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Mr. MANELLI. There was an attachment put on his extension and an attempt made to tap into his communications. The fact they were not overheard was fortuitous.
Mr. PETTIT. I am looking at this with hindsight, and if there is a question of whether the act was violated, it seems to me the answer would be “no.”
Mr. MANELLI. The implied consent of the employee here, too, would have removed the whole thing from the statute with respect to the calling-in party or the party at the other end of the line, he can't complain because one person had given his consent?
Mr. PETTIT. Obviously it is only if one party gives his consent
Mr. MANELLI. A party from outside the building or being called from outside the building, the attorney, or trespasser, whatever you call him, is talking to someone on the phone. Both are having their phone call intercepted. You are saying he is a trespasser and giving his implied consent. The other party can't complain. As long as one party gives implied consent, the other can't complain?
Mr. PETTIT. That is right, as I read the law.
The CHAIRMAN. I have one or two things. Frankly, I am amazed at the interpretation the FCC is now placing on the Omnibus Crime Act of 1968 and the prohibition by the White House. I thought perhaps when we got through with one attorney you would try to straighten out the record, but I see you have the record interpreted the same way.
Under the circumstances, I will forward a copy of the brief furnished to us to the Department of Justice and to the House Judiciary Committee, which was primarily responsible for this legislation, because I think we'd better get an interpretation. I think we'd better find out now what loopholes there are in this law, if any.
We have received an opinion from the American Law Division of the Library of Congress, indicating Government activity such as this is not legal. I want to read a little of it to you. Whether you would be interested in hearing it, I don't know.
Mr. Burch. We would love to see the brief.
The CHAIRMAN. You may see it in the exhibits. I will only take the first part; it is a long thing.
We will give a hypothetical case and see if it fits your case:
Officials at the XYZ Agency, a United States agency located in the District of Columbia, are concerned over the disclosure of confidential information by employees of their agency to members of the public.
A, an employee of XYZ, regularly meets with B in A's office and engages in telephone conversations with B on his office telephone. Both the meetings and the telephone conversations occur after the close of A's work day. B is an attorney and former XYZ employee currently engaged in private practice.
XYZ officials would like to (1) place an electronic listening device in A's office and (2) have an extension connected to A's office phone. Both steps would be taken to determine it A is divulging confidential agency information to B.
Neither A nor B are to be made aware of the surveillance. No judicial approval is to be sought. No questions of national security are involved. Would the surveillance under step (1) or (2) be “illegal” if conducted during February and March 1970?
It goes on and quotes many cases to show it is not legal, and gives the final conclusion I want to give you.
It says: "The wiretapping and electronic surveillance suggested in the XYZ hypothetical could be held to violate both the Omnibus Crime
Control and Safe Streets Act *** and the fourth amendment of the U.S. Constitution.” And it points out where it violates the Constitution of the United States.
And you don't know anything about that, these cases or anything about them, and you are a lawyer for this agency?
Mr. Petrit. We addressed the Constitution also. I think they left out a key set of facts.
The CHAIRMAN. What are those facts?
Mr. PETTIT. One of the key facts is we had evidence of wrongdoing before this monitoring was undertaken.
The CHAIRMAN. We will let the Justice Department and another committee answer it. I think this is the only way to get the answer, and I will say this to you. I only want this to be an example for the other agencies of this Government. I am convinced that this is very reprehensible and it is wrong, and I think in all probability the Chairman got in without knowing what was happening he was new, it happened some time ago—but I blame some of the staff there and some there now in giving him the interpretations they are giving him.
If this is going to be the case, we should start now, and if we get an opinion and you are wrong, we should have a housecleaning. We will start with one of these departments and see something is done about it.
We tried to get the best advice we could, and we stated several cases here based on the fourth amendment, and you are giving something you say nou some Senator over here said has a bearing on this case. It does not have a bearing on the Constitution of the U'nited States, what he said over there, and they base their thinking on the Constitution.
Mr. Burcu. In all fairness to Mr. Pettit, there are many things in the Constitution of the United States that are advanced by bar associations and parties before the Congress; many people will disagree about things in the Constitution.
The CHAIRMAN. Yes, and they are stated in cases just like this. I don't understand the advice you are getting. To me, the suggesion that anybody in America can make a wiretan without getting a court order is the most reprehensible thing I can think of in this Nation.
You can do it in Red China and Russia, but you shouldn't do it in America. All you had to do was go get a court order and this would have been leqal. You know that, but it wasn't done. I don't think it is right and I don't think the public will stand for it.
I think you should have known, Mr. Chairman. But I think your advice was wrong. and I still think you are getting bad advice. I think something has to be done, and we have to have these points cleared up. We will send it to the Justice Department and the Judiciary Committee and get an interpretation as to what this is about. That is all I have to say. Something terrible has been done here and it has to be cleared up. Mr. SPRINGER. Mr. Chairman? The CHAIRMAX. Yes, sir.
Mr. SPRINGER. I realize there can be many differences and certainly, as a lawyer. I have sat in on some cases where the decisions the judge had to make were knife-sharn, and some decisions I made as a judicial officer myself as a judge, and sometimes I went home at night wondering which way the decision should fall and it took me all night to make up my mind on which side the greater weight of evidence lay.
I can understand what you are talking about. After I got through at noon, it took me a long time after talking with this particular counsel, for whom I do have a great deal of respect, I will have to admit I was as much in doubt as he was, but I think the large part of what he was talking about to me was that he could see what had happened in this case and he could see the facts as they occurred, and as I related them to him, and I think I got them to him about as I got it from the testimony, that you simply had not had then any decisions upon this particular point officially, if and when there are exceptions to the law as laid out here in D of your brief.
You don't have this before you, but it is section 2511, “Wire Interception," and so forth, 18 United States Code 2511. I will admit, as I read this and then I apply these facts, I will have to admit I can't come to a conclusion myself.
Now you have made a very plausible—as a lawyer, you have made a plausible case for an exception, and I can understand when they were making law over on the Senate side as we make law, especially Mr. Moss in his subcommittee makes law, by saying on the floor we will make it clear so there is no misunderstanding. We make law on the floor by saying this is what we intended when we brought it from the subcommittee and from the full committee to the floor, this is what we intended.
All the Senate said was, “This is what we intend by the law we bring up here.” It might have been Mr. Celler when he brought it to the floor on the other side, maybe he didn't put the same thing in there. I don't know, because I don't have that before me. Apparently you don't either.
Therefore, take what the Senate said with reference to the trespass; you are not talking about breaking down a door and walking in, you are talking about trespass with the use of the equipment the man was supplied with and for which it was supposedly used and unlawfully used. This is what you are alleging, and the information indicated tliat.
There is some difference as to what the evidence is. It was testified here this morning, I think the security officer, that he had this information in his hand, he wasn't exactly sure about his witness, but nevertheless he had supplied him with this information.
Now, you acted on that information, and the question you are making the exception on is now, as I understand it, that there was a trespass by the use of the equipment which made an exception to this, and on this you acted.
Now you probably didn't know this, this is the advice you are giving today. Maybe the Congress ought to change this so there would be no misunderstanding with reference to it. But I can well understand how you interpret it because this is a very very fine piece of law you are talking about.
This is a very fine, knife-edged decision, that is why you go to the Supreme Court of the United States, because you have these knifeedged decisions which fall on one side or the other.
This question of trespass is intriguing, to know how far trespass goes. I don't know, this is why I say it is still in the gray area in my mind. But you have enlightened me a little bit about what you are talking about and how you arrive at the opinion, as counsel, that there was not a violation of law. At least I understand you now.
Mr. Chairman, I don't think there is anything more I can say but I was trying to see if we could get some understanding about what he was talking about and how he arrived at his decision. I think I understand what Mr. Manelli is talking about. Ile is using the same interpretation and getting a different interpretation.
This is where we are here; there is a different understanding. Mr. Manelli's is one, your advice to the chairman is another. I can understand both, but I still think-I haven't changed my mind since noonthis is sure a big gray area as to what and when there is a violation under some circumstances.
Mr. PETTIT. Could I make one comment in reference to your last statement? That is, that I would like to have it clear on the record that if I were approached at this point in time and asked my advice as to what should be done in a situation like this, I think very frankly I would seek the assistance and advice of the Justice Department.
I don't want you to misunderstand that I would give advice to proceed without checking with anyone under present-day circumstances.
The CHARMAN. I would think so.
The CHAIRMAN. I would reply briefly to what Mr. Springer said, of the fact on both sides of the House we did have colloquies saying what our intent is, but oftentimes in conference those intents are changed and they are not law. That is why I asked what the conference report said. It could have changed completely.
Do you have a question?
Mr. PICKLE. Yes, I have a question that should be made a part of the record. When contact was made with the C. & P. Telephone Co. for this extension or wiretap, did they raise any question about whether this was proper or legal?
Mr. Burch. I can't answer the question.
FURTHER TESTIMONY OF FRED GOLDSMITH, SECURITY OFFICER,
FEDERAL COMMUNICATIONS COMMISSION
Mr. GOLDSMITH. In my contacts with the C. & P. on the installation, there was no question of that nature raised.
Mr. PICKLE. They didn't question whether you should have an extension put up there?
Mr. GOLDSMITH. No, sir.
Mr. PICKLE. They knew it was to be done after work, it was likened to a wiretap, but they passed no judgment on it?
Mr. GOLDSMITH. They passed no judgment.
Mr. GOLDSMITH. Did the people making the installation ask their superiors ?
Mr. PICKLE. Yes.
Mr. GOLDSMITH. It was the office of the Chesapeake & Potomac Telephone Co.
Mr. PICKLE. What individual did you contact?
Mr. Paglin. I spoke to one of the officials of the C. & P. as to whether this could be done as a mechanical thing, whether it was feasible.
Mr. PICKLE. Whom did you talk to?
Mr. Paglin. I am trying to recollect his name, Mr. Congressman; it is probably in the file we turned over to your staff.
Mr. PICKLE. Did you just pick up the telephone and call the C. & P. and say, “We want an extension put in, will you send a man out?”
Mr. Paglin. No, I explained that we had a personnel security matter.
Mr. Paglix. Our memorandum which your staff has shows I called a Mr. Finegan, vice president of the Chesapeake & Potomac Telephone Co.
Mr. PICKLE. Vice president of the Chesapeake & Potomac Telephone Co.
Mr. Pagrin. Yes. Mr. PICKLE. At this point in the record, would counsel comment on what his testimony was or what he has said to the Investigations Subcommittee?
Mr. MAXELLI. He was interviewed by our staff and he made a statement. At the conclusion of the interview, the staff prepared a statement which was read to him and he stated that the statement was correct.
On advice of counsel there, he declined to sign the statement, but indicated verbally the statement was correct.
In the statement, in the end he did not actually sign, but he said: "approximately 1 month later"-reading one paragraph here, he is speaking of the time for the request of the installation-"I received another work order requesting"
Let me skip that to where he talks about the whole thing:
In connection with this entire transaction, I must reiterate that it was most unusual and I felt compelled to handle the matter personally although ordinarily with small jobs of this nature, I would assign them to a subordinate.
The unusual facets were: (1) the request to run a line or lines up five floors; (2) the order to perform this small job after hours; (3) the instructions to contact the Security Officer for installation instructions (ordinarily such advice is received from another FCC official) ; and (4) the short duration of the installation. (I was advised the installation was to be for about a month and therefore only made temporary connections.)
I would suggest that this memorandum be inserted in the record. I have not read the whole thing, but it goes into the phone company's