"Commercial and employerlabor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage." These, then, were the abuses that provided the preface for the Federal statute that controls the electronic eavesdropping practices for each of us today-private citizen and law enforcement officer.

Present Law on Electronic Surveillance

4

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 generally forbids wiretapping and eavesdropping using an electronic or mechanical device.

The consequences for failing to heed the prohibition are severe. A maximum fine of $10,000 or a maximum prison term of 5 years, or both, may be imposed. In addition, money damages may be recovered by the victim consisting of actual damages, punitive damages, and attorney's fees. There is also provision in title III for the confiscation and forfeiture of devices and equipment used to conduct an illegal electronic surveillance. Finally, the results or contents of any unlawfully intercepted communication may not be received in evidence."

However, Congress in passing title III not only desired to protect the privacy of wire and oral communications; it also recognized that the interception of such communications to ob

tain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice. As a result of these dual concerns, Congress set forth in title III procedures that Federal agencies must follow to obtain court orders to investigate a specified list of offenses making use of electronic surveillance.1o Procedures are also contained in title III that must be followed by nonFederal officers in those States which have enacted enabling statutes permitting electronic surveillance.11

The last mentioned restriction on non-Federal law enforcement officers

"The general rule concerning the use of electronic surveillance as an investigative tool is-you can't do it without a court order.”

is emphasized. Title III procedures for obtaining a court order in a non-Federal case are inoperable unless there is a State statute permitting electronic surveillance.12 Today, less than onehalf of the States have statutory procedures for the interception of wire or oral communications.1

The Practical Exception:
Participant Monitoring

The general rule concerning the use of electronic surveillance as an investigative tool is you can't do it without a court order. The most important practical exception to that rule is the provision of title III stating 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 conversation to intercept such communication.14 This part of title III continued in effect what had been existing law-where one of the parties consents, it is not illegal. The rationale is simply that there is no justifiable expectation that the other

Constitutional Permission

The Supreme Court of the United States first considered the legality of participant monitoring in On Lee v. United States 16 in 1952. There a Government informer "wired for sound" entered into On Lee's laundry and engaged him in conversations that were transmitted to a narcotics agent outside. At On Lee's trial, the informant did not testify, but the narcotics agent was allowed to relate the conversations he overheard with the aid of a receiving set.

On Lee's claim that the evidence should be excluded because it was obtained in violation of the fourth amendment 17 was rejected by the Court. Mr. Justice Jackson writing for the 5-4 majority held that in the absence of a trespass to overhear words, there was no fourth amendment violation.

The Supreme Court next addressed the constitutional problems surrounding participant monitoring in Lopez v. United States 18 in 1963. Lopez was charged with the attempted bribery of an Internal Revenue agent. The agent, wired for sound with a miniature wire recorder, agreed to a meeting at Lopez' office during which Lopez made incriminating statements. At the trial, the agent testified about the conversation, and the recordings were also allowed into evidence.

Mr. Justice Harlan, following On

Lee, held that the feigned willingness to take a bribe did not vitiate Lopez' consent to enter his office and thus there was no trespass or unlawful invasion. The entry being valid, the Court found little difficulty in permit ting the recording into evidence. Indeed, here the Court found that no "eavesdropping" was involved whatever since the "device neither saw nor heard more than the agent himself."

The latter point caused Mr. Justice Harlan to recall the 1957 Supreme Court case, Rathbun v. United States,19 in which the Court found no constitutional prohibition against one of the parties to a telephone conversation permitting a policeman to listen on an extension telephone. As Harlan pointed out, in Rathbun it was conceded by all concerned that either party may record the conversation and publish it.

The decision in Lopez was that the defendant assumed the risk in offering the bribe to the agent that the offer would be accurately repeated in the courtroom, "whether by faultless memory or mechanical recording."

The Court had another chance to pass upon the soundness of its earlier decision concerning participant electronic monitoring in the 1964 case, Massiah v. United States.20 Here, after the defendant had been indicted, a coconspirator agreed to cooperate with the Government. A radio transmitter was placed in his car and it was used to pass along incriminating conversations to a Federal agent. The agent testified at Massiah's trial to what he overheard on his receiver.

The Court found the testimony was improperly allowed into evidence. However, the fourth amendment issue was avoided. Instead, the Court ruled that Massiah's sixth amendment right to a lawyer was violated "when there was used against him at his trial evidence of his own incriminating words, which Federal agents had deliberately elicited from him after he had been

indicted and in the absence of his counsel."

Osborn v. United States 21 in 1966 was the Court's next occasion to pass upon the use of an electronic device by a participant in a conversation. In a fact situation reminiscent of those in On Lee, supra, and Lopez, supra, the accused had used against him at trial a tape recording of a conversation he had with a police officer in which it was suggested that the officer attempt to bribe a juror. The officer told the prosecutor of the bribe attempt, and a court order was given to the Federal Bureau of Investigation to conceal a recorder on the police officer.

Mr. Justice Stewart wrote the majority opinion. After noting that Osborn's claim of inadmissibility of the recorded evidence had to fail under the rule of Lopez, he stated the decision did not have to rest on the rationale of Lopez since in this case the recording of the conversation had the previous approval of judicial officers.

In 1971, the Court in United States v. White,22 once again faced the issue previously encountered in On Lee and Lopez of whether the fourth amendment bars from evidence the testimony of governmental agents who related conversations which had occurred between the defendant and a Government informant, and which the agents overheard by monitoring the frequency of a radio transmitter carried and concealed on the person of the informant.

Mr. Justice White, writing the plurality opinion in White, reasoned:

"Concededly a police agent who
conceals his police connection
may write down for official use
his conversations with a defend-
ant and testify concerning them,
without a warrant authorizing
his encounters with the defend-
ant and without otherwise vio-
lating the latter's Fourth
Amendment rights. Hoffa v.

United States, 385 U.S., at 300303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2)

or

carries radio equipment which simultaneously transmits the conversation either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy neither does a simultaneous recording of the same conversation made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

66

‘. . . Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally 'justifiable' what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither

should it protect him when that
same agent has recorded or
transmitted the conversations
which are later offered in evi-
dence to prove the State's case."

White is a case of great importance because it was decided after Katz, supra,23 which had "finally swept away doctrines that electronic eavesdropping is permissible under the fourth amendment unless physical invasion of a constitutionally protected area produced the challenged evidence." In Katz, Federal agents, without the defendant's knowledge or consent, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversation. The Supreme Court in holding the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance held that the absence of trespass or physical intrusion into the telephone booth did not justify electronic devices in listening to and recording Katz' words, thereby violating the privacy on which he justifiably relied while using the telephone in those circumstances. This absence of trespass was the legal justification used by the Court to allow into evidence the results of participant monitoring in On Lee and Lopez.

Statutory Permission

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 specifically places consensual participant recording outside of its broadly worded prohibitions of electronic surveillance.

Title 18, United States Code, Section 2511 (2) (c)-(d) (1970) provides:

14

"(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 com-
munication has given prior con-
sent to such interception (em-
phasis added).

(d) It shall not be unlawful
under this chapter for a person
not acting under color of law to
intercept a wire or oral com-
munication where such person is

a party to the communication or
where one of the parties to the
communication has given prior
consent to such interception un-
less such communication is in-
tercepted for the purpose of
committing any criminal or tor-
tious act in violation of the Con-
stitution or laws of the United
States or of any State or for the
purpose of committing any
other injurious act (emphasis
added)."

Note that in the instance of private persons intercepting communications with the consent of one party, there is the added qualification that the interception not be done for the purpose of committing a criminal or tortious act. This qualification was added primarily to punish monitoring "for insidious purposes such as blackmail [and] stealing business secrets." 24

"Title III of the Omnibus Crime Control and Safe Streets Act of 1968 specifically places consensual participant recording outside of its broadly worded prohibitions of electronic surveil lance."

The final qualifying phrase for consensual participant monitoring by private persons making the exemption inapplicable when done ". . . for the purpose of committing any other injurious act" has created difficulties in interpretation. The legislative history behind this section of title III indicates that the overall intent was to make the one-party consent exception

available only for "private persons
who act in a defensive fashion.” The
only example provided to illustrate
the final qualifying phrase was the
one-party consent recording of a con-
versation for the purpose of "pub-
licly embarrassing" the nonconsent-
ing party.25

Limitations on Consensual
Monitoring

While the ruling of United States v. White has been followed by the vast majority of subsequent cases, 26 there are some important practical restraints on its use for many law enforcement officers. In addition to the limiting effect on its use after a subject has been indicted as set forth in Massiah v. United States, supra, there are many State laws that prohibit or restrict participant monitoring.

The report of the National Commission on Wiretapping issued on April 30, 1976, noted that 11 States have enacted statutes either limiting or prohibiting one-party consent recording. For example, Pennsylvania requires that law enforcement officers must obtain a court order for a one-party consensual interception, and can do so only where it is a case that involves endangering the safety of law enforcement officers. Even with the court order the intercepted conversations cannot be recorded.

California and Ohio make exceptions to their requirement of consent of all parties by permitting one-party consent monitoring without a court order where it is used to prevent or detect crime. Oregon and Maryland distinguished between telephone interception, for which one-party consent is sufficient, and other types of electronic surveillance where the consents of all parties are required.27

Another limitation on consensual monitoring is that requiring the consent by the consenting party be voluntarily given. An involuntary consent is void and the intercepted commu

cally refers to the need for "prior consent" to interceptions by law enforcement or private persons.31

Another practical and important limitation is the requirement that consent to monitor must be given by a "party" actually participating in the communication. It is not permissible to obtain "consent" from a parent, relative, owner or renter of premises, or subscriber to a telephone. In addition, the consent "leaves" with a departing party to a conversation. That is, when a consenting government agent or informant is in a room wired for sound and consents to the recording or transmission of a conversation this would be permissible. However, when the cooperating party leaves the "wired" room or premises, the ability of the government to rely on the "consent" of the cooperating party is lost, 32

Finally, at least one State has chosen not to follow the constitutional permission granted to participant monitoring in United States v. White, supra. In Michigan v. Beavers,33 the Supreme Court of Michigan ruled that the use of an electronic device by a participant of a conversation which

transmitted the exchange to a third

party was impermissible in the absence of a court order. The Michigan court, however, was clear in pointing out that its result was based upon its own State constitution and that it

chose to be more restrictive in its approach to participant monitoring than the apparent Federal case authority.

Conclusion

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is the comprehensive Federal statute that effectively preempts and attempts to make uniform the law regarding the interception of oral communication by electronic or mechanical devices. The only limitation on title III's broad claim to exclusive control over electronic surveillance is the allowance for State statutes that are more restrictive than the Federal law.

The general rule of title III that requires a court order before law enforcement officers may make use of electronic surveillance as an investigative technique has one important practical exception-participant or consensual monitoring. It is, however, an exception that has many limitations. While the Supreme Court has given the practice general constitutional permission, and title III specifically excepts it from the requirement of a court order, several States expressly forbid it, or require a court order, or place other restrictions on its

use.

FOOTNOTES

14 W. Blackstone, Commentaries 168 (Lewis ed. 1897).

2 Lopez v. United States, 373 U.S. 427 (1963). 3 82 Stat. 197, 211-225, 18 U.S.C. 2510-2520 (1970).

4 Legislative History, 2 U.S. Code Cong. & Ad. News 2154 (1968).

518 U.S.C. 2511(1) (1970).

18 U.S.C. 2520 (a), (b), (c) (1970).

718 U.S.C. 2513 (1970).

818 U.S.C. 2515 (1970).

Legislative History, 2 U.S. Code Cong. & Ad. News 2177 (1968).

10 18 U.S.C. 2516(1)(a)-(g) (1970). 11 18 U.S.C. 2516(2) (1970).

12 18 U.S.C. 2516(2) (1970) provides that "the principal prosecuting attorney of any State, or the

principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications ... (emphasis added)."

13 Annual Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for the period January 1, 1974, to December 31, 1974 (Administrative Office of the U.S. Courts reported that 22 States, the District of Columbia, and the Federal Government had statutes authorizing the interception of wire or oral communications effective during the period Janu. ary 1, 1974, to December 31, 1974. The States having such statutes were: Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Kansas, Maryland, Mas. sachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Dakota, Virginia, Washington, and Wisconsin).

14 In addition to the consensual surveillance exemption, 18 U.S.C. 2510(2) (1970) protects "oral" communications only when they are uttered under circumstances reasonably justifying parties in expecting privacy. E.g., United States v. Carroll, 337 F. Supp. 1260 (D.D.C. 1971). Although a device was used to record a conversation between parties, bring. ing it within title III, it was the interception of an "oral" communication rather than a "wire" com. munication. So then oral communications do not receive protection of title III to the same extent as wire communications. See United States v. Hall, 488 F. 2d 193 (9th Cir. 1973).

15 "Participant monitoring" was the term used in Greenwalt, The Consent Problem in Wiretapping and Eavesdropping, 68 Colum. L. Rev. 189 (1968). The article is the most extensive analysis of the constitutional issues surrounding the subject of consensual monitoring.

16 343 U.S. 747 (1952).

24 Report of the Committee on the Judiciary United States Senate to Accompany S-1 Criminal Justice Reform Act of 1975, p. 519. See Meredith v. Gavin, 446 F. 2d 794, 798 (8th Cir. 1971).

25 National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance (Testimony of James Reynolds, Attorney, Criminal Division, U.S. Department of Justice, at Commission hearings June 27, 1975, p. 1519).

28 E.g., United States v. Osser, 483 F. 2d 727 (3d Cir.), cert. denied, 414 U.S. 1028 (1973); Ansley v. Stynchcombe, 480 F. 2d 437 (5th Cir. 1973); United States v. Santillo, 507 F. 2d 629 (3d Cir. 1975), cert. denied, 421 U.S. 968 (1975).

27 Supra footnote 25, Commission Studies Volume, Consensual Surveillance Exception, p. 8.

28 United States v. Laughlin, 222 F. Supp. 264 (D.D.C. 1963).

29 Good v. United States, 378 F. 2d 934 (9th Cir. 1967); McClure v. United States, 332 F. 2d 19 (1964). 30 Weiss v. United States, 308 U.S. 321 (1939). 31 18 U.S.C. 2511(2)(c)–(d) (1970).

United States v. Padilla, 520 F. 2d 526 (1st Cir.

1975).

33 393 Mich. 554, 227 N.W. 2d 511 (1975), cert. denied, 46 L. Ed. 2d 111 (1975).