34. 429 U.S. 413 (1977).

35. United States v. Donovan, 429 U.S. at 427, n.15; United States v.

Kahn, 415 U.S. at 155, n. 15.

36. United States v. Kahn, 415 U.S. at 155, n. 15 (quoting United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972), cert denied 417 U.S. 917 (1974)).

37. Katz v. United Staes, 389 U.S. 347, 351 (1967).

38. The Supreme Court and Title III, supra, note 1, at 91.

39. Id.

40. United States v. Kahn, 415 U.S. at 157, n. 18.

41. Cf. Ybarra v. Illinois, 444 U.S. 85 (1979).

42. See The Supreme Court and Title III, supra note 1, at 103.

43. 18 U.S.C. $2518(5) (1976).

44. See The Supreme Court and Title III, supra note 1, at 53-54.

45. United States v. Kahn, 415 U.S. at 154.

46. The Supreme Court and Title III, supra note 1, at 104.

47. 436 U.S. 128 (1978).

48. The Supreme Court and Title III, supra note 1, at 110.

49. Scott v. United States, 436 1.S. at 136-139.

50. 18 U.S.C. $2518(5) (1976) (emphasis added).

51. The Court suggested, however, that once a violation has been objectively established bad faith may be a factor in determining the scope of

suppression. Scott v. United States, 436 U.S. at 136.

52. The Supreme court and Title III, supra note 1, at 109.

53. Id. at 124.

54. Id. at 124-25.

55. This aspect of my proposed accomodation would not be operative if Title III's suppression sanction were subject to a good faith

exception. See text accompanying notes 86-87 infra.

56. The Supreme Court and Title III, supra note 1, at 141.

57. See Texas v. Brown, 460 U.S. ____ 103 S. Ct. 1535, 1540, (1983);

Coolidge v. New Hampshire, 403 U.S. 443, 465–467 (1971) (plurality

opinion).

58. 18 U.S.c. $2517(5) (1976).

59. The Supreme Court and Title III, supra note 1, at 143-44.

60. Id. at 146-150.

61. Texas v. Brown 460 U.S.

103 S.Ct. 1535, 1540, 1543-44 (1983).

62. The Supreme Court and Title III, supra note 1, at 143.

63. But see Texas v. Brown, 460 11.S.

103 S.Ct. 1535, 1543-44

(1983) (suggesting that inadvertence may not be a feature of plain view doctrine).

64. 2 W. Lafave, Search and Seizure: A Treatise on the Fourth Amendment

$4.11, at 179-80 (1978).

65. The Supreme Court and Title III, supra note 1, at 149.

66. Texas v. Brown, 460 U.S.

(1983).

103 S. Ct. 1535, 1540, 1543-1544

67. See Michigan v. Summers, 452 U.S. 692, 697-700 (1981); United States v. United States District Court, 407 U.S. 297, 322-23 (1972) (reduced probable cause standard may be compatible with fourth amendment) v. See generally Bacigal, The Fourth Amendment in Flux: The Rise and Fall of Probable Cause, 1979 U. Ill. L.F. 763; Greenberg, Drug Carrier Profiles; Mendenhall and Reid:

Analyzing Police Intrusion on Less than Probable Cause, 19 Am.

Crim. L. Rev. 49 (1981).

68. See generally 3 W. Lafave, supra note 64, $11.4(a), at 621-628. 69. The Supreme Court and Title III, supra note 1, at 44.

70. 18 U.S.C. $2518(6) (1976).

71. See The Supreme Court and Title III, supra note 1, at 136-37.

72. Id. at 15, n.81.

73. 18 U.S.C. $2518 (8)(a) (1976).

74. Id.

75. The Supreme Court and Title III, supra note 1, at 151.

76. Id. at 158, n.944.

77. 18 U.S.c. $2518(8) (1976).

78. Id.

79. The Supreme Court and Title III, supra note 1, at 48.

80. See 18 U.S.C. $2518 (3) (1976).

81. Since $2518 (8) provides that, absent a court order, such interception violates Title III, the filing of an application and issuance of inventory notice to parties named therein is implicitly mandatory. Nevertheless, absent pre-surveillance judicial notification, it is difficult to ensure compliance with these requirements.

82. See N.J. Stat. Ann. 2A:156A-13 (West 1971).

83. See Wiretap Amendments:

Hearings Before the Subcomm. on Criminal

Justice of the Senate Comm. on the Judiciary, 96th Cong., 2d Sess. (Statement of Assistant Attorney General Philip B. Heymann).

84. Cf. 28 U.S.C. $2111 (1976). See The Supreme Court and Title III,

supra note 1, at 82-83.

85. See U.S. Department of Justice, The Attorney General's Task Force on Violent Crime, Final Report 55 (1981). An objective component to

the proposed good faith exception is necessary to prevent the new

standard from fostering an atmosphere in which ignorance is implicitly

encouraged.

86. See generally NWC Report, supra note 2, at 20, 23-24, 159-170.

TESTIMONY OF WILLIS H. WARE, CORPORATE RESEARCH STAFF, RAND CORP.; AND ANTHONY G. OETTINGER, CHAIRMAN, CENTER FOR INFORMATION POLICY RESEARCH, HARVARD UNIVERSITY

Mr. KASTENMEIER. Our next panel consists of Dr. Willis H. Ware, a member of the corporate research staff of Rand Corp. Years ago, he was with Rutgers Computers and Secretary Elliott Richardson. He also served on the Privacy Commission.

The second member is Anthony G. Oettinger of Harvard University. Mr. Oettinger is the chairman of the Program on Information Resources Policy at the university and is a leading expert on both computer sciences and the implications of new technologies on the freedom of information. Professor Oettinger additionally serves as consultant to the President's Foreign Intelligence Advisory Board of the National Security Council and numerous defense agencies. Gentlemen, we have your written statements. Without objection, they will be made a part of the record, and you may proceed as you see fit.

Perhaps, Dr. Ware, you might like to go first.
Mr. WARE. Thank you, Mr. Chairman.

My credentials for addressing this subject are spelled out in the written testimony. You mentioned them, so I won't go over that. I wish to state that I am speaking as an individual this morning, not as a member of the Rand Corp. I think what would be most useful from your point of view is just a hop scotch over a series of points and to highlight for you some of the technological issues that provide the context in which you are trying to deal with a very difficult and awkward subject.

First let me say the testimony we have had so far is technically a conversation about the past. The limitations about the manpower required to sit on wiretaps is a thing of the past, because we are now at the phase in the technology where one simply puts a computer on the intercept and it will mind the store for as long or for however one wishes. So the manpower issue will no longer be one in a few years.

Second, the terms, wiretapping, bugs, pen registers, are passé anachronisms. They are no longer useful, except as simple labels for a much larger problem that we need to talk about.

I don't need to dwell on the technology that is in the world today. It abounds. We all know that the common carriers of the country, the telecommunication carriers, use a wide variety of technology, microwaves, digital links, coaxial cables, satellite links, fiber optics, you name it, and that the traffic mix can exist either in analog or digital form. It is not news that voice can be digitized. It is being done by the telephone company regularly and has been done operationally since the early 1960's so that isn't news either. At some point, though, I will point out that we had better worry about the cable networks which are really out on the end of the common carriers and extensions of them. The cable networks already carry much of the traffic that is on a common carrier, TV notably, but there is no reason why ultimately they also will not carry the same mix of traffic that the common carriers do. I might point out that the mix of traffic on the common carriers includes