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chanical device or a third party--and we do not use either practice. Mr. Jensen was unaware of this one monitoring incident, as was my own administrative assistant at the time who reviewed the letter prior to signature. I would simply point out that we have always dealt candidly with the Congress and have done so throughout this subcommittee's review of the matter before us.
That, Mr. Chairman, is the full record as best I have been able to reconstruct it some 2 years later. On the legal question, I must rely on the advice of the experts and those who have researched the issue. On the judgmental question, I believe that we acted in a sound and reasonable manner that was fair to the persons involved, and addressed to protecting the public interest.
The CHAIRMAN. That concludes your statement ! Mr. Burch. Yes, sir; the end of the prepared statement. (The exhibits referred to in Chairman Burch's statement follow :)
THE WHITE HOUSE,
Washington, D.C., December 3, 1966. Memorandum for the Cabinet and Heads of Agencies. FROM: The President.
I again emphasize to you the need for taking measures to assure against leaks of sensitive information including not only classified information but also information the premature disclosure of which may give the recipients an opportunity for advantage in the marketplace.
This is a responsibility of the utmost importance to the proper administration of government and also as a matter of fairness to the public. It requires constant vigilance (1) to make sure that the sensitive types of information in your agency have been identified as such; (2) to make certain that procedures are established which will secure such information against premature communication to others or leaks; (3) to assure that personnel are fully informed of the agency's policy practice and procedures with respect to those types of information of the dangers and unfairness of unauthorized or premature disclosures, and of the penalties for violation of the prescribed procedures; and (4) to make certain that there is continuing attention to this problem within each department and agency so that the identification of sensitive types of information is up-todate and the procedures do not become ineffective as a result of lack of current attention and periodic checking,
I am asking each of you to send me a report as to the measures in effect in your agency with respect to this subject.
FCC 69-39 24431
CHAPTER 1-FEDERAL COMMUNICATIONS COMMISSION
PART 19-EMPLOYEE RESPONSIBILITIES AND CONDUCT
SUBPART B-ETHICAL AND OTHER CONDUCT AND RESPONSIBILITIES OF EMPLOYEES
Misuse of Information The Commission having under consideration Part 19 of its Rules and Regulations, Employee Responsibilities and Conduct, and Part 735 of the amended Civil Service Commission Regulations on Employee Responsibilities and Conduct;
It is Ordered : Under the authority of the Communications Act, as amended, pursuant to Executive Order No. 11222, dated May 8, 1965, and in accordance with requirements of Part 735 of the Civil Service Regulations issued on
October 1, 1965, and amended on June 9, 1967, and in accordance with Administrative Order No. 10, dated February 15, 1966, that Section 19.735–206 of Chapter I of the Code of Federal Regulations is amended as follows:
$ 19.735–206 Misuse of Information.
Except as provided in $ 19.735–203 (c), or as authorized by the Commission, an employee shall not, directly or indirectly, disclose to any person outside the Commission any information, or any portion of the contents of any document, which is part of the Commission's records or which is obtained through or in connection with his Government employment, and which is not routinely available to the public and, with the same exceptions, shall not use any such documents or information except in the conduct of his official duties. Conduct intended to be prohibited by this section includes, but is not limited to, the disclosure of information about the content of or scheduling of agenda items or other staff papers to persons outside the Commission, and disclosure of actions or decisions by the Commission prior to the public release of such information.
This amendment was approved by the Civil Service Commission on January 27, 1969, and is effective on February 5, 1969.
BEN F. WAPLE,
Secretary. Adopted: January 15, 1969.
FEDERAL COMMUNICATIONS COMMISSION, WASHINGTON, D.C.
INTEROFFICE MEMORANDUM : FEBRUARY 25, 1969
1. The Commission, on January 15, 1969, adopted a revision to Part 19 strengthening the rules concerning unauthorized disclosures of information. The Commission had previously set forth approved policies concerning other matters related to safeguarding agenda items. In addition, the Executive Director was instructed to issue a directive to inform Commission personnel concerning these policies.
2. The attached memorandum carries out these instructions and will be issued to all FCC personnel shortly. It is contemplated that, several days after its issuance, the bureau chiefs and staff officers will be requested to personally inform each member of his staff of the importance of observing the prescribed policies and procedures, and the possible disciplinary actions for breaches thereof.
MAX D. PAGLIN,
U.S. GOVERNMENT MEMORANDUM : FEBRUARY 28, 1969
1. Purpose.—The purpose of this memorandum is to advise all FCC employees as to the Commission's policy and procedures relating to safeguarding agenda material and unauthorized disclosure of such material.
2. Cancellation.—This memo supersedes the Executive Director's memorandum to the bureau chiefs and staff oficers on August 9, 1968, Subject : Safeguarding Agenda Material.
3. Background.—The unauthorized disclosure of material from Igenda items prior to official adoption and release has caused the Commission considerable concern. No organization, public or private, is completely free from the problem of unauthorized release of information. The Commission has been cognizant of such problems and has enacted rules to deal with them. In Part 0.457 (d) of the Commission's Rules and Regulations, the Commission is authorized to withhold intra
agency documents from public inspection. In its Rules dealing with “Employee Responsibilities and Conduct", reference is made to the prohibition against allowing the use of official information not otherwise made available to the general public (i.e. Part 19.735-206). Part 19.735.210(f) cites the Federal statutory prohibition (18 USC 1905) against the disclosure of confidential (proprietary) information, including criminal penalties for violation thereof. Thus, Commission personnel should be aware that unauthorized disclosure of information makes them subject to a variety of disciplinary actions.
Having noted the increase in unauthorized disclosures, the Commission, during its August 7, 1968 meeting, took several procedural steps to aid in preventing such unauthorized disclosures, i.e., established the use of the phrase "FOR OFFICIAL USE ONLY” on agenda material; set forth the criteria to limit the distribution of agenda material to bureau and office chiefs and those who are directly concerned with the subject being considered and need to have access to such material for that purpose; and defined the role of the Chief, Office of Information, regarding agenda items. Finally, in order to strengthen its policy on employees disclosing information, particularly concerning agenda items and other staff papers, the Commission on January 15, 1969 adopted a revised Part 19, Subpart B. Section 19.235–206. This was done to make the prohibition against the unauthorized disclosure as clear as possible and to eliminate any question of what is prohibited. Attached is a copy of the revised Section 735.206 for inclusion in your FCC Personnel Manual.
4. Policy.—The Commission's policy on disclosure of information pertaining to agenda material remains as it has been in the past. No disclosure to the public or the press is authorized, prior to adoption and release, of any information relating to an agenda item which has been or may be prepared for the Commission's consideration, unless prior approval has been obtained from the Commission. This restriction includes such aspects as the subject, content, scheduled date of action, staff comments, and any other relevant data. The covering staff memorandum retains its identification as an intra-agency document and, therefore, will not be disclosed to the public at any time.
5. “For official Use only".-As used herein, this designation applies to all agenda material.
6. Stamping of Agenda Material.-The first page of each agenda item shall be appropriately stamped top and bottom with the phrase "FOR OFFICIAL USE ONLY” by the Minute and Rules Division, prior to its being duplicated by the Printing and Reproduction Branch.
7. Distribution of Agenda Material.-The Chief, Minute and Rules Division, is responsible for the distribution of all agenda material. He maintains a listing, which has been prepared by each bureau and office chief, of personnel authorized to receive agenda material. If additional copies of specific agenda material are required, they shall be requested from the Minute and Rules Division by the immediate office of the bureau chief or staff officer. Such material will be sent to the bureau or office chief for further distribution. There shall be no additional duplication of individual agenda items by Commission personnel beyond the authorized distribution schedule.
Requests for changes in the presently established distribution schedule will be submitted to the Minute and Rules Division over the signature of the bureau/ office chief or deputy bureau/office chief, and shall be approved by the Executive Director or his designee.
8. Safekeeping of Agenda Material.--Agenda material, prior to adoption and release by the Commission, will be stored in locked desk drawers or any other containers which can be locked. This material may be stored in security cabinets used for classified documents when space is available; however, such cabinets will not be requisitioned solely for storing agenda material. Where present physical facilities prevent adherence to this procedure, bureau and office chiefs should contact the Security Officer for assistance. Following adoption and release, agenda material need not be kept under lock; however, it should not be placed on tables or in locations readily available to public scrutiny.
9. Destruction of Agenda Material.-All agenda material, when no longer required, shall be disposed of by tearing into small pieces. Items determined to be particularly sensitive by the originator or higher authority shall be handled in accordance with the provisions of Section 12 B 3, FCC Security Regulations.
10. Information concerning Agenda Material.-Frequently, inquiries are received from members of the press and the public concerning agenda material
which has not as yet been acted upon or released by the Commission. Such information is privileged and is exempt from disclosure under the Freedom of Information statute. In accordance with the Commission's policy, no information is to be provided in response to requests concerning such agenda information.
The Chief, Office of Information, is the prime source of information to the Press concerning the actions of the Commission. He will refer requests for information concerning such activities to the bureaus and offices, as appropriate. 11. Effective Date.—This memorandum is effective immediately.
MAX D. PAGLIN,
Executive Director. Attachment.
EXHIBIT D MEMORANDUM ON THE USE OF TELEPHONE EXTENSION TO MONITOR IMPROPER
The purpose of this memorandum is to explore the legality of Commission monitoring of its own telephone lines in order to uncover suspected improper communications. I am specifically concerned with the following fact situation : (1) at one time during 1970 it was suspected that documents intended for Commission use only were regularly being disclosed to outside parties, (2) the evidence indicated that these disclosures were being made through the use of a Commission telephone after the close of normal working hours, and (3) the evidence further indicated that the telephone disclosures were being made by a former FCC employee who was being illegally aided by an employee of the Commission. On the basis of this information, it was decided that a telephone extension should be installed in another room so as to permit Commission security personnel to monitor the illicit calls.
The law applicable to surveillance activities of this type is contained in the Omnibus Crime Control and Safe Streets Act of 1968, and in the Fourth Amendment to the U.S. Constitution. A. The Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 makes illegal the conduct of any person who willfully intercepts wire or oral communications by means of an "electronic, mechanical, or other devise." 18 U.S.C. $ 2511(1)(a). This Act supersedes Section 605 of the Communications Act of 1934, 47 U.S.C. $ 605, which until 1968 provided that "no person not being authorized by the sender shall intercept any communication and divulge or publish the . . . substance . . . of such intercepted communication to any person ..." With the 1968 adoption of the Omnibus Crime Act, this Section of the Communications Act was amended to apply only to the interception and divulgence of radio communications. The interception and divulgence of wire communications is no longer prohibited by the Communications Act. The Omnibus Crime Act, however, makes interceptions of wire communications themselves illegal, whether or not they are followed by a divulgence.
In considering the legality of the Commission's monitoring activity, it should be kept firmly in mind that the line under surveillance was being used by a non-employee, after normal working hours, and without proper authorization. Both common sense and official regulations make it plain that government telephones are provided for official use only. In the late 1960's G.S.A, notices specifically informed FCC employees that "GOVERNMENT TELEPHONES ARE PROVIDED FOR OFFICIAL USE ONLY AND ARE NOT TO BE USED FOR RECEIVING OR MAKING PERSONAL CALLS" G.S.A. Notice DC 69-3770, September 19, 1968. In the circumstances of this case it is plain that the nonemployee who was using the Commission's phones was doing so without proper authority. Indeed, when questioned about the matter, the individual admitted having used the lines for "personal" calls.
The cases decided under old Section 605 of the Communications Act generally upheld surveillance where communications facilities were being utilized by per
1 Public Law 89-478, effective July 4, 1967.
sons who had no authority to use them. The courts considered persons illegally using communications facilities to be "trespassers" who had no right of privacy in the use of such facilities. In United States v. Sugden, 226 F. 2d 281 (9th Cir. 1955), aff'd Per Curiam 351 U.S. 916 (1956), a trespasser theory was applied in upholding the monitoring of broadcasts by unlicensed radio operators. In Brandon v. United States, 382 F. 2d 607 (10th Cir. 1967), it was held that Section 605 did not prohibit the telephone company from monitoring long-distance calls which were made with the aid of a device which illegally by-passed the company's mechanical billing system. In discussing Section 605, the Brandon court stated that "that provision was adopted by Congress for the protection of authorized users of telephonic or radio facilities” and that it did not apply to those who used the facilities without proper authority.
The Brandon interpretation of Section 605 should apply with equal force to the Omnibus Crime Act. There is no reason to believe that Congress in adopting the 1968 Act intended to establish a refuge for wrongdoers who illegally use communications facilities belonging to others. On the contrary, the legislative history of the Omnibus Crime Act makes it clear that Congress intended to give trespassers no refuge. Prior to the passage of the Act the following colloquy took place between Senator Murphy and Senator McClellan, the floor manager of the bill :
"Mr. MURPHY. There are now electronic devices available to the individual householder which he can buy and install to protect his home. One device I know of, in the case of an illegal entry by a burglar, immediately notifies the police, records the sounds and voice patterns of those who are improperly in that house.
"I should like to ask the Senator from Arkansas, will this device be permitted under Title III as it now stands?
"Mr. MCCLELLAN. Yes. In the home, or in the apartment, such a device would be permitted.
"I invite the attention of the Senator to pages 93 and 94 of Report No. 1097 where he will find :
“ 'Paragraph (2) (c) provides that it shall not be unlawful for a party to any wire or oral communication or a person given prior authority by a party to a communication to intercept such communication. It largely reflects existing law. Where one of the parties consents, it is not unlawful. (Lopez v. United States, 83 S. Ct. 1381, 373 U.S. 427 (1963); Rathbun v. United States, 78 S. Ct. 161, 355 U.S. 107 (1957) ; on Lee v. United States, 72 S. Ct. 967, 343 U.S. 747 (1952)). Consent may be expressed or implied.
"Surveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to. Retroactive authorization, however, would not be possible. (Weiss v. United States, 60 S. Ct. 269, 308 U.S. 321 (1939)) and “party” would mean the person actually participating in the communication. [sic]
(United States v. Pasha, 332 F. 193 (7th), Certiorari denied, 85 S. Ct. 75, 379 U.S. 839 (1964)).'
"If a burglar breaks into a house and his voice is recorded, he took that risk when he broke in there." 114 CONG, REC. $6209 (daily ed. May 23, 1968).
The Senate debates make it clear that a trespasser "impliedly" consents to the interception of his communications. In the facts of the present case, the ex-employee who used the Commission's telephone for personal calls did not expressly consent to the interception of his calls. Within the meaning of the Omnibus Crime Act he did, however, "impliedly" consent to such an interception. This consent is implied, as a matter of law, from the fact that he was a trespasser on the Commission's communications facilities. In the words of Senator McClellan "he took that risk" when he became a trespasser.
The preceding discussion makes it clear that an employer has every right to protect himself by monitoring his own telephones where they are being used by a non-employee without proper authorization. The cases decided under old Section 605 of the Communications Act indicate that, in certain circumstances, an employer is even entitled to protect his rights and property through the monitoring of employee calls.
In 1958, the Supreme Court of New Jersey considered the applicability of Section 605 to a case involving a conspiracy to steal the property of a leather company, State v. Giardinia, 27 N.J. 313, 142 A. 20 609 (1958). One of the company's employees used its telephones to arrange for the delivery of the stolen property to a co-conspirator. These calls were monitored through the company switchboard, with the employer's authorization, but without the knowledge or consent of either party to the conversations. The Court, in Giardinia, held that the company did not violate Section 605 by monitoring the calls. The U.S.