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counterintelligence cases. S. REP. No. 604, 95th Cong., 1st Sess. 6, 64, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 3904, 3907, 3965, S. REP. No. 701, 95th Cong., 2d Sess. 71, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 3973, 4040. Instead, FISA created a new set of procedures and substantive requirements which would subject such surveillance to judicial control while still protecting national security. Several provisions of FISA make it unmistakably clear that government (federal, state and local) may not use highly intrusive forms of electronic surveillance unless it does so in accordance with either Title III or FISA. E.g. 18 U.S.C. § 2511(2)(f) (codifying § 201(b) of FISA); 50 U.S.C. § 1809 (codifying § 109 of FISA). Unless those statutes are complied with, law enforcement officers who engage in these forms of surveillance may very well be committing a federal crime. 50 U.S.C. § 1809.

The basic problem in the case before us stems from the fact that FISA explicitly addresses the problem of video surveillance, while Title III does not. The majority errs in concluding that the government may engage in the video surveillance in this case without regard to any statutory regulation of such surveillance. In doing so, the majority ignores unequivocal provisions of FISA, and of Title III as amended by FISA, and disregards the clear purpose of both statutes to subject intrusive forms of electronic surveillance to strict statutory control.

The key statutory provisions here are 18 U.S.C. § 2511(2)(f), enacted as section 201(b) of FISA, and 50 U.S.C. § 1809, enacted as section 109 of FISA. Section 2511(2)(f) of title 18, U.S.C., provides in relevant part:

[Procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted. (emphasis supplied)

This provision incorporates the FISA definition of "electronic surveillance" found in 50 U.S.C. § 1801(f).

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Subparagraph 4 of that subsection defines "electronic surveillance" as

the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

That language is obviously broad, and, read literally, certainly includes video surveillance. There is no doubt that the miniaturized cameras used in this case are "electronic devices" used "to acquire information" under circumstances in which the subjects had a reasonable expectation of privacy. And when we turn to the relevant committee reports on FISA, we learn that Congress did in fact intend the quoted language to cover such video surveillance equipment. S. REP. No. 604. 95th Cong., 1st Sess. 35, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 3904, 3936; S. REP. No. 701, 95th Cong. 2d Sess. 37, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 3973, 4006. The Senate Judiciary Committee Report on FISA explains that that subparagraph "could also include miniaturized television cameras and other sophisticated devices not aimed merely at communications." S. REP. No. 604, 95th Cong., 1st Sess. 35, reprinted in 1978 U.S. CODE Cong. & AD. NEWS 3904, 3936. The next sentence of the report says "[t]his part of the definition is meant to be broadly inclusive, because the effect of including a particular means of surveillance is not to prohibit it but to subject it to judicial oversight." Id. The Senate Intelligence Committee Report on the bill includes the same language. See S. REP. No. 701, 95th Cong., 2d Sess. 37, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 3973, 4006.

Thus, it is clear that video surveillance falls within the FISA definition of electronic surveillance. Therefore, 18 U.S.C. § 2511(2)(f) may be paraphrased to say that the

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"procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance-including video surveillance-may be conducted." In short, if the video surveillance employed in this case was not expressly authorized by either Title III or FISA, then it would be prohibited by law. Subsection 2511 (2) (f) cannot be contorted into meaning that Title III governs one thing, FISA governs another, and anything not governed by one or the other is permitted, as the majority would have it.

In addition, if the video surveillance here was not authorized by statute, then the officers who engaged in it may have committed a federal crime. Section 109(a) of FISA, 50 U.S.C. § 1809 (a), provides in relevant part: "A person is guilty of an offense if he intentionally-(1) engages in electronic surveillance under color of law except as authorized by statute . . . ." Again, the FISA definition of "electronic surveillance" applies to this provision, and as shown above, that definition includes video surveillance such as that used in the case before us.' Section 1809 thus requires the government to show statuury authorization for its use of video surveillance, and the only possible sources of that authority are Title III and FISA.

But my reasons for disagreeing with the majority are not limited to the statutory language. By leaving an extraordinarily intrusive form of domestic electronic urveillance uncontrolled by statute, the majority acts ontrary to the purposes of both statutes and produces a ighly improbable result.

Of course, subsection (b) of the section (50 U.S.C. § 1809(b)) rovides a defense for officers with a search warrant or court rder, so the officers in the matter before us presumably would ot be in jeopardy. By finding that courts have the power to sue warrants for video surveillance, even though not authored by statute, the majority effectively eviscerates this crimializing provision.

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This most improbable result may be described in the following way. Based on the definition of "electronic surveillance" in FISA, 50 U.S.C. § 1801(f) (4), any attempt to employ video surveillance in a foreign intelligence case would be subject to FISA's restrictions. In these highly sensitive cases of perhaps extraordinary importance to the nation, video surveillance may be employed only with the approval of officials at the highest levels of the federal government and of a special court established for this purpose in 50 U.S.C. § 1803. To be more precise, the application must be approved by the Attorney General or Deputy Attorney General of the United States, 50 U.S.C. § 1804(a); and the need for using such intrusive surveillance measures must be certified by the President's national security affairs adviser or a national security official whose appointment is subject to Senate confirmation, 50 U.S.C. § 1804(a) (7). Only then may the government apply to the special court for a warrant. And FISA imposes numerous other requirements designed to ensure that highly intrusive surveillance measures are used only when and to the extent necessary. See the remainder of § 1804(a).

In sharp contrast to these extraordinary statutory requirements for the use of video surveillance in foreign intelligence cases, the majority would leave video surveillance in all domestic law enforcement cases subject only to a few ad hoc constraints. In this respect, the majority seeks to solve the policy problem of its anomalous position by adopting in dicta some of the requirements of Title III as matters of constitutional law.' There is no persuasive 'The majority, however, imposes only four Title III requirements (at least insofar as dicta impose requirements), and these are not some of the most efficacious provisions. The majority does not require that only the Attorney General or a designated Assistant Attorney General authorize federal applications, § 2516(1), or that only the principal prosecuting attorney of a state (or of a political subdivision of a state if so authorized by

(Footnote continued on following page)

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authority for this and, as a matter of judicial aggressiveness, it seems to me more egregious than a mere act of statutory interpretation. In any event, the constitutional requirements, which the majority imposes here by way of dicta can be, I suppose, just as easily interpreted away in the next case. I think it preferable to follow the mandates. of 18 U.S.C. § 2511(2)(f) and 50 U.S.C. § 1809 and leave the matter to Congress.

Although there is no explicit mention of video surveillance techniques anywhere in Title III or in its legislative history, it is virtually inconceivable that the Congress which enacted Title III would have, if it had ever considered the question directly, left video surveillance unregulated by statute. The relevant committee reports and comments of individual members of Congress reflect quite clearly the process of balancing individual privacy concerns and the fight against organized crime. S. REP. No. 1097, 90th Cong., 2d Sess. 67-69 (state of the law), 70-76 (balance between privacy and control of organized crime), reprinted in 1968 U.S. CODE Cong. & AD. News 2112, 215456, 2157-63. The Johnson Administration and numerous members of Congress supported a total prohibition on wiretapping and electronic bugging, believing that the echniques would add relatively little in fighting crime And that the threat to privacy, especially if the techniques were abused, was too great to tolerate. S. REP. No. 1097, Oth Cong., 2d Sess. 161-62, 172-73 (Johnson Adminisration supported ban on wiretaps and bugging), rerinted in 1968 U.S. CODE Cong. & AD. NEWS 2112, 2223continued

ate law) may apply for a state order, § 2516(2). Thus, control er authorization is not centralized, and the power to apply for deo surveillance orders is left in the hands of local law forcement personnel. Nor does the majority impose the -quirements of $ 2516(1) & (2) which limit surveillance to the vestigation of specified crimes. Further, the majority does not pose the strict statutory exclusionary rule of §§ 2515 and -18(10) (a).