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(2) (a) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the cmmunication has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a part to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.

(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foriegn power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

Mr. MANELLI. Reading a portion of that statute, “any person who willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication; willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication,” there are a number of other sections I will skip over, "shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.”

Were you aware at the time that the listening device you authorized to be installed for the purpose of monitoring the telephone conversations could be in violation of title 18, the section I just read?

Mr. BURCH. No, I was not aware of that.

Mr. MANELLI. The laws pertaining to wiretapping are a matter of continuous concern at the Commission, are they not?

Mr. BURCH. Yes.

Mr. MANELLI. Approximately 10 days before this incident commenced, there was a complaint, which is described in FCC report 4, series 12, alleging a wiretap violation, and the Commission did take action to issue a complaint against the party involved. I do not think there is a docket number here but I will give the name of the defendant, it was a formal complaint of Sidney Gelb against the A.T. & T. alleging violation of the Communications Act, and the violations pertained to the wiretap sections of the act.

Sections 2511 and 2520 of title 18-2520 is the civil penalties--were enacted into lawr recently as part of the Omnibus Crime Act. You were aware before that time that wiretapping was illegal under section 605, the Communications Act?

Mr. BURCH. I was aware of 605 but not 2511.

Mr. MANELLI. I wish to turn your attention to FCC Administrative Order 12 issued October 25, 1961. I presume it is still in effect?

Mr. BURCH. Correct.
Mr. MANELLI. The Administrative Order reads in part as follows:

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 coinmunications: however, a policy expressly prohibiting such monitoring has not heretofore been formalized in an arministrative 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 other listening device shall be used in the Commission for the purpo-e of monitoring or interception of telephone conversations without the knowledge of both parties and the use of the recognizable repetitive been 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.

This is the Commission's Administrative Order dated October 25. 1961. In your estimation, does the activity carried on in February of 1970 that we have been talking about this morning and this afternoon violate this Administrative Order?

Mr. BURCH. It would certainly have to be considered an exception to the Administrative Order.

You get into the exact same questions you get into in trying to interpret section 2511.

Mr. MANELLI. What interpretative problems do we have with the order I just read?

Mr. BURCH. You start off with the first paragraph with "telephone communications by or to officials or employees of this agency shall not be monitored." That is not applicable in this case because it was not by or to an official of this agency, it did not fall into that paragraph.

The question is whether there was a violation of the second paragraph and it would appear there was a violation of that.

Mr. MANELLI. There was no Mr. Burch. There was of the literal meaning of the paragraph. Mr. MANELLI. Paragraph 1 does say. "by or to officials and employees," but in the testimony this morning it was understood that it was the employee's extension that was the subject; the extension was tapped. There was no manner in which the person doing the monitoring could know who was talking.

Mr. BURCH. Right. When he actually monitored, he did not monitor the employee.

Mr. MANELLI. I wish to ask that the Administrative Order-
Mr. BURCH. I have that as part of my statement.
Mr. MANELLI. It is an exhibit in Chairman Burch's statement.

I would like to call your attention to another FCC document, Docket No. 6787 and entitled FCC Report "In the Matter of Use of Recording Devices in Connection with Telephone Service” dated March 1947, and this is the docket referred to in this Administrative Order which I just read. A portion of the Commission decision in that docket reads as follows:

The Commission is, however, keenly appreciative of the importance and desirability of privacy in telephone conversations. Such conversations should be free from any listening-in by others that is not done with the knowledge and authorization of the parties to the call, whether this be done by recording devices, extension telephones, monitoring devices, or any other means, and the Commission is prepared to take all steps within its authority to accomplish this objective. Accordingly, the Commission is firmly of the opinion that the use of telephone recording devices should be permitted only when measures are in effect to assure notification to the parties that their conversation is being recorded.

The FCC Docket No. 6787 item begins on page 1033 and the quotation I just read is on page 1050.

Would you agree it is clear the monitoring activities we are talking about here would be violative of the spirit and letter of the language used here?

Mr. Burcu. It would be, yes. If you are going to monitor a trespasser, there is no way to get a trespasser's consent to monitor a conversation.

Nr. VANELLI. You say “trespasser." Wasn't that the point the monitoring was to establish? Are you not assuming the person was a trespasser?

I thought the whole purpose of the monitoring was to verify these allegations, which were never verified.

It is not accurate to refer to the person as a trespasser; that is what the monitoring was set up to ascertain but it never was ascertained.

Mr. Burcu. I do not know what you would refer to him as.

Mr. MINELLI. Apparently he was a member of the public in this individual's office.

Mír. Burch. That may be the case, but he is still not entitled to be in the office with agenda items displayed.

Mr. MANELLI. He would not take on the status of being a trespasser merely by virtue of the fact he was in this office at 4:30 ?

Vr. Bircu. Is that a question or conclusion?
Mr. MANELLI. Question.
Mr. BURCH. I do not know.

Mr. VLANELLI. It seems to me you are distinguishing the language I just read, from the situation which took place at the Commission in February of 1970, by saying that this language does not operate in favor of a trespasser and this man who was the focus of the investigation was a trespasser.

Now he really was not established to be a trespasser, and I thought you said that you could not say that he was. That being the case, how else could you distinguish this language. This language says the Commission is appreciative of the importance and desirability of privacy

in conversations, and conversations should be free from listening in by others without their knowledge and authorization, and the Commission is prepared to take all necessary steps to accomplish this objective.

To return to my question, wasn't this actually violated in this 1970 situation?

Mr. Burch. Yes; just the bare statement, certainly it was violated. I do not think it is worthwhile for you and me to sit here and argue the legality. I am a poor witness. I have not done the research on it.

Mr. MANELLI. I am trying to determine the basis of the use of your term, or the word, "trespasser” in reference to this individual.

Mír. Burch. It seems to me, if you have an eye witness that says that an outside nonemployee of the Commission is sitting in somebody's office reading agenda documents, that is the only thing you conclude, he is at that point a trespasser. That was ultimately not proven by additional information received but the allegation still stands.

Mr. MANELLI. He is an alleged trespasser.
Mr. BURCH. Very well, an alleged trespasser.

Mr. MANELLI. The testimony is to the effect that this operation was terminated sometime in March of 1970. There was a letter that you referred to in your statement, in fact, that was directed to the Commission from the Committee on Government Operations, dated July 29, 1970 and was received the following day at the Commission.

Mr. Chairman, I ask that this letter, which is on the letterhead of the Foreign Operations and Government Information Subcommittee, be inserted in the record.

The CHAIRMAX. It will be inserted in the record. (The document referred to follows:)

HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C., July 29, 1970.
Mr. DEAN BURCH,
Chairman, Federal Communications Commission,
Washington, D.C.

DEAR CHAIRMAN BURCH : The Foreign Operations and Government Information Subcommittee is in the process of bringing up to date a long-standing study and survey of the telephone monitoring practices of Federal departments and agencies. Two reports have resulted thus far from the study: House Report No. 1215—"Availability of Information from Federal Departments and Agencies (Telephone Monitoring)", 87th Congress, 1st Session; and House Report No. 1898—“Availability of Information from Federal Departments and Agencies (Telephone Monitoring—Second Review)”, 87th Congress, 2nd Session.

In connection with the Subcommittee's current survey, answers to the following questions will be appreciated :

1. Does the agency permit monitoring of (a) incoming, (b) outgoing telephone calls? For the purposes of this study, monitoring is understood to include a secretary or any third person being on the line, either covertly or overtly.

2. Please state the number of transmitter cut-off switches (including Push to Talk) in use on telephones assigned to the agency in the Washington area. Please give the total rental charge or other cost for such switches during fiscal 1970. Also, please state how many listening-in circuits are installed on telephone equipment assigned to the Agency in the Washington area and the total rental charge or other cost for fiscal 1970.

3. If telephone recording devices are used to monitor or record telephone calls, how many such devices are in use in your agency in the Washington area? Is a beeper or other warning device required to notify the other party that the call is being recorded by the devices?

4. If telephone recording devices are used, please specify the number of recorders wired into telephone circuits, the number of induction-type attachments that can be used to record telephone conversations on dictation machines without being wired into the circuit, and any other types of instruments that can be used to monitor or record telephone conversations. Please indicate which of these devices, if any, are equipped with a beeper or warning signal.

5. Please furnish the best available estimate of the cost of these recorders and attachments.

6. Does the agency have any rules or regulations covering telephone monitoring and recording? If so, please provide two copies.

It will be appreciated if responses can be supplied to the Subcommittee by
September 1, 1970.
Sincerely,

JOHN E. Moss,
Chairman.

.

Mr. MANELLI. I will read what I deem to be pertinent herein. I will ask that they give you a copy of the letter, too.

DEAR CHAIRMAN BURCH : The Foreign Operations and Government Information Subcommittee is in the process of bringing up to date a long-standing study and survey of the telephone monitoring practices of Federal Departments and Agencies. Two reports have resulted thus far from the study.

I will skip the citations to the report.

In connection with the Subcommittee's current survey answers to the following questions will be appreciated.

1. Does the agency permit monitoring of (a) incoming; (b) outgoing telephone calls? For the purposes of this study, monitoring is understood to include a secretary or any third person being on the line, either covertly or overtly.

By this paragraph, that is monitoring of incoming and outgoing telephone calls, that does describe, does it not, the monitoring situation we are discussing?

Mr. BURCH. Yes, it does.

Mr. MANELLI. The letter goes on to ask what devices were used and a number of other questions I do not think pertinent to my questions. A letter of response from the Commission dated September 8 to the chairman of the subcommittee states:

DEAR MR. CHAIRMAN: This is with reference to your letter of July 29, 1970 requesting information pertinent to the current survey of 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 of the other party. Moreover, the Commission neither possesses nor utilizes any of the telephone recording devices referred to in questions 2 through 5 of your letter.

Your letter continues with two more paragraphs not relevant to my question. In your statement you made mention of this letter. Is it correct to infer what you are saying is that you did not at the time you signed this letter focus on the incident which had been concluded in March of that year?

Mr. BURCH. That is correct.

Mr. MANELLI. Had you focused on that, would you have described that in this letter?

Mr. BURCH. I would like to think I would have.
Obviously this letter is not responsive to Congressman Moss' inquiry.

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