PAGE 15 Line 1, delete "in camera and ex parte". Lines 4-5, strike: "to the person against whom the evidence is to be introduced". Line 5, after "introduced", strike "In making" and insert: "If only information which is the remote product of an electronic surveillance is sought to be introduced, then in making". Line 9, strike "only". Line 10, strike "substantially". Line 12, after line add: "Provided however, That if the contents obtained from an electronic surveillance or information which is the direct product thereof, is sought to be introduced, then the court must disclose the court order and accompanying application, and the material sought to be introduced, to the person against whom the evidence is to be introduced, and shall conduct an adversary hearing in making the determination that the surveillance was authorized and conducted in a manner that did not violate any right afforded by the Constitution and statutes of the United States. PAGE 16 Line 1, after "(ii)" insert: "the application or". Line 2, delete: "on its face". Line 11, delete "may in his discretion" and insert "shall". Lines 14-15, delete: "and the national security". Lines 21-22, after "such other" delete: "United States citizen or permanent resident alien" and insert: "person". Line 14, after line insert: (a) as a public document: Line 25, after line insert: PAGE 17 (b) as a confidential communication, (i) copies of all applications made, reports on compliance with minimization orders, judicial orders entered, and statements of reasons by judges and courts in acting thereon, deleting identifying data which would violate any person's right of privacy, unless such data is specifically requested by a committee of the Congress. (2) description of the benefits to the interests of the United States derived from such electronic surveillance, and the total costs of conducting such surveillance including time of government employees involved. (3) description of the technology utilized to conduct such surveillance. PAGE 18 Line 1-line 6 on page 19, delete present language and insert: (a) This chapter is enacted by the Congress as an exercise of its authority to make all laws which shall be necessary and proper for carrying into execution the powers vested in the Congress and all other powers vested by the Constitution in the Government of the United States, or in any Department or officer thereof. (b) No electronic surveillance in the United States, or against United States citizens and permanent resident aliens, is authorized except in compliance with chapter 119 or this chapter.". Line 6, insert: PAGE 19 (c) "This chapter does not grant any authority in addition to that contained in existing law for investigations to provide the basis for applications for electronic surveillance, nor for investigation of non-criminal activity, nor for warrantless surreptitious entries, mail openings, or other infringements of the Constitutional right to privacy.' Line 12, after line insert: "had commenced prior to the enactment of this chapter and". PAGE 20 Line 3, delete "order" and insert "certificate". "No communications carrier nor any officer, employee, or agency thereof may furnish facilities for, nor cooperate in the conduct of, electronic surveillance, except in accordance with the provisions of Chapter 119 and this chapter; and said carriers, officers, employees, and agencies shall promptly report in writing to the Attorney General and to the proposed target any request to furnish such facilities or cooperation which is not accompanied by a judicial certificate, or in the case of section 2518(7) and 2525(d) in which a judicial certificate of approval, disapproval, or receipt of an application is not presented within 48 hours of the initial request to furnish such facilities or cooperation. Line 19-line 11 on page 21, delete (renumber sections (d) through (1) as (c) through (k). Lines 9 through 12, delete. PAGE 22 NEW SECTION 2529 "This act does not repeal or supersede the terms of the Vienna Convention on Diplomatic Relations. When an application is submitted for electronic surveillance of a nation's diplomatic agent, his residence or its mission, or its official correspondence which are declared "inviolable" by the terms of Articles 22 (1) and (3), 27(2) and 30 (1) and (2) of that Convention, the court shall determine whether the United States is free under the provisions of international law, including Article 47(2) (a) of the Convention, to conduct such surveillance. PAGE 2 Lines 13-17, alternative language: a person who (a) acting under the control of a foreign power, as a knowing member of a foreign intelligence service, (b) without disclosing he has a relationship to the foreign power, (c) with the purpose of benefiting a foreign power and causing detriment to the United States, (d) uses clandestine methods (e) to acquire non-public information concerning industrial methods of vital importance to the national defense, or concerning third nations vitally affecting our foreign relations, to commit the crime of sabotage, or to commit crimes of violence as part of terrorist activities, (e) in violation of the laws of the United States or of a State. (f) Provided, however, that this definition does not include political activity, collecting or transmitting political information, or activity protected by the Constitution of the United States. THE ADMINISTRATION'S WIRETAP BILL AND THE FOURTH AMENDMENT (A paper prepared by the Washington Office of the American Civil Liberties Union, June 29, 1976) 1. INTRODUCTION S. 3197, the administration's wiretap bill, establishes a procedure for judicial review via a warrant procedure for electronic surveillance of Americans engaged in "clandestine intelligence activities" and other threats to the national security. S. 3197 would add a new chapter to Title 18 of the United States Code which would follow immediately after the existing provisions pertaining to electronic surveillance enacted in 1968. Both S. 3197 and the existing wiretap statute (18 U.S.C. 2510-2520) represent efforts by proponents of electronic surveillance to create a judicial warrant procedure which meets the requirements of the Fourth Amendment to the Constitution. The ACLU takes the position that neither the existing statute nor the administration's proposed amendments meet that test. II. FOURTH AMENDMENT LIMITATIONS ON ELECTRONIC SURVEILLANCE The Fourth Amendment reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." In layman's language the Fourth Amendment checks the authority of the executive branch to invade the privacy of its citizens by two basic techniques. First, it requires that wherever possible searchers should be subject to review by judicial magistrate through a warrant procedure. The existing statute plus the administration's wiretap bill comply with that requirement. However, the Fourth Amendment also restricts both executive investigative officers and the judges who review warrants by limiting searches to "particular" places and "particular" things to be seized. Ever since the statute was enacted in 1968, the ACLU has taken the position that the wiretap statute is an unconstitutional departure from this "particularity" requirement. The most recent proposal for national security electronic surveillance completely disregards the requirement that searches be limited to "particular" evidence of crime. The 1968 wiretap legislation was enacted in response to two major Supreme Court decisions applying the Fourth Amendment to electronic surveillance, Berger v. New York 388 U.S. 41 (1967), and Katz v. United States 389 U.S. 347 (1967). In Berger the Supreme Court struck down a New York state wiretapping statute as violative of the Fourth Amendment. The court held for the first time that the Fourth Amendment applied not only to tangible things, but also to conversations and that the New York statute did not comply with the particularity requirement of the Fourth Amendment. A year later in Katz the Supreme Court reaffirmed the Berger decision and reversed a federal conviction based upon a wiretap because the federal officials failed to seek a warrant despite the fact that in the opinion of the court the officers had sufficient information prior to the tap to satisfy the particularity requirement of the Fourth Amendment. One reason the federal officers in Katz did not seek a warrant is that at the time there was no statutory warrant procedure for electronic surveillance. Therefore Congress created such a procedure in 1968 in the Omnibus Crime Control and Safe Streets Act. That legislation was carefully drafted to meet the dictates of the Berger and Katz decisions. It requires law enforcement agents to present to federal judges specific facts which they believe establish probable cause that the potential target will engage in criminal activity and that there is probable cause to believe that evidence of a specific crime will be overheard in the proposed surveillance. Critics of the legislation, including the American Civil Liberties Union, insisted that despite that attempt at precision the bill could not comply with the Fourth Amendment's particularity requirement, especially as expressed in the Berger case. In traditional search situations the police must specify precisely what piece of evidence they intend to seize. Since the present statute does not require the police officer to specify precisely what the target would say which would be seized via the proposed electronic surveillance the statute is unconstitutional. Obviously, no electronic surveillance warrant procedure can be developed which will comply with the Fourth Amendment according to that standard. III. NATIONAL SECURITY ELECTRONIC SURVEILLANCE AND THE FOURTH AMENDMENT In drafting the 1968 Act Congress not only skirted the particularity requirements of the Fourth Amendment, it also completely exempted from its coverage targets of so-called "national security" electronic surveillance. Such surveillance was to be conducted pursuant to the so-called "inherent authority" of the President to protect the United States from enemies, both foreign and domestic. In 1972 the Supreme Court held that targets of such surveillance who were not agents of foreign powers, so-called internal security threats, in this case the Weatherman, were covered by the Fourth Amendment notwithstanding the socalled "inherent authority" exemption (18 U.S.C. 511(3)). United States v. United States District Court, 407 U.S. 297 (1972) (hereinafter the Keith case). The court held that such surveillance could only be conducted pursuant to a judicial warrant. Three years later the Court of Appeals for the District of Columbia extended the warrant requirement to threats against the national security which affected our foreign relations or who were agents of foreign powers, socalled "foreign intelligence" threats. Zweibon v. Mitchell, 516 F2d 594 (D.C. Circuit, 1975). IV. S. 3197 COMPLETELY DISREGARDS THE PARTICULARITY REQUIREMENT OF THE FOURTH AMENDMENT Faced with court decisions applying the Fourth Amendment to all national security electronic surveillance, whether the source of the threat is foreign or domestic; its national security electronic surveillance program in jeopardy; the Justice Department comes to the Congress with S. 3197, a proposal to create a warrant procedure as required by the Keith and Zweibon decisions. As it had done in 1967 when faced with the Katz decision, requiring a warrant procedure for all but national security electronic surveillance, the Department seeks to construct a warrant procedure which evades the particularity requirement of the Fourth Amendment. The sham warrant procedure which the Department proposes in S. 3197 severely circumscribes the role of the judge and places an even milder burden upon law enforcement officials to specify the conversations they intend to seize than did the 1967 Act. Under existing law, section 2518 (3) of Chapter 119 specifies the findings by the court which are the necessary prerequisite to an order authorizing electronic surveillance for investigation of a criminal offense; section 2525(a) of proposed Chapter 120 is the corresponding section applicable to "national security" wiretaps. The critical difference between these two sections is the extent to which the court is empowered to go behind the assertions made in the application by the government agent. Under Chapter 119, the court is directed to actively engage in a thorough examination of the facts underlying the application to assure itself that a sufficient factual foundation is present justifying the interception. Under proposed Chapter 120, if the court finds that the target of the surveillance is a foreign agent as defined, then it is without power under this legislation to question any of the related facts "certified" by the Attorney General. Thus, under Chapter 119, the court is directed to review the substance of the application; under proposed Chapter 120, the court merely ensures that the procedural requirements have been met. Under Chapter 119, the court must find probable cause to believe: (1) That a crime has been, is or is about to be committed by the particular individual whose communications will be intercepted; (2) that the facilities to be surveilled either belong to or are likely to be used by the target of the investigation; (3) that the conversations to be intercepted will pertain to the alleged offense; and (4) that other investigative procedures have been tried and failed. For each of the above findings, the court must independently assure itself that sufficient facts have been credibly alleged to justify a belief that the prerequisite has been met. By comparison, under proposed Chapter 120 the court must only satisfy itself that the intended target of the surveillance is an agent of a foreign power and the facilities to be interecepted belong to or are likely to be used by such person. The court is without authority to question the government's assertion that information pertaining to foreign intelligence will be obtained by the surveillance. The government need only assert that "the purpose of the surveillance is to obtain such foreign intelligence information." (emphasiss added) The court is equally without authority to enforce the requirement that other investigative techniques have been tried and proven unsuccessful. It must passively accept the government's certification that this is the case. V. THE DISREGARD OF THE PARTICULARITY REQUIREMENT RENDERS S. 3197 UNCONSTITUTIONAL The failure of the legislation to meet the "particularity" requirements of the Fourth Amendment, especially the use of vague undefined terms such as "clandestine intelligence" activities, and the limitations upon the judge's review of the circumstances justifying the warrant have been matters of considerable controversy in the Senate. In testimony before the Senate Intelligence Committee on the legislation prominent critics of the bill including Senator Mondale and Aryeh Neier, on behalf of the ACLU, described in detail the potentially abusive circumstances in which judges might have to automatically approve warrants under S. 3197. In subsequent questioning of Attorney General Levi, Chairman Inouye and others expressed concern about a variety of circumstances in which Americans might be engaged in non-criminal activity, including political activity protected by the First Amendment (lobbying members of Congress on behalf of a foreign power, e.g. American Zionist activities on behalf of Israel) which might justify electronic surveillance under the bill. The Department of Justice has justified this drastic departure from Fourth Amendment requirements including suveillance of non-criminal political activities upon a series of Supreme Court cases pertaining to so-called "area searches." 1 The same year the Supreme Court struck down the New York wiretapping statute in Berger it also took a step in the wrong direction, in effect exempting from the Fourth Amendment so-called "area" searches Camara v. Municipal Court 387 U.S. 523 (1967). In that and a related case, See v. Seattle 387 U.S. 541 (1967), the Supreme Court sanctioned the use of so-called "area warrants" whereby municipal authorities might inspect a business or a dwelling for housing code violations, not upon probable cause that the dwelling was in violation of a particular housing code provision but upon general experience that dwellings in a particular area are likely to be in violation of the code. 1 Compare S. 3197 with the New York statute which the court struck down in Berger (see appendix A). The Camara and See precedents have been relied upon in subsequent cases, Almeida-Sanchez v. United States 413 U.S. 266 (1973) and United States v. Amado Marinez-Fuerte 44 U.S.L. W. 5336 (1976) to sanction so-called border searches of automobiles not upon probable cause that the car actually contains a named illegal alien but upon the experience of the immigration officer that if cars are checked at a particular point near the border a certain percentage will contain illegal aliens. All four cases are frequently cited for the proposition that the Supreme Court has extended the warrant requirement of the Fourth Amendment to "area" searches and border searches. The Justice Department relies upon these cases for the proposition that when the Supreme Court says that the warrant requirement of the Fourth Amendment applies to a certain class of searches, it does not necessarily mean that the particularity requirement of the Fourth Amendment must be a part of the warrant requirement. Therefore Attorney General Levi is fond of citing the following language in the Keith case: "Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection." 407 U.S. 297, 322 He interprets that language and the Supreme Court's prior decisions on "area" searches and border searches as meaning that the warrant procedure in S. 3197 need not require probable cause to believe that electronic surveillance will overhear criminal conversations. The "area" search and border search cases are a weak reed upon which to rely such a dangerous relaxation of Fourth Amendment standards. First, none of these cases actually represents a deliberate search for information unrelated to criminal law. S. 3197 is intended to permit electronic surveillance of activities, "clandestine intelligence activities," which the Justice Department candidly admits is noncriminal. The area search and border search cases were searches for evidence of illegal activities (housing code violations and immigration law violations). These cases simply drastically reduce the quantum of evidence of possible criminal activity necessary to justify a search but, the Attorney General to the contrary notwithstanding, they do not eliminate the requirement altogether. Second, none of these cases deals with potentially sensitive political activities protected by the First Amendment. The border search and "area" search cases pertain to traditional criminal activities. Although these sweeping searches will invade privacy they will chill or deter nothing more than criminal activity. Electronic surveillance of non-criminal "clandestine intelligence activities," (especially political activities such as lobbying) will certainly chill First Amendment protected activity. Third, "area" and border searches are much less intrusive than 90 days of electronic surveillance. An "area" search for housing code violations is usually a walk-through of a dwelling or commercial establishment. A border search is nothing more than a momentary automobile search. Electronic surveillance, especially via so-called "bugs" is perhaps the most intrusive form of search, the most complete invasion of privacy in the wit of man (indeed the bill permits video as well as aural electronic surveillance). Furthermore, S. 3197 permits a continuing invasion of privacy for 90 days with unlimited additional 90 day extensions. VI. CONCLUSION: THE ACLU POSITION In conclusion the ACLU is greatly disturbed by the dramatic relaxation of Fourth Amendment law contemplated by S. 3197. It is ironic that the new chapter 120 proposed in this legislation would in effect provide less Fourth Amendment protection to Americans engaged in non-criminal "clandestine intelligence activities" such as lobbying Congress for more arms for Israel at the behest of the Israeli government, than it does the KGB agent engaged in criminal espionage who would be entitled to the protections of existing law. The so-called "area" search and border search cases do not justify such a relaxation of Fourth Amendment standards. Therefore at a minimum the ACLU recommends that the bill be amended to eliminate electronic surveillance of American citizens and resident aliens under the new chapter and limit all such electronic surveillance to existing law. While the ACLU is certainly not satisfied with that statute, it would certainly prefer relaxation of the particularity requirement for non-resident aliens to S. 3197 as presently drafted. Ideally, the old national security exemption 18 U.S.C. 2511(3) should be repealed and all national electronic surveillance con |