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FEDERAL TRADE COMMISSION,
OFFICE OF THE CHAIRMAN,
Washington, D.C., May 8, 1961. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constutional Rights, Committee on the Judiciary,
U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your letter of April 27, 1961, in which you request the Commission's views on S. 1086, S. 1221, and S. 1495, all of the 87th Congress, 1st session, bills dealing with wiretapping and eases. dropping. You have indicated that the Senate Constitutional Rights Subcommittee bas scheduled hearings on the bills for May 9, 10, and 11.
The Commission's authority involves the fields of antitrust and trade regula. tion and, except in rare instances, the relief it seeks is civil in nature. Some of the statutes the Commission administers contain criminal penalty provisions, such as the Wool, Fur, Textile and Flammable Fabrics Act, enforceable through the Attorney General. For the most part, however, the Commission's duties are not concerned with laws in the criminal area.
This Commission does not, and has never found any need to, engage in wiretapping or eavesdropping in its enforcement activities. It has no autbority under existing law to engage in such practices and does not seek authority from the Congress to do so.
Because of time limitations, this report has not been submitted in advance to the Bureau of the Budget. By direction of the Commission:
PAUL RAND Dixon, Chairman.
GENERAL SERVICES ADMINISTRATION,
Washington, D.C., May 9, 1961.
Hon. SAM J. ERVIN, Jr.,
U.S. Senate, Washington, D.C.
S. 1086 would authorize certain communications to be intercepted in compliance with State law. This bill, however, concerns the activities of law enforcement officers or agencies of the States and does not affect activities of GSA officials and employees.
S. 1221, with respect to eavesdropping by authorized agents of a Federal law enforcement agency, concerns the operations of GSA only to the limited extent of law enforcement in Government buildings over which this agency has jurisdiction.
S. 149.5 affects both the law enforcement and investigative operations of GSA. On the basis of past experience, it is not anticipated that this agency would make extensive use of the authority specified in this bill.
Although S. 1221 and S. 1495 are of some interest to GSA, their practical application to our operations is limited. For this reason, GSA would defer to the views of the Department of Justice and other major law enforcement agencies on these bills.
In view of the above, we respectfully suggest that this agency be excused from appearing before the Senate Constitutional Rights Subcommittee or from furnishing a prepared statement for the record.
It is not anticipated that enactment of the subject bills will have any significant financial effect on the operations of GSA.
The Bureau of the Budget has advised that, from the standpoint of the administration's program, there is no objection to the submission of this report to your committee. Sincerely yours,
John L. MOORE, Administrator.
FEDERAL POWER COMMISSION,
Washington, May 11, 1961. Re S. 1086, S. 1221, and s. 1495, 87th Congress, 1st session, wiretapping and
eavesdropping. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary,
U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I appreciate your letter of April 27, 1961, inviting my views on the proposals embodied in the bills referred to above by appearing in person at the hearings or by submitting a statement.
The Federal Power Commission, as you doubtlessly are aware, is concerned in general with the regulation of the interstate aspects of the electric power and natural gas industries. While it is true that in the performance of its functions hearings are held at which evidence is taken, it is not the type of evidence which is usually obtained by wiretapping or similar methods, and, in any event, our staff does not employ such methods.
The subject matter of these bills is not applicable to our proceedings and, consequently, any views the Commission might have would not be based on its administrative experience. In the circumstances, we do not desire to offer any comment concerning the bills. Sincerely yours,
JEROME K. KUYKENDALL, Chairman.
INTERSTATE COMMERCE COMMISSION,
OFFICE OF THE CHAIRMAN,
Washington, D.C., May 3, 1961. Hon. Sam J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judici
ary, U.S. Senate, Washington, D.C. DEAR CHAIRMAN ERVIN: This is in reply to your letter of April 27, 1961, advising of the current activities of your subcommittee in the area of wiretapping and eavesdropping practices of law enforcement officers and private individuals, and inviting me or another respresentative of the Commission to appear and testify at the hearings scheduled for May 9, 10, and 11 on bills S. 1086, S. 1221, and S. 1495—all of which relate to wiretapping and eavesdropping.
The Interstate Commerce Commission, as you know, does have certain investigatory and enforcement responsibilities in the transportation field. Its investigators and enforcement officers, however, do not engage in wiretapping or eavesdropping in the performance of their duties. For this reason, and since the proposed measures would not affect the Commission's work in other respects, it does not appear that we are in a position to offer constructive comments thereon at the forthcoming hearings. Therefore, unless you know of some way in which the Commission could be helpful to you or the subcommittee in this matter, I shall assume that you agree with me that the Commission should defer to those having experience and direct responsibilities in this area, and that no useful purpose would be served by the Commission's participation in the hearings. Sincerely,
EVERETT HUTCHINSON, Chairman.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., May 4, 1961. Hon. Sam J. Ervin, Jr., Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C.
DEAR SENATOR ERVIN: Thank you for the invitation for a representative of this Department to attend the hearings scheduled for May 9, 10, and 11 on S. 1086, S. 1221, and S. 1495 relating to wiretapping and eavesdropping.
While we are very much interested in the subject from the standpoint of constitutional rights and governmental policy, the effect of the bills on the work
of this Department would not be sufficiently direct to warrant the submission of specific recommendations.
Your thoughtfulness in offering us the opportunity, however, is appreciated, and we hope that your study will be a fruitful one. Sincerely yours,
D. OTIS BEASLEY, Secretary of the Interior.
STATEMENT OF THE FEDERAL COMMUNICATIONS COMMISSION ON S. 1086, S. 1221,
AND S. 1495, BILLS DEALING WITH WIRETAPPING AND EAVESDROPPING (SUBMITTED FOR THE RECORD, MAY 24, 1961)
This statement is submitted to present the views of the Federal Communications Commission regarding S. 1086, S. 1221, and S. 1495, bills which deal with wiretapping and eavesdropping.
Since these bills primarily set out the conditions under which ea vesdropping or the interception of communications shall be permitted by law enforcement officers, matters pertaining to the proper scope of such legislation as well as appropriate penalties for violations would seem to be matters within the unique responsibility of Congress. Inasmuch as this Commission is the Government agency with the primary responsibility in the regulation of communications by wire and radio, we should like to state that, while we are sensitive to the need for balancing the privacy of communications against the need for the Nation to protect itself from subversion and crime, we feel that any enactment impinging on the secrecy of communication should be circumscribed with the most careful safeguards.
Inasmuch as the Department of Justice is the agency primarily responsible for the enforcement of section 605 of the Communications Act, we will restrict our comments generally to the effects the proposed legislation would have on this Commission's regulatory responsibilities.
We have no problem with s. 1086. However, S. 1221 and S. 1495, as presently drafted, would seem to prohibit, or at least severely restrict, presently authorized radio monitoring by both this Commission and radio licensees who operate on shared channels. Such prohibitions or restrictions would have a substantial adverse impact on the Commission's regulatory authority over radio communications. Such a result can be avoided by appropriate language specifically exempting radio monitoring by both the FCC and, where necessary, by certain FCC radio licensees.
This Commission's radio monitoring has been carried on almost from the beginning of the regulation of radio by the Federal Government. It is the only feasible way to supervise the use of the airwaves to insure that radio stations are operating on their assigned frequencies, with authorized power, that the stations are being used for the purposes set out in their licenses, and that the requirements contained in the Communications Act and the FCC roles are being met. The only serious challenge that has been made to this authority was in United States v. Sugden ((9th Cir. 1955) afrd per curiam, 351 U. S. 916 (1956)). In that case, the court held, with the Supreme Court affirming, that the Commission could monitor radio communications for the purpose of enforc ing the act, but that the information obtained could not be disclosed except in connection with the Commission's necessary policing for violation of the act.'
The Commission's monitoring authority might be seriously questioned if provision is not made for it in S.1221 and S. 1495. S. 1221 presently provides a criminal penalty in section 571 for a person who engages in eavesdropping "(3) where the conversation, discussion, or communication overbeard or recorded is by wire or radio.
Section 570(1)(b) of S. 1221 defines eavesdropping in pertinent part, as referring to a situation in which a person not present during a conversation or discussion willfully and by means of instrument overhears or records such
1 The subcommittee might also wish to consider an appropriate amendment to rec. 605 to allow the FCC to turn over evidence of the violation of Federal law which is obtained by the lawful monitoring of radio communications to an appropriate law enforcement agency. Under the Sugden case, for instance, a Commission monitoring officer would be in violation of sec, 605 18. in the conree of his lawful monitoring activities, be heard communications not intended for the general public which would tend to indicate the commission of acts of espionage, smuggling, or other crimes and disclosed those commonlentions to the Department of Justice. We feel that the Congress may well wish to remely this situation.
conversation or discussion, or aids, authorizes, employes, procures or permits another person to do so, without the consent of the party to such conversation or discussion.
“Person," as defined in section 570(2), excludes only a law enforcement officer while acting lawfully and in his official capacity in the investigation, detection, or prosecution of crime. Since FCC monitoring personnel are not considered law enforcement officers in the usual sense and since "instrument" is defined in section 570(3) as meaning "any device, contrivance, machine, or apparatus or part thereof designed or used for acoustical detection including but not limited to wiretapping equipment, microphones, detectaphone, spike mikes, dictaphones, radio transmitters, and recorders,” it could well be argued that FCC monitoring activities were intended to be prohibited by S. 1221.
Likewise, under S. 1221 radio monitoring by FCC licensees might be considered to be prohibited in services where frequencies are shared by several users as, for instance, in some of the safety and special radio services. The safety and special radio services are comprised of approximately 40 separate radio services which are permitted the use of radio in conjunction with public and private safety functions, as well as business, manufacturing, and transportation activities. The shortage of spectrum space makes necessary the shared use of radio frequencies in most of the foregoing services and several people in the same community may be assigned by the Commission to use the same frequency on a shared, or “party line" basis. In using such “party radio lines" efficiently and as a method to avoid undue interference, all of these safety and special radio licensees are now required to monitor transmissions on their authorized frequencies so as to know when the channel is clear for their own transmissions. Section 605 of the Communications Act presently gives protection to the content of such transmissions by forbidding unauthorized divulgence or beneficial use of any information obtained by such monitoring. S. 1221 would appear to prohibit this kind of monitoring by radio station licensees, and as a consequence the utilization of shade frequencies would not be feasible. It is recommended that the bill be amended so as to eliminate any prohibition on monitoring by station licensees of the frequencies they are authorized to share.
Section 3(b)(4) of S. 1495 exempts the necessary interception of communications by common carriers. In order to assure common carriers continued authority to monitor communications to the extent necessary to maintain good service, we recommend that appropriate language be placed in S. 1221 similar to that in S. 1495.
Section 572 of s. 1221 deals with possession of eavesdropping instruments, such as radio transmitters and receivers. The bulk of the radio equipment authorized to be used by licensees in the Safety and Special Radio Services is physically capable of being used for illegal purposes, as well as for their authorized purposes. It is recommended, therefore, that this section be amended so as to exclude the possession of radio equipment from its provisions, particularly as to persons licensed to operate radio stations.
Accordingly, we recommend that the following language be inserted in S. 1221 as Section 575(2), changing the numbers of the following subsections accordingly:
"(2) Nothing contained in this chapter shall be construed as abridging (a) the radio monitoring functions of the Federal Communications Commission conducted pursuant to the Communications Act of 1934, as amended; or
"(b) the monitoring by a Federal Communications Commission licensee, his officers, agents, or employees, of the radio frequency which said licensee may be autborized to use; or
"(c) the radio monitoring by any officer, agent, or employee of any communications common carrier who, in the normal course of his employment, does so as a necessary incident to the rendition of good service by that carrier; or
"(d) the right of a person to possess radio transmitting or receiving apparatus which has been licensed for operation in the Federal Communications Commission."
Section 605 of the Communications Act would be amended by section 576 of S. 1221. In doing so, section 576 restates the present proviso clause of section 605 without showing the punctuation (commas) now appearing in this proviso. It is recommended that the language and punctuation of section 605 be restated exactly as it now reads, so as to avoid interpretation and construction problems.
In commenting on S. 1495, the Commission is assuming that this bill would cover only those communications transmitted entirely by common carrier facilities and would not cover communications transmitted in part by common carrier facilities and in part by private communication facilities. Examples of the latter situation are common carrier wireline connections for control and dispatch operations in conjunction with private radio communications systems in the safety and special radio services.
A substantial part of long distance communications by common carrier facilities 'are transmitted in part by wireline and in part by radio facilities, all operated by the common carrier company. In addition, some communication common carriers handle only radio messages. Section 3(b) (5) of S. 1495 would prohibit the interception and divulgency of wire communications by investigative or law enforcement officers except by authority of the Attorney General or a competent court under the conditions set out in section 4 of S. 1495. Section 2 of S. 1495 defines "wire communication" as "any communication made through the use of telephone or telegraph facilities furnished by any person engaged, as a common carrier for hire, in providing such facilities for the transmission of interstate or foreign communications; * * *" Since “any communication" includes radio communications of common carriers, which are monitored by the Commission, along with other radio communications and for the same reasons, the Commission would be prohibited from monitoring these communications except as authorized by the Attorney General in each specific case. We do not feel that Congress would wish that the legislation have such a result.
We recommend that S. 1495 be amended by adding a new section 3(e) as follows:
"Nothing in this Act shall be construed as abridging the radio monitoring functions of the Federal Communications Commission conducted pursuant to the Communications Act of 1934, as amended."
Finally, because of the close relationship of all these bills to the present section 605 of the Communications Act, we would suggest that either such new legislation be incorporated into section 605 or that section 605 itself be transferred to title 18 of the United States Code.
Adopted May 24, 1961.
LETTER FROM SUBCOMMITTEE CHAIRMAN TO FEDERAL COMMUNICATIONS COMMIS
SION, REQUESTING ADDITIONAL INFORMATION Hon. NEWTON N. MINOW,
JUNE 1, 1961. Chairman, Federal Communications Commission, Washington, D.C:
DEAR MR. CHAIRMAN: Thank you for the prepared statement by the Federal Communications Commission on wiretapping and eavesdropping bills pending before the Senate Constitutional Rights Subcommittee.
This statement is interesting and informative and raises points which have not heretofore been discussed in connection with the pending bills. However, since it appears to be confined to the effect of the bills on the monitoring activities of the Commission, the subcommittee would appreciate your supplementing the statement with some additional information about wiretapping and telephonic communications.
Specifically, we would like to know whether the Commission receives complaints of wiretapping and what procedures are followed with respect to such complaints. Would you please supply statistics for a 5-year period indicating the number of such complaints received, the number investigated by the Commission, the nature of the complaints, their geographical distribution, and their final disposition.
It is my understanding that there is an agreement between the Department of Justice and the Federal Communications Commission regarding referral of wiretapping complaints. Would you please supply a copy of this agreement along with the description of your operating procedures under it, the number of complaints actually referred to the Justice Department, and the action taken on them by the Department.
In addition, the subcommittee would like to know what guidance the Commission offers the telephone companies on the subject of wiretapping, and what supervision is exercised over them in this regard. Would you please supply copies of applicable regulations and instructions.
Since the transcript of our hearings is ready to be sent to the Government Printer, we would appreciate your immediate reply so that the Commission's statement may be incorporated in the hearings record. With all kind regards, I am, Sincerely yours,
SAM J. Ervin, Jr., Chairman,