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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.
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 à 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 à 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,
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.
Mi 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. 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 and would be unlawful, and it would of course be almost impossible to police.
Nr. LONG. I might reply to the distinguished gentleman from New York that it certainly would deter the party who had recorded this without the other person's knowledge from ever using it against that other person. As soon as he brought out the fact that these remarks had been recorded and the other person hadn't consented to it, it would be an admission that a crime had been committed.
He would not be able to use the other person's words against him in any kind of legal way.
Mr. Smith. No, I agree with that. But I would expect that under your bill as written, the mere recording of that without the consent of the originator of the conversation or the music or whatever it is, would be unlawful?
Mr. LONG. It would be unlawful.
Mr. Long. There are circumstances in which you might never be able to enforce this law. In other words, a person might make such recordings and in certain situations, it would probably never be caught.
Mr. Smith. Mr. Chairman, I think we had some talk about this kind of thing when we were considering copyright of sound recordings.
One other question, Dr. Long. I would like to point out that probably this wouldn't cause much trouble. But as we watch football games, for instance, on television they have an electronic sound gatherer at the side of the field and, as they come into the huddle, you can hear the quarterback giving the signals and so forth. I would suspect that unless they got the consent of the quarterback and perhaps any other member of the two teams who might speak, they would technically be in violation under this law?
Now I suppose that wouldn't cause much trouble except to make it a little more inconvenient for the telecasters who might want to listen to the sound as well as look at the view.
Mr. Long. Yes. That is a valid point. I think, and don't you agree Mr. Smith, that this is one of those commonsense problems involved in any law? There are always areas that are beyond the purview of strict statutory gauge.
Mr. SMITH. Yes, as Mr. Danielson pointed out, it is certainly not your intent to make such activity unlawful.
Mr. DANIELSON. Would the gentleman yield?
Mr. DANIELSON. I think implicit in the bill is the idea that this is a public statement, and that the people who are playing football down on the field know that the public is watching them and so on, and I think there is an implied consent to that sort of thing. I know I record some of our prominent officials' speeches on television. I oftentimes record them so I can savor the juicy comments when I plav them back.
Mr. Smith. Under this bill you would be technically violating the law.
Mr. DANIELSON. Well, people have called me illegal or something like that before.
Mr. LONG. I think you have made a very valid point. It could be printed on the ticket that admission to the game implies consent of being photographed as part of the televising of the game and so forth. I do think there are ways in which this could be handled.
I point out also that if we had this law at the time that these conversations were taped in the White House, it would have made a great deal of difference in the disposition of the whole Watergate case and it could have been immediately clear that in this situation there was the commission of a serious crime.
Mr. SMITH. That might have protected the President against slanderous claims also.
Mr. Long. That is also possible.
Mr. DRINAN. Thank you very much. I welcome your interest and involvement in this area, Mr. Long. Don't you actually go beyond the Maryland law? You state here in your testimony that "it could serve as a model for the Nation.” And yet the Maryland statutes provide that the interception and divulgence of a private communication is illegal. But as I read your good bill, you say that the mere interception even without divulgence is erroneous. It is illegal?
Mr. Long. That is right.
Mr. DRINAN. Do you actually go beyond the Maryland statute ? So you have a supermodel? I mean, the Maryland statute is defective
Mr. Long. I would go beyond that because I think that interception of private conservations must be discouraged. That is a very good point.
Mr. DRINAN. I have a constituent who claims that the phone company is listening to him and he has some plausible evidence. Would your bill apply to the phone company?
Mr. Long. The present law, which would not be affected by my bill, states in title 18, sec. 2511(2)(a)(i):
(2) (a) (i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights of property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
Mr. DRINAN. Thank you. That clarifies it. One last point.
I thank you for the reference to my dialogue with Senator Gaylord Nelson. And I was trying to make the point, and maybe I didn't make it very clearly, but the ACLU position is categorically opposed to all wiretapping and has been since May 1961. They have said that the ACLU stands unequivocally against wiretapping or the use of other electronic eavesdropping devices by any person for any reason whatsoever.