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In the 19th century, the new technology was the telegraph. One of the major privacy issues that occupied Congress in the 1870's was whether the records of Western Union should be opened up for random searches by congressional committees. Much of the debate focused on whether the parties using the telegraph had a reasonable expectation of confidentiality.
Finally, in the 20th century, new methods of communications were developed such as the telephone, computers and other forms of electronic communication. Initially, the courts and the Congress were reluctant to proscribe interception of such communications. Eventually, the wisdom of Justice Brandeis was accepted with respect to voice communications.
Brandeis said: "Every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment."
One of the issues we will take cognizance of today is the failure of title III of the Omnibus Crime Control and Safe Streets Act of 1968, the so-called wiretapping statute, to proscribe the interception of communication that is transmitted in nonvoice form.
Before we address the narrow technical question, however, we are well-advised to stress the values that are preserved by free and open communication.
Each of us as autonomous human beings has an inalienable right to think and communicate without unwarranted intrusions. Protection of these rights is the essence of personal privacy. Our task today is to begin an inquiry into the adequacy of those protections. At first, I would like to start by greeting and calling up a panel consisting of three leading specialists in the field of electronic surveillance. Each of the gentlemen brings a slightly different perspective to evaluating the sufficiency of our current wiretapping statutes.
Professor Schwartz is an old friend who served as a civil libertarian influence inside and outside the Government.
Professor Schwartz will focus on the interplay between electronic surveillance and national security concerns.
Prof. Michael Goldsmith of Vanderbilt University, he is currently on leave, and with the New York State Organized Crime Task Force, an author of a recent seminal article on wiretapping.
The final member of the panel is Magistrate James Carr. Magistrate Carr is the author of the leading text on the subject at hand, electronic surveillance.
Gentlemen, would you come forward? We have received your written statements, and so, if you care to proceed either from your written statements or as you wish, your written statements will be made part of the record.
TESTIMONY OF HERMAN SCHWARTZ, PROFESSOR OF LAW, AMERICAN UNIVERSITY; MICHAEL GOLDSMITH, ASSISTANT PROFESSOR OF LAW, VANDERBILT LAW SCHOOL; AND JAMES CARR, U.S. MAGISTRATE
Mr. SCHWARTZ. It is always a pleasure to appear before your subcommittee. One always has the feeling that in this subcommittee
the flame of concern for civil liberties, no matter how bad the times, burns very brightly indeed.
I would like to comment on the national security issue growing out of the very important hearings that this subcommittee held a few months ago, as well as on some other topics of current interest, and I hope I won't range too far afield from the topics that you laid out as the current concern of the subcommittee.
I have a statement which I have submitted, and I will try to sort of read through it without reading it that precisely.
The issue of national security is a very vexing one, obviously. It has always been so powerful a notion that as Egil Krogh noted a few years ago, merely invoking it is enough to virtually silence all discussion and criticism, and it is, therefore, particularly important that hearings like these be held so that we may try to impose some legal controls, democratic controls, over a practice like electronic surveillance, which does indeed lend itself to abuse so easily.
And I want to commend you for holding these hearings and for having the determination and courage to do so, because it probably takes both.
I will talk about the Foreign Intelligence Surveillance Act. I don't have too much more to say that I didn't say in an article that I published some months ago following the hearings of this committee, except to respond to some of the comments made by the Attorney General in response to questions put by the committee.
As we all know, the evil at which the FISA Act was aimed in 1978 was the indiscriminate targetting of Americans for purposes wholly unconnected with national security, for political or personal security.
I did a pamphlet for the Field Foundation in 1977, and I tried to pull together some of these examples which go back to the Roosevelt administration in the thirties, and I would like to attach as part of my testimony some of the pages from that pamphlet. Mr. KASTENMEIER. Without objection.
Mr. SCHWARTZ. Thank you.
I guess the question is how well has this statute which has been in effect since 1979 worked, and the answer is, we don't know. I tried to pull something out of the hearings, but for obvious reasons many of the witnesses did not say much.
I would also like, if I may, to include that article as part of my testimony.
I raised four troubling problems. During the 19 months of the Carter administration, it used the FISA statute some 529 times. It is hard to know how many taps and bugs were actually installed in those years, because some were extensions.
In the first 2 years of the Reagan administration, the number of surveillance orders granted by the judges rose to 433 in 1981 and 475, respectively.
Why? Were the additional taps and bugs used to eavesdrop on Americans? Second, the judges have not denied a single Government application. Does that mean the court is a rubber stamp? Maybe it is because the applications are so good, but I have seem some others that were not so good that were approved.
The reports of intelligence taps have surfaced in criminal cases. That is nothing new. Yet, the courts have done almost nothing to
ensure that the looser standards of the FISA statute, which have no notice provisions, for example, and are looser than are required for title III criminal prosecutions, there is no assurance FISA is not being used for law enforcement purposes.
I would like to refer to my article with respect to each of those, and if you have questions, I will be happy to answer them.
I should also like to discuss some of the answers that the Attorney General provided the subcommittee. First, with respect to the annual reports by the House and Senate Intelligence Committees, I believe they should be continued.
If ever there was an area where eternal vigilance is the price of liberty, this is it. I don't have enough confidence in the Judiciary, particularly where matters of national security are concerned.
I think that is demonstrated to some extent by the alacrity with which the special FISA court granted warrants for physical searches which are clearly not covered by the statutes.
The reports don't tell us too much, but they offer an opportunity for reflection and review about these questions and they ought to be continued.
With respect to the Attorney General's response about the interplay between title III and FISA, I can only say that this is a terribly difficult problem that has simply not been properly met.
As I indicated in the article, it is hard to see the Government ever losing this issue, given the fact that the issue is decided ex parte and in camera. Yet the prospects for abuse are very substantial.
It is difficult for me to see why, if the purpose of FISA is solely to gather intelligence, the use of FISA-obtained information should not be restricted to that.
Although the statute may indeed allow use of FISA-obtained intelligence in criminal proceedings, an effort should be made to limit this to situations where the Government can overcome a presumption that where the FISA surveillance is conducted at or near the time of indictment, the purpose of the surveillance was for the prosecution.
This, of course, does adopt the primary purpose test, but tries to make it a little more realistic in operation.
Incidentally, if a title III intercept is installed, continuation of this FISA surveillance for the purpose of gathering intelligence would rarely seem necessary since the title III interception would usually produce the same kind of information.
As to public divulgence of the number of targeted "U.S. persons," the claim that this "might allow some foreign powers to estimate the percentage of their clandestine agents who are known to the U.S. Government and are under surveillance and, conversely, the number we are not aware of" may well be valid.
I must say, however, that this is such a boilerplate stock response by the Department of Justice and the intelligence agencies to any request for information that it is hard to take at face value. Two years I requested a breakdown of title III taps for fiscal year 1982 by offense. I was forced to file an FOIA suit to get this data because the Department's initial response was that making this data public "would aid persons in committing certain categories of offenses by informing them of the probability of whether they will
be, or have been, subject to electronic surveillance pursuant to title III" even though the very same information is provided to the public every year on a calendar basis.
As soon as the suit was filed, the Department promptly turned over the data, with apparently little concern for the jump in the crime rate they had earlier feared so much.
Let me note finally that the Department's response to the committee's concern about interception of attorney-client communications, that the "use" of such interceptions is limited, obviously evades the issue.
For one thing, use and limit are ambiguous; also, the effort to monitor whether such limitations are indeed imposed will often be futile.
This so-called limitation on use is consistent with the Department's past history of listening in on such conversations. The rule ought to be that whenever it becomes apparent that the conversation is between an attorney and his or her client, the interception should be turned off until the conversation is over.
That is all I have to say about the national security problem. These are not terribly profound remarks, primarily because we don't know very much about how FISA is operating. The interest of this subcommittee in the matter is thus terribly important.
Let me turn to the consent taping problem. There really is no excuse or justification for the taping by Mr. Wick. The New York Times and the Washington Post reported this morning that the GSA had established that it was a violation of GSA and Archives rules about destruction of the transcript.
It is really very easy to amend title III to prohibit just that kind of thing: taping by a Government official for other than law enforcement purposes. I have reservations about totally uncontrolled one-party consent interception by anybody, including law enforcement, but that is too big a problem to tackle at this time. There are a great many considerations involved in that bigger issue and it is not necessary to deal with those to resolve this kind of problem which really does seem to occur. If the committee wishes, I can provide some language, I have already drafted some, and I tried to make sure it reaches only that kind of situation and not law enforcement taping.
I am aware, incidentally, of proposals to prohibit only the interception and disclosure, which focus on the disclosure aspect. Apart from raising memories of how poorly that combination worked in the old section 605, which you may remember, that approach doesn't get to the heart of the problem with consent taping, which is not that of privacy, but a problem of trust. One's privacy is almost waived, though only in part to be sure, when he or she reveals something to another person. The real issue, I think, is trust, the sense of betrayal when you learn that the person you are talking to is recording your words without your knowledge, regardless of whether it will be later disclosed.
Furthermore, the tape could still be used against the speaker without such disclosure, and it is that possible use which adds to the sense of betrayal which, I think, is very dangerous to a free society. Moreover, it is very hard to detect disclosure and this also. adds to the sense of uneasiness and loss of trust.
I think we can handle the Wick situation without too much difficulty.
Computer and digitalization. I am not an expert in this field, but I have looked at 605, and I have some difficulty understanding some of the current concern about loopholes.
Title III seems clearly to reach all voice communications, no matter how transmitted and whether that be by analog or digitalization, which is what the telephone company is trying to install. Section 605, second sentence, still applies to all radio communications that are not oral. Computer communications by microwave or satellite I should think are covered by this, though it probably doesn't catch fiber optics, which are wirelike, and any other kind of wire transmission.
Distinctions based on the particular transmission medium obviously make no sense, but until we think this problem through more than we have to date, it seems to me we do have something to reach at least some of these communications. Of course, the enforcement problem of detecting the interceptions would be very difficult.
I would add that I don't see how one can say that computer communications are not entitled to fourth amendment constitutional protections regardless of the statute, for I was sure there is an expectation of privacy when these are transmitted that the society should be prepared to recognize as reasonable.
My last comment is about title III. I can't let this occasion pass without expressing my dismay at the increasing use of wiretapping and bugging for law enforcement.
I have said my piece on this many times, probably to the intense boredom of at least some members of the committee and the general public, and maybe even my fellow panelists. I would nevertheless like to note with some alarm that a few weeks ago, it was reported that the number of title III installations in the first 9 months of 1983 reached 152, which is roughly a 200, annual rate, close to the second highest in history.
On a fiscal year basis, the 359 total of installed installations and extensions is a record, even for the fiscal years 1971 and 1972, when the antigambling Operation Anvil Project was in effect, now conceded to be one of the most wasteful law enforcement efforts ever undertaken.
This probably means that today more people are being wiretapped than ever.
Most of the increase is for drug enforcement and the amount of tapping will increase even more. It is being accompanied by the usual claims of success and indispensability, claims belied by history. Indeed, despite the National Wiretap Commission's finding in 1976 that wiretapping was effective, the staff found that it never reached the upper echelons in drug enforcement, and the drug authorities often refrained from its use until this Administration.
G. Robert Blakey, a member of that Commission, and author of the Wiretap Act, declared just a few months ago, after the Dorfman case, that prior use has been wasteful and inefficient.
Wars on drugs are continually being declared and wiretapping is continually invoked as indispensable. Yet, even though Bronx district attorney Mario Merola, one of the best district attorneys in