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FCC MONITORING OF EMPLOYEES' TELEPHONES
TUESDAY, MARCH 28, 1972
HOUSE OF REPRESENTATIVES,
Washington, D.C. The subcommittee met in executive session at 2 p.m., pursuant to notice, in room 2322, Rayburn House Office Building, Hon. Harley O. Staggers, chairman, presiding.
Present: Representatives Staggers, Pickle, and Shoup.
Staff members present: Daniel J. Manelli, acting chief counsel, Mark J. Raabe, staff attorney, and Albert J. McGrath, special assistant.
The CHAIRMAN. The subcommittee will come to order.
I would like the record to show that the subcommittee has called this executive meeting with FCC Chairman Burch to inquire into a serious matter. Although it apparently took place some time ago, it has only recently been brought to our attention.
Our information is that in February 1970, a secret extension phone was run from a telephone on the third floor of the FCC headquarters to the office of the agency's security officer on the eighth floor. Its purpose was allegedly to surreptitiously monitor telephone conversations carried on on the third floor telephone. Our information is also that this surreptitious surveillance was actually carried out over a period of 5 weeks.
I would like the record to show that this hearing is being held pursuant to this subcommittee's legislative oversight jurisdiction as set forth in Rule XI, clauses 1.2, 27, and 28 of the House of Representatives and House Resolution 170 of the 92d Congress.
I am sure Chairman Burch is thoroughly familiar with the legislative oversight jurisdiction of this subcommittee. A copy of our subcommittee rules, including the text of the provision I have just cited, has been supplied to the witness.
Chairman Burch, as is customary in this subcommittee's proceedings, I ask you to rise and be sworn.
Do you solemnly swear or affirm that the testimony you are about to give before this subcommittee is the truth, the whole truth and nothing but the truth, so help you God!
Mr. BURCH. I do.
The CHAIRMAN. Chairman Burch, we want to know all about this telephone surveillance matter. We want to know what was done, by whom, and why. We want you to provide us with the whole story in your own words; we will not interrupt your account with any crossexamination. We want you simply to give this subcommittee the entire story on this matter.
TESTIMONY OF HON. DEAN BURCH, CHAIRMAN, FEDERAL
Mr. Burch. Mr. Chairman, my own knowledge of this dates back perhaps 3 weeks ago when I am not sure of the date—when the investigators from this subcommittee contacted the Executive Director and the director of security at my office. I was advised that there was a question of surveillance by telephone. Subsequent to that time I received a call from Chairman Staggers yesterday afternoon advising me I would be up here this afternoon and at that time he gave me the dates of February 17 and March 20, 1970. Yesterday after I received the chairman's call, I reconstructed the entire thing.
The best of my recollection is on or about February 12, 1970—I had been chairman for some 3 months-about that time, I received a visit from the then executive director, Max Paglin, and the then and now security officer, Fred Goldsmith, of the Commission.
At that time I was terribly concerned, as was the entire Commission, with the fact that the FCC was, and I am sorry to say still is, a sieve as far as outside people knowing our business, when we are going to do our business and what form our documents are going to take before we even see them.
In any event, these gentlemen advised me there was an employee in the network study department who had been seen twice in the other departments of the agency with the general agenda items. That is a buff-colored document. It is the only document we use that is buffcolored. Those we circulate to Commissioners and act on when we have an agenda meeting. Most of the information is not privileged but some of the cases are adjudicatory cases and, in effect, someone seeing the item before it is released is the same as seeing the decision of a court. For that reason we are concerned about the distribution.
At any rate, this employee, whose name I do not know-I can find out, read it yesterday but don't recall right now-he was observed with agenda items on his desk after hours.
The office closes officially at 4:30 but we don't require signing in and ont of the building until 5:30 to allow the overflow to get out.
During this period we were told by two different people that this employee had agenda items on his desk and a private attorney was sitting at his desk making a telephone call. The private attorney was a former employee of the FCC and a known personal friend of this particular gentleman.
These two employees of mine came in and gave me those facts and said:
We have two proposals as to how to proceed on this thing, one is we can install a tape recorder in his office and tape record the situation, or we can put in an extension telephone in Mr. Goldsmith's office on the 8th floor.
I will be very candid, I am not trying to laugh this off, the word “wiretapping” was never used and I don't suppose I even thought of it as a wiretap. I think now it is easily cognizable as such.
My response to them was:
You gentlemen do whatever is necessary to carry out your functions. I am concerned about anybody who is putting out agenda documents, Check with the General Counsel as to the legality of whatever you propose and do whatever you think is necessary.
I did not at the time ever focus on which of those two courses of action was the most desirable or if either or both were illegal. It never crossed my mind, frankly.
My participation in this whole episode ends at that point until some 2 years later when your investigators arrived and I asked what was going on.
I never knew which of the two courses was followed. The General Counsel, Henry Geller at that time, on February 16—this has been reconstructed from memoranda in the file which the Executive Director, out of an old bureaucratic feeling, files everything—he visited with the counsel and explained the situation to him. He analogized this in his own mind, he did not write it down, he said this was the same as the telephone company checking on their telephone operators to see if they handled their business properly, or the same as Woodward & Lothrop, or some other store, checking to see if their employees are courteous when talking to their customers, and he saw no objection.
The Executive Director then called the C. & P. Telephone Co.--this is all hearsay. I have been told because I knew nothing at the timeadvised them what they wanted done and advised him—I don't know who "him” is, I don't know what was done-and made a request that the billing for this be submitted separately directly to the Ėxecutive Director's office because, I gather, I am not familiar with this, the bills come into the budget part of the Commission and presumably a number of people have access to bills. I gather the reason he wanted it that way was he didn't want anybody knowing that a peculiar telephone charge had been made.
I realize, having said that, that is subject to interpretation, 1, he didn't want it known because it was illegal and, 2, the suggestion I have is he didn't want it known because otherwise the efficacy of this plan would be destroyed.
I understand that the telephone was in fact monitored on a periodic basis during this period of February 17 to March 20. There was no incriminating evidence developed as a result of it, there were no transcripts made of any transmissions, there is no record of what was said on the telephone, to my knowledge.
The telephone was withdrawn, the case was closed and the man is still an employee at the Federal Communications Commission. The attorney is still an attorney in the Federal Communications Bar Association and, so far as I know, that was the end of the matter.
The file on this, such as it is, is, in the Commission's parlance, an investigatory file, not one that we normally give out under the public information or public document-I can't even think of the act
Mr. MANELLI. Freedom of Information?
Mr. Burch. Freedom of Information Act, it is not available to someone on demand.
Since yesterday afternoon I must confess I have looked considerably more into the legality of what was done. I am not prepared to say it was illegal but neither am I prepared to say it was clearly legal. I think there is a question to the legality of what was done. There is a further question as to the propriety, assuming it were legal to do such a thing, was it an appropriate thing to do?
At the time, frankly, I had no problem with the decision, it didn't concern me a great deal. Perhaps I should have been more sensitive to it. I was, I suppose, more concerned about the leaks in the
than I was about that particular gentleman's privacy.
I would also point up a couple of considerations which actually have no bearing on the legality but have a little bearing on the propriety of the act. This telephone is the property of the Federal Communications Commission and, in effect, property of the U.S. Government. It is supplied the same as we supply the man with a desk or a typewriter. It is not for private use.
We have rules that are disregarded more than regarded forbidding use of our facilities for private use. The attorney visiting the office, obviously it was not his telephone, it was still our telephone for business purposes.
I simply point those facts up to give you some background on the decision.
If this committee feels what we have done is a reprehensible act, I will not argue and certainly we will take steps to prevent it in the future. I do not come here to give you a “mea culpa.” I do not feel guilty. If I was guilty of impropriety, so be it. If it was an illegal act, it was not a conscious act of violating any statute.
I think that is all I can say.
The CHAIRMAN. Who called the telephone company to have this installed?
Mr. BURCH. I think Mr. Paglin, the then Executive Director. I believe that is correct.
The CHAIRMAN. You say the attorney who frequented the office, he doesn't belong to the FCC?
Mr. Burch. No, he was a private attorney practicing in Washington.
Mr. Burch. Yes, of necessity attorneys visit our offices constantly, most do not visit after hours. It is not part of our rules that attorneys sit at a desk with agenda items on it face up. Generally, if I have agenda items and a reporter comes in, I have to turn them over. We have one reporter that can read upside down as well as the regular way. This is a constant problem with agenda items.
At the present time if we have a particularly sensitive matter, we don't put it on the agenda. I make up several white copies on a Xerox machine and distribute them to the Commissioners. They don't go through our regular process. We have 80 or 90 personnel involved in printing and distributing information through the agency.
We once called in the FBI and asked for their help to try and stop the leaks. They said:
There is no way when you have that many people involved in the printing and distribution of this information and we don't know how you can avoid it with having that many people involved. We don't know how to help you.
They called in a newspaper reporter who had quoted agenda items and asked him the source of his information. I have been that route