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Mr. GELLER. I am answering that I do not know if it is legal. I have not researched it. What is the good of researching afterwards? From the file memoranda I would say it was a curbstone opinion. It should not have been curbstone opinion.
It was clearly a mistake to give a curbstone opinion. When you ask, was it illegal today, I have not researched it. Our General Counsel has and I refer you to him.
Mr. MANELLI. You are saying, if you are asked the question this morning, you are unable to say whether it is legal or illegal, but had you been asked the question in 1970 you would probably have said it was legal?
Mr. GELLER. In 1970, when I was asked, I gave an off-the-cuff opinion. That was a mistake. That off-the-cuff opinion was based on my knowledge of 605; it was 605 more than the controlling 1968 act. There are old cases, really not so old. Giardina, a New York case, and a California case where the question was monitoring your own telephone calls, where
you have reasonable cause to believe they were used for illegal purposes.
The CHAIRMAN. Will you yield ?
Mr. MANELLI. I have no further questions except to point out the Omnibus Crime Act of 1968 was in effect.
Mr. GELLER. I must say the curbstone was a mistake, but section 605 refers to intercept. The question is what is an illegal interception? The cases held this was not an illegal interception; they say you have to use commonsense and they talk of implied consent. It is similar to if you have a robber in the house and he uses your extension-this is in Giardina.
The CHAIRMAN. I think you are going far afield. You are talking about way before the time this took effect.
Mr. GELLER. The issue is when you turn to the new law, the word is still "intercept."
The CHAIRMAN. We are going by the new law. Have you read it? Mr. GELLER. Yes. The CHAIRMAN. It says: Anyone who willfully intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire or oral communication.
It also says:
Such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which, and so on.
If that is not plain as can be, you keep going beyond. We want what is under this law.
Mr. GELLER. The question is what does it mean to intercept. Even under the 605
The CHAIRMAN. I am not talking of 605. I am talking of the law today.
Mr. GELLER. The issue is the construction of the law today of what the word "intercept” means, and taking the prior cases, what “intercept” means
The CHAIRMAN. It does not say this. It is specific in what it has to say. There is only one page.
Mr. GELLER. I am aware of 2511(a) ; 605 was specific, too. It used the word "intercept” and the courts say it has to be construed with common sense.
In Giardina it says that if an employee is using the phones of the employer to steal from the employer, the employer can monitor.
The CHAIRMAN. You are talking about an entirely different application than this.
This has nothing to do with stealing. This has nothing to do with the other things you are talking about. This is very specific as to what you can do about any communication, whether oral, by wire or otherwise.
Mr. GELLER. The Giardina case says, if you are using the telephone in order to injure your employer, and you are using your employer's phones—this is not illegal interception
The CHAIRMAN. You are talking about a law that was in effect before this came into effect, and this law makes that all past history.
Mr. GELLER. I am not
The CHAIRMAN. Then you set yourself up as counsel for FCC and say it is legal to monitor the wires of anybody's telephone. If you do, then you are the one we should be after.
If you made this statement, you do not belong at the FCC and should not be down there.
Mr. GELLER. There is no question the responsibility was mine. The question is, did I say it in good faith.
The CHAIRMAN. You are trying to excuse it?
Mr. GELLER. I am saying it was a curbstone opinion, and it was a mistake. Now, I am trying to say why.
The CHAIRMAN. We understand why. I am saying in the face of the law today, you say you are right.
Mr. GELLER. I do not know about today. I did not research that law.
The CHAIRMAN. It is a matter of the law of the land, and you should have researched it. You have no excuse and should not be in the job. They should not rely on you for information as counsel, if you have not researched what the law is.
Mr. GELLER. I am not general counsel any longer and I said it was a mistake not to have researched the 1968 law. It has now been done by Mr. Pettit and he says it is legal.
The CHAIRMAN. I have no more questions of a man with no more sense of responsibility than that.
Mr. Shoup, do you have any questions to ask? Mr. SHOUP. At that time you were general counsel ? Mr. GELLER. Yes. Mr. Suoup. Was this phone authorized to be used by any member of the staff after hours?
Mr. GELLER. Well, I would assume it would be used by the particular employee after hours. He was to work after hours.
Mr. SHOUP. Now, there was no rule or regulation which forbids an employee from using this particular phone?
Mr. GELLER. No, he could use the phone, use it for official business. Official business does not end at 4:30. People continue to work.
Mr. SHOUP. Was there a regulation which forbids the use of this phone after hours by other than staff personnel ?
Mr. GELLER. There is a GSA regulation that says outsiders are not to use the phone. It is to be used for official business.
Mr. Shoup. As general counsel at that time—is the passage of information of the particular type of information of which they were suspected of passing, was that a criminal act?
Mr. GELLER. It could be a criminal act. It could be a violation of Title 18 United States Code and 1905. Very often agenda items have confidential material concerning finances. If there was any divulging of that, that would violate 1905; it would depend on the facts and I do not know the facts in the particular case.
Mr. SHOUP. At the time would it have changed your opinion as to the propriety or the legality of this extension whether you could have identified this as merely a violation of a regulation or a criminal act.
Mr. Geller. I think it made it more serious as a criminal act but I believe we had the right, because we had a perfectly legal rule, to say that employees are not to divulge this information. And I believe we had a right to investigate that under section 605, then you get to the right of monitoring a telephone conversation involving your own phones—the after-hours use of your own phones by an outsider.
Mr. Shoup. Is it merely a violation of a regulation, or a violation of the law ?
Mr. GELLER. I think you could do either one of them.
Mr. PICKLE. Mr. Geller, in your statement as to why this installation was set up, I assume it was to have a surveillance of the particular desk involved, the suspected employee and an outside person or persons ?
Mr. GELLER. No, sir; I think you are stating it wrong. An outsider was using the phone after hours and the extension phone was put in in order to have a surveillance, a monitoring of the outsider's use of the phone after hours.
Mr. PICKLE. Wasn't the purpose to have a surveillance over the conversation between this suspected employee and any person from outside, whether the call originated from in or out?
Mr. GELLER. I am referring to what Mr. Goldsmith said ; that that was what they were trying to do. The outsider had the agenda material in front of him and was using it after hours and I understand they wanted after hours to monitor the outsider's use of the telephone.
Mr. PICKLE. You wanted to monitor the conversation ?
Mr. PICKLE. Did you or Mr. Goldsmith notify either parties that such monitoring would take place?
Mr. GELLER. No, sir.
Mr. PICKLE. It is your testimony, according to statements made, that it was your opinion in light of the fact it was our telephone, Government's telephone and that it appeared an unauthorized use was being made of our telephone for non-Government purposes in violation of our regulations and it was an internal security matter and you felt there was nothing improper in using this means to follow through on whether or not there was any basis for it.
It is your position then that since you were vague on the law and you did not brief it and have not had enough time to brief it since then, that it was your telephone, Government property, and therefore this is permissible; the extension went from the 3d floor desk to the 8th floor within the FCC and you say that is proper surveillance.
Mr. GELLER. When there is reasonable grounds to believe it is being used for illegal purposes.
Mr. PICKLE. Suppose a telephone were installed from this desk, and a wire was run from there to the FBI or Justice Department?
Mr. GELLER. I believe we could have called in the FBI to determine whether it was an illegal purpose as long as it is the Government checking its own phones with reasonable grounds to believe it is illegal.
Mr. PICKLE. Suppose the wire was run from that desk to Chairman Staggers' office or to General Counsel's office here on the hill, would that have been
Mr. GELLER. I think it has to be within the Government and Government investigating Government to determine whether it is an illegality. We could not run it to “ Joe Blow”; it is the Government monitoring its own phone. We had that in the New York case involving the sanitation division--monitoring its own phones to determine whether there was bribery or kickbacks. The police in California monitored their own phones to determine whether they were used for illegal purposes, and they did not get any consent as to some of the monitoring
Mr. PICKLE. You do not make any distinction whether it is monitoring by picking up a phone and listening or whether you install a specific telephone after hours from one desk to another one five floors above?
Mr. GELLER. No.
If one is legal, the other is legal, and if one is illegal, the other is illegal. The illegality is not from putting in the installation. It is whether it is legal to listen from another office.
The issue is whether it is legal to do either one.
Mr. PICKLE. Would you say, Mr. Geller, in a general sense, you set up this telephone in order to catch this fellow leaking information and instead you got caught.
Mr. GELLER. Got caught in doing this?
Mr. GELLER. I repeat one statement: I curbstoned something that was a serious issue. It was my responsibility to the Chairman and others to insure the legality. If there is something wrong, there is no question it is my responsibility.
I assume it. I gave a curbstone opinion and that is a very serious matter. I acknowledged that to your investigators. The question now is, do I know it is illegal? I do not honestly know it is. I do not know the 1968 law. It has been researched by Mr. Pettit and it is his responsibility.
Mr. PICKLE. If this was legal, then it would be legal to have thousands of telephones being installed by special installation and special monitoring throughout all the Government.
Mr. GELLER. While it raises a problem, the cases I referred to, Giardina and New York Sanitation Division and in the Court of Appeals, indicate that you can do so only if it is your own phone and you have reasonable grounds to believe it has been used for illegal purposes. It raises a problem and it should have been researched by me.
It goes back to the old cases and what "intercept" means.
Mr. GELLER. It was given by Mr. Paglin and Mr. Goldsmith. I know that by reading the files.
The CHAIRMAN. You were not a part of it, you seem to be on the outside.
Mr. GELLER. They did not ask me about that. They asked me about legality. They never asked about how it should be installed.
The CHAIRMAN. Do you know if the bill went through regular channels?
Mr. GELLER. No. It was billed separately for fairness to the individuals involved.
The CHAIRMAN. It went through other channels?
The CHAIRMAN. You were Counsel at the time and you have the
The CHAIRMAN. You do not know it was installed at nighttime without anybody's knowledge ?
Mr. GELLER. They did not ask that.
The CHAIRMAN. They did not ask you if they should have a separate billing so no one should know about it?
Mr. GELLER. No.
The CHAIRMAN. They did not regard you as Counsel on these other things at all!
Mír. GELLER. They did not because, apparently they did not think it was involved in the legality.
The CHAIRMAN. Any further questions?
Mr. SPRINGER. You were Chief Counsel to the FCC and legal adviser to the Chairman when this took place?
Mr. GELLER. Yes, sir.
Nr. SPRINGER. Were any of the facts brought out to you as to what was taking place?
Mr. GELLER. It was brought out to me that an individual had been observed with agenda material unsecured. He had been showing it to an outsider, the outsider would sit at the telephone with agenda material in front of him. This was all eyewitness reports and we wanted to corroborate that one way or another and the logical way was to see if the outsider with the agenda material before him was talking about the agenda material.
Mr. SPRINGER. You were asked whether this was legal. Your answer was in the affirmative?
Mr. GELLER. Yes.