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and would be unlawful, and it would of course be almost impossible to police.
Mr. 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 play 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 in your opinion?
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.
You kind of suggest that the need for wiretapping legislation is moot. I hope it is not. I hope it is a live option and maybe the Congress will follow what was recommended by the ACLU 14 years ago. Mr. Long. As I said before, I really don't want to get into that. Mr. DRINAN. I know. Thank you. Mr. KASTENMEIER. Did you want to comment further on that? Mr. Long. No. Mr. DRINAN. Thank you very much. Mr. KASTENMEIER. The gentleman from Iowa, Mr. Mezvinsky.
Mr. MEZVINSKY. I want to commend the gentleman from Maryland. I think his contribution is significant, but I really have one question in view of the comments concerning enforcement.
You pointed out that if you really wanted to enforce the laws, you wouldn't have enough jails to put all of the violators in.
Mr. Long. I think that Shakespeare wrote that if you put everybody who deserves to go to jail in jail, where would there be any honest men to keep them there?
Mr. MEZVINSKY. I guess in view of Shakespeare and in view of your remarks, I want to know, how do we hope to enforce this law?
Mr. Long. Civil suits would be a self-enforcing aspect. If any person felt that his conversations had been recorded, he could bring this out as part of a civil suit or part of a complaint. That would be one way of handling it. Another would be that the person who had acquired this recording as a scheme against another person would be precluded from using it in any legal way because he had committed a crime in acquiring the recordings. That would be a very important self-enforcing aspect.
Mr. MEZVINSKY. Thank you very much.
Mr. KASTENMEIER. The committee is grateful to you Congressman Long for your testimony this morning and for the bill vou have introduced, which is one of the issues we will have to confront.
Mr. Long. Thank you, Mr. Chairman, and the committee for hearing me. I certainly enjoyed the presentation.
[Mr. Long's statement follows:]
STATEMENT OF Hon. CLARENCE D. LONG, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MARYLAND
Mr. Chairman, I am pleased to have this opportunity to speak to the distinguished Subcommittee about the need to protect the right of an American citizen to have his personal and private communications remain private.
My home state of Maryland, since 1956, has had an official policy of protecting private communications which could well serve as a model for the nation. The Maryland statutes provide that:
“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. (Annotated Code of Maryland, Art. 35, Sec. 92)."
The disclosure last summer of the White House practice of recording the conversations of important officials of the Government, diplomats, and even White House staff members—secretly and without their knowledge shocked the entire nation. The White House bugging, however, is only the tip of the
iceberg. Throughout the country, persons who have assumed that their private conversations were private have been rudely awakened by the widespread incidence of uncontrolled eavesdropping.
My bill, H.R. 9667, would amend Title 18, Section 2511 of the United States Code to require the consent of ALL parties to a conversation before it may be recorded or otherwise intercepted. As the law now stands, if “A” and “B” are conversing, "A" could secretly record the conversation without “B's" knowledge-without breaking any law.
My bill would make such bugging punishable by fines ranging up to $10,000 and up to five years in jail, and violators would also be subject to civil suits. The courts would, of course, retain the power to authorize wiretaps for investigations involving criminal activities or national security.
Twenty-five of my colleagues in the House have joined me in sponsoring this measure.
U.S. District Court Judge Gerhard Gesell recently pointed out that legallysanctioned snooping has become a common practice which has been able, under the present Federal law, to proliferate without judicial supervision. According to Judge Gesell :
"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 * * *"
The time has come to protect individual citizens against unrestricted wiretapping, spying, and surveillance. A recent Harris Poll confirms the timeliness of such legislation ; by 77 percent to 14 percent, the public favors passage of a law forbidding such intrusions into their private lives. As Harris pointed out, while the Watergate affair may have acted as a trigger to public opinion, there has been a clear and underlying shift toward 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 urgent hope that this Subcommittee will report favorably on the legislation which I and several other Members of Congress have proposed in order to safeguard the personal nature of a citizen's private communications. Thank you, Mr. Chairman.
Mr. KASTENMEIER. The Chair would like to greet as our next witness Mr. William Turner of California.
Mr. Turner has served for over 10 years as a special agent with the FBI. Since he resigned from the Bureau in the early 1960's, Mr. Turner has worked as a private investigator and a magazine editor.
is the author of several books, including "How To Avoid Electronic Eavesdropping and Privacy Invasion.”
Mr. Turner would you please come forward. I would say to my colleagues, we do have four witnesses yet this morning and I hope we can proceed expeditiously.
TESTIMONY OF WILLIAM TURNER, FORMER FBI AGENT, PRIVATE
INVESTIGATOR, AND AUTHOR OF SEVERAL BOOKS, INCLUDING "HOW TO AVOID ELECTRONIC EAVESDROPPING AND PRIVACY INVASION"
Mr. TURNER. Thank you, Mr. Chairman and members of the subcommittee.
I will try and be as brief as I can. I understand that the purpose in my being here this morning is more or less to get an exposition or a feeling for what really goes on from the standpoint of some body who engages in the black arts.
I have been on both side of the fence in the FBI. I was a sound man, which is a euphemism for a graduate of the FBI school which teaches bugging and tapping and burglary, and I also have been involved as a writer in the last 10 years on controversial subjects and hence have been on the other side of the surveillance.
So getting into the issue of electronic surveillance, perhaps if I give some firsthand accounts, it would better establish just what we are trying to reckon with in terms of the subcommittee's investigation.
I went into the FBI in 1951. And in 1952 and 1953 I was assigned to the San Francisco office and, because I was a bachelor, I was assigned to the monitoring plants. These were odd shifts. They were manned 24 hours a day. We had one of the plants down in the produce section and we had another one over in Oakland, which carried the recording equipment for all of the installations in the east bay of the San Francisco area.
Since that particular time, while they have had some mishaps, and the FBI monitoring plants are now located inside the field offices. I said "installations” because I am not distinguishing between wiretaps and microphone installations.
In those particular plants and in the current FBI plants, the lines that feed in carry both microphone and wiretap conversations. The plants are for the purpose of monitoring permanent installations. In most cases, what will happen is that the FBI will lease a line from the telephone company, much as radio stations would lease lines, and the line will feed from the particular monitoring point out to where the installation is. And as you can see, there is a considerable amount of logistics involved in this.
In April of 1958, perhaps because of my engineering background, I was selected to attend the sound school of the FBI in Washington. Now these particular schools are held on an irregular basis as the needs to replenish sound men in the field come up. And I should point out that the Treasury Department and the CIA and the various military intelligence agencies do, or at least did, conduct similar schools in the Greater Washington area.
In that particular school, which lasted 3 weeks, there was very little discussion on the part of the instructors on the constitutional issue of bugging and wiretapping. We simply were told that the FBI tapped under two justifications. And here we are getting into a little bit of the evolution of bugging and tapping and the law or the lack of the law at the time.
The two justifications were that President Roosevelt gave executive authority during the war emergency, and that no succeeding President had rescinded that authority; and the second justification was that the element of disclosure in the Communications Act of 1934 was not violated because information obtained was not disclosed outside of the Justice Department.
In other words, they were viewing the Justice Department as a metaphysical entity. The instructor added that the Communications