MAES V. MOTIVATION FOR TOMORROW, INC. (1957) and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In Rathbun the contents of a conversation overheard on a regularly used telephone extension, with the consent of one of the parties to the conversation, was found to be admissible in federal court. The Court stated at 355 U.S. at page 110, 78 S.Ct. at page 163: "The clear inference is that one entitled to receive the communication may use it for his own behalf or have another use it for him. The communication itself is not privileged, one party may not force the other to secrecy merely by using a telephone." Lopez strikes us as very much like the instant case. There a Federal Revenue Agent used a pocket wire recorder to record a conversation that he had with the defendant. The Court permitted the recording to be introduced in evidence against the defendant, stating that the recording of a conversation by one privileged to hear it is not eavesdropping in any proper sense of the word. The Court said, 373 U.S. at page 440, 83 S. Ct. at page 1389: "Indeed, there has not even been any electronic eavesdropping on a private conversation which government agents could not have otherwise overheard." [6] By the same token, the defendant herein who was a party to the conversation was not "eavesdropping" or "wiretapping" when he recorded such conversation. Finally, we note that the Administration, speaking through its Attorney General, criticized the proposed legislation because it exempted all consensual wiretapping and eavesdropping. The statement of the Attorney General was as follows: "Thus, although the title contains blanket prohibitions on all 'third-party' ('nonconsensual') interceptions-that is, interceptions without the consent of at least one of the parties to a conversation-by private persons, and places strict control on the use of such interceptions by law enforcement offi 47 cers, it is totally permissive with respect to surreptitious monitoring of a conversation by a party to the conversation, even though the monitoring may be for insidious purposes such as blackmail, stealing business secrets, or other criminal or tortious acts in violation of Federal or State laws." The Attorney General included the recording of a conversation by a party to it as an act allowed under the Act. To recapitulate, we find the motion is well taken. It is obvious that the complaint cannot be amended to state a cause of action. It is therefore ordered that the complaint be dismissed with prejudice. KEY NUMBER SYSTEM Rudolph J. MAES and Leola Maes, on behalf of themselves and all other persons similarly situated, Plaintiffs, V. MOTIVATION FOR TOMORROW, INC., a corporation, Webster Home Plan Inc., a corporation, etc., Defendants. No. 72968. United States District Court, Buyers brought action under Consumer Credit Protection Plan seeking damages from seller and its associate for alleged failure to comply with disclosure requirements under the Act for sales not under open end credit plans. On defendants' motions to dismiss or, in the alternative, for summary judgment, the District Court, Sweigert, J., held that complaint which attached agreement in question containing statement that "Additional Products or Services may be purchased by the buyer from time to time and added to the balance of this Open Account within credit limits Before: MARTIN, Circuit Judge; PECK and BROWN, Senior Circuit Judges. BAILEY Brown, J. Appellee, Abdeen M. Jabara (Jabara), a Detroit lawyer of Arab extraction, has over the years been interested and active in Arab causes. The Federal Bureau of Investigation (FBI), as a result of his activities, began an investigation of him in 1967. This investigation was not continuous and varied from time to time as to intensity and as to the technique used. The technique used by the FBI included physical surveillance by agents and informants, including his speech-making activities, inspection of Jabara's bank records, warrantless electronic surveillance by the National Security Agency (NSA), and interviews of third parties regarding Jabara. This information was maintained and disseminated by the FBI. Circuit Judge Brown retired from regular active service under the provisions of 28 U.S.C. 371(b) on June 16, 1982, and became a Bunier Circuit པལ ༽ ༽སྙམ: ལས 2 Jabara v. Webster, et al. No. 80-1391 Jabara filed an action in district court in Detroit in October, 1972, alleging several causes of action. The defendants include the Attorney General, the Directors of the FBI and NSA in their official capacities and certain known and unknown officers and employees of the FBI and the NSA. One cause of action alleged was that Jabara's fourth amendment rights were violated as a result of NSA's interception of his "communications by means of warrantless electronic surveillance and/or disclosed summaries of these interceptions to the Federal Bureau of Investigation." Another cause of action alleged was that the defendants violated a provision of the Privacy Act, 5 U.S.C. § 552a(e)(7), by maintaining records with respect to Jabara's exercise of his first amendment rights. The district judge, on cross-motions for summary judgment, granted judgment and injunctive relief to Jabara as to both of these claims and defendants appealed.2 I. A preliminary question presented on this appeal is whether this court can, as contended by defendants, properly consider in camera the classified appendix that defendants filed in the district court. Jabara's position is that this court should not consider the materials in the classified appendix at all unless the materials are made available to him or at least to his counsel subject to a protective order. The district court determined (75 F.R.D. 475, 487 (1977)) that these materials, because they are properly protected by the state secret privilege, should be submitted in camera; this was done without 1 Second amended complaint. (App. at 69). 2 The history of this litigation, including citations to reported opinions dealing with resolution of discovery issues, is clearly and fully set out in the opinion of the district court resulting in the grant of summary judgment and injunctive relief. Jabara v. Kelley, 476 F. Supp. 561 (ED. Mich. 1979). In camera treatment and the assertion of the state secret privilege were supported by the in camera affidavits, unaisain of Defemma y Schlesinger, Rumsfield and Brown No. 80-1391 Jabara v. Webster, et al. 3 access by Jabara or his counsel. We conclude that the district court was correct in its ruling and, further, that this court likewise may properly receive in camera and so consider such materials in the classified appendix. United States v. Reynolds, 345 U.S. 1 (1953); Kerr v. United States District Court for the Northern District of California, 426 U.S. 394 (1976); and Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978). II. To understand the fourth amendment issue raised by the NSA's interception of Jabara's communications and supplying these to the FBI, all without a warrant, it is necessary briefly to describe the factual background of this claim and then to outline the contentions of the parties. The NSA intelligence gathering operation is described sufficiently for present purposes in Halkin, 598 F.2d at 4. as follows (footnote omitted):" A brief description of NSA and its functions is appropriate. NSA itself has no need for intelligence information; rather, it is a service organization which produces intelligence in response to the requirements of the Director of Central Intelligence. Intelligence Activities: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U.S. Senate, 94th Cong., 1st Sess. Vol. V at 9 (1975) (Hearings). The mission of the NSA is to obtain intelligence from foreign electrical communications. Signals are acquired by many techniques. The process sweeps up enormous numbers of communications, not all of which can be reviewed by intelligence analysts. Using "watchlists"-lists of words and phrases designed to identify communications of intelligence interest-NSA computers scan the mass of acquired communications to select those which may be of specific foreign intelligence interest. 11 * 4 See also: Note, Government Monitoring of International Elec- `` tronics Communications: National Security Now. Agency Watch List Sur veillance and the Fourth Amendment, (1978). On November 1, 1971, the FBI, without a warrant, requested the NSA to supply it with the contents of Jabara's telegraphic sar communications sent overseas, and the NSA complied by furnishing the FBI with summaries of six of such communications. Dd at 40 Defendants contend that the fourth amendment does not apply to and limit NSA's gathering of foreign intelligence. They also contend that, in any event, the facts surrounding the acquisition by the NSA of overseas telegraphic communications such as those sent by Jabara are subject to the state secret privilege.s Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA. What Jabara does contend, and the district court agreed, is that his rights were violated when the NSA turned over the information, without a warrant, to the FBI. Defendants, on the other hand, contend that, since the NSA had lawfully intercepted and had made a record of the content of Jabara's communications, the fourth amendment was not implicated when the FBI requested and obtained the summaries from the NSA. This is so, defendants contend, because there simply was no "search" or "seizure" es of th those teres Jabara v. Webster, et al. Only those likely to be of interest are printed out for No. 80-1391 This was so held in Halkin, supra; indeed in Halkin, it was held that, pursuant to the state secret privilege, the government did not even have to divulge to plaintiffs whether the NSA had intercepted their overseas communications. Here, as previously indicated, the ment has divulged in the open record that NBA did intercept and later turn over to the FBI Jabara's communications. |