The Maryland statute provides: The interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of this State, and shall not be permitted except by court order in unusual circumstances to protect the people. It is further declared to be the public policy of this State that the detection of the guilty does not justify investigative methods which infringe upon the liberties of the innocent. U.S. District Court Judge Gesell recently pointed out that legally sanctioned snooping has become a common practice which has been able, under the present Federal law, to proliferate without judicial supervision. I would like to put in the record an excerpt here from Judge Gesell's statement. Mr. KASTENMEIER. Without objection, that excerpt will be received and made a part of the record. [The statement of Judge Gesell follows:] Informers, in return for government promises or hope of favors, are equipped with recording devices and sent into the homes and offices of their friends and confidants to try to trap their words on tape * * * Many individuals, without any knowledge of the government, secretly tape their own conversations with others for ulterior purposes and use casual remarks to extort or intimidate*** 366 F. Supp. 994. Mr. LONG. The time has come to protect individual citizens against unrestricted wiretapping, spying and surveillance. I might point out that we all talk informally in ways that are very different from the way we would talk if we knew that the world were listening. So this legislation is important not merely in cases where life or liberty is involved, but in other cases as well. A recent Harris poll confirms the timeliness of such legislation. By 77 to 14 percent the public favors passage of a law forbidding such intrusions into their private lives. The Watergate affair may have acted as a trigger to public opinion, as Mr. Harris pointed out, but there has been a widespread and underlying shift towards greater protection of the constitutional right to privacy. The President himself has now recognized the need for a new law. In his State of the Union message, the President told the Congress that we need "a new set of standards that respect the legitimate needs of society, but that also recognize personal privacy as a cardinal principle of American liberty." It is my hope that this subcommittee will report favorably on this legislation, which deals with one aspect of the privacy issue which you are considering in a much wider context. Thank you. Mr. KASTENMEIER. Thank you very much. You have touched on an area which is certainly part of the general problem. I take it that you would contemplate wiretapping in only two situations: One in which wiretapping is authorized by warrant through the courts, and the other is the situation in which all parties consent? Mr. LONG. That is right. Mr. KASTENMEIER. Consent in advance to the recording of the conversations? Mr. LONG. Yes. Mr. KASTENMEIER. Do you have reason to believe that you yourself may have been a victim of eavesdropping? Mr. LONG. No, I have no reason to believe that. I never felt I was important enough for anybody to do this to me. Mr. KASTEN MEIER. You know there are Members of the Congress as well as many other people who feel and presumably have knowledge of the fact, that they have been the subject of such types of wiretapping or electronic eavesdropping. The argument is made that some people or entities desire to record conversations to protect themselves by having an exact account of the conversation. But it is your view that any such reason is outweighed by the fact that another person did not know of the conversation being recorded. And that that person's rights outweigh the desire of the person who is recording the conversation for purposes of some form of protection or official account? Mr. LONG. I am not quite certain that I understand the gist of your question. Mr. KASTEN MEIER. I am asking whether you can contemplate any good reason why, other than through a court warrant, a person or an entity with his own consent should be able to record a conversation even without the knowledge of another person? Mr. LONG. I tried hard during the drafting of this bill and I couldn't think of any such reason. It is always possible, I suppose, that you can come up with an exceptional situation. We all know that such cases require a balance of rights and privileges. I don't think there are any absolute rights or privileges written anywhere in our law. There are always conflicts. I suppose a person could argue that he could obtain a better historical record of what people are really thinking and saying if they didn't know they were being recorded. If he is writing a book, for example, he may think that if he can get people to speak very frankly, then he would get a much better book than if the people were told in advance that their words were being recorded. I realize that somebody might think that. I don't think he would be justified in inflicting such recording on unsuspecting people. Mr. KASTEN MEIER. I yield to the gentleman from California, Mr. Danielson. Mr. DANIELSON. Thank you, Mr. Chairman. Mr. Long, would you tell me please what you mean by the word "intercept" in your bill? Mr. LONG. Record. Mr. DANIELSON. You talk about to record or otherwise intercept. Mr. LONG. In doing this I simply used the language of the bill itself. Mr. DANIELSON. Yes, I know. I have looked at your bill and I assume that all of these different versions of the bill are the same. But it says "electronically record or otherwise intercept a wire or oral communication" and that appears in the printed bill as well as in your presentation. Mr. LONG. There is a definition of "intercept" in the bill. I don't have it. Mr. DANIELSON. I have here, for example, H.R. 9973, which is one of your bills, and starting with subparagraph (c) on line 6 it states: "It shall not be unlawful under this chapter for a person to electronically record or otherwise intercept a wire or oral communication" et cetera. I was just wondering what you really had in mind by the word "intercept" as used in your bill? Mr. LONG. As I say, we have taken that language from the present law. I can supply the definition for the record. It is my understanding this means to record. It is a legal term. Mr. DANIELSON. That is all you have in your mind, to record? Mr. LONG. Or otherwise get it on record or eavesdrop. It is somewhat broader than recording. That is to say, it would include a situation in which people simply listen in on a private conversation, people outside holding their ear up to the wall and listening to the converastion of others with the assistance of some mechanical device. Mr. KASTENMEIER. If the witness would yield, perhaps the Chair could help in the definitions of "wire interception" and "the interception of oral communication". The definition, as used in Public Law 90-351, is that "intercept" means, "the acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or any other device." As used in your bill, I assume it is consistent with that definition? Mr. LONG. Right. Mr. DANIELSON. You do not restrict it to a surreptitious type of interception in other words? You are talking about a situation even where all of the parties may be consenting? Mr. LONG. If all of the parties are consenting, then it is not unlawful. Mr. DANIELSON. Except for an unlawful purpose, correct? Mr. DANIELSON. Suppose you and I had an office, and within our office we had a sensitive microphone which was affixed somehow or another to a recording device so that when people came in to visit with us you and I would know that the conversation was being recorded if we turned on the switch, although those people visiting us would not be aware of that fact. That would be an interception within the meaning of your bill? Mr. LONG. Right. Mr. DANIELSON. And it would be the sort of conduct that would be unlawful under your bill unless the other party to the conversation consented in advance? Mr. LONG. Exactly. And my understanding would be, if all parties had knowledge that what they said was being recorded and intercepted, and they continued to speak, this would be implied consent. Mr. DANIELSON. Right. Mr. LONG. I can give you another example which frequently happens with me. A constituent calls me and asks me to do something for him and I immediately put a secretary on the line to write down all of the information: what the persons wants, what he needs done, what relatives he needs to have helped, how old they are, what their background is details that I can't remember. We tell the person that somebody is on the line. Mr. DANIELSON. Right. Mr. LONG. And somebody is listening. But it would be possible, in many cases, not to let him know that this is being taken down. My bill would cover such situation. Mr. DANIELSON. I was going to lead into that. That is the old practice of advising your client that you are going to put the secretary on the extension to make notes? Mr. LONG. Right. Mr. DANIELSON. That situation would be included within your bill? Mr. LONG. Exactly. Mr. DANIELSON. And would be either lawful or unlawful depending upon whether or not this consent was obtained? Mr. LONG. Exactly. And I see no harm in that. Mr. DANIELSON. I do not myself. Being mindful of the fact that today the state of the art in making recording devices is very far advanced, and it is a simple matter to make a tape of almost any type of a conversation, be it on the telephone or otherwise, I want you to address yourself to the practical aspects of it, though. Almost anyone today for less than $50 can buy a rather effective tape recorder plus a little device that will attach with a suction cup to the telephone and make a relatively good tape recording. Mr. LONG. I understand the recorders don't always work that well. Mr. DANIELSON. Of course neither you or I have ever tried it, so we don't really know. But let me ask you this. Do you think as a practical matter that this could very well be enforced? It is just about as common today for people to have a tape recorder as it is to have a radio, for example. They are most common and most widespread. Mr. LONG. Of course, there are many more laws on the books than it is possible to enforce, and in many cases there would be conversations which nobody would particularly care about one way or the other. But I do think there would be a real deterrent effect upon a person who proposed to use such recordings for some malicious or unlawful or otherwise injurious use. Mr. DANIELSON. Right. Mr. LONG. I certainly wouldn't want to do it. I would want to be very careful about obeying the law. Mr. DANIELSON. I think you are absolutely right. If nothing else, it would make such conversations, since it would be unlawful in the first place, it would make them inadmissible in evidence which would have a deterring effect. I can see value there. But as a practical matter, I should think it might be difficult to police if you were really trying to go out and police it thoroughly. Mr. LONG. I think this is true of almost all of our laws. If we could enforce all of our laws, there wouldn't be enough jails to hold all of the criminals. Mr. DANIELSON. Let me change slightly here. Suppose after a conversation, in the same situation described in my first example, after the visitor leaves the person with the microphone and the recorder in his office, dictates into the recorder the substance of the conversation as well as he or she remembers it or calls in the secretary and dictates the same thing. Do you see any objection to that sort of recording of the conversation? Mr. LONG. Are you speaking of a situation in which there had been a conversation involving several people and they all were informed in advance? Mr. DANIELSON. Even if they have not. Let me recast the situation. You have a conference in your office, you and three other persons. Let's say A, B, and C. And after the conference-and this is an important matter-after the conference they go home and you either call in your secretary or pick up your dictating machine and dictate a memorandum of what was said by whom, and about what. Now you have no objection about that I guess? Mr. LONG. No, of course not, because the person's own words could not be used against him. He could point out that he was not present when the memorandum was dictated and he could challenge the other party's recollection or understanding of what went on. Mr. DANIELSON. In other words, he is in a position to deny it? Mr. LONG. Exactly. Mr. DANIELSON. But he is not in a position to deny it if it is recorded? Mr. LONG. No, if it is recorded, all of his words are laid out before him. Mr. DANIELSON. Right. How do you answer the argument that some people advance of, well, the recording is obviously a far more accurate recasting of what was said. In fact, it isn't a recasting; it is a playback, so therefore, it is far more accurate than any subsequent memorandum ever could be? Mr. LONG. I think such recordings can be very useful, very valuable. And I see no objection to recording just as long as everybody in the conversation knows what is taking place. Basic fairness justifies such a requirement. Mr. DANIELSON. I tend to agree with you, but I think what we are talking about is what some people call the sporting theory, in other words, for Heaven's sakes, don't have an advantage over the other guy. I tend to agree with you. What we are really saying is the more accurate account of the conversation is the recording but we must not use it because it gives the secret recorder an advantage that the other person does not have. Mr. LONG. My proposal in no way stops any recording. It simply requires notice to all parties that what they say is being taken down or intercepted. Thereafter, whatever they say is a matter of record. Mr. DANIELSON. I think you have a pretty good point here. Thank you so much. Mr. LONG. You're very welcome. Mr. KASTENMEIER. The gentleman from New York, Mr. Smith. Mr. SMITH. Thank you, Mr. Chairman. And thank you for your testimony. I think it is very interesting. I would like to continue along the lines of Congressman Danielson in discussing the difficulty of enforcing your proposal. He mentioned the fact that a lot of people have recorders today, and I guess there is quite a habit on the part of people to record favorite music that comes over the radio or television. I suppose that the doing of that technically would be covered by your bill |