Mr. PICKLE. You stated a few minutes ago the Chairman said "as appropriate.'

Mr.PAGLIN. That was his statement.

Mr. PICKLE. That is not in your statement previously. That infers he was torn with the decision of whether an extension would be monitoring in a wiretapping sense or not. Was there any discussion whether this would be a legal or illegal act?

Mr. PAGLIN. None at the time I talked with the Chairman.

Mr. PICKLE. This was not raised between you and the Chairman? Mr. PAGLIN. No.

Mr. PICKLE. Whether it would be termed "wiretapping".

Mr. PAGLIN. Not at the time. If it were my responsibility to raise it, so be it. I can only tell you the facts at the time, that was my state of mind at the time that it did not constitute an improper activity in the circumstances.

Mr. PICKLE. Since the employee had been observed possibly leaking information, I wonder why some action was not taken in the Commission. The employee said he saw the material being copied or the telephone being used. I wonder why the Commission did not take action against the employee at that time?

Mr. PAGLIN. I thought Mr. Goldsmith explained that and I concur with his views.

Where a situation occurs as it occurred here, where it appears there might be some very drastic action taken against an employee for an apparent violation of our regulations when it had apparently been earlier discussed, it seems to me not only a matter of good investigative technique, but the employee involved, I mentioned, was a man of advanced age and precarious health, to make sure the facts given to us were actually so; in other words, to check them out.

Mr. PICKLE. In other words, to "catch the thief," you had to have concrete facts.

Mr. PAGLIN. I would think in a circumstance like this, you would not want to go on hearsay.

Mr. PICKLE. In order to do that, the use of telephone extensions is not wiretapping?

Mr. PAGLIN. I did not so regard it at the time, Mr. Congressman. Mr. PICKLE. Do you regard it as such now?

Mr. PAGLIN. I do not.

Mr. PICKLE. Have you ever had, in your experience with the Commission, participation in suits before the Commission in which the question of wiretapping has been involved?

Mr. PAGLIN. No; I have no present recollection, sir.

Mr. PICKLE. This problem of monitoring conversations and wiretapping has never been handled by you in 30 years with the Commission?

Mr. PAGLIN. That is correct, this is the only instance of its kind in all the time I have been at the Commission.

Mr. PICKLE. The fact it is the only instance, it is not an unusual thing you would go to the trouble of installing an extension?

Mr. PAGLIN. That was the very reason. That is to say, as I mentioned in my statement, this was the first time somebody came to us with eyewitness testimony who said he saw it being done. That is why

I think it was a justification for the unusual and sole means. We have never done it before to my knowledge and it has never been done since. Mr. PICKLE. That is all.

The CHAIRMAN. Mr. Shoup.

Mr. SHOUP. Mr. Paglin, you are a lawyer?

Mr. PAGLIN. Yes, sir.

Mr. SHOUP. The violation of the disclosure, as you spoke of it, of privileged information, is this a misdemeanor or a crime?

Mr. PAGLIN. I am not prepared to answer that with specificity, Mr. Congressman, but I do recall that in one of the many memoranda which we sent around to the Bureau Chiefs and the staff with respect to this problem, I made mention of the fact that even our preexisting standards of conduct with respect to employee responsibilities referred to the fact that our rules provided that employees were not permitted, directly or indirectly, to use or allow the use of information not available to the general public. The memorandum also referred to the fact that our rules cited the Federal statutory provision, title 18 of the United States Code, section 1905 which included penalties for violation of the statute against disclosure of confidential information and many of our agenda items contained such information filed with us in confidence and which we kept confidential.

Mr. SHOUP. Was this information which would be considered as under the Federal act of being a criminal act, was that identified as such for your staff?

Mr. PAGLIN. Yes, we would refer to it in terms of the type of financial information required to be filed with us by the carriers and broadcast companies, and which was protected by specific confidentiality.

Mr. SHOUP. Was the information that was suspected of being leaked released improperly, was this contained within this category of a violation of the criminal statute?

Mr. PAGLIN. We had no way of knowing at the time, Mr. Congressman. All we knew is that agenda materials were involved, agenda items.

Mr. SHOUP. One final question, it is somewhat repetitive but, so I know specifically, during your term as Executive Director in which it was your sole responsibility to control the installation of extension phones, was there any other time other than that that an extension phone was installed?

Mr. PAGLIN. None.

Mr. SHOUP. No further questions, Mr. Chairman.

The CHAIRMAN. Thank you very much, Mr. Paglin. Any other questions?

Mr. PICKLE. I wish to ask one additional question.

It is your testimony you did not receive any reports back from Mr. Goldsmith that they had any evidence or leaks, or you did not receive any reports about the program of catching

Mr. PAGLIN. Oh, no. Mr. Goldsmith kept me informed throughout that period.

Mr. PICKLE. I understood you to say you could not remember whether you got reports or not-you almost forgot about it.

Mr. PAGLIN. I do not recall saying that. Certainly Mr. Goldsmith kept me advised during the period this was going on. It was intermittent; I had no specific written reports.

Mr. PICKLE. Why was this telephone extension put on that particular desk and piped up to the 8th floor?

Mr. PAGLIN. The question is why?

Mr. PICKLE. Yes.

Mr. PAGLIN. On the basis of the advice, this was the most appropriate method in the circumstances, the use being after hours and intermittent, for us to determine whether what had been told to us

was so.

Mr. PICKLE. Was it for the purpose of the surveillance of the conversations between that particular desk and any outside party?

Mr. PAGLIN. No, not that particular desk as such. I understand Mr. Goldsmith indicated he did not use the instrument during working hours, only when it appeared to be used after working hours.

Mr. PICKLE. The extension went only from the desk of the suspected employee to the desk of Mr. Goldsmith?

Mr. PAGLIN. Yes.

Mr. PICKLE. The purpose was to monitor the conversations, the surveillance of the conversations between that desk, the suspected employee and the desk of Mr. Goldsmith, was that the purpose?

Mr. PAGLIN. The purpose was whether or not the agenda items were being improperly leaked and whether this outsider was using our phones for the purpose of disclosing information.

Mr. PICKLE. The purpose was for the surveillance of the conversations between the suspected employee

Mr. PAGLIN. Not the suspected employee.

Mr. PICKLE. The suspected employee and an outside party?

Mr. PAGLIN. If you wish to characterize it that way, yes.

Mr. PICKLE. Were either of those parties notified?

Mr. PAGLIN. No.

Mr. PICKLE. You say the employee was not suspected. In fact, he was suspected of cooperating with the other individual?

Mr. PAGLIN. Yes.

Mr. PICKLE. Suspected of wrongdoing?

Mr. PAGLIN. Yes, our regulation went against the employee.

Mr. PICKLE. Thank you.

The purpose of putting this surveillance on his phone was for the purpose of seeing if the suspicion was correct, is that a correct statement, the employee was suspected along with the outsider, and for that reason, it was his phone and no other employee's.

Mr. PAGLIN. That is right; we would not put it anywhere else. It was on his desk because of the information that came to us.

Mr. PICKLE. At the time the extension was wired on, there was a continuing surveillance of his use of the telephone?

Mr. PAGLIN. I believe Mr. Goldsmith could testify to that better-I have no personal knowledge of it.

Mr. PICKLE. Did he report to you?

Mr. PAGLIN. Yes, from time to time.

Mr. PICKLE. Did he say he was keeping surveillance of the telephone?

Mr. PAGLIN. I cannot affirm that-keeping surveillance. As I understand from what he told me, he would be at his desk after hours and if the instrument lit up, that is to say, it was shown that someone was using it, he would pick up the telephone and make an observation of what was going on.

Mr. PICKLE. Did he make any reports on the conversations?

Mr. PAGLIN. No specific reports I can recall except that apparently he had not been able to learn whether or not this was going on.

There were conversations about long-distance calls being made by this outsider without authority on our telephone, I recall something like that, that he was using a Government phone for making personal long distance calls. I recall something about that.

Mr. PICKLE. That would be a separate issue, any long-distance calls that showed up on the phone.

Mr. PAGLIN. If he made commercial calls. If he used FTS, it would not, although it would be a violation of our regulations.

Mr. PICKLE. There would be conversations that were monitored, that were listened to that you received the reports on?

Mr. PAGLIN. I assume there were.

Mr. PICKLE. That was not part of the reports you got?

Mr. PAGLIN. Yes; he did. Mr. Goldsmith did listen in on conversations during that period of time.

I was so informed.

TESTIMONY OF HENRY E. GELLER, SPECIAL ASSISTANT TO THE CHAIRMAN FOR PLANNING, FEDERAL COMMUNICATIONS COMMISSION

The CHAIRMAN. Please state your name and official position.

Mr. GELLER. My name is Henry E. Geller, Special Assistant to the Chairman for Planning.

The CHAIRMAN. Mr. Counsel?

Mr. MANELLI. In February 1970, the time we are talking about, you were the Chief Counsel at the Commission, were you not?

Mr. GELLER. That is right.

Mr. MANELLI. You have heard the testimony of Mr. Paglin to the effect that you were consulted over the legal aspects of the proposed extension. Do you recall having a conversation of that kind with Mr. Paglin?

Mr. GELLER. No, as I told your investigators. I do not recall at all but I stated I was sure it happened, that the file memoranda are absolutely correct.

Mr. MANELLI. If you do not recall, how can you be sure the memoranda are accurate?

Mr. GELLER. Because I have the utmost faith in Mr. Goldsmith, who prepared them-they are a contemporaneous rendition of what happened. Mr. Goldsmith is a very conscientious man. Max Paglin also remembers it, so I am sure it is as reflected in the file memoranda.

Mr. MANELLI. This was a conversation that took place between yourself, Mr. Paglin, and Mr. Goldsmith both?

Mr. GELLER. Right. It was apparently not a lengthy one. I gather it was 15 or 20 minutes, something of that order.

Mr. MANELLI. Do you have any-I guess the answer would be "No," but I will ask-do you have any recollection of advising anyone in the Commission that the installation we are talking about was legal?

Mr. GELLER. I will have to answer I do not, but I will say I am sure the file memoranda accurately reflects what I said and I will talk about what I said, based on the file memoranda.

Mr. MANELLI. My questions have to do with your personal recollection.

Mr. GELLER. I do not recall.

Mr. MANELLI. Did you have any knowledge at the time that this telephone-monitoring operation was in progress, were you aware that the telephone had been installed?

Mr. GELLER. No. If the memoranda indicates I was asked about the propriety of it, that was the end of my involvement with it.

Mr. MANELLI. Aside from the fact you are willing to accept the file memoranda as being accurate, your personal recollection-you have no personal recollection of being contacted on this subject at all?

Mr. GELLER. Right, I have to answer that because, as I say, it was apparently an instance that happened 2 years ago in the course of a lot of busy things and I do not recall it. As I come back to it. I am sure the file memoranda are correct. It is the memoranda of people that are very conscientious and undoubtedly it is correct.

Mr. MANELLI. The memoranda state that you gave your consentthat is not correct, but you said you saw no legal hindrance to that kind of thing. Does that report what you think your opinion would have been, does that sound like your opinion?

Mr. GELLER. Yes, it does because again, as I told your investigators, this issue here is that this was a Government phone being used and it has to be used for official purposes. If it is being used for illegal purposes to injure the Government, then in those circumstances there were old cases under 605 which indicate that you can have reasonable monitoring. One case is Giardina in the New Jersey Supreme Court, a New York case, a California case, all these cases involve monitoring of a subscriber's phone in order to prevent wrongdoing being done to the subscribers.

If you want, I can expand on that a little.

Mr. MANELLI. I do not want to get into that just now. I want to make sure I understand your testimony up to this point. You do not recall giving such a legal opinion at the time, but you are also saying that, had your attention been directed to that legal issue, you would probably have indicated that there was nothing illegal.

Mr. GELLER. I am sure the file memoranda are correct. I am sure the memoranda are correct; the reason I give that opinion is that private businesses can monitor their own phones when they believe wrongdoing is going on. There were old cases to that effect.

Mr. MANELLI. You believe today that the incident we have been describing, this telephone monitoring instance, was legal, that is your opinion today?

Mr. GELLER. As I told your investigators, I did not focus on the 1968 law.

Mr. MANELLI. What is your opinion today?

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