, therefore, free to determine whom it can tap and when it can tap.
Warrantless taps pose a grave danger to fundamental constitutional liberties. Recent events demonstrate that the individual's right to privacy has been and made continue to be violated by the Government's use of such wiretaps. Often they reflect nothing more than a desire to pry into an individual's private affairs. Generally they are not supported by concrete evidence to justify the invasion of an individual's privacy. And always they escape the scrutiny of the courts, the Congress and the public at large because the Government is not required to disclose their existence unless it prosecutes the individual involved—a rare occurence in the history of national security wiretaps.
Congress should act now to end this intolerable situation. Every American citizen should be assured that his privacy will not be invaded unless a court has determined that the invasion is justified.
Last December I offered a bill (S. 2820) which would provide this assurance. The bill would prohibit the use of warrantless wiretaps against American citizens in national security cases. The basis of this legislative proposal is clear.
The fourth amendments to the U.S. Constitution prohibits Government invasions of a citizen's privacy without a judicial warrant, Supreme Court decisions make clear, moreover, that the fourth amendment protections generally apply to Government wiretaps.
Despite the clear meaning of the fourth amendment, the Government continues to authorize wiretaps without a judicial warrant. A couple of weeks ago