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Supreme Court's opinion in Rathbun v. United States, 355 U.S. 107 (1957), was quoted to the effect that it “is unreasonable to believe that Congress meant to extend criminal liability to conduct which is wholly innocent and ordinary." 142 A. 20 609, 611. The New Jersey court felt that “... a criminal statute should not be invoked in defiance of the common sense of a situation ..." and that “Congress could hardly have intended a sanctuary for criminals within the home or plant of their victim." 142 A. 2d 609, 611-12. It was believed that, in the facts of Giardinia, the subscriber's surveillance of his own lines was a "reasonable" and “normal” practice. 142 A. 2d 609, 612.
A federal court in United States v. Beckley, 259 F. Supp. 567 (N.D. Ga. 1965), came to a similar result. The Beckley court held that "Section 605 does not prohibit the telephone company from monitoring its own lines. 259 F. Supp. 567, 571. It was felt that the Communications Act :
"... does not deprive the telephone company of the right to employ reasonable means to detect and prevent violations ... by its own employees. Where, as is here alleged, a corrupt employee allows long distance calls to be covertly made without charge and in a manner which bypass the regular bookkeeping proce dures of the company the only reasonable means of protection is the monitoring of such calls." Ibid.
The principles set out in Beckley were specifically incorporated into the Omnibus Crime Act. 18 U.S.C. $2511(2) (a); see also legislative history at 1968 U.S. Code Cong. & Ad. News 2112, 2182. The Act authorizes an employee of a communications common carrier to intercept wire communications where such interception "... is a necessary incident to the rendition of his service or to the protecting of the rights or property of the carrier.” 18 U.S.C. $2511(2)(a). In addition to this exception for common carriers, the Act provides for an exception for switchboard operators. It appears, therefore, that the Act recognizes the holding in Giardinia as well as that of Beckley. The Act makes no specific mention of a subscriber's use of an ertension to monitor his own lines. It does not appear, however, that there is any logical distinction between the use of a switchboard and the use of an extension where both are being utilized for an admittedly valid purpose. The 1968 Act, like old Section 605 of the Communications Act, should properly be interpreted in a common sense fashion. In the language of Giardinia, it must be assumed that Congress did not intend "... to denounce the reasonable and normal actions of a man in monitoring his own telephone lines to protect himself from others who use his lines without his authority in an effort to injure him." 142 A. 20 609.612.
There is certainly nothing in the leigslative history of the Omnibus Crime Act which would indicate that Congress "intended a sanctuary for criminals within the home or plant of their victim.”
The foregoing analysis clearly indicates that the surveillance presently under consideration did not violate the Omnibus Crime Act. The legislative history of the Act makes it plain that a trespasser on someone else's communications facilities takes the risk that his conversation may be intercepted. Congress simply did not intend to establish a refuge for those who illegally use another man's telephones in an effort to injure him. B. The Fourth Amendment
The Fourth Amendment to the Constitution prohibits "unreasonable” searches and seizures. This provision was considered in Katz v. United States, 389 U.S. 374 (1967), in the context of the electronic monitoring of a call from a public telephone booth. In establishing a constitutionally protected right of privacy, the Supreme Court held that “the Government's activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure within the meaning of the Fourth Amendment." Id. at 512. The defendant in the Katz case was, of course, in a different position from the one occupied by the suspect in the case now being considered. The telephone booth in Katz was available for public use and anyone using it had a right to rely on the privacy of his calls. The suspect in the present case was in Commission offices after working hours and was without any proper authority to use the Commission's telephone lines.
It is well established that a trespasser, that is, one who is wrongfully present unon premises, has no right of privacy in those premises. Jones v. United States, 362 U.S. 457 (1960); United States v. Gregg, 403 F. 2d 222 (6th Cir. 1968). aff'd 394 U.S. 489 (1969); United States v. Miller, 449 F. 2d 974 (D.C. Cir. 1970); Kaufman v. United States, 323 F. Supp. 623 (E.D. Mo. 1971). In Jones, the Supreme Court stated that: "... anyone legitimately on premises where a
search occurs may challenge its legality. . . . This would of course not avail those who by virtue of their wrongful presence, cannot invoke the privacy of the premises search.” Jones v. United States, supra, p. 267. A typical case involving trespassers was considered by the Supreme Court of Hawaii in 1961. State v. Pokini, 45 Hawaii 295, 367 F. 2d 499 (1961). The case involved a search of a vehicle which certain defendants were occupying illegally, having abducted the owner and converted his car to their own use. The Court held that the defendants, as trespassers, had no right of privacy in the automobile and that their Fourth Amendment rights were not violated by a search of the car or by a seizure of guns found under the front seat. It would seem to follow that the suspect in the present case, as a trespasser who was using Commission telephone lines in a way inimical to Commission interests, had no right of privacy which the Fourth Amendment would protect. The Supreme Court in the Katz case emphasized the fact that the defendant justifiably relied on the privacy of his calls. A trespasser-whether in someone else's car or on someone else's communications facilities is not justified in placing any reliance on the privacy of his activities. Authority to search out a suspected trespasser should be especially broad where the search is conducted by the owner of the property or communications facilities being searched. To hold otherwise would be to give the trespasser a right to use the property free of any effective control by the true owner.
In the present case, even an employee would have no Fourth Amendment right of privacy in the calls which were made. These calls had a direct bearing on Commission business. The government, as a federal employer, has every right to supervise and investigate its employees in the performance of their duties. In United States v. Collins, 349 F. 2d 683 (2d Cir. 1965), cert. denied, 383 U.S. 960 (1966), the Second Circuit considered the search of a Customs Service employee's work area and desk. A package, last seen near the employee's desk, had been stolen from the mail. A search of the desk uncovered the contents of this package. The Court stated that:
“We have no doubt that the search of defendant's work area, including the surface and interior of his desk ... was a constitutional exercise of the power of the Government as defendant's employer, to supervise and investigate the performance of his duties as a Customs employee. Defendant was handling valuable mail for which the Government was responsible. The agents were not investigating a crime unconnected with the performance of defendant's duties as a Customs employee.” Id. at 867-68. This principle would not, however, authorize searches of a work area where the purpose is to uncover facts unrelated to an employee's on-the-job duties. See United States v. Block, 188 F. 2d 1019 (D.C. Cir. 1951).
In addition to their duty of supervising employee performance, federal agencies are charged with a responsibility of maintaining a reasonable degree of order and security. In United States v. Donato, 269 F. Supp. 921 (E.D. Pa.) aff'd 379 F. 2d 288 (3rd Cir. 1967) a search of U.S. Mint employee's locker was justified as a reasonable means of maintaining order and security in the Mint. Here it was stated that:
"It is settled law that the Fourth Amendment does not prohibit reasonable searches when the search is conducted by a superior charged wtih the responsibility of maintaining discipline and order or of maintaining security.” Id. at 730-31. Searches designed to maintain institutional order or security have also been held reasonable in cases involving student dormitories, Moore v. Student Affairs Committee of Troy State University, 284 F. Supp. 725 (M.D. Ala. 1968), and Federal Job Corps Centers, United States v. Coles, 302 F. Supp. 99 (D.C. Me. 1969).
The authorities discussed above clearly indicates that the Fourth Amendment gives a non-employee "trespasser" no right of privacy on the Commission's lines. The cases also indicate that the Commission's duty to supervise its employees' performance and maintain security would permit the surveillance of certain of their calls.
CONCLUSION For the reasons stated above, I am of the opinion that there was no violation of either the Omnibus Crime Control and Safe Streets Act or the Fourth Amendment to the Constitution.
JOHN W. PETTIT,
General Counsel. May 15, 1972.
FCC 61–1289 11355 FEDERAL COMMUNICATIONS COMMISSION, WASHINGTON, D.C.
ADMINISTRATIVE ORDER NO. 12 At a session of the Federal Communications Commission held at its offices in Washington, D.C., on the 25th day of October, 1961 :
The Commission has under consideration the question of telephone monitoring without prior notification to the other party. It appears that the Commission has never had a policy which permitted such monitoring of telephone communications; however, a policy expressly prohibiting such monitoring has not heretofore been formalized in an administrative order or directive. In view of the foregoing and in order that the policy with respect thereto shall be made explicit
It Is Ordered, pursuant to Section 4 (i) and (j) of the Communications Act of 1934, as amended, that:
1. Telephone communications by or to officials and employees of this agency shall not be monitored by Commission personnel without prior notification to the other party.
2. No electronic, mechanical, or any other listening device shall be used in the Commission for the purpose of monitoring or interception of telephone conversations without the knowledge of both parties and the use of the recognizable repetitive beep tone during such recording as required by the Commission's Report in the Matter of Use of Recording Devices in Connection with Telephone Service, Docket No. 6787, dated March 24, 1947. It Is Further Ordered, That this Order shall become effective immediately.
BEN F. WAPLE,
SEPTEMBER 8, 1970. Hon. John E. Moss, Chairman, Committee on Government Operations, House of Representatives,
Washington, D.O. DEAR MR. CHAIRMAN: This is with reference to your letter of July 29, 1970, requesting information pertinent to the current survey by the Foreign Operations and Government Information Subcommittee "of the telephone monitoring practices of Federal departments and agencies."
With respect to this Commission, there has been no change in the situation reported to your Subcommittee in Chairman Minow's letter to you of November 3, 1961: Administrative Order No. 12 (two copies of which are enclosed) is still in effect, and this Order prohibits Commission personnel from monitoring telephone communications without prior notification to the other party. Moreover, the Commission neither possesses nor utilizes any of the telephone recording devices referred to in questions two through five of your letter.
As to your first question, the "covert" monitoring of telephone conversations by "a secretary or any third person being on the line" is barred by Administrative Order No. 12. I am sure that within the agency there is occasional "overt" monitoring (i.e., where the other party is notified that a third person is on the line) ; however, I do not believe that this practice, even though permitted by Administrative Order No. 12, is a common one at this agency.
I trust that the above information satisfies your request, and we will, of course, supply any further information your Subcommittee may require for its current survey. Sincerely,
Chairman. Enclosure. The CHAIRMAN. Mr. Counsel?
Mr. MANELLI. When you appeared before the committee on March 28 you at that time delivered a brief statement of these same facts?
Mr. BURCH. Yes.
Mr. MANELLI. You said you were consulted concerning two courses of action, whether a microphone and tape recorder, or a telephone ex
tension, should be used to monitor conversations, and you stated "Do whatever is necessary to carry out your functions."
You further testified that "I did not at this time ever focus on which of these two courses was desirable."
The testimony speaks of these same events and indicates that it was you who decided the extension phone would be used. Is that right, did you then actually select the method to be used?
Mr. BURCH. Very candidly, the statement today was reconstructed from the file memoranda. I have no recollection of the conversation but the way this file memorandum was written, Mr. Paglin indicated that is what my response was. At the time I appeared before you in March, I believe it was, I had not read the file and I was working pretty much from a very bad memory. I would suspect this latter report is more accurate.
Mr. MANELLI. You also indicated that you had been talking at the time with both Mr. Goldsmith and Mr. Paglin. Today it seems it was just Mr. Paglin.
Mr. Burch. Yes, and also I said Mr. Paglin prepared the memorandum for the record and that is untrue. It was Mr. Goldsmith who prepared the memorandum for the record.
Mr. MANELLI. You said your participation ended after your conversation with Mr. Paglin and you went on to say that, until becoming aware of the committee's inquiry, you never focused on which of the alternatives had been used. Today it appears you actually did decide at the time the phone method woull be used, is that correct?
Mr. Burch. I would say of the two methods presented to me, the only one that seemed feasible was the phone but I do not have a recollection of that decision. I do not dispute the memorandum.
Mr. MANELLI. You were aware at the conclusion of the project that it had been terminated?
Mr. BURCH. I do not know that. I do not remember Mr. Shockro coming in on the 18th, but if he says he did, he did.
Mr. Paglin says he thinks he advised me the phone had been taken out. I do not remember that. I do remember I was asked whether or not to go ahead and interview the man involved, the two men involved in this, and I was given a memorandum on that and I said, OK, go ahead and interview them.
Mr. MANELLI. You do not recall, now, Mr. Paglin specifically advising you that the results had been fruitless and the
Mr. BURCH. No, I do not specifically recall his advising me.
Mr. MANELLI. Have you received at other times information indicating there have been leaks of privileged materia) at the Commission?
Mr. BURCH. Yes, we know there are leaks of privileged material because we read them occasionally.
Mr. MANELLI. On many occasions you would be aware there are leaks within the Commission?
Mr. BURCH. Yes.
Mr. MANELLI. On these occasions where vou are getting information, how would that information differ in reliability, for example, from the information on which you acted in 1970?
Mr. BURCH. As far as reading something, quite obviously, it is fairly reliable, if you read something that should not be available to the public, it is rather clear it has been made available to the public. Very
candidly, as I told this committee, I am aware the Commission at one time attempted to cope with press leaks and they simply decided because of the First Amendment implications, it was not worthwhile going forward with that line of endeavor. This happened to be an eyewitness account of an employee at the Commission.
Mr. MANELLI. It seems you had an individual person and a specific fact situation alleged that you could check out.
Mr. BURCH. Yes, that we could check out.
Mr. MANELLI. The other information you have gotten with respect to leaks has not been that detailed and lent itself to that kind of inquiry?
Mr. BURCH. Right.
The other information does not indicate how it came about, whether it was an employee or just how.
Mr. MANELLI. We have asked the same question before. I think maybe you answered it in your statement. You did say there have been to your knowledge no other monitoring situations like this?
Mr. BURCH. None.
Mr. MANELLI. Mr. Chairman, I ask that the record at this point include a copy of section 2511 of title 18 of the United States Code.
The CHAIRMAN. Without objection, it is so ordered. (The material referred to follows:)
TITLE 18—U.S. CODE, SECTION 2511 $ 2511, INTERCEPTION AND DISCLOSURE OF WIRE OR ORAL COMMUNICATIONS
PROHIBITED 8 2511. Interception and disclosure of wire or oral communications prohibited
(1) Except as otherwise specifically provided in this chapter any person who
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication ;
(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any eletronic, mechanical, or other device to intercept any oral communication when
(i) such device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States; (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection shall be fined not more than $10,000 or imprisoned not more than five years, or both.