DEPARTMENT OF JUSTICE PROPOSED TESTIMONY ON H.R. 3378 -- THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1985

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000801020023-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 29
• Document Creation Date: December 27, 2016
• Document Release Date: March 7, 2011
• Sequence Number: 23
• Publication Date: March 3, 1986
• Content Type: MEMO

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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. t0303
March 3, 1986
LEGISLATIVE REFERRAL MEMORANDUM
Department
of
the Treasury - Carole Toth (566-8523) 1
Dep rtment
of
State - Lee Ann Berkenbile (647-4463)
D artment
of
Transportation - John Collins (426-4694)
entral Intelligence Agency
Federal Communications Commission
Department of Commerce - Joyce Smith (377-4264)
Department of Defense - Werner Windus (697-1305)
CONGRESSIONAL AFFAIRS
8(v - O(o30
SUBJECT: Department of Justice proposed testimony on H.R. 3378 --
the Electronic Communications Privacy Act of 1985.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with Circular A-19.
Please provide us with your views no later than
COB -- MARCH 4, 1986
Direct your questions to Gregory Jones /(9 5-3454), of this office.
Jam C. Mutr/f6r
Ass stant Director for
Legislative Reference
cc: John Cooney
John Roberts
Karen Wilson
Frank Kalder
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TESTIMONY ON H.R. 3378
Mr. Chairman and members of the Subcommittee, I appreciate
the opportunity to-appear here today to discuss H.R. 3378, the
Electronic Communications Privacy Act of 1985.
The bill, H.R. 3378, as well as S. 1667, an identical bill
proposed by the Senate, is intended to amend the provisions of
the omnibus Crime Control and Safe Streets Act of 1968 (Title
III) 18 O.S.C. 2510 at seq. relating to electronic surveillance
to cover the advances in technological developments in electronic
communications; both aural and non-aural, that have occurred
since the passage of the original legislation in 1968.
Since receiving the proposed legislation, Department of
Justice representatives have had ongoing interaction with staff
members of both this committee and the Senate Subcommittee on
Patents, Copyrights and Trademarks of the Committee on the
Judiciary, to try and develop effective proposals to amend Title
III to cover the new technology.
In addition, the Department, in conjunction with several law
enforcement agencies, has conducted an in depth review of the
existing legislation to ascertain how the new developments in
technology can best be addressed in new legislation or in the
amendment of existing legislation.
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On November 13, 1985, I appeared before the Subcommittee on
Patents, Copyrights and Trademarks of the Committee on the
Judiciary to express some of the Department's concerns based upon
our review of the proposed legislation, Copies of that testimony
have been provided to staff members of this committee and I will
not at this time specifically reiterate all of the objections set
forth in my testimony today other than to reiterate that several
provisions of the bill do create serious problems for law
enforcement.
At the time I testified before the Senate Committee, the
Department had not completed its internal review of the existing
legislation and proposed areas where either Title III should be
amended or, in the alternative, new legislation developed to
address new technologies. That review has now been completed.
At this time I would like to suggest those areas in which the
Department and the law enforcement community could support new
legislation relating to electronic communication.
The Department shares the committee's concern that new
technologies should be addressed legislatively. The question
remains as to how that can best be done. In conducting the
internal study the Department has devoted significant resources
for extended periods to try and develop recommendations that the
Department could support. There has been ongoing consultation
with representatives of the various federal law enforcement
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agencies charged with investigating federal criminal violations
for which Title III may presently be invoked. In addition, there
has been the ongoing dialogue between Department representatives
and the staff members of this committee and the Senate committee.
in reviewing the proposed legislation as we originally
received it, there was concern that a complete overhaul of the
structure of Title III would impair the overall effectiveness of
the existing statute. The parameters within which federal
enforcement agencies and the Department were intended by Congress
to function under Title III have been clearly defined through 28
years of case precedent. The statute works well and it is the
e- rv~,' ~..r'L~id~' .aht~t~.~t~ tnSUad.4V.,VjT.,h.Ap .R" JA~L bg? left
address new technologies. That review has now been completed.
At this time I would like to suggest those areas in which the
Department and the law enforcement community could support new
legislation relating to electronic coxmsunication.
The Department shares the committee's concern thew
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agencies charged with investigating federal criminal violations
for which Title III may presently be invoked. In addition, there
has been the ongoing dialogue between Department representatives
and the staff members of this committee and the Senate committee.
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within the meaning of the Fourth Amendment) to strict substantive
and procedural requirements could only have an adverse effect on
law enforcement initiatives due to the substantial resources that
necessarily would be required to use them. At the same time,
it's the Department's view that escalating the level of judicial
supervision in these areas would not enhance the privacy
interests of our citizens over the levels they now enjoy based
upon existing Departmental regulations in these areas. I am
referring primarily to the (1) securanee of telephone toll and
other business records' (2) the use of pen registers (3) the
interception of paging devicest and (4) the use of location
detection devices (Beepers). It is the considered opinion of the
Department that present controls in these areas provide adequate
safeguards against abuse. Our legislative recommendations do
address 'tone and voice" pagers where there are Title in
implications.
since the passage of the Omnibus Crime Control and Safe
Streets Act of*1968 (Title III) 18 O.B.C. 2510 et seq.,
technology has been developed in the areas of both aural and
non-aural transmissions of communications that was not addressed
by existing legislation.
The Department of Justice recognises that some of these
forms of technology should be brought under legislative control
with respect to interception of such communications by both law
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enforcement agencies and private individuals. For instance,
there is technology that is so similar to traditional telephone
conversation that it belongs within the framework of Title III;
to that extent Title III should be amended accordingly. With
respect to the other types of technological development, such as
electronic mail and computer transmissions using wire facilities,
it is the Department's position that a new statute should be
developed to address this enhanced technology.
In my testimony today, I would like to address first, those
technological developments that should be incorporated into Title
IIi; and second, those technological developments for which new
legislation should be drawn. I will also discuss recommendations
prepared by the Department, based upon its review, for amending
the general provisions of Title III to enable law enforcement
authorities to better effectuate its mandates.
1. TECHNOLOGICAL DEVELOPMENTS THAT SHOULD BE INCORPORATED
INTO THE EXISTING TITLE III LEGISLATION.
The three primary areas of concern are (a) cordless or
handheld telephones, (b) cellular telephone technology, and (c)
tone and voice pagers.
A) Cordless or handheld telephones. In this type of
communication, part of the transmission is by wire and part is by
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radio. The radio part of the transmission can readily be picked
up by anyone listening to commercially available radio equipment
such as an AM radio receiver or a scanner. Under existing law a
private citizen intercepting such a communication could con-
ceivably incur criminal liability. There is serious question as
to whether there should be a reasonable and justifiable expecta-
tion of privacy with respect to this type of transmission.
The leading and virtually only federal decision in this area
is United States V. Lail 488 2'2d 193 (9th Cir. 1973) in which a
telephone on a boat was used to communicate to a traditional
telephone on land. This conversation, partly using wire
facilities and partly using radio transmission, was held to be
within the proscriptions of Title III because the present statute
refers to transmissions "in whole or in part by wire." Title III
under this premise would apply here irregardless of the expecta-
tion of privacy because it was "in part" a wire communication.
At least three state appellate courts have held that this
produces an absurd result. The absurdity lies in the fact that
statements overheard by an ordinary radio receiver become illegal
interceptions and are deemed inadmissable in court. Although we
feel bound to follow Hall because it is the only federal decision
on the matter, we are inclined to agree that the result is
inappropriate. See Dorsey v. State 402 So 2d 1178 (FLA. 1981);
State v. Howard 679 P.2d 197(KAN. 1984)= State v. DeLaurier 488
A2d 688 (R.I. 1985)
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A reasonable approach to this situation would be to make
Title III applicable to situations in which the wire portion of a
cordless telephone conversation is to be intercepted, or to
situations in which there is to be an interception of the radio
portion of the transmission only where the radio portion has been
encrypted and is therefore not readily accessible to citizens
using ordinary radio equipment. There should be no expectation
of privacy where the radio portion of the transmission can be
intercepted in analog (regular voice) form. The interception of
such a conversation should not impose either criminal or civil
liability on either a citizen or law enforcement official.
Indeed, most cordless phones carry a written warning that
interception of conversations by third parties is possible. A
law enforcement officer should not be subject to any greater
liability than a citizen under these circumstances. In the event
the conversation in encrypted, affirmative steps would have to be
taken to intercept it and under these circumstances an
expectation of privacy can be deemed to be reasonable.
e) Cellular Telephone Technology Cellular telephone
transmissions also involve communications that are transmitted in
part by the use of wire facilities and in part by the use of
radio transmissions. Such technology is most commonly used in
car telephones and in portable phones contained in briefcases.
Like cordless telephones, a citizen with a scanning device can
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readily intercept all or portions of the communication depending
on conditions at the time. These calls are not as readily
interceptible as cordless telephone conversations because of the
likely mobility of at least one of the participants during the
transmission. By their mature cordless phones must remain in
relatively close proximity to one base unit. The radio
transmissions in cellular technology are assigned to geographical
'cells" and the frequencies on which the transmissions are
conducted change at random as the sender or receiver passes
geographically from cell to cell. The interceptor would have to
follow the vehicle to intercept the call as it passes from cell
to cell and would have to scan within each cell to find the
appropriate randomly assigned frequency in each cell. However,
since the cellular conversation can be readily intercepted if
these procedures are followed, the cellular transmission
conceivably should be entitled to no more reasonable expectation
of privacy than the cordless transmission unless it has been
encrypted in some way. However, we recognize the fact that a
significant number of people have and use cellular telephones and
at least subjectively have an expectation of privacy in its use
in much the same way as they do with a conventional telephone. A
similar subjective expectation of privacy does not exist with
hand held telephones which, as noted, often carry specific
warnings from the manufacturer. For that reason, even though we
would prefer that the radio portion of these transmissions be
encrypted to fully support the reasonable expectation of privacy,
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we are prepared to accept legislation that with respect to
cellular technology would require Title III authorization for law
enforcement officers to intercept either the wire or radio
transmission portion of cellular communications. No also
recognize that technology in the cellular telephone area is
developing very rapidly and it will only be a matter of time
until the communications common carriers develop equipment that
will either encrypt the calls or secure the transmissions in some
other manner. Encrypted cellular calls should, of course, have
full Title III protection. The industry could assist in
affording fully warranted expectations of privacy by encrypting
these telephones or by developing methods to transmit the
messages in a digitised manner that would make it far harder to
intercept.
We do think, however, that citizens scanning for recreation
purposes should not incur criminal or civil liability. To
forstall that result, we feel that the bill should contain a
provision that a citizen will only incur criminal or civil
liability where the citizen both intercepts and divulges the
communication under circumstances in which the interception and
divulgence are-illegal, tortious or for commercial gain. We feel
that his scenario provides a proper balance between the needs of
law enforcement and the rights of ordinary citizens.
however, to address the problem of citizen interception, we
think that consideration should be given to outlawing devices
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that are used to intercept cellular telephone c
least where the onversations, at
they are primarily designed for that purpose.
Another problem that must be addressed when Cons
amendments to Title III is idering
providing coverage under the statute
for the
not growing number of
private telephone companies that may
be involved in interstate Commerce or use fecili
Interstate Commerce. It ought to be ties in
made clear that these are
types of telephone Companys are covered under the
Title III. provisions of
C) Tone and Voice Pa ers This type of paain device
transmits an aural>aesaaga to the g ice
paging device in the
of the subscriber b possession
y means of a transmission that is in part by
use of wire facilities and partially by the use of radio
transmission, which dio
? based upon existing technology
susceptible to interception by a individual with a compatible
the same frequency. Much like
placing it under Title III simply because the cordless telephone,
Y ause some portion of the
communication uses a wire arguably produces an absurd
since it can so readily be intercepted Burin result
of the communication. The more realistic g the radio portion
Title III approach is to make
applicable to interception of the wire
portions of the
transmissions and to the radio portion only where the radio
portion is encrypted. This again would re
to accomplish the interception and an expectation emirs affirmative steps
be deemed to be reasonable under these of privacy can
circumstances.
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II Technological Developments for Which New Legislation
Should Be Drawn
The principle other types of new technology that I will
address relate to the non-aural transmission of communications
through the use of wire facilities. The technology includes
electronic mail and other types of transmissions accomplished by
the use of computers connected to the facilities of
communications common carriers or in some cases private
transmission facilities. The term 'communications common
carrier" is a term utilized in H.R. 3378. It will have to be
defined to include the companies now providing what is known as
'electronic mail' and computer data providers and revisers.
Any proposed legislation should recognize the different
characters of this type of transmission at its various stages.
Depending upon the level of intrusion involved, different
mandates should be developed for the interception of this type of
communication. The communication can be divided into four
stages: first, interception of prospective transmissions of the
substance of a eommunicationt-second, interception or seizure of
substantive data temporarily stored in a data bank of the
communications common carrier prior the final transmission of the
data to the recipient's electronic mailbox and its actual
receipts third, seizure of substantive data temporarily or
permanently stored in the files of the communications common
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carrier as a record of the transmission after it's receipts and,
fourth, transactional data other than substantive information
maintained in the records of the communications common carrier
indicating the date and time of the communication and its sender
and recipient.
a) Authority to Intercept Prospective communications This
is authority to intercept electronic mail or other type of
computer transmissions that will be sent in the futures it in
analogous to Title III interceptions in which the court order
directs the interception of telephone calls to be made in the
next 30 days. The level of intrusion here is more than
situations in which the data is merely stored, yet is still
somewhat different than the case of ordinary telephone calls in
which the communication is immediate and unchangeable. We
believe the interception of electronic mail should include some
but not all of the procedural requirements of Title iii. The
authorization to intercept the communication should be
accomplished by a statute mandating a judicial authorization
based upon probable cause akin to that which can now be secured
with a Fourth Amendment search warrant pursuant to Rule 41 of the
Federal Rules of Criminal Procedure. This is based on the
premise that the interception of electronic mail generally should
be accorded no more protection than that accorded to regular
mail. At the present time regular mail can be seized with a Rule
41 search warrant. Electronic mail due to its use of telephone
lines should, in our view, enjoy some of the additional
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protections of Title Iii.
The search warrant or other judicial authorization should be
based upon a sworn affidavit establishing probable cause to
believe that a crime has been, is being, or is about to be
committed. The affidavit and judicial authorization should
sufficiently specify the people involved, the facility in
question, the specific offenses involved and the type of
information sought to be intercepted. The order should contain
requirement for the minimization of communications not otherw a
subject to interception. The order should be effective until the
objective of the investigation is achieved or for a period of 30
days, whichever is less. The legislation should contain
provisions for recording the intercepted communications and
adequate sealing requirements to protect the integrity of the
tapes. In addition' the bill should
provide for criminal and
civil penalities for citizens who intentionally violate the
statute.
The admissibility of any evidence with respect to the
interceptions would be determined by existing case law. The bill
should also contain a provision allowing the judge to direct a
communications common carrier to cooperate and assist law
enforcement personnel in the execution of a court order in any
way that is appropriate. The
provision should further provide
the carrier with immunity from civil liability for cooperating
and reasonable reimbursement for services rendered.
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The bill should also have a provision that covers com
to computer transmissions using telephone lines that do not have
a third party communications e not have
ompany involved in the transaction
or computer to computer transmissions on private eomtnunication
from facilities not involved in interstate commerce. I s
addition, the new bill should contain emergency n
similar to Title III where specifically id provisions
?ntilied supervisory
personnel could authorize interception for a limited period of
time until application can be made to the court in Specified
circumstances.
Unlike Title III, however, the bill should not require th
the Attorney General, Deputy Attorne at
y General, Associate Attorney
General or a designated Assistant Attorney General be the on
ones who can authorize the use the statute. So" type ly
provision for supervisory approval of
pproval in the field should be
authorized to negate the necessity of coming to Washington to
secure approval. In a state, the Attorney General or
the
principal prosecutor in a political subdivision should be able
make the application. to
An order, under the bill, should be obtainable for any
offense for which a search warrant could ordinarily be Issued.
This legislation should also not re quire that there be a showing
that all other investigative procedures have failed or are
unlikely to succeed or are too dangerous before an order can b
obtained. Additionall e
y, the search warrant or other judicial
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authorization should be issuable by a magistrate as well as a
district court judge or a judge of the court of appeals. A state
judge or competent jurisdiction empowered to issue search
warrants should also be able to issue a search warrant or other
judicial authorization under this legislation. Furthermore,
annual reports on the usage of the statute should not be
required.
These latter procedures that I have discussed, and that we
do not recommend be included in the bill for this type of
interception, are appropriate to Title III usage where the level
of intrusion on aural communications is greater than the level of
intrusion on electronic mail or computer transmissions. The
legislation will encompass many of the principal protections of
Title III without diminishing the privacy rights of individuals
and will be much less burdensome on law enforcement authorities
in the conduct of these types of criminal investigations.
b) Interception or Seizure of Substantive Data-Temporarily
Stored in a Data Bank of the Communications Common Carrier
Prior to Final Transmission to and Reeelpt by-the Recipient
This covers the time in which a specific communication has
been sent, is in the electronic mail firm's computers but has not
been delivered, or has been delivered to the electronic mailbox
but has not been received by the recipient. In such a situation
the communication is most like a first class piece of mail and
should generally be treated in the same manner. To intercept or
seize information of this nature, law enforcement personnel
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should be required to obtain a search warrant or other judicial
authorization predicated upon a sworn affidavit establishing
probable cause to believe that a crime has been, is being or is
about to be committedp this is the showing required under Rule 41
of the Federal Rules of Criminal Procedure which should apply
here as it does in first class mail. All of the Fourth Amendment
requirements for obtaining a search warrant would have to be
observed in support of the application. Sere too, a magistrate
(who is now empowered to issue search warrants) should be able to
issue the order as well as a District Judge or a Judge of the
Court of Appeals. A state judge of competent jurisdiction who is
empowered under state law to issue warrants should by powered
to issue these warrants as well. The warrant should be issuable
for any offense under federal or state law for which a search
warrant may now be issued. As with Rule 41, this type of warrant
should provide for execution within 10 days of the time the order
is signed. Since the level of intrusion here is less than in the
interception of prospective communications, none of the other
Title III type restrictions accorded to the order to intercept
prospective transmissions would be applicable to this type of
warrant or order. Lastly, a prosecutor in the field supervising
an investigation should be empowered to request such an order
from the court, again, this is the same system utilized in
seeking a warrant to seize first class mail.
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c)
Seizure of Substantive Data Tem oraril or Permanent;
Stored in the Files of a Communications Common Carrier
Substantive data that has become part of the records in the
files of a communications common carrier should be available to
federal investigators during the course of a criminal invests4a
tion as a third party document by the service of a grand jury
subpoena. Fourth Amendment warrant requirements are inapplicable
to this type of document since there is no reasonable expectation
of privacy. This is a well accepted principle of law relating to
documents that have been given over to third persons and we know
of no legal reason why it should not apply to these types of
documents.
d) Seizure of Transactional Data Other than Substantive
information of the Communication Maintained in the Records of
the Communications Common Carrier This type of record
includes data retained by the communications common carrier
primarily for administrative reasons, i.e., identification of the
sender/receiver, date/time of transmission, subscriber, billing
information, etc. This is material that is analogous to
telephone toll records. We feel that the seizure of this type of
information is not a "search" within the meaning of the Fourth
Amendment and, therefore, should not require obtainfnq a search
warrant. Law enforcement personnel should be able to secure this
information by the service of either a grand jury subpoena or in
the alternative an administrative subpoena served by a law
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enforcement agency, where appropriate. We feel that there is no
reasonable expectation of privacy with respect to this type of
information.
e) Other Provisions As in Title III, any new legislation
regulating the interception of non-aural communications at any
stage should contain consent provisions so that either private
citizens or law enforcement personnel would be exempt from the
statute if they had the prior consent of one of the parties to
the communication to make the interception. It is a well settled
principle of law that no liability, criminal or civil would
attach under these circumstances.
Video surveillance
Video surveillance is an additional area in which there is
at present no specific statutory authority regulating its use.
we believe that separate legislative provisions should be drafted
with statutory guidelines for the issuance of an court order
governing the interception of visual images in those situations
in which there is a reasonable expectation of privacy on the part
of the subjects of the interception.
There are two basic types of video surveillance. One
involves the interception of visual images in a fixed location
under conditions where the person being viewed would have a
reasonable expectation of privacy, i.e., a home or office. The
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second type involves the interception of visual images
(pictures)
being transmitted from one location to another, i.e., closed
circuit television.
The leading case authority in this area is United States v.
Torres, 731 F2d (7th Cir. 1984). The Toffs case sets forth
guidelines for the issuance of a video surveillance order that in
the view of the Department adequately protects the rights of
citizens and is consistent with the needs of law enforcement in
investigating federal violations of law. The Torres court, we
note, openly invited Congress to legislate in this area.
Although there is no specific statutory authority for video
surveillance, Torres held that a court could issue such a warrant
to the extent that certain Fourth Amendment protections, some of
which were placed in Title 111, were addressed. The court
required that there be a search warrant, based upon a sworn
affidavit, establishing probable cause to believe a crime has
been committed, is being coaaaitted or is about to be committed
and establishing that normal investigative procedures have failed
or reasonably appear unlikely to succeed if tried or to be too
dangerous. In addition, the warrant must contain a particular
description of the facilities involved, a description of the type
of images sought to be intercepted, and a statement of the
particular offenses to which they relate. Torres also applied
the principle that the order must not allow the period of
interception to be longer than is necessary to achieve the
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objective of the authorization, nor in any event longer than 30
days. The court also mandated that a provision for minimizing
the interception of images that were not otherwise subject to
interception be incor
porated in the order. As previously
indicated, we feel that these criteria strike a fair balance
between the privacy of our citizens and the needs of law
enforcement. Current practice in the Department of Justice is to
apply the above principles and the teachings of Torres to all
requests for closed circuit television involving the invasion of
a reasonable expectation of privacy.
For the same reasons as discussed in connection with Title
III and the new legislation directed to non-aural communications,
legislative authorization of this type should include consent
provisions where the interception is made with the prior consent
of one of the parties. The consent provision should be
applicable to both citizens and law enforcement officers.
In a great majority of cases in which video surveillance is
used, it is used in conjunction with an order to intercept aural
communications under Title III. In those cases the subject of
the interception would enjoy the dual protection of Title III and
the new legislation. Interception of the visual images alone
still would enjoy a significant portion of the protection
accorded to Title III interceptions.
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Finally, due to the degree of potential invasion of privacy
involved, the authority to authorize requests to the court for
video surveillance orders should be centralized in Washington,
D.C. Under current procedures the Attorney General has
authorized the Assistant Attorney General, a Deputy Assistant
Attorney General, the Director or Associate Director of the
Office of Enforcement Operations can grant the authority to make
a closed circuit television request. In practice, this has
worked out extremely well and we see no reason to escalate the
level of supervision. We recommend that the Attorney General by
statute be granted the power to delegate this authority by
appropriate regulation.
M. Expanded Coverage of Title III
I would like now to turn to several specific proposals to
make the current Title III statute even more useful than the last
18 years have proven it to be. The original drafters of Title
III sought to minimize its use by specifically limiting its
application to designated crimes. There was concern that if its
coverage was expanded that there may be abuses. The enumerated
crimes were those that Congress perceived as being the most
significant at the time. The time has come to re-evaluate that
thinking. Eighteen years of experience with the statute have
demonstrated that abuses have been almost non-existent. Title
in is so well understood today that there is no more reason to
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limit its application. In today's society there are a host of
other significant crimes where the Use of Title 221 would greatly
facilitate the investigations. In fact, from time to time
Congress has added new felonies as Title III predicate offenses
in almost a haphazard fashion somewhat akin to recognizing the
newest most fashionable offense of that year. For these reasons
we recommend that Title III should be expanded to cover all
felonies. I'd like to relate some of the serious crimes that we
encounter today which are not specifically covered by Title III
although some of them are covered generically by the statute:
Threatening or retaliating against a federal official (18 U.S.C.
115)1 Destruction of an energy facility (18 U.S.C. 1365);
Destruction of an aircraft or aircraft facility (18 U.S.C. 32);
Aircraft Hijacking (Fugitive Apprehension) (49 U.S.C. 1472)1
Hostage Taking (18 U.S.C. 1203); Murder For Hire (18 U.S.C. 1952
(A)); Violent Crimes in Aid of Racketeering (18 U.B.C. 1952(B));
Solicitation to Commit a Crime of Violence (10 U.S.C. 373); Mail
Fraud (18 U.S.C. 1341); Illegal Wiretapping (18 U.S.C. 2512)1
Transportation of Stolen Vehicles (18 U.S.C. 2312); Sale or
Receipt of a Stolen Vehicle (18 O.S.C. 2313); Trafficking in
Motor Vehicle Parts (18 U.S.C. 2320); Computer Fraud (18 U.S.C.
1030); Fraud involving credit access devices (18 O.S.C. 1029);
and Bail Jumping (18 U.S.C. 3150). In addition provision should
be made to use Title III to track down and apprehend:federal
fugitives.
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At the very least, the impact of these crimes on society
justifies their specific inclusion in Title M. However, all
felonies have an adverse impact and the availability of Title Iii
can make the difference in any felony investigation. Law
enforcement officials should have the most modern technology
available at their disposal if they are to meet today's
challenges in investigating crime and prosecuting criminals.
A provision should be included in Title Ill to allow the
Acting Assistant Attorney General in charge of the Criminal
Division to authorise a request for a Title III interception
and/or eavesdropping warrant. This person is responsible for the
operations of the Criminal Division when the Assistant Attorney
General is not available, and there is no legitimate reason why
this official should not be able to exercise this authority.
This authority could greatly reduce delays caused by the absence
of the Assistant Attorney General and the need to send Title III
applications to substitute Assistant Attorney Generals not fully
familiar with federal criminal law.
A provision should be included in Title III allowing for the
interdistrict use of a mobile eavesdropping device or 'bug",
i.e., where the order is signed in one district to install a bug
in a vehicle and the vehicle temporarily goes to another district
during the interception period. An order should not be
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necessary, as is current practice in each district into which the
vehicle travels. The judge in the originating district should be
authorized to issue an order that would be effective in all
districts into which the vehicle travels during the interception
period. This procedure would greatly reduce the burden an law
enforcement officials and we believe it is a practical approach
to this problem, without diminishing any Fourth Amendment
protection.
A provision should be included in Title III that would allow
for an interception order to be issued targeting an "individual"
at whatever facility within the jurisdiction of the court that he
or she is using at a given time, as opposed to the authority to
intercept only at a particular facility. This is in line with
the reasoning of Katz v United States, 389 U.S. 347, that people
are protected by the Constitution and not places. Such an
amendment could have significant implications in the
investigation of major drug violators, organized crime figures
and terrorists. Furthermore, in cases involving iminent danger
to individuals, such as kidnapping or hostage taking, there could
be dramatic results from such an amendment.
Another provision that should be included in Title III would
authorize the use of support personnel under the close
supervision of an investigative and law enforcement officer to
assist in the conduct of a Title III. A great deal of the work
now being done by law enforcement officers could be taken over by
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these people leaving the law. enforcement officers more time to
concentrate on the investigation.
A provision should be included in Title III to provide for
"after the fact stinimisation? of foreign language communications
where the particular foreign language experts are not readily
available during the interception period. This provision should
give the issuing judge the power, if the judge so determines that
the facts of the particular case warrant it, to authorise this
procedure.
A provision should be included in Title III providing for a
good faith exception to the exclusionary rule in Title III cases
as enunciated in United States v on, 104 B. Ct. 3430 (1984). A
federal violator should not be allowed to escape justice simply
because of unintended substantive, or procedural mistakes of a law
enforcement officer. The judge in each case should have the
authority to decide whether or not the exclusionary rule should
apply in these situations.
A provision should be included in Title III to allow for the
thirty (30) defy period to run from the time the interception
begins as opposed to the time when the order is signed.
Reasonably, the authorities should have at least ten (10) days
(as is the case with execution of a search warrant under Rule 41)
within which to institute the interception. This would address
common difficulties that arise in the installation process while
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still allowing for the full maximum interception period allowed
by the court.
With respect to the new legislation relating to non-aural
communications, the legislation should contain specific authority
for the states to enact similar legislation allowing for the
state Attorney General or the principal prosecuting attorney in a
political subdivision thereof to make application to the court
for interception authority. We also recommend that there be a
two year delay for the effective date of the new legislation as
it applies to the states to allow the states to pass enabling
legislation following the guidelines of the federal legislation.
In conclusion, I would like to reiterate that a great deal
of thought has been given to the development of these recommenda-
tions. We feel that these amendments to Title III and the new
legislation for non-aural communications comprise reasonable
standards that the Department of Justice and the federal law
enforcement agencies could support. Naturally, the details of
each proposal require further specification. However, the
principles are viable and should provide legislative guidance in
these areas for years to come barring unforseen developments.
The Department is committed to working with your staff and with
the Senate staff to produce effective legislation.
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That concludes my formal remarks, Mr. Chairman. I would be
happy to discuss the individual proposals with you.
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