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 authorized 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 COMMISSION, REQUESTING ADDITIONAL INFORMATION Hon. NEWTON N. MINOW, Chairman, Federal Communications Commission, JUNE 1, 1961. 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. SUPPLEMENTARY STATEMENT AND INFORMATION SUBMITTED BY THE FEDERAL COMMUNICATIONS COMMISSION FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., June 6, 1961. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, DEAR SENATOR ERVIN: This is in response to your letter of June 1, 1961, requesting further information supplementing our statement of May 24, 1961, on S. 1086, S. 1221, and S. 1495. Primarily because of the lack of a field staff trained to make general criminal investigations, the Commission found itself unable to investigate adequately complaints alleging violation of section 605 of the Communications Act. Consequently, in 1953 an agreement was entered into between this Commission and the Department of Justice whereby exclusive investigative responsibility for section 605 was assumed by the Federal Bureau of Investigation with technical assistance to be furnished by this Commission if so requested by the FBI. Copies of the agreement are designated enclosures 1-A, 1-B, and 1-C. Since 1953 the Commission's field offices have had standing instructions to refer all section 605 complaints directly to the FBI field office nearest to the place where the violation was alleged to have occurred. Where the complaint is in writing, the complainant is informed of the referral and where it is verbally made the complainant may be referred to the local FBI office, if it is conveniently located. The field offices are also instructed to furnish the FBI with any information which comes to their attention concerning possible violations of section 605, irrespective of whether a complaint has been made. Finally, the field offices are directed to limit action on section 605 complaints to technical engineering assistance specifically requested by the FBI and even in the course of rendering such technical assistance if it becomes necessary to intercept and use signals transmitted by a station, field personnel are advised to obtain authority from the station licensee in advance to intercept, use, and publish such signals. The field offices are also advised to keep a record of section 605 complaints which are received and referred to the FBI. Section 605 complaints which are received at FCC headquarters are referred directly to the Criminal Division of the Department of Justice for appropriate action unless the complaint is a general one in which case the complainant is advised that the FBI has investigative jurisdiction over section 605 complaints and that he should bring his complaint to the nearest FBI field office. The Commission has not generally requested to be notified of the disposition of section 605 complaints by the Department of Justice. The only instance in which the Commission has requested to be advised of disposition is when the subject of the complaint is an FCC licensee. In such a .case the Commission might consider it appropriate to take administrative action. In eight instances the Commission was notified that prosecution had been declined. However, warnings went to the subjects in two of the eight cases. It might be of interest to note that in one case the FBI made an investigation of a complaint that a businessman who was an FCC licensee was intercepting and using, without authority, the private radio communications of his competitor, but the Department of Justice found the evidence insufficient to sustain a criminal prosecution and turned it over to this Commission which supplemented it with an FCC investigation, again without finding sufficient evidence to sustain an administrative action revoking the businessman's radio license. The statistics requested by the committee concerning the procedures followed by the Commission with respect to section 605 are submitted in tabular form for the convenience of the committee (see enclosures 2 and 3). It is my understanding that it would be sufficient if data were furnished concerning Commission practices from January 1, 1957, to May 31, 1961. The Commission is also requested to state what guidance the Commission offers the telephone companies on the subject of wiretapping and what supervision is exercised over them in this regard. The Commission does not generally offer guidance to the telephone companies on the subject of wiretapping. Since the Department of Justice investigates and prosecutes section 605 violations, the Commission's position has been that interpretations of that section should generally come from the Department. It might be of interest to the subcommittee to know that in 1945 the Commission initiated a comprehensive investigation into the tariffs of telephone companies insofar as they prohibited the use of devices for recording interstate or foreign telephone communications. This investigation culminated in an order, effective June 30, 1948, directing telephone carriers subject to the Communications Act to file revised tariffs authorizing the use of recording devices subject to certain well-defined conditions. Two copies of that order, as well as the associated FCC report are enclosed (enclosure No. 4). The report may be found in volume 11, FCC Reports, at page 1033 and the order is reported in volume 12, FCC Reports, at page 1008. The Commission would be pleased to provide such further information as the subcommittee may desire in this matter. Sincerely, NEWTON N. MINOW, Chairman. [Enclosure 1-A] FEDERAL COMMUNICATIONS COMMISSION, The Honorable the ATTORNEY GENERAL, DEAR MR. ATTORNEY GENERAL: There is enclosed herewith a communication received by the Commission from the Federal Bureau of Investigation forwarding a complaint of alleged wiretapping, which was made by Mrs. Merle B. Hosey, teletype operator, Public Buildings Service. This matter is being referred to you for such action as you may deem appropriate in accordance with the Commission's letter of February 13, 1952, to the Attorney General. The Commission wishes to refer at this time to its letter of February 13, 1952, and July 21, 1950, to the then Attorney General, its letter of January 31, 1951, to the Director of the Federal Bureau of Investigation, and a letter of July 14, 1948, to Assistant Attorney General T. Vincent Quinn. Each of these letters stated the Commission's view that the responsibility for the investigation of alleged violations of section 605 of the Communications Act of 1934, as amended, rests with the Department of Justice. The Commission's letter of February 13, 1952, suggested the possibility of informal consultation to resolve any outstanding differences of opinion with respect to the respective jurisdictions of the Department and the Commission in the effective enforcement of section 605, and also stated that if the matter could not be settled between the Department and the Commission, the Commission would favor making a report to Congress recommending that it be settled by legislation. The Commission has not received replies to any of these letters, but it appears, in view of continuing referrals of complaints to the Commission by the Federal Bureau of Investigation, that the Department of Justice does not concur in the Commission's view. The Commission believes that this matter cannot be permitted to remain unresolved. As the Commission now has under consideration its legislative program for the 83d Congress, it would appreciate your consideration of the problem at this time, and an expression of your views. By direction of the Commission: PAUL A. WALKER, Chairman. [Enclosure 1-B] OFFICE OF THE ATTORNEY GENERAL, Hon. PAUL A. WALKER, Chairman, Federal Communications Commission, MY DEAR MR. WALKER: Reference is made to your letter of October 15, 1952, concerning the investigation of alleged violations of section 605 of the Communications Act of 1934 (47 U.S.C. 605). The Department of Justice is prepared to assume responsibility for conducting these investigations, subject to the appropriation by Congress of funds for the necessary personnel and equipment. While I believe it is implicit in the various past communications from the Commission to the Department on this subject, I would appreciate confirmation by you of my understanding that if the Department assumes responsibility for conducting these investigations, all complaints of alleged violations of section 605 received by the Commission will be forwarded to the Department and will be investigated exclusively by the Department with such technical assistance from the Commission as may be from time to time specifically requested by the Department. Sincerely, JAMES P. MCGRANERY, Attorney General. [Enclosure 1-C] FEDERAL COMMUNICATIONS COMMISSION, The Honorable the ATTORNEY GENERAL, DEAR MR. ATTORNEY GENERAL: The Commission is in receipt of a letter of January 16, 1953, from Attorney General McGranery relating to the mutual responsibilities of our respective agencies with respect to the conducting of investigations into alleged violations of section 605 of the Communications Act of 1934, as amended. In this letter, in reply to the Commission's letter of October 15, 1952, we were informed that the Department of Justice was prepared to assume responsibility for the conduct of these investigations, subject to the appropriation of funds by Congress for the necessary personnel and equipment. As reference to the considerable previous correspondence on this matter will indicate, this is in accord with the views which have previously been expressed on this matter by the Commission. Mr. McGranery requested confirmation from the Commission of the fact that in view of the assumption of responsibility by the Department of Justice for such investigations the Commission would agree to forward all complaints of alleged violations which we might receive to the Department for its exclusive investigation, subject to such technical assistance from the Commission as the Department of Justice may specifically request in particular cases. We are pleased to afford you this assurance, and will remain available to afford your investigatory personnel at all times with such technical assistance as we are in a position to give. By direction of the Commission: [Enclosure 2] PAUL A. WALKER, Chairman. Processing of section 605 complaints—Complaints received by FCC1 All complaints were referred either to FBI headquarters or to the Criminal Division, Department of Justice, except those complaints which were generally stated in which case the complainant was advised to bring the matter to the attention of the nearest FBI field office. No sec. 605 complaints, as such, were investigated by the Commission. However, as pointed out in the body of our letter, the Commission did investigate 1 complaint with a view toward taking administrative action after the Department of Justice had found insufficient evidence for criminal prosecution. |