Electronic Surveillance and Civil Liberties

October 1985

NTIS order #PB86-123239
Recommended Citation:

Federal Government Information Technology: Electronic Surveillance and Civil

Liberties (Washington, DC: U.S. Congress, Office of Technology Assessment, OTACIT-293, October 1985).

Library of Congress Catalog Card Number 85-600609

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, DC 20402
Foreword

Public policy on the use of information technology to electronically monitor

individual movements, actions, and communications has been based on a careful

balancing of the civil liberty versus law enforcement or investigative interests.

New technologies—such as data transmission, electronic mail, cellular and cordless telephones, and miniature cameras-have outstripped the existing statutory

framework for balancing these interests.

The primary technical focus of this report is on technological developments

in the basic communication and information infrastructure of the United States

that present new or changed opportunities for and vulnerabilities to electronic

surveillance, not on the details of specific surveillance devices. The primary policy focus is on domestic law enforcement and investigative applications, not on

foreign intelligence and counterintelligence applications.

Thus, this report addresses four major areas: 1) technological developments

relevant to electronic surveillance; 2) current and prospective Federal agency use

of surveillance technologies; 3) the interaction of technology and public law in the

area of electronic surveillance, with special attention to the balancing of civil liberty and investigative interests; and 4) policy options that warrant congressional

consideration, including the amendment of existing public law to eliminate gaps

and ambiguities in current legal protections.

Conducted at the request of the House Committee on the Judiciary, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, and the Senate Committee on Governmental Affairs, this report is one component of the OTA

assessment of “Federal Government Information Technology: Congressional Oversight and Civil Liberties. Other topics covered in the assessment include: information technology management, planning, procurement, and security; computer

crime; computer matching and privacy; electronic dissemination of Government

information; and computer-based decision support, modeling, and Government

foresight. These will be published under separate cover.

In preparing this report on electronic surveillance, OTA has drawn on working papers developed by OTA staff and contractors, the comments of participants

at an OTA workshop on this topic, and the results of an OTA Federal Agency

Data Request that was completed by over 140 agency components. The draft of

this report was reviewed by the OTA project advisory panel, officials from the

U.S. Department of Justice, and a broad spectrum of interested individuals from

the governmental, academic, private industry, and civil liberty communities.

OTA appreciates the participation of the advisory panelists, workshop participants, external reviewers, Federal agency officials, and others who helped bring

this report to fruition. The report itself, however, is solely the responsibility of

OTA, not of those who so ably advised and assisted us in its preparation.

Director
Electronic Surveillance and Civil Liberties Advisory Panel

Theodore J. Lowi, Chairman

Professor of Political Science, Cornell University

Arthur G. Anderson

IBM Corp. (Ret.)

Jerry J. Berman

Legislative Counsel

American Civil Liberties Union

R. H. Bogumil

Past President

IEEE Society on Social Implications of

Technology

James W. Carey

Dean, College of Communications

University of Illinois

Melvin Day

Vice President

Research Publications

Joseph W. Duncan

Corporate Economist

The Dun & Bradstreet Corp.

William H. Dutton

Associate Professor of Communications

and Public Administration

Annenberg School of Communications

University of Southern California

David H. Flaherty

Professor of History and Law

University of Western Ontario

Carl Hammer

Sperry Corp. (Ret.)

Starr Roxanne Hiltz

Professor of Sociology

Upsala College

John C. Lautsch

Chairman, Computer Law Division

American Bar Association

Edward F. Madigan

Office of State Finance

State of Oklahoma

Marilyn Gell Mason

Director

Atlanta Public Library

William Joe Skinner

Corporate Vice President

Electronic Data Systems Corp.

Terril J. Steichen

President

New Perspectives Group, Ltd.

George B. Trubow

Director, Center for Information

Technology and Privacy Law

The John Marshall Law School

Susan Welch

Professor and Chairperson

Department of Political Science

University of Nebraska

Alan F. Westin

Professor of Public Law and Government

Columbia University

Langdon Winner

Associate Professor of Political Science

Rensselaer Polytechnic Institute

Congressional Agency Participants

Robert L. Chartrand

Senior Specialist

Congressional Research Service

Robert D. Harris

Deputy Assistant Director for

Budget Analysis

Congressional Budget Office

Kenneth W. Hunter

Senior Associate Director for

Program Information

U.S. General Accounting Office

NOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by these advisory panel members.

The views expressed in this OTA report, however, are the sole responsibility of the Office of Technology Assessment.

iv
OTA Electronic Surveillance and Civil Liberties Project Staff

John Andelin, Assistant Director, OTA

Science, Information, and Natural Resources Division

Frederick W. Weingarten, Communication and Information Technologies

Program Manager

Project Staff

Fred B. Wood, Project Director

Jean E. Smith, Assistant Project Director

Priscilla M. Regan, Principal Author and Analyst

Jim Dray, Research Analyst

Jennifer Nelson, Research Assistant

Administrative Staff

Elizabeth A. Emanuel, Administrative Assistant

Shirley Gayheart, Secretary

Audrey Newman, Secretary

Renee Lloyd, Secretary

Patricia Keville, Clerical Assistant

Contractor

Herman Schwartz, The American University
OTA Electronic Surveillance and Civil Liberties Workshop

Stanley S. Arkin

Attorney

Peter Benitez

New York County District Attorney’s

Office

Kier Boyd

Deputy Assistant Director

Technical Services

Federal Bureau of

James C. Carr

U.S. Magistrate

Floyd Clarke

Deputy Assistant

Criminal Division

Federal Bureau of

Russell Cestare

Division

Investigation

Director

Investigation

Chief of Liaison and Communication

Financial Investigations Division

U.S. Customs Service

Ronald C. Farm

Chief, Counterintelligence Operations

U.S. Department of the Army

Richard Gerstein

Partner

Bailey, Gerstein, Rashkind & Dresnick

Morton H. Halperin

Director

American Civil Liberties Union

Frederick D. Hess

Head, Office of Enforcement Operations

Criminal Division

U.S. Department of Justice

Mary Lawton

Counsel, Office of Intelligence and

Policy Review

U.S. Department of Justice

Frederick B. Lothrop

Analyst/Project Manager

PSC, Inc.

Paul Lyon

Chief of Special Operations

Bureau of Alcohol, Tobacco and Firearms

U.S. Department of the Treasury

Gary Marx

Professor, Department of Urban Studies

and Planning

Massachusetts Institute of Technology

Ronald S. Plesser

Attorney

Blum, Nash & Railsback

Christopher Pyle

Professor, Political Science Department

Mount Holyoke College

James B. Rule

Professor, Department of Sociology

State University of New York at

Stony Brook

Herman Schwartz

Professor of Law

The American University

L. Britt Snider

Director, Counterintelligence and

Security Policy

Office of the Secretary of Defense

Other Reviewers

Michael Cavanagh

Electronic Mail Association

Charles Miller

American Telephone & Telegraph Co.

David Peyton

Information Industry Association

Barbara Philips

Telocator Network of America

Harold Relyea

Congressional Research Service

vi
Contents

Chapter Page

1.

2.

3.

4.

5.

Summary . . . . . . . . . . . . . . . . . . . . . . . . . 3

Introduction and Overview . . . . . . . . . 9

Summary . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . 11

Background. . . . . ..., . . . . 12

Technology and Use. . . . . 12

Policy . . . . . . . . . . . . . . . 15

Findings and Policy Implications 21

Appendix 2A: Key Supreme Court

Decisions on Electronic

Surveillance . . . . . . . 24

Appendix 2B: Key Statutes Relevant

to Electronic Surveillance . 25

Telephone Surveillance . . . . . . . . . . . . . 29

Summary. . . . . . . . . . 29

Introduction . . . . . . . . . . . . . . . . . . 30

Background, ,,...... . . . . 31

Findings and Policy Implications . 34

Electronic Mail Surveillance . . . . . . . . 45

Summary. . . . . . . . . . . . . . . 45

Introduction . . . . . . 45

Background. ,, ,,.. . . . . . . . 46

Findings and Policy Implications . . 48

Other Surveillance Issues . . . . . . . . . . . 55

Summary. . . . . . . . . . . . . . . . . . . . 55

Electronic Physical Surveillance. 55

Electronic Visual Surveillance. 55

Data Base Surveillance . 56

Part I: Electronic Physical

Surveillance ..., . 57

Introduction . . 57

Background . . . . . . . . . . . . . . . 57

Findings and Policy Implications. 59

Chapter

Part II: Electronic

Surveillance

Introduction .

Background .

Page

Visual

... .,,, ,,,, . 62

..., ,,.,, ,,,, . 62

..,, . . . . . ,,.,, ,, 63

Findings and Policy Implications, 64

Part III: DataBase Surveillance. . . 67

Introduction . . . . . . . . . 67

Background. ..., . . ., 68

Findings and Policy Implications. 70

List of Tables

Table No. Page

1.

2.

3.

4.

5.

6.

7

Categories of Surveillance

Technology ., . . . . . . . . . . . . . . . . 13

Categories of Behavior Subject

to Electronic Surveillance . . . . . . . . . . 13

Top Fifteen Agency Components Using

Electronic Surveillance Technology ., 14

Electronic Surveillance Technology:

Current and Planned Agency Use . . . 15

Agency Components Indicating

the Largest Projected Use of Electronic

Surveillance Technology . . . . . . . . . . . 15

Dimensions for Balancing Civil

Liberty Interest v. Government

Investigative Interest . . . . . . . 22

. Treasuray Enforcement Communication

8

9

System/Border Enforcement

System Users . . . . . . . . . . . . 69

Source of Treasury Enforcement

Communication System/Border

Enforcement System Records. ..., 69

Selected INS Computerized

Record Systems . . . . . . . . . . . . . . . . . . 70

v;;
Chapter 1

Summary
.

Chapter 1

Summary

In the last 20 years, there has been a virtual revolution in the technology relevant to electronic surveillance. Advances in electronics,

semiconductors, computers, imaging, data

bases, and related technologies have greatly

increased the technical options for surveillance

activities. Closed circuit television, electronic

beepers and sensors, and advanced pen registers are being used to monitor many aspects

of individual behavior. Additionally, new electronic technologies in use by individuals, such

as cordless phones, electronic mail, and pagers,

can be easily monitored for investigative, competitive, or personal reasons.

The existing statutory framework and judicial interpretations thereof do not adequately

cover new electronic surveillance applications.

The fourth amendment–which protects “the

right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures’ ‘—was written at a time when people conducted their

affairs in a simple, direct, and personalized

fashion. Telephones, credit cards, computers,

and cameras did not exist. Although the principle of the fourth amendment is timeless, its

application has not kept abreast of current

technologies.

The major public law addressing electronic

surveillance is Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 which

was designed to protect the privacy of wire

and oral communications. At the time Congress passed this act, electronic surveillance

was limited primarily to simple telephone taps

and concealed microphones (bugs). Since then,

the basic communications infrastructure in the

United States has been in rapid technological

change. For example, satellite communication

systems and digital switching and transmission technology are becoming pervasive, along

with other easily intercepted technical applications such as cellular mobile radio, cordless

telephones, electronic mail, computer conferencing, and electronic bulletin boards. Continued advances in computer-communications

technology such as the Integrated Services

Digital Network (ISDN), now close to implementation, are likely to present additional new

opportunities for electronic surveillance.1

The law has not kept pace with these technological changes. The courts have, on several

occasions, asked Congress to give guidance.

Most recently, U.S. Circuit Court Judge Richard Posner, in a case involving the use of video

surveillance in a law enforcement investigation, said:

. . . we would think it a very good thing if Congress responded to the issues discussed in this

opinion by amending Title III to bring television surveillance within its scope . . . judges

are not authorized to amend statutes even to

bring them up to date.

In legislating the appropriate uses of electronic surveillance, Congress attempts to

strike a balance between civil liberties—especially those embodied in the first, fourth, and

fifth amendments to the U.S. Constitution–and

the needs of domestic law enforcement and investigative authorities for electronic surveillance

in fighting crime, particularly white-collar and

organized crime, and generally for drug, gambling, and racketeering investigations.’

Law enforcement and investigative agencies, at least at the Federal level, are making

significant use of electronic surveillance techniques and are planning to use many new techniques. Based on a review of available reports

1 ISDN permits the transmission of ~’oice, \ideo, and data signals as needed o~’er a common multi-purpose communications

network,

‘Note: This stud} did not retiew’ technolog~ or polic~ issues

concerning foreign intelligence and counterintelligence applications of electronic surveillance.

3
4

and the results of its Federal Agency Data Request, 3 OTA found that:

●

●

●

The number of Federal court-approved

bugs and wiretaps in 1984 was the highest ever.

About 25 percent of Federal agency components responding (35 out of 142) indicated some current and/or planned use of

various electronic surveillance technologies, including, but not limited to, the

following:

—closed circuit television (29 agencies);

—night vision systems (22);

—miniature transmitters (21);

—electronic beepers and sensors (15);

—telephone taps, recorders, and pen registers (14);

—computer usage monitoring (6);

—electronic mail monitoring or interception (6);

—cellular radio interception (5);

–pattern recognition systems (4); and

—satellite interception (4).

About 25 percent of Federal agency components responding (36 out of 142) report

use of computerized record systems for

law enforcement, investigative, or intelligence purposes:

—agencies reported a total of 85 computerized systems with, collectively,

about 288 million records on 114 million

persons; 4

—examples of four such systems that

could be used in part for data base surveillance purposes are the:

1. National Crime Information Center

(FBI),

2. Treasury Enforcement Communications System (Treasury),

3. Anti-Smuggling Information System

(Immigration and Naturalization Service–INS), and

4. National Automated Immigration

Lookout System (INS).

‘The data request was sent to all major components within

the 13 cabinet-level agencies and to 20 selected independent

agencies. Due to the unclassified focus of this study, two

Department of Defense components–the National Security

Agency and Defense Intelligence Agency–along with the Central Intelligence Agency were excluded from the data request.

“Extent of multiple records on the same person is unknown.

—none of the 85 system operators provided the requested statistics on record

quality (completeness and accuracy).

Most do not maintain such statistics.

After conducting a review of the technology

and policy history of electronic surveillance,

OTA found that:

The contents of phone conversations that

are transmitted in digital form or calls

made on cellular or cordless phones are

not clearly protected by existing statutes.

Data communications between computers

and digital transmission of video and

graphic images are not protected by existing statutes.

There are several stages at which the contents of electronic mail messages could be

intercepted: 1) at the terminal or in the

electronic files of the sender, 2) while being communicated, 3) in the electronic

mailbox of the receiver, 4) when printed

into hardcopy, and 5) when retained in the

files of the electronic mail company or provider for administrative purposes. Existing law offers little or no protection at

most of these stages.

Legislated policy on electronic physical

surveillance (e.g., pagers and beepers) and

electronic visual surveillance (e.g., closed

circuit TV and concealed cameras) is ambiguous or nonexistent.

Legislated policy on data base surveillance (e.g., monitoring of transactions on

computerized record systems and data

communication linkages) is unclear.

There is no immediate technological answer to protection against most electronic

surveillance, although there are emerging

techniques to protect communication systems from misuse or eavesdropping (e.g.,

low-cost data encryption).5

OTA identified a range of policy options for

congressional consideration:

● Congress could do nothing and leave policymaking up to the development of case

‘Technical options are being addressed in a separate OTA

study on “New Communications Technology: Implications for

Privacy and Security, ” expected to be published in winter

1986/87.
5 —

law and administrative discretion. However, this would lead to continued uncertainty and confusion regarding the privacy accorded phone calls, electronic mail,

data communication, and the like, and

ignores judicial requests for clarification

in areas such as electronic visual surveillance.

● Congress could bring new electronic technologies and services clearly within the

purview of Title III of the Omnibus Crime

Control and Safe Streets Act, for example by:

–treating all telephone calls similarly

with respect to the extent of protection against unauthorized interception,

whether analog or digital, cellular or

cordless, radio or wire;

–legislating statutory protections against

unauthorized interception of data communication;

–legislating a level of protection across

all stages of the electronic mail process

so that electronic mail is afforded the

same degree of protection as is presently provided for conventional first

class mail;

—subjecting electronic visual surveillance

to a standard of protection similar to

or even higher than that which currently exists under Title 111 for bugging

and wiretapping.

● Congress also could set up new mechanisms for control and oversight of Federal

data base surveillance, for example by:

—requiring congressional approval of specific Federal data base surveillance applications (e.g., by statutory amendment or approval of House and Senate

authorizing committees);

—establishing a data protection board to

administer and oversee general statutory standards for creating and using

data bases for purposes of surveillance.

Ž Congress also could amend the Computer

Fraud and Abuse Act of 1984 to cover interstate computer crime.

—This option, not detailed here, could provide additional legal protection against

unauthorized penetration (whether for

surveillance or other reasons, e.g., theft

or fraud) of computer systems.G

Chapters 2 through 5 of this report provide

technical and policy analyses relevant to proposed legislation on electronic surveillance and

civil liberties, such as the “Electronic Communications Privacy Act of 1985’ and the

“Video Surveillance Act of 1985.’”

‘See the computer crime chapter of the forthcoming OTA report on “Federal Government Information Technology: Ke~’

Trends and Policy Issues” for discussion.

‘HR. 3378 introduced by Rep. Robert Kastenmeier and S.

1667 introduced by Sen. Patrick Leah~’. See U.S. Congress,

I{ouse of Representatives, Congressional Record, Extension of

Remarks, Sept. 19, 1985, p. E-4 128; and U.S. Congress, Senate, Congressional Record, Sept. 19, 1985, p. S-11 795.

‘11. R. 3455 introduced b~ Representati\re Kastenmeier, See

U.S. Congress, House of Representati\’es, Congressional Record, l+~xtension of Remarks, Sept. 30, 1985, p, I+; -4269.
Chapter 2

Introduction and Overview
Chapter 2

Introduction and Overview

SUMMARY

Electronic surveillance is the epitome of the

two-edged sword of technology for many Americans. Public opinion polls evidence considerable concern about possible excessive and

abusive use of electronic surveillance by the

Government (and others), and show support

for strong safeguards and protections to

tightly control the use of such technology.

But, at the same time, the public is concerned

about crime—especially violent crime—and

supports the appropriate use of technology to

combat and prevent crime and bring offenders

to justice. ’

Until the past 10 years or so, the balancing

of these concerns was relatively straightforward from a technological perspective. Electronic surveillance was limited primarily to audio surveillance devices such as telephone taps

and concealed microphones (“bugs”). Now,

however, technological developments have significantly expanded the range of electronic surveillance options. These include miniaturized

transmitters for audio surveillance, lightweight compact television cameras for video

surveillance, improved night vision cameras

and viewing devices, and a rapidly growing array of computer-based surveillance techniques.

In addition, most forms of electronic communication—whether via wire, coaxial cable, microwave, satellite, or even fiber optics—can be

monitored if one has the time, money, and

technical expertise. Encryption–the only technological countermeasure thought at this time

to be generally effective—is still too expensive

and cumbersome for widespread application,

‘See Alan F. W’estin, (‘ Public and Group Attitudes Toward

Information Policies and Boundaries for Criminal Justice, ” in

U.S. Department of Justice, Bureau of Justice Statistics, Information Policjr and Crime Control Strategies, Proceedings of

a BtJS SE] ARC13 Conference, July 1984, pp. 32-46; and W’illiam

13. L)utton and Robert (i. Meadow, “Public Perspectives on

(lo~ernrnent Information Technology: A Re\iew of Survey Research on Pri\~acy, Ci\’il I,iberties, and the Democratic Process, ’ OTA contractor report, January 1985,

although costs are declining and ease of use

is improving.

The primary purpose of electronic surveillance is to monitor the behavior of individuals,

including individual movements, actions, communications, emotions, and/or various combinations thereof, as well as the movement of

property or objects. Some uses of electronic

surveillance devices may infringe on the protections afforded by the first, fourth, and fifth

amendments to the U.S. Constitution and

various public laws.

This chapter surveys the Federal Government’s use of electronic surveillance and outlines a framework for the analysis of electronic

surveillance issues.

Based on a review of available reports and

the results of its Federal Agency Data Request, OTA found that:

The extent of use of electronic surveillance by the private sector is unknown.

The number of Federal and State courtapproved wiretaps and bugs reported in

1984 was the highest since 1973.

The number of Federal court-approved

bugs and wiretaps in 1984 was the highest ever.

According to early reports, an average of

about 25 percent of intercepted communications in 1984 were reported to be incriminating in nature, with 2,393 persons

arrested as a result of electronic surveillance.

About 25 percent of Federal agency components responding to the OTA Federal

Data Request indicated some use of electronic surveillance.z

‘Due to the unclassified focus of this study, two Department

of Defense components—the National Securit~’ Agency and Defense Intelligence Agency-along with the Central Intelligence

Agency were excluded from the data request.

9

53.548 0 - 85 - 2 : t2L 3
10

– Federal agency use is concentrated in

components of the Departments of Justice, Treasury, Defense, Agriculture,

and Interior.

— The Drug Enforcement Administration and Federal Bureau of Investigation (Justice), U.S. Customs Service

(Treasury), and Air Force Office of Spe

cial Investigations (Defense) use the

greatest number of different types of

electronic surveillance technologies.

— The FBI, which currently uses nine

different types of surveillance technologies, has plans to use eight additional

types of technologies.

A thorough review of the technology and

policy history of electronic surveillance led

OTA to conclude that:

●

●

●

The existing statutory framework and judicial interpretations thereof do not adequately cover new and emerging electronic surveillance technologies. Indeed,

the courts have asked Congress for guidance on the new technologies.

There is no immediate technological answer to protection against most electronic

surveillance, although there are emerging

techniques to protect communication systems from misuse or eavesdropping (e.g.,

low-cost data encryption).

Despite a lack of coordination in electronic surveillance policymaking among

the three branches of Government and the

ad hoc nature of that policy, there are

seven general components that are found

in existing policies, be they legislative,

executive, or judicial:

1. a way of checking on the discretion of

the Government agent in the field;

Z. a listing of the crimes and circumstances for which a particular type of

electronic surveillance is considered

appropriate;

3. a standard to indicate at what stage in

●

●

●

4

5

6

7

an investigation the use of a particular surveillance technique is appropriate;

a justification for the need to use a particular surveillance technique;

an account of how the scope of the surveillance will be minimized;

a requirement to give notice after the

fact to the subject of the surveillance;

and

. remedies and sanctions, including a

statutory exclusionary rule or a civil

remedy.

In setting electronic surveillance policy,

Congress, the executive branch, and the

courts, implicitly or explicitly, balance the

societal interest in maintaining civil liberties protections for the individual against

the societal interest in successful Government investigations. Based on an evaluation of previous policy formulation, policymakers, more or less consciously, have

looked to certain dimensions in determining this balance.

In determining the civil liberty interest

with respect to electronic surveillance,

policymakers look to five dimensions—

the nature of information, the nature of

the place or communication, the scope of

the surveillance, the surreptitiousness of

surveillance, and the pre-electronic analogy

of the surveillance technique or device.

In determining the Government’s interest, policymakers have used three dimensions to evaluate the need for using an

electronic surveillance technique or device-the purpose of the investigation, the

degree of individualized suspicion, and the

effectiveness of the electronic device as an

investigatory tool compared to nonelectronic options.

This policy framework is applied in the following chapters to specific types of electronic

surveillance technology.
INTRODUCTION

The capabilities for surveillance-the observation and monitoring of individual or group

behavior including communication-are greatly

expanded and enhanced with the use of technological devices. For example, technology

makes it more efficient and less conspicuous

to track movements, to hear conversations, to

know the details of financial and other personal transactions, and to combine information from diverse sources into a composite file.

New surveillance tools are technically more

difficult to detect, of higher reliability and

sensitivity, speedier in processing time, less

costly, more flexible and adaptable, and easier to conceal because of miniaturization and

remote control. Current R&D will produce devices with increased surveillance capabilities,

e.g., computer speech recognition and speaker

identification, fiber optics, and expert systems.

Many electronic devices are currently available for monitoring individual or group behavior. For example, phone conversations

might be overheard, records of phone numbers

dialed might be accessed, movements at home

and in the workplace might be video-recorded,

and movements outside the home or workplace, even in the dark, could be observed. In

addition, bank and credit records could be examined electronically to determine financial

habits and general movements, and conversations in a public place could be recorded by a

parabolic microphone. Further, it is possible

that actions might be evaluated by computer

to determine whether they match any profiles

or have a pattern, that electronic mail communication might be accessed and read, that the

movements of physical objects such as a car

might be tracked by a beeper, and that a new

friend or local taxi driver might be wired for

sound.

From a law enforcement and investigative

standpoint, the potential benefits offered

through new electronic technologies may be

substantial-e. g., the development of more accurate and complete information on suspects,

the possible reduction in time and manpower

required for case investigation, and the expansion of the options for preventing and deterring crimes. From a societal perspective, the

possible benefits are also important–including the potential to increase one’s sense of

physical security in the home and on the

streets, improve the capability to know when

someone is in need of assistance, strengthen

efforts to prevent the sale of illegal substances,

and enhance the protection of citizens and

Government officials from terrorist actions.

However, while providing increased security, the use of sophisticated technologies for

surveillance purposes also presents possible

dangers to society.’ Over time, the cumulative

effect of widespread surveillance for law enforcement, intelligence, or other investigatory

purposes could change the climate and fabric

of society in fundamental ways. For example,

how will hotlines that encourage people to

anonymously report potentially damaging information and one-party consent to the monitoring of conversations affect the level of trust

in our society? Will private space and anonymity be preserved when individuals increasingly

must make private information widely available, e.g., to banks, medical clinics, and credit

agencies, in order to carry on everyday activities? How will informality and spontaneity in

communications and behavior be affected as

more personal activities are ‘‘on the record’

or “in view?”

But most importantly for the purposes of

this study, the use of electronic surveillance

devices may infringe on the protections afforded in the first amendment (freedom of

speech and press, and the right to peaceably

assemble and to petition the Government for

a redress of grievances), fourth amendment

(unreasonable searches and seizures), and fifth

amendment (protection against self-incrimination). The use of such devices may also conflict with procedural and substantive protections in specific statutes, e.g., Title III of the

‘(j~~T. hlarx, “The New Sur\’eillance, ” Technolo~. Rei’iew’.

\ol, 88, N-o. 4, hl a?’ <June 1985, pp. 42-48.
12

1968 Omnibus Crime Control and Safe Streets

Act, the Privacy Act of 1974, the Foreign Intelligence Surveillance Act of 1978, the Electronic Funds Transfer Act of 1978, and the Cable Communications Policy Act of 1984.

Many innovations in electronic surveillance

technology have outstripped constitutional

and statutory protections, leaving areas in

which there is currently no legal protection

against, or controls on the use of, new surveillance devices. In 1928, Justice Louis Brandeis,

in his dissenting opinion in Olmstead v. United

States, warned that:

Subtler and more far reaching means of invading privacy have become available to the

Government . . . the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.

Ways may some day be developed by which

the Government. without removing papers

from secret drawers, can reproduce them in

court, and by which it will be enabled to expose to a jury the most intimate occurrences

of the home.4

Although use of some surveillance techniques requires a court order, many do not require any authorized approval and some are

not even covered by judicial interpretation of

the fourth amendment prohibition on unreasonable searches and seizures. Additionally,

the privacy and procedural rights of those subject to surveillance may also be violated, since

their activities may be monitored even though

no criminal suspicion has attached to them.

Finally, given the unobtrusive nature of sur-

‘O]mstead v. United States, 277 U.S. 438, 473-474 (1928).

veillance activities, it may be difficult to detect when one’s rights have been violated.

The use of electronic surveillance devices

may result in more efficient law enforcement.

Their use may be required in part by the use

of more evasive and sophisticated devices by

those suspected of engaging in criminal activities. Yet, the cumulative impact of the increased use of surveillance, with or without a

court order, is an important consideration for

any society that prides itself on limited government and individual freedom.

The key policy issue is to determine the

appropriate balance between the civil liberty

interests and the intelligence, law enforcement, or other governmental interests involved. In some circumstances, the law enforcement interest will be great enough to

outweigh the civil liberty interest. In other circumstances, the reverse will be the case. Policy, be it judicial, legislative, or administrative, seeks to define the parameters for this

balancing process.

James Madison addressed this basic dilemma of democratic governments in Federalist #51:

If men were angels, no government would

be necessary. If angels were to govern men,

neither external nor internal controls on government would be necessary. In framing a

government which is to be administered by

men over men, the great difficulty lies in this:

You must first enable the Government to control the governed; and in the next place, oblige

it to control itself.

BACKGROUND

Technology and Use

For much of the 20th century, electronic surveillance technology was limited primarily to

audio surveillance devices such as telephone

taps and concealed microphones (“bugs”). In

the late 1960s, however, technological developments began to significantly expand the

range of electronic surveillance options. These

included miniaturized transmitters for audio

surveillance, lightweight compact television

cameras for video surveillance, improved night

vision cameras and viewing devices, and the

first computer-based surveillance techniques.

In the 1970s, congressional attention focused

on electronic surveillance, partly due to the use

of surveillance technologies during the Civil

Rights Movement and in Watergate, but also
13

due to a perception of a growing application

of such technology in various sectors of society. Table 1 presents a list of categories and

types of surveillance technology as developed

by the Subcommittee on Constitutional Rights

of the Senate Committee on the Judiciary in

1976.

The primary purpose of electronic surveillance technology is to monitor the behavior of

individuals. As illustrated in table 2, electronic

devices can be used to monitor individual

movements, actions, communications, emotions, and/or various combinations thereof.

It appears that many of the electronic surveillance technologies identified in table 1 were

not widely used in 1976, partly because the

underlying media of communication (e.g., elecTable 1 .–Categories of Surveillance Technology

1. Electronic eavesdropping technology (audio

survei I lance)

. radiating devices and receivers (e g , miniaturized

transmitters)

. nonradiating devices (e g., wired surveillance

systems, Including telephone taps and concealed

microphones)

● tape recorders

2 Optical/imaging technology (visual surveillance)

● photographic techniques

• television (closed circuit and cable)

. night vision devices (use image intensifier to view

objects under low light)

● satellite based

3. Computers and re/ated technologies (data surveillance)

● microcomputers —decentralization of machines and

distributed processing

Ž computer networks

● software (e. g., expert systems)

• pattern recognition systems

4. Sensor technology

● magnetic sensors

● seismic sensors

. Infrared sensors

● strain sensors

● electromagnetic sensors

5 Other devices and technologies

● citizen band radios

. vehicIe location systems

● machine-readable magnetic strips

•s polygraph

● voice stress analyzer

● voice recognition

● laser interception

Ž celIular radio

SOURCE Based on the f~amework developed by [he Senate Judlc!ary Comrmt

tee s Sukomml ttee on Const Itu t Ion al RI g hts (n Its ‘eporl Suwe(//an(’e

~WhTO/0~1 — 1976 SF?P Pp 29 37)

Table 2 .—Categories of Behavior Subject to

Electronic Surveillance

1. Movements—where someone Is. Individuals can be tracked

electronicalIy via beepers as welI as by monitoring computerized transactional accounts in real time

2. Actions-what someone is doing or has done. Electronic

devices to monitor action include: monitoring of keystrokes

o n computer terminals, monitoring of telephone numbers

called with pen registers, cable TV monitoring, monitoring of financial and commercial computerized accounts.

and accessing computerlzed law enforcement or investlgatory systems.

3. Communications—what someone is saying or writing. and

hearing or receiving. Two-way electronic communications

can be intercepted whether the means be analog or digi -

tal communication via wired telephones, communication

via cordless or celIular phones, or digital electronic maiI

communication. Two-way nonelectronic communication

can be intercepted via a variety of m microphone devices and

other transmitters.

4. Actions and communications —the details of what some

one is doing or saying Electronic visual surveillance, generally accompanied by audio surveiIlance, can monitor the

actions and communications of individuals i n both private

and public places, in daylight or darkness

5. Emotions —the psychological and physiological reactions

to circumstances. Polygraph testing, voice stress analyzers, breath analyzers, and brain wave analyzers attempt to

determine an Individual’s reactions.

SOURCE Off! ce of Tech nul UQY A< ~es SIT ent

tronic mail and cellular radio) were not in wide

service. However, there is no authoritative information on the full extent of their use.

In the private sector (not involving the Government), the FBI notes that the number of

reported incidents of illegal interception of private sector communications declined from 524

in 1981 to 392 in 1984.5 However, it is likely

that only a small fraction of total incidents

occurring are reported, and it is probable that

many forms of private sector electronic surveillance go undetected, and if detected, go unreported.

Statistics on Government use of some electronic surveillance techniques, primarily telephone wiretaps and hidden microphones, are

collected and published by the Administrative

Office of the U.S. Courts. The April 1985 report indicates that in 1984, Federal and State

judges approved 801 out of 802 requests for

electronic surveillance-289 by Federal judges

——— ——

‘.John liorgan, “Thwarting the Information Thie\’es, ” 11;1.’4.’

Spectrum, ,JUIJT 19/+,5. p. 32, which cites the source as FI; 1

spokesperson JI’illiam (’arter.
14

and 512 by State judges. The 1984 combined

total of 801 was the highest since 1973. The

1984 Federal total of 289 was the highest ever,

with the prior peak year being 1971. Overall,

the number of State electronic surveillance

orders has slowly declined since 1973, while

Federal surveillance orders declined from 1971

to 1977, remained about constant from 1977

to 1980, and increased from 1981 to the present.

The number of electronic interceptions authorized by Federal courts in 1984 is almost triple the 1981 level.’

In general, the reported electronic surveillance is used primarily in narcotics and gambling cases; in 1974 gambling was first and

narcotics second, and in 1984 the order was

reversed. The reported cost of electronic surveillance has increased dramatically, from

about $8,000 each in 1974 to about $45,000

each in 1984. An average of about 25 percent

of intercepted communications in 1984 was reported to be incriminating in nature, with

2,393 persons arrested as a result of electronic

surveillance and about 27 percent of those convicted.7 The figures for arrests and convictions

are necessarily incomplete because of the time

involved in concluding a Federal criminal case.

Because of the general lack of information

on Federal use of electronic surveillance, questions on this topic were included in the OTA

Federal Agency Data Request sent to the 13

cabinet-level departments and 20 selected independent agencies. Of 142 agency components responding, 35 or about 25 percent

reported some current use of electronic surveillance technology for monitoring the movement, activity, conversation, or information

pertaining to individuals or agencies in which

the agency has an investigative, law enforcement, and/or intelligence interest. Of these 35

agency components, the top 15 agencies reporting use of the largest number of electronic

surveillance technologies are listed in table 3.

(Note that the Central Intelligence Agency,

‘Administrative Office of the United States Courts, Report

on Apph”cations for Orders Authorizing or Approving the interception of Wire or Oral Commuru”cations, for Calendar 1984,

Washington, DC, April 1985, pp. 3, 6, 21.

‘Ibid., pp. 6, 7, 21.

Table 3.—Top Fifteen Agency Components

Using Electronic Surveillance Technology

Number of

technologies

Agency a

currently used

Drug Enforcement Administration (DOJ) 10

Federal Bureau of Investigation (DOJ) . . 9

U.S. Customs Service (Treasury) ., . . . 9

U.S. Air Force (DOD) . . . . . . . . . . . . . . 9

National Park Service (DOI) . . . . . . . . . . 8

Internal Revenue Service (Treasury) ., . . . 7

Criminal Division (DOJ) . . . . . . . . 7

U.S. Forest Service (USDA). . . . 7

Inspector General (USDA) . . . . . . . . . . 7

Agricultural Stabilization and

Conservation Service (USDA) . . . . . . . . . 7

U.S. Army (DOD) . . . . . . . . . ., ., . . 6

Fish and Wildlife Service (DOI) . . . . . . . . . 6

U.S. Marshals Service (DOJ) ., . 6

U.S. Mint (Treasury) ., . . . . . . . . . . . . . . . . . . 6

Bureau of Alcohol, Tobacco and

Firearms (Treasury) . . . . . . . . . . . . . . . 6

‘The central Irllelllgence Agency National Securlt y Agency, and Defense Intel

I!gence Agency were excluded due to the unclassified focus of this study

SOURCE Off Ice of Technology Assessment

National Security Agency, and Defense Intelligence Agency were excluded from the data

request. )

Use of specific technologies varied widely,

with use of closed circuit television, night vision systems, radio scanners, and miniature

transmitters indicated by many agencies that

conduct electronic surveillance, and use of telephone taps, vehicle location systems (e.g.,

beepers), sensors, and pen registers indicated

by a smaller but still significant number of

agencies. The other technologies are used by

relatively few or very few agencies. Actual results of the OTA Data Request are summarized in table 4. Out of the 35 agencies indicating some electronic surveillance activity, the

FBI and DOD Inspector General’s Office indicated the largest planned expansion in use

of electronic surveillance technologies (see

table 5).

The technical literature suggests that most

forms of electronic communication can be intercepted, although it may be difficult and

costly. The cost of equipment needed to intercept microwave telephone circuits has been

estimated at about $40,000, but it can be done

relatively easily and without the awareness of
15

Table4 .—Electronic Surveillance Technology:

Current and Planned Agency Use

—

Number of agency

components reporting

Current Planned

Technology use

Closed circuit television . . . . . 25

Night vision systems ... . . . . 21

Miniature transmitters . . . . 19

Radio receivers (scanners) . . 19

Vehicle location systems (e. g.,

electronic beepers) . . . 13

Sensors (e. g., electromagnetic,

electronic, acoustic) . . . . 12

Telephone taps and recorders . 13

Pen registers ., . . . . . . . . . . . . . 11

Telephone usage monitoring . . . 7

Computer usage monitoring . . . 4

Electronic mail monitoring

or interception . . . . . . . . . 1

Cellular radio interception . . . . . 3

Pattern recognition systems . . . 2

Satellite interception . . . . . . . 1

Expert systems/artificial

intelligence . . . . . . 0

Voice recognition ., . . . . . 0

Satellite-based visual

surveillance systems . 1

Microwave interception . . . 1

Fiber optic interception . ... 0

SOURCE-Office of Technology Assessment

use

4

1

2

1

2

3

1

3

3

2

5

2

2

3

3

3

1

1

1

—.. -

Total

29 -

22

21

20

15

15

14

14

10

6

6

5

4

4

3

3

2

2

1

Table 5.—Agency Components Indicating the Largest

Projected Use of Electronic Surveillance Technologies

. —

Number of current

plus planned

Agency technologies

Federal Bureau of Investigation (DOJ) . . . . 17

Office of the Inspector General (DOD), . 13

Drug Enforcement Administration (DOJ) 11

U.S. Customs (Treasury) . ... . . . . . . . . 10

U.S. Air Force (DOD) . . . . . . . . . . . . . . . . . . 9

National Park Service (DOI) ... . . . 9

Internal Revenue Service (Treasury) . . . 9

Office of the Inspector General (USDA) 9

Agricultural Stabilization and

Conservation Service (USDA) . . . . . . . . 9

SOURCE Off Ice of Technology Assessment

the network owner. Some believe that even fiber optic circuits can be tapped (but with difficulty), although this technology is so new

that reliable information is scarce. The major

electronic countermeasures include radiation

shielding of electronic equipment (to prevent

eavesdropping of signals given off by such

equipment), spread-spectrum transmission,

and encryption. Many technical experts believe that encryption is the only sure way to

“protect any form of electronic communications end-to-end. ”8 9

Policy

The history of electronic surveillance policy

significantly involves all three branches of

Government: the judiciary, Congress, and the

executive branch. Key activities and policy actions are highlighted below.

Judicial

The courts have had a significant role in interpreting the Constitution and various statutes as they apply to electronic surveillance.

Constitutional questions regarding the legitimacy of the use of electronic surveillance devices under specific circumstances most often

turn on an interpretation of fourth amendment

protections. The fourth amendment provides

that:

The right of 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 persons or things

to be seized.

The critical triggering phrase of the fourth

amendment is “searches and seizures. ” If

there is no search or seizure, then official behavior is not covered by the fourth amend--

ment, and it need not be reasonable, based on

probable cause, or carried out pursuant to a

warrant. Although there may be statutory

protections that require certain conduct, an individual does not have fourth amendment protections unless there is a search and seizure.

The secondary triggering phrase of the fourth

amendment is “unreasonable.” Even if official

conduct is regarded as a search or seizure,

there is no invasion of fourth amendment pro8Horgan, op. cit., pp. 30, 31, 33, 34, 38.

‘For further discussion of technical vulnerabilities and related

security measures, see the forthcoming OTA study on ‘‘New

Communications Technology: Implications for Privacy and

Security” expected to be published in winter 1986/87.
16 —

tections if the conduct is reasonable. Determination of reasonableness depends on the judicial balancing of the individual interest,

generally regarded as a privacy interest,

against the governmental interest, including

law and order, national security, internal security, and the proper administration of the laws.

Reasonableness generally entails a predicate

of probable cause and, with many exceptions,

the issuance of a warrant.

The meaning and scope of the fourth amendment have involved judicial construction of

these key phrases. Definition of “searches”

has come to be a crazy patchwork quilt, depending partly on whether the search involves

a person’s body or home, partly on how public the activity is, partly on the degree of invasion or intrusiveness involved in conducting the search, partly on the facts of the case

under consideration, and partly on who is on

the Court.1

°

Searches using some form of electronic monitoring at first posed difficult problems for the

Court because the searches did not comport

with traditional definitions of a search-they

did not involve physical trespassing and were

often conducted in a public place. Until 1967,

electronic monitoring of conversations was not

regarded as a search under the fourth amendment.

11 In the landmark case of Katz v. United

States (1967), the Court ruled that wiretapping

was a search under the fourth amendment. As

is often the result of landmark cases, subsequent legal analysis and judicial construction

have raised more questions than the case first

resolved. This is especially true with respect

to the two phrases most important for subsequent legal decisions–a “reasonable expectation of privacy” 12 and “the fourth amendment

protects people, not places. ”13

1’)For summary of Supreme Court rulings see: Anthony G.

Amsterdam, “Perspectives on the Fourth Amendment, ” 58

Minnesota Law Review 349 (1974); and Peter Goldtwrger, “Consent, Expectation of Privacy, and the Meaning of ‘Searches’

in the Fourth Amendment, ” 75 The Journal of Criminal Law

and Criminologyr 319 ( 1984).

“See app. 2A for summary of relevant Supreme Court

opinions.

“Katz }. United States, 389 U.S. 347, 360 (1967).

‘

] Id. at 351.

Following Katz, judicial determination of

whether a “search or seizure’ ’-has occurred depends on whether or not the individual has a

“reasonable expectation of privacy” in the

area or activity under surveillance. In determining whether or not an individual has such

an expectation, the Supreme Court has adopted

as its test the two-part formulation from Justice Harlan’s concurring opinion:

. first that a person have exhibited an actual (subjective) expectation of privacy and,

second, that the expectation be one that society is prepared to recognize as “reasonable. “ 14

The subjective part of the test focuses attention on the means the individual employs to

protect his or her privacy, e.g., closing the door

of a phone booth or closing curtains. Additionally, the assumption of risk that the individual appears to take is considered in determining the individual’s actual expectation of

privacy. Under assumption of risk, an individual is presumed to assume the risk that another

party to a conversation or activity may consent to a search. This assumption of risk prevails even if the consenting party is an informer or undercover agent. ”

The objective part of the test looks to what

society regards as a reasonable expectation of

privacy. Yet, it requires this without specifying an objective referent. Is “society” today’s

opinion polls, longstanding norms and traditions, a reasonable person, or the knowledge

that people have in common? The result of the

objective part of the test is that the Court has

implicitly constructed a continuum of circumstances under which society would regard an

individual as having a reasonable expectation

141d. at 361.

15 See the “false friends cases’ ’– United States J. W’hite, 401

U.S. 745 (1971), Hoffa v. United States, 385 U.S. 293 (1966),

and Lopez v. United States, 373 U.S. 427 (1967). In White the

Court ruled that agents can be wired for sound and still be covered by the assumption of risk, reasoning that the risk did not

increase materially simply because the informers were transmitting the conversation electronically. See also: Eric F. Saunders, “Electronic Eavesdropping and the Right to Privacy, ”

52 Boston Um”versity Law Review 831 (1973). Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Knotts, 103 S.

Ct. 1081 (1983) suggest that an individual forfeits his expectation of privacy by risking the possibility that his activities will

be revealed to the police.
17

of privacy. The continuum ranges from public places (“open fields, ” “in plain view, ” “public highway”), in which there is no objective

expectation of privacy except in unusual circumstances, to the inside of one’s home with

the windows and curtains shut and the door

bolted, in which there is an objective expectation of privacy. The objective expectation

of privacy along the continuum (shopping

centers, motels, offices, automobiles, and

yards) depends on judicial interpretation. Recently, the Court has modified the objective

element, referring to it as a ‘‘legitimate’ expectation of privacy. ”

The second important component of Katz is

the holding that ‘‘the fourth amendment protects people, not places. ” The question of what

protection the fourth amendment offers people remains unanswered, and defining the

scope of such protection still necessitates reference to places. Moreover, the distinction between “people” and “places” has raised the

question of whether the fourth amendment

still protects property interests, or whether it

now protects only more personal interests. The

issue of the protection afforded people as distinct from that afforded places has become

more significant with the growth of thirdparty recordkeepers, e.g., banks. The thrust

of the Court opinion in Katz seemed to represent an expansion, not a replacement, of the

existing fourth amendment protections:

The amendment protects individual privacy

against certain kinds of governmental intrusion, but its protections go further, and often

have nothing to do with privacy at all. 1 7

“ l~ir~t usc~;l l)} .Ju\tice IJrlvell in (Tou[.h \ [ ‘nited States, 10!]

( 1.s, :12Y ( 19’/;\I in rejecting a fourth am~~n{iment {Jhject,ion to

an I R S summons and later used h~r f ‘owrel 1 in ( ‘nit ed S’ta tt’.+

t’. .Ililfer, 425 [J .S. 435 { 1976). I n Iiaka,s I’. f)lin~)is, 4:19 [J. S.

128 ( 19’78), ,Justice fiehnquist referred to expectations of priva(’}”

‘‘w’ hi(.h the law rwogn izes as ‘legitimate, ‘‘ This modification

gl~’es th[~ ohjecti~’t~ part of the test a positi~e law’, rather than

wwietal expectation, m[janing. This has practical as we]] as the{>

retical importance in that the courts would not ask whether s(Jciet~. would regard an expwtation of pri~’ac}. in a particular cas(~

as r~>asonablet I)u t would inst(’ad examine th{, 1 aw~ to deter-mint’

t>xp(’ctat ion. Although this woul(i requi r+) less suhject i~e anal-

}F<is h~’ t ho courts, it sevms to assume that the laws are (>orrect and need not Ix’ etralu at[~ti again st fun (lament a] law’, i, (,,,

the fourth amendm[’nt. SW ( ;oldhergei-, op. cit,, and (;erald (;.

Ash down. ‘‘The Fourth Amendment and the ‘ I.egitimate 1; xpwtation of Pri\acy, ’ “ 34 J’anderhi]t law Rekiew 1 2/+9 ( 19811.

“Katz ~. [[nited States, 3H9 [J. S. 347, :150 ( 1967).

It has been argued that, based on Katz, analysis of privacy interests should replace the

more traditional property analysis when the

Government uses nonphysical methods of

search and where relevant privacy interests do

not have physical characteristics. The property aspect is viewed as still important because it gives specificity and concreteness to

fourth amendment analysis. 18 Yet, in some recent rulings the Court has treated privacy as

the only interest protected by the fourth

amendment.19 This implies a further narrowing of fourth amendment protection, both because property interests are not considered

and because of the problems of defining privacy. As one legal commentator, concerned

with the influx of new surveillance dev’ices,

noted:

Confusion over the fourth amendment status of the beeper is unavoidable so long as

privacy remains the central theoretical focus

of fourth amendment analysis. l’rivacy, like

most concepts of fundamental value, is a relative, indeterminate concept that is not easily.

converted into a workable legal stand and.:’

]

In evaluating the appropriateness of the use

of electronic surveillance technologies by Government officials, the courts have worked

within the framework established by Katz. By

analogy to traditional surveillance devices, the

courts have attempted to determine whether

or not individuals have a ‘‘reasonable expectation of privacy. ” This becomes more difficult as surveillance devices become more technologically sophisticated because the analogy

is often more remote and hence less convincing. The courts have generally continued to

consider the place in which a surveillance device is located or the place that a device is

monitoring. The courts generally have adopted

the more expansive interpretation of Katz and

have not abandoned higher levels of protection

for certain places, e.g., homes and yards.

Yet, the Katz framework has not offered the

courts sufficient policy guidance to deal with

the range and uses of new surveillance tech-

“Note, “’l-racking h’at~: Heepers, I’ri\acy’ and the F’ourtll

.lmendment, X6 l’,alt [.a H Journal, pp 14fi 1, 147!I-H() ( 1977).

“.Ashdo\tn, op. cit., p. 1321.

“)Note, }“alt) Z,aw ,Journa], op. (it.. p. 1477,
18

nologies. “Reasonable expectation of privacy”

is an inherently nebulous phrase and, despite

20 years of judicial application, predicting its

meaning in a new context is difficult. Determining whether a place is sufficiently private

to offer protection against official surveillance

is more and more difficult as the public sphere

of activities encroaches on what was once

deemed private.

Thus, the courts have, on several occasions,

asked Congress to legislate in the area of electronic surveillance technology.” Most recently,

Judge Richard Posner, in a case involving the

use of video surveillance, said:

We would think it a very good thing if Congress responded to the issues discussed in this

opinion by amending Title III [of the 1968

Omnibus Crime Control and Safe Streets Act]

to bring television surveillance within its

scope. zz

Congressional 23

Congress did not play an active or effective

role in surveillance policy until 1968. Prior to

that time, the only legislation affecting official use of surveillance technology was unintended. In 1934, Congress remodified the Radio Act of 1927 as the Communications Act.

Section 605 of the 1934 Act provided that “No

person not being authorized by the sender

shall intercept any communication and divulge

. . . the contents. ” There was no specific legislative history for this section and it appears

that the 1934 bill was not intended to change

existing law.24 This was the interpretation until 1938 when the Supreme Court, in Nardone

v. United States, 302 U.S. 379, ruled that Section 605 prohibited all telephone wiretapping,

even when done by Federal Government officers. In response, bills passed both houses of

Congress allowing wiretapping under certain

—.. —--—

‘[See, for example, United States v. U.S. District Court

(Keith), 407 U.S. 297 (1972) in which the court suggested that

Congress should devise a scheme for foreign intelligence.

22 Um”ted States v. 7’orres, No. 84-1077, p. 19 (7th Cir., Dec.

19, 1984).

~~M ateria] in this section is derived in large part from Herman Schwartz, “Surveillance: Historical Policy Review, ” OTA

contractor paper, March 1985.

“See: S. Rep. No. 781, 73 Cong., 2d sess. 11 (1934).

circumstances and with certain procedural requirements. But the session ended before the

conference committee could resolve a difference between the two bills-the House bill explicitly criminalized unauthorized official surveillance. 25

Despite Congress’s failure to overrule Nardone by legislation, wiretapping continued because the Justice Department construed Section 605 as not prohibiting wiretapping itself,

but only the interception and subsequent

divulgence outside the Federal establishment.

Additionally, the President issued an Executive order to allow wiretapping for national

security purposes.

In the immediate post-war period, numerous bills authorizing electronic surveillance

were introduced, but none was enacted into

law. Starting in 1960, electronic surveillance

became a major public issue and congressional

activity became more focused and purposeful.

The target was organized crime, a major priority of the Kennedy Administration.

The first major congressional action regarding surveillance was Title III of the Omnibus

Crime Control and Safe Streets Act of 1968.

Because it has served as a model for controlling Government surveillance, analysis of the

statute is necessary.

The basic legislative history document, S.

Rep. No. 1097, 90th Cong., 3d sess. (1968), describes the purpose of the statute as follows:

ITlhe U.S. Supreme Court, on June 12,1967,

handed down the decision in Berger v. New

York, 388 U.S. 41, which declared unconstitutional the New York State statute authorizing electronic eavesdropping (bugging) by law

enforcement officers in investigating certain

types of crimes. The Court held that the New

York statute, on its face, failed to meet certain constitutional standards. In the course

of the opinion, the Court delineated the constitutional criteria that electronic surveillance

legislation should contain. Title III was

drafted to meet these standards and to conform with Katz v. United States, 389 U.S. 347

(1967).

 —

‘5See: S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1983).
19

Title 111 has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis

the circumstances and conditions under which

the interception of wire and oral communications may be authorized. ”

The problem the statute was designed to

solve was seen as a combination of “tremendous scientific and technological developments

that have taken place in the last century [that]

have made possible today the widespread use

and abuse of electronic surveillance techniques, and “a body of law [that] from the

point of view of privacy or justice [i.e., law enforcement] is . . . totally unsatisfactory. ‘27 The

preamble to Title III reflects these aims: 1) to

obtain evidence of “certain major types of

offenses, and to cope with ‘‘organized criminal s and 2) to safeguard the privacy of innocent persons and to provide ‘‘assurances

that the interception is justified and that the

information obtained thereby will not be

misused.

In order to achieve these purposes, the statute provides that electronic surveillance of

conversations is prohibited, upon pain of a

substantial jail sentence and fine, except for:

1 ) law enforcement surveillance under a court

order; 2) certain telephone company monitoring to ensure adequate services or to protect

company property; 3) surveillance of a conversation where one participant consents to the

surveillance; and 4) surveillance covered by the

Foreign Intelligence Surveillance Act of 1978

(as Title 111 was later amended). I.aw enforcement surveillance must meet certain procedural requirements, which include:

.

“}Id. at 66. ‘rhree definitions in Title 11 I are important in determining the scope of the act:

I v.rlrt~ communication mean~ an} communication m:ide in w hole

or In part through the use of facihties for the transmission of

communlcat Ion\ b~ the ~iid of wlrc, cable, or other like cormec -

Lion bctwr(,cn the point of origin and the point of reception furnished or op(’ratd by an~ person engaged as a common carrier in pro~ldin~ or operating such facilities for the transmission

of interstate or foreign rommu nications,

‘L or:d (.(){nrr]uni<’atic)r] mt, an> any oral comrnunlcatlon uttereci by

a person exhibiting an expwtat ion that such communication

i~ not subject to Interception under circumstances justlf}”ing

such expect ation, and

:~ Intercept nwam the aural acquisition of th(’ contents of any w’irc

or oral communlcat Ion through the US(I of any’ elt’ctronic, mCLchanlcal, or other de\Ice (Section 251() of Titlr 111 I

-Id. at 67, 69.

1.

2.

3.

4.

5.

A

an application for a court order approved

by a high-ranking prosecutor (not by a

policeman);

surveillance only for one of the crimes

specified in Title III (the list was expanded

in the early 1970s and again in October

1984 in the Comprehensive Crime Control

Act);

probable cause to believe that a crime has

occurred, the target of the surveillance is

involved, and the evidence of that crime

will be obtained by the surveillance;

a statement indicating that other investigative procedures are ineffective; and

an effort to minimize the interception.

judge must pass on the application and

may issue the order, and any extensions, if it

meets the statutory requirements. Shortly after the surveillance ends, notice of the surveillance must be given to some or all of the people affected, as the judge decides, unless the

judge agrees to postpone the notice. Illegally

obtained evidence may not be used in any official proceedings, and a suit for damages may

be brought for illegal surveillance, though a

very strong good faith defense is allowed. In

addition, the manufacture, distribution, possession, and advertising of devices for electronic surveillance for nonpublic use are prohibited.

There was little discussion of electronic surveillance by State officials during the legislative debates. Nevertheless, $2516(2) of Title

III gives State officials wiretapping authority, if a State passes legislation modeled on

the Federal act, for the investigation of:

. . . murder, kidnapping, gambling, robbery,

bribery, extortion, or dealing in narcotic

drugs, marijuana or other dangerous drugs,

or other crime dangerous to life, limb or property and punishable by imprisonment for

more than one year . . . or any conspiracy to

commit any of the foregoing offenses.

As of December 31, 1984, some 29 States and

the District of Columbia have authorized their

law enforcement officials to wiretap, though

the State statutes differ in various ways.

On its face, Title III covers the interception

of only conversations that are capable of be-
20 —

ing heard by the human ear; data transmission, the video part of videotaping, pen registers, and other forms of communication are

not covered. 28 The statute also permits interception for official purposes where one of the

parties to the conversation has consented to

the interception; private interceptions where

one party consents are also exempt from the

statutory ban unless the interception is for a

criminal, “injurious,” or tortious purpose. Evidence obtained in violation of the statute is

excluded from all judicial or administrative

proceedings, but only someone whose privacy

was invaded can challenge the evidence.

The other major statute regulating the use

of surveillance devices by Government officials is the Foreign Intelligence Surveillance

Act of 1978 (FISA). This act establishes legal

standards and procedures for the use of electronic surveillance in collecting foreign intelligence and counter-intelligence within the

United States. This was the first legislative

authorization for foreign intelligence wiretapping and other forms of electronic surveillance.’ g The scope of this act is broader than

Title III. FISA defines electronic surveillance

broadly to include four categories: 1) wiretaps,

including not only voice communications but

also teleprinter, telegraph, facsimile, and digital communications; 2) radio intercepts; 3)

monitoring devices, which may include microphone eavesdropping, surreptitious closed circuit television (CCTV) monitoring, transmitters that track movements of vehicles, and

other techniques; and 4) watch listing. However, the application of FISA protection in the

latter three categories is limited to those circumstances in which a person has a reasonable expectation of privacy and a warrant

would be required for law enforcement purposes. 30 The act created the Foreign Intelligence Surveillance Court, composed of seven

Federal District Judges, to review and approve surveillance capable of monitoring U.S.

persons (defined as U.S. citizens, lawfully ad-

“See S. Rep. No. 1097 at 90 (pen registers, etc., not included).

%ee S. Rep. No, 98-660, “The Foreign Intelligence Surveillance Act of 1978: The First Five Years, ” p. 1.

‘“Id. at 4.

mitted permanent resident aliens, and domestic organizations or corporations that are not

openly acknowledged to be directed and controlled by foreign governments) in the United

States. The procedural requirements of FISA

apply only to electronic surveillance for foreign intelligence purposes, but the criminal

penalties appear to apply more broadly to include law enforcement surveillance.31

There are a number of other statutes that

place controls on the procedures and techniques of Government surveillance depending

on the type of information that is being sought,

e.g., the Privacy Act of 1974, the Right to Financial Privacy Act of 1978, the Electronic

Funds Transfer Act of 1980, the Privacy Protection Act of 1980, and the Cable Communications Policy Act of 1984. (See appendix 2B

for a summary of these statutes.)

Executive

Because of ambiguities in existing laws,

executive officials have issued orders and

guidelines to clarify the application of specific

statutes or protections under particular circumstances or with respect to certain technological devices. Clarification of the scope and

intent of FISA can be found in a number of

Executive orders.32

In the absence of statutory or judicial guidance in the use of electronic surveillance for

law enforcement and intelligence purposes, the

Department of Justice (DOJ) generally issues

policy guidelines that are regarded as requirements on agents of DOJ bureaus (FBI, Immigration and Naturalization Service, and

Drug Enforcement Administration), and are

usually considered as advisory by other agencies engaged in surveillance activities (e.g.,

Customs, Bureau of Alcohol, Tobacco and

Firearms, IRS). For example, DOJ has issued

policy guidelines for the use of electronic

“See Mar. 9, 1984 letter from John Keeney of the U.S. Department of Justice to U.S. Senator Patrick Leahy.

3zSee, e.g., Executive Order No. 12036, “United States intelligence Activities, ” Jan. 24, 1978 and updated as Executive

Order No. 12333 on Dec. 4, 1981; also Executive Order No.

12139, “Exercise of Certain Authority Regarding Electronic

Surveillance, ” May 23, 1979.
21

visual surveillance and the use of pen regis- surveillance, and that, therefore, information

ters. Such guidelines are issued to ensure that that is gathered through such surveillance will

there are adequate procedural and substantive not be excluded as evidence in court,

protections for individuals who are subject to

FINDINGS AND POLICY IMPLICATIONS

1. The existing statutory framework and judicial

interpretations thereof do not adequately

cover new electronic surveillance technologies.

Indeed, some courts have asked Congress for

guidance on the new technologies,

See preceding discussion of policy history

and background.

2. Despite a lack of coordination in electronic

surveillance policymaking among the three

branches of Government and the ad hoc nature of that policy, there are seven general

components that are found in existing policies,

be they legislative, executive, or judicial. Although the specifics of these components will

vary given the different types of electronic

surveillance being used, the general model is

the same.

The first component of surveillance policies

is a way of checking on the discretion of the Government agent in the field over whether to institute such surveillance. This can range from

a field supervisor’s approval to departmentlevel approval to a U.S. Attorney’s approval

to a judicial warrant. The critical distinction

in terms of level of approval necessary is whether

the executive branch agency is responsible for

authorizing the electronic surveillance or

whether judicial approval is also necessary. In

terms of checking agent discretion, judicial approval obviously represents a higher standard.

The second component is a listing of the

crimes or circumstances for which a particular

type of electronic surveillance is considered

appropriate. Title 111 is a good example of this,

as is the Foreign Intelligence Surveillance Act.

In some situations, the list maybe quite broad

but the principle remains. Crimes are categorized as misdemeanors and felonies with classes

within each group. Electronic surveillance is

generally only used for investigations of major felonies. Circumstances are often defined

in terms of the governmental interest in pursuing the investigation. There is an implicit

ranking of the importance of governmental interests for which surveillance devices are

employed—national security, domestic security, law enforcement, and the proper administration of Government programs.

The third component of surveillance policies

is some standard to indicate the degree of confidence about alleged criminal behavior that is

necessary before the use of a particular surveillance technique is appropriate. This involves a

showing of the evidence that has been accumulated to date, and a showing that the target of surveillance will provide additional evidence. The standard may range from probable

cause, to reasonable suspicion, to reason to believe, to no need for any showing of evidence.

The fourth component is some justification

for the need to use a particular surveillance technique or device. Generally, this requires a showing that more traditional forms of surveillance

have failed, and some explanation as to how

the surveillance technique under discussion

will secure the necessary information.

The fifth component of surveillance policies

is a requirement for an account of how the scope

of the surveillance will be minimized to the particular party or parties under investigation

and to those activities that seem criminally

related.

The sixth component is the requirement that

the individual be given some notice after the fact

that he or she has been subject to surveillance,

except in circumstances where notice would

jeopardize an investigation or national security interests. There is no provision for notice

in FISA, unless the party is being prosecuted.
22

The seventh component is a statement of the

sanctions that apply if evidence is not collected

in conformity with the requirements of the statute. An example of this is the exclusionary

rule. Additionally, some statutes contain penalties for investigative agents who violate the

statute, thus providing the individual with a

civil remedy.

3. In applying the major components of electronic surveillance policy, the legislature,

executive agency, or court, implicitly or explicitly, uses a framework for analysis. This

framework involves balancing the societal interest in maintaining civil liberties protections

for the individual against the societal interest in successful Government investigations.

Based on an evaluation of previous policy formulation, it appears that policy makers, more

or less consciously, have looked at certain

dimensions in determining this balance.

Table 6 outlines the dimensions of the civil

liberty interest v. the Government investigative interest found in existing electronic surveillance policy.

The dimensions of a civil liberty interest provide, to some extent, indicators for a ‘‘reasonable expectation of privacy” (Katz test) and

the level of intrusiveness of the surveillance

technology. In general, the more intrusive the

technology, the more it violates “expectations

of privacy’ and the greater the threat to civil

liberties. This has been an accepted principle

since surveillance technologies were first used.

Prior to Katz, the fourth amendment was interpreted to mean that “unreasonable” searches

required physical intrusion into a constitutionally protected area. Following Katz, the physical trespass requirement was dropped. The

Court has implicitly, if not often explicitly,

continued to consider the intrusiveness of a

search in determining its reasonableness, but

intrusion is more broadly construed to go beyond mere physical trespass.

The difficulty in using intrusiveness as a

principle by which to evaluate an “expectation

of privacy” and the appropriateness of using

a particular surveillance device is that no criteria have yet been explicitly formulated to determine intrusiveness. Instead, the facts of inTable 6.—Dimensions for Balancing Civil Liberty

Interest v. Government Investigative Interest

Civil liberty interest:

1.

2.

3.

4.

5.

Nature of information: The more personal or intimate the

information that is to be gathered about a target, the more

intrusive the surveillance technique and the greater the

threat to civil liberties.

Nature of p/ace communication.’ The more “private” the

area or type of communication to be placed under surveilIance, the more intrusive the surveiIlance and the greater

the threat to civil liberties

Scope of surveillance: The more people and activities that

are subject to surveillance, the more intrusive the surveillance and the greater the threat to civil liberties.

Surreptitiousness of surveillance.’ The less likely it is for

the individual to be aware of the surveillance and the harder

it is for the individual to detect it, the greater the threat

to civil liberties.

Pre-electronlc analogy: Pre-electronic analogies are often

considered in determining Intrusivenes s

, but with widely

varying interpretations.

Government investigative intersert:

1 Purpose of investigation: Importance ranked as follows:

national security, domestic security, law enforcement, and

the proper administration of Government programs,

2. Degree of individualized suspicion. The lower the level of

suspicion, the harder it is to justify the use of surveillance

devices.

3, Relative effectiveness: More traditional Investigative techniques should be used and proven ineffective before using

technologically sophisticated techniques.

SOURCE Off Ice of Technology Assessment

dividual cases seem to be determinative. Yet,

based on court rulings, congressional statutes,

and executive orders, it is possible to isolate

five dimensions that are important in determining the level of intrusiveness and the civil

liberties interest that warrants protection.

The first dimension is the nature of the information (content) that can be acquired. The

more personal or intimate the information that

is gathered, the more intrusive the surveillance

technique and the greater the threat to civil

liberties. Although ambiguous or incomplete

information poses a threat to civil liberties, a

surveillance technique that gathers more

detailed information is generally regarded as

more intrusive than one that gathers less

detailed information. As a way of evaluating

the specificity of information, the categorization of types of behavior that may be subject

to surveillance (and illustrative surveillance

technologies) may be useful (see table 2). Under this scheme, a surveillance technique that

gathers information on movements would be
23

regarded as less intrusive than one that gathers

information on actions and communication.

The second dimension is the “public” or “private” nature of the area (place) or communication to be placed under surveillance. The fourth

amendment explicitly protects persons, houses,

papers, and effects. The difficulty is that these

can be more private or less private depending

on where they are kept or who else is given

access to them, Homes, phone conversations,

and first class mail have traditionally been

regarded as “private.” In general, the more

“private” the area or communication, the more

intrusive the surveillance and the greater the

threat to civil liberties.

The third dimension is the scope of the surveillance or the extent to which the surveillance covers persons not specifically under surveillance.33 The importance of this principle is

reflected in the minimization requirements of

Title III and FISA. The broader the net cast,

the more intrusive the surveillance and the

greater the threat to civil liberties.

The fourth dimension is the surreptitiousness

of the surveillance or the individual’s ability

to detect whether he or she is the target of surveillance. This ability to detect involves both

the likelihood that the individual will be aware

of the surveillance and also his or her ability

to locate the source. This dimension is reflected in the concept of assumption of risk,

which has been used as a justification for oneparty consent to surveillance. It is also reflected in the lower standards for physical

surveillance because it is assumed that an individual can easily monitor whether or not

someone is following him or her. The harder

it is for the individual’ to detect the surveillance, the greater the threat to civil liberties.

The final factor that policymakers often consider in evaluating the civil liberty threat of

an electronic surveillance device is the pre-

‘

3 See Donald I,, Doerenberg, “ ‘The Right of the people’:

Reconciling Collective and Individual Interests Under the

Fourth Amendment, ” 58 ,Vew York Um’versity Law Re~tiew 259

(1983), who distinguishes the following possible targets of a

search—all citizens, categories or classes of individuals, or a

selected indi~tidual.

electronic analogy of the surveillance technique. This focuses attention on a historical

measure of privacy that provides a standard

for preserving a certain level of privacy. Analogies are made to policy choices for a preelectronic era. For example, what kinds of

communications have traditionally been protected, i.e., first class mail and phone calls, and

what modern communications are their counterparts? Two policy difficulties are presented

by this factor. The first is that different people see different analogies. The second is that

the intrusiveness of a pre-electronic device and

its electronic counterpart is not always correspondent.

In evaluating the legitimacy of the Government’s use of surveillance devices, three dimensions are considered. The first is the purpose of the investigation (the governmental

interest). There is an implicit ranking of the

importance of governmental interests for

which investigations are carried out—national

security, domestic security, law enforcement,

and the proper administration of Government

programs. The nature of the governmental interest determines the level of judicial or administrative control, both initially and at specified review stages. With respect to the use of

electronic surveillance, the importance of the

governmental interest is always considered,

but is not determinative of the level of surveillance. The law enforcement interest is

broadest, but most well developed in statute,

e.g., Title III categories of crimes for which

eavesdropping may be used. The national

security and domestic security purposes have

constitutionally allowed Government officials

the greatest discretion in determining whether

surveillance should be used. The rules for

administrative searches are fairly well developed in statutes, but standards for the use of

electronic surveillance often are not included.

The second dimension is the degree of individualized suspicion. In general, the earlier

in the investigation the harder it is to justify

the use of surveillance devices. This is so because it may be difficult to document that

criminality is involved and that the target of
24

the surveillance is involved or can provide evidence. Traditionally, the standard for the Government’s need to know varies depending on

what it already knows. In theory, the more the

Government knows, the less likely that it is

engaging in a fishing expedition. If the Government has probable cause to believe that

someone is implicated in a crime or terrorist

activity, then it has a need to know more than

if it had only a reasonable suspicion or reason

to believe that someone was involved.

The third dimension is the relative effectiveness of electronic surveillance compared to

other means that are available to secure the

same information. In existing policies, the assumption is that there should be a demonstration that more traditional investigative techniques have been used and proven ineffective

before using technologically sophisticated electronic techniques. An analysis of the effectiveness of the surveillance technology or device

is important in determining the legitimacy of

its use. If more accurate and complete evidence can be gathered through the use of an

electronic surveillance device than through

pre-electronic means, then serious consideration will be given to its use.

The following chapters describe a number

of new electronic surveillance devices and techniques that have been made possible by technological advances and analyze their policy implications using the framework developed in

this chapter.

APPENDIX 2A: KEY SUPREME COURT DECISIONS ON

ELECTRONIC SURVEILLANCE

Olmstead v. United States, 277 U.S. 438 (1928)

—a 5-4 decision ruling that neither the fourth nor

fifth amendments to the Constitution applied to

wiretapping. The fourth amendment did not apply

because: there was no trespass; its protection is

limited to material effects, not to intangibles like

speech; and there was no protection for voice communication projected outside the house. The fifth

amendment did not apply because there was no

evidence of compulsion to talk over the phone and

because the fourth was not first violated. Brandeis

argued in his dissent that the fourth amendment

protected a right to privacy, and stated:

Moreover, ‘‘in the application of a Constitution,

our contemplation cannot be only of what has

been, but of what may be. ” The progress of science

in furnishing the Government with means of espionage is not likely to stop with wiretapping.

Ways may some day be developed by which the

Government, without removing papers from secret

drawers, can reproduce them in court, and by

which it will be enabled to expose to a jury the

most intimate occurrences of the home. Advances

in the psychic and related science may bring means

of exploring unexpressed beliefs, thoughts and

emotions. . . Can it be that the Constitution affords no protection against such invasions of individual security?

Public reaction to the decision was negative; bills

were introduced in Congress, but none passed.

Nardone v. United States, 302 U.S. 379 (1937)–

Court ruled that Section 605 prohibited telephone

wiretapping by anyone, including Federal Government officers. Decision was criticized as “judicial

legislation. ” Bills were introduced in Congress to

aIlow wiretapping under certain circumstances,

but none passed. Evidence indicates that wiretapping continued at the time despite decision.

Berger v. New York, 388 U.S. 41 (1967)–Court

declared the New York wiretapping statute unconstitutional because it was not particular enough

in describing the crime, or “the place to be

searched, ” or the ‘‘persons or things to be seized”

as specifically required by the fourth amendment.

Katz v. United States, 389 U.S. 347 (1967)–

Court overruled Olmstead, thus bringing wiretapping under the fourth amendment. The Court developed a general formula to determine whether

an investigative technique conflicts with the

fourth amendment–does the individual evidence

an expectation of privacy and is the expectation

of privacy “one that society is prepared to recognize as ‘reasonable?’ “ The Court’s criteria for

valid surveillance involved a warrant, particularization and probable cause requirements for suspect, crime, phone, and time.

United States v. U.S. District Court for the

Eastern District of Michigan, 407 U.S. 297 (1972)–

Court prohibited unauthorized electronic surveil-
25

— —

lance to gather intelligence for domestic security

purposes, holding that:

. . . prior judicial approval is required for the type

of domestic security surveillance involved in this

case and that such approval may be made in accordance with such reasonable standards as the

Congress may prescribe.

United States v. Miller, 425 U.S. 435 (1976)–

Court ruled that a bank customer’s financial record is the property of the bank, and thus he or she

has no legitimate “expectation of privacy” in these

records.

United States v. New York Telephone Co., 434

U.S. 159 (1977)–Court held that to be covered by

Title III, a communication must be capable of being overheard.

Smith v. Maryland, 442 U.S. 735 (1979)–Court

held that the use of a pen register did not violate

the fourth amendment.

United States v. Knotts, 103 S. Ct. 1081 (1983)

–Court held that the warrantless monitoring of

a beeper is not a search and seizure under the fourth

amendment because there is no reasonable expectation of privacy as the movements tracked are

public.

United States v. Karo, 104 S. Ct. 3296 (1984)–

Court held that using a beeper to trail a container

into a house and “to keep in touch with it inside

the house” did violate the fourth amendment.

APPENDIX 2B: KEY STATUTES RELEVANT TO

ELECTRONIC SURVEILLANCE

Section 605 of the Communications Act of 1934

provided that “No person not being authorized by

the sender shall intercept any communication and

divulge . . . the contents . . .”

Title III of the 1968 Omnibus Crime Control and

Safe Streets Act is designed to protect the privacy

of wire and oral communications and also to allow

evidence to be obtained for “certain types of major offenses. ” Law enforcement electronic surveillance of conversations is thus prohibited except

under a court order, which a judge may issue after

being convinced that the following procedural requirements have been met:

1.

2.

3.

4.

5.

application by a high-ranking prosecutor;

surveillance for one of the crimes specified in

Title III;

probable cause to believe that a crime has occurred, that the target of the surveillance is

involved, and that the evidence of that cr

will be obtained by the surveillance;

a statement indicating that other invest

tive procedures are ineffective; and

an effort to minimize the interception.

me

gaCrime Control Act of 1973 requires-that State

criminal justice information systems, developed

with Federal funds, be protected by measures to

ensure the privacy and security of information.

Privacy Act of 1974 requires agencies to comply with fair information practices in their handling of personal information, including the following: records must be necessary, lawful, current,

and accurate; records must be used only for purpose collected except with an individual’s consent

or where exempted; no record of an individual’s

exercise of first amendment rights is to be kept

unless authorized by statute; information cannot

be sold or rented for mailing list use. The following

are exempted: CIA records; records maintained by

law enforcement agencies; Secret Service records;

Federal testing materials; etc.

Foreign Intelligence Surveillance Act of 1978 establishes legal standards and procedures for the

use of electronic surveillance to collect foreign

intelligence and counter-intelligence within the

United States. This was the first legislative authorization for wiretapping and other forms of

electronic surveillance (including radio intercepts,

microphone eavesdropping, closed circuit television, beepers, and other monitoring techniques).

It created the Foreign Intelligence Surveillance

Court, composed of seven Federal District Judges,

to review and approve surveillance capable of monitoring U.S. persons (defined as U.S. citizens, lawfully admitted permanent resident aliens, and domestic organizations or corporations that are not

openly acknowledged to be directed and controlled

by foreign governments) in the United States. The

procedural requirements of FISA apply only to

electronic surveillance for foreign intelligence

purposes, but the criminal penalties appear to

apply more broadly to include law enforcement

surveillance.

Right to Financial Privacy Act of 1978 provides

bank customers with some privacy regarding their

53-548 0 - 85 - 3 : QL 3
26

records held by banks and other financial institutions, and provides procedures whereby Federal

agencies can gain access to such records.

Electronic Funds Transfer Act of 1980 provides

that any institution providing EFT or other bank

services must notify its customers about thirdparty access to customer accounts.

Privacy Protection Act of 1980 prohibits Government agents from conducting unannounced

searches of press offices and files if no one in the

press room is suspected of a crime.

Cable Communications Policy Act of 1984

requires the cable service to inform the subscriber

of: the nature of personally identifiable information collected and the nature of the use of such information; the disclosures that may be made of

such information; the period during which such information will be maintained; and the times during which an individual may access such information. Also places restrictions on the cable services’

collection and disclosures of such information. The

act creates a subscriber right to privacy against

Government surveillance.
Chapter 3

Telephone Surveillance
Chapter 3

Telephone Surveillance

SUMMARY

The public generally expects that telephone

conversations are private, and that electronic

surveillance of telephone calls (sometimes

known as wiretapping or eavesdropping) is illegal, except in very narrowly circumscribed law

enforcement and national security investigations. But technological innovations now make

it easier to electronically monitor both the content of phone calls and phone transactions

(e.g., number called, time, and place called).

Furthermore, the new telephone technology

was not envisioned when current legal protections were enacted, and thus the statutory protection against telephone surveillance is weak,

ambiguous, or nonexistent.

After reviewing and assessing relevant technological developments and the statutory

framework, OTA found that:

A host of new information technologies

has revolutionized the telephone system

since 1968—the last time Congress passed

major legislation (Title III of the Omnibus Crime Control and Safe Streets Act)

that covered telephone surveillance by

law enforcement agencies and private

parties.

Significant new technologies include digital transmission (whereby many phone

calls are converted from analog to digital

form for transmission) and cellular and

cordless phones, as well as the increased

use of telephones for electronic transmission of data.

Deregulation of the telephone industry,

the proliferation of common carriers, and

the growth of private (as opposed to common carrier) telephone companies also

raise questions as to the applicability of

existing legal protections for telephone

privacy.

The contents of phone conversations that

are transmitted in digital form or made

●

●

●

on cellular or cordless phones are not

clearly protected by existing statutory

and constitutional prohibitions on the interception of phone calls.

Interception of the content of phone calls

represents a substantial threat to civil liberties, but also a significant benefit to investigative authorities. This balancing is

reflected in the standards and procedures

presently embodied in Title III for such

interception.

New information technologies–e.g., advanced pen registers and automatic billing equipment—have also greatly increased

the ability to collect and access transactional information about telephone calls

(e.g., the numbers and places called).

Transactional information is also not

clearly protected under existing statutes

and judicial precedents.

OTA identified three major options for congressional consideration with respect to policy on interception of the content of telephone

calls:

treat all calls similarly with respect to the

extent of protection against unauthorized

interception, i.e., extend Title III of the

Omnibus Crime Control and Safe Streets

Act to cover all phone calls-whether analog, digital, cellular, or cordless-and both

voice and data communications;

formulate special policies for specific telephone technologies; and

do nothing and leave policymaking up to

the development of case law depending on

individual circumstances.

OTA also concluded that the deregulatory

and market trends toward private telephone

systems and hybrid common carrier-private

systems indicate the need for congressional review of applicable provisions of the Commu29
30

nications Act of 1934 and Federal Communications Commission regulations, as well as

Title III of the Omnibus Crime Control Act,

with respect to telephone privacy protection.

Finally, OTA concluded that at present

there is no feasible and cost-effective technological method to provide universal protection

against telephone surveillance. A separate

OTA study is examining future technical

trends and safeguards against misuse as well

as issues and options relevant to monitoring

of transactional-as contrasted with content—

information. *

nology: Implications for Privacy and Security, ” expected to be

published in winter 1986/87.

INTRODUCTION

Most phone users have assumed a high degree of confidentiality for their phone calls.

This has been especially true as private lines

and improved connections replaced party lines

and broken connections. In some respects, the

technology has brought more assurances for

the protection of the privacy of phone calls

than did the law. However, this is now changing. Four technological innovations in phone

service—digital transmission, new types of

phones, new phone networks, and the ability

to easily collect detailed information on phone

usage—make it easier both to overhear the

content of phone calls and also to monitor

phone transactions. The law has not yet addressed these innovations, thus leaving gaps

between the privacy that people expect and

the privacy that they are assured.

With the conventional telephone, phone calls

were transmitted in analog form across wire

lines. Today, an increasing percentage of

phone calls are converted from analog to digital form and then transmitted. Transmission

may be over wire, but is often via microwave

radio and satellite systems and, increasingly,

via fiber optic transmission facilities. Statutes

prohibiting wiretapping, primarily Title III of

the Omnibus Crime Control and Safe Streets

Act, were written to regulate the interception

of oral communications transmitted in whole

or in part by wire.

Additionally, new phones are making use,

in whole or in part, of radio communications.

Cellular or mobile phones use radio to transmit messages between a phone and a switching center, while cordless phones use radio to

carry messages between the phone base station and the cordless phone handset. Section

605 of the 1934 Communications Act prohibits

interception of radio communications. However, it does not protect phone calls because

the courts have ruled that Congress intended

Title III to be the exclusive remedy with respect to telephone interceptions.

Another growing gap in the protection afforded phone calls is between common carrier

calls and private network calls. Legislation has

addressed the former, while the latter have not

been given any legal protection. Thus, the

privacy of the content of digitized phone calls,

cellular and cordless phone calls, and private

carrier calls may not be afforded protection

against interception by either Government

officials or private parties.

Moreover, technological changes make it far

easier today to monitor phone transactions.

Pen registers are devices by which Government officials or private parties can monitor

the numbers dialed on a given line. Presently,

a court order is not necessary to install a pen

register under Title III or the fourth amendment, but is required under the Foreign Intelligence Surveillance Act. Increasingly,

computerized telecommunications switching

equipment can collect and store information

on the numbers dialed and length of phone

calls. This information may be kept for billing and administrative purposes, but it also

has monitoring capabilities. As automatic call

accounting becomes widespread, pen registers

will become unnecessary. A detailed historical record of long-distance and sometimes lo-
31

cal phone calls is now kept for perhaps 3 Before analyzing in detail the policy issues

months by phone companies and can be ac- presented by these gaps in the protection for

cessed by Government officials with a sub- the content of phone calls and the record of

poena. However, if a phone system is wholly phone transactions, a brief review of the hisor in part private, then this calling informa- tory and background of technology and poltion is legally available to Government offi- icy regarding wiretapping will be presented.

cials without a subpoena.

BACKGROUND’

Telegraph and telephone tapping by both

private citizens and public officials began soon

after the telegraph and telephone were invented. Some States tried to deal with telephone tapping either through their trespass

statutes or by expanding early laws barring

telegraph interceptions. However, the legality

of Government surveillance under these statutes was usually unclear because there was no

rule excluding illegally obtained evidence. By

1927, despite questions about the scope of coverage, some 28 States had made wiretapping

a crime. z

Federal concern about wiretapping first surfaced in 1918 when the Federal Government

began regulating the telephone system, but

the concern was primarily for “the protection

of the government and the property of the telephone and telegraph companies while under

governmental control. ”3 The Government

barred tapping of, or interference with, telephone and telegraph messages, if the tap was

done “without authority. ” This legislation

expired in 1919. Civil liberties concerns first

became important in the early 1920s, when

wiretapping was used by the Department of

Justice in its raids against aliens.’ At this

time, there were also reports that the phones

‘Material in this section is based in part on Herman Schwartz,

“Surveillance: Historical Policy Review, ” contractor paper prepared for OTA, March 1985.

‘See arnicus brief for the telephone companies in Ohnstead

~’. United States, 277 U.S. 438 {1928).

~11, R. Rep. No. 800, 65th Cong,, 2d sess. ( 1918), reprinted

in Wiretapping, L’avesdropping and the Bill of Rights, Hearings Before the Subcommittee on Constitutional Rights of the

Senate Judiciar~’ Committee, Part 4, Appendix to Part 3, 86th

Cong., 1st sess. 792 ( 1959) (“ 1914-1959 Leg. Hist. ”).

‘Alan N’estin, 7’he H’ire-tapping Problem, 52 Columbia I.aw

Re\riew 164, 172 n. %5 (1952).

and offices of members of Congress had been

eavesdropped on.

In 1924, Attorney General Harlan Fiske

Stone banned wiretapping by the Department

of Justice, including the Bureau of Investigation (the FBI’s predecessor). This effort at

administrative control was only partially successful. The order bound only the Department

of Justice and not the Treasury, which had

jurisdiction over Prohibition enforcement, the

law enforcement area that came to rely most

on electronic surveillance. Prohibition agents

continued to wiretap, even though the Treasury Department purported to be officially opposed to wiretapping.5

The Treasury’s wiretapping ultimately

brought the matter to the courts in Olmstead

v. United States, 277 U.S. 438 (1928). The

Court, in a 5-4 opinion by Chief Justice Taft,

ruled that neither the fourth nor fifth amendments to the Constitution provided protection

against wiretapping. G The public reaction to

the Olmstead decision was largely and strongly

negative.’ Immediately after Olmstead was

decided, bills were proposed in Congress to

ban wiretapping.’

5Walter F. Murphy, Wiretapping on Trial: A Case Studey in

the Judicial Process (New York: Random House, 1965), p. 13.

‘The Court gave three reasons why the fourth amendment

was not implicated: 1 ) officials had not trespassed onto Olmstead property; 2) the amendment did not apply to intangibles like speech, but only to material “effects”; and 3) there

was no protection for voice communications projected outside

the house, Justice Holmes wrote a short dissent, condemning

the agents’ conduct as “dirty business. ” Justice Brandeis wrote

the main dissent in which he disagreed with the majority’s reading of the precedents, its very narrow view of the fourth amendment, and its willingness to countenance criminal activity by

the Government. 1914-59 Leg. Hist. 770-73.

‘Murphy, op. cit., p. 125.

‘1914-59 Leg. Hist. 881-83.
32

In 1934, Congress remodified the Radio Act

of 1927, which was itself a recodification of legislation going back to 1912. Section 605 of the

1934 Act provided that:

No person not being authorized by the

sender shall intercept any communication and

divulge . . . the contents . . .

There was no specific legislative history for

this section and it appears that the 1934 bill

was not intended to change existing law.9

Apparently no one thought Congress had

taken an important step in dealing with electronic surveillance.

It thus came as a surprise to many when the

Supreme Court in 1938 ruled that Section 605

prohibited all telephone wiretapping, even

when done by Federal Government officers.10

In 1957, the Court ruled that this applied to

State officers as well.11 The Nardone decision

was generally criticized both in 1938 and later

as “judicial legislation. “12

Congressional response to Nardone was

swift, but did not result in legislation. This

time, bills were introduced to allow wiretapping, provided that the head of a department

believed a felony had been or was about to be

committed by two or more people. Congressional concern about organized crime was one

of the two primary reasons for authorizing

electronic surveillance, the other being national security. Bills allowing wiretapping

passed both houses, but the session ended before the conference committee could resolve

a difference between the two bills-the House

bill explicitly criminalized unauthorized official surveillance.13 The ease with which both

Houses passed bills allowing Federal surveillance might lead one to think legislation was

‘See S. Rep. No. 781, 73d Cong., 2d sess. 11 (1934), reprinted

in 1914-59 Leg. History 895; Report of the National Commission for the Review of Federal and State Laws Relating to

Wiretapping and Electronic Surveillance 35 (1976).

IOIVardone v. United States, 302 U.S. 379 (1937).

“l?enanti v. United States, 355 U.S. 96 (1957).

‘

zReport of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic

Surveillance, Electrom”c Surveillance (Washington, DC: NWC,

1976), p. 35.

‘

3

S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1938), reprinted

in 1914-59 Leg. Hist. 961; Murphy, op. cit., p. 135.

imminent. But this did not happen, even

though, despite the Nardone decision, the Federal Government and State officials continued

to wiretap.14

During and after World War II, the FBI engaged in large amounts of electronic surveillance. Between 1940 and 1960, the FBI installed

over 7,000 national security surveillances,

with 519 taps and 186 bugs in 1945 alone; and

the Treasury Department installed over 10,000

taps during 1934 to 1948. Other Federal agencies, like the military, also engaged in tapping

and bugging. On the local level, the New York

City police installed thousands of taps each

year (e.g., 3,588 in 1953-54), mostly in morals

and bookmaking investigations; studies by

Samuel Dash and others have documented

widespread tapping elsewhere.15

The tapping and bugging targeted many

people who might not normally appear to be

appropriate targets, a situation that continued

at least into the 1960s. In 1941, for example,

the Los Angeles Chamber of Commerce was

tapped, on the authority of Attorney General

Francis Biddle. Presidential aides and others

were similarly tapped. The most complete information on these practices, as developed by

the Church Committee, relates to FBI surveillances in the post-1960 period when Dr. Martin Luther King, Jr., Congressman Harold

Cooley, journalists, and many others were put

under electronic surveillance. 16

At this time, questions were also being

raised concerning the effectiveness of electronic surveillance and of judicial protections,

as well as the persistent use of electronic surveillance in State law enforcement for minor

crimes. 17 There was also much documentation

“See generally Samuel Dash, Richard F. Schwartz, and Robert E. Knowlton, The Eavesdroppers (New York: DeCapo, 1959).

“Ibid.; and Herman Schwartz, Taps, Bugs, and Fooling the

People (New York: Field Foundation, 1977).

“See U.S. Congress, Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities,

Supplementary Detailed Reports on InWli”gence Actiw”ties, vol.

III, 94th Cong., 2d sess. (Washington, DC: U.S. Government

Printing Office, 1976).

“see Wiretapping Hearings before Subcommittee No. 5. U.S.

House of Representatives Judiciary Committee, 84 Cong., 1st

sess. 53, 67 (1955), (“1955 Hearings”), 194, 347, 359.
33

of illegal private wiretapping, by private detectives and others for industrial espionage

and in domestic relations matters, and of the

ineffectiveness of either Federal or State law

to cope with this.

Competing pressures continued throughout

the 1960s. The President’s Commission on

Law Enforcement and the Administration of

Justice issued a report in 1967, and near the

top of its priorities was organized crime. While

it did not explicitly recommend the use of wiretapping, a majority of the Commission members did so. The American Bar Association proposed a statute that became the model for

legislation permitting wiretapping that was

ultimately enacted in 1968. Because of this

activity, the arguments for wiretapping were

repeatedly being made and given consideration. For example, Professor G. Robert Blakey,

the chief draftsman of the ABA report and

proposals and also of the 1968 Wiretap Act,

told a congressional committee in 1967:

The normal criminal situation deals with an

incident, a murder, a rape, or a robbery, probably committed by one person. The criminal

investigation normally moves from the known

crime toward the unknown criminal. This is

a sharp contrast to the type of procedures you

must use in the investigation of organized

crime. Here in many situations you have

known criminals but unknown crimes.

So it is necessary to subject the known

criminals to surveillance, that is, to monitor

their activities. It is necessary to identify their

criminal and noncriminal associates; and their

areas of operation, both legal and illegal. Strategic intelligence attempts to paint this broad,

overall picture of the criminal’s activities in

order that an investigator can ultimately

move in with a specific criminal investigation

and prosecution. 18

The pressures, however, were not all onesided. In the mid-1960s, illegal tapping and

bugging by the FBI, IRS, and others came to

light when FBI bugs were accidentally discovered in a Las Vegas gambler’s office and in

—

‘RHearings on Controlling Crime Through More h’ffecti}’e Law

Enforcement before the Subcommittee on Criminal I.aw and

Procedures of the Senate Judiciary Committee, 90th Cong., 2d

sess. 957-58 (196i’1,

Washington’s Sheraton-Carlton Hotel and lawyer-client conversations were overheard. This

led to a series of court-ordered revelations of

illegal Federal surveillance involving some 50

or more cases. As a result, in 1965 President

Lyndon B. Johnson ordered an end to all electronic surveillance except in national security

cases. 19

During this period, the Supreme Court overruled Olmstead in Katz v. United States, 389

U.S. 347 (1967). The Katz decision set out both

a general formula for the interests protected

by the fourth amendment and specific criteria

for a statute authorizing law enforcement wiretapping. 20 The Court’s specific criteria for a

valid surveillance involved the conventional

magistrate’s warrant, and the equally conventional probable cause requirements applied to

a specific telephone, for a specific need and

crime, to the specific suspect conversations

and the specific time during which he spoke.

The Court also stressed that prior notice to

the suspect of the interception was unnecessary, and indicated that notice after the interception was constitutionally acceptable. These

requirements were drawn from previous related cases and from conventional fourth

amendment principles.

All these factors, plus a growing concern

about crime, came together to break the 30-

year impasse since Nardone and produced Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §2500ff, which

authorizes telephone tapping and microphone

surveillance by Federal and State officials, if

antecedent judicial approval is obtained.21

Other than the Foreign Intelligence Surveillance Act in 1978, there has been no significant legislative action since that time, despite

a virtual revolution in technology.

‘9111 Church Comm. 298-300.

“tKatz expresly excluded national security surveillance from

its discussion. See 389 U.S. at n. 21,

2] See ch. 2 for a detailed analysis of the statute.
34 —

FINDINGS AND POLICY IMPLICATIONS

1. A host of new information technologies has

revolutionized the telephone system since

1968—the last time Congress passed major

legislation on telephone surveillance by law

enforcement agencies and private parties.

These technologies include digital transmission and cellular and cordless phones.

Each of the major technological developments affecting the telephone system is discussed briefly below.

Digital Transmission.—Initially, the phone

system carried only analog signals over telephone wires. Much of the telephone system in

the United States, and especially overseas, is

heavily dependent on analog systems, at least

for part of a phone call. Increasingly, however,

analog voice signals are digitized. The phone

system of the future will carry digitized information (voice, data, and image) across wires,

optical fibers, microwave radios, and satellite

links. The evolution of digital communications, as well as the digital switching devices

that enable the system to function smoothly,

is beginning to provide expanded services to

customers.

The computing and telecommunications industries worldwide are gradually evolving

toward a new system, the Integrated Services

Digital Network (ISDN), which will allow the

transmission of data, voice, image, and video

over the same digital system worldwide. The

future trend is toward a wholly digitized, efficient, and integrated phone system.22 Some

predict that, in the future, the microphones

and speakers in the telephone handset will be

the only analog components of the system.23

Legal or illegal interception and interpretation of digital signals is not significantly more

difficult than for analog signals; the interceptor just needs a coder-decoder and knowledge

of the modulation scheme. Digitization of

phone calls, thus, does not offer more protec12 William Stallings, “The Integrated Services Digital Network, ” Datamation, Dec. 1, 1984, pp. 68-70.

“John G. Posa, “Phone Net Going Digital, ” High Technology, May 1983, p. 41.

tion for the content of the call. Transmission

over fiber optic lines may offer more protection against illegall interception, to the extent

that the operating company can more easily

tell when the line has been broken into and

where along the line the break has occurred.24

Cellular Phones.–The cellular telephone is

a technological innovation in providing quality mobile phone service to a large number of

customers over an expansive geographic area.

The basic technology was first developed at

AT&T Bell Labs in the 1950s, and the necessary computer and switching technologies

were developed in the 1960s. The critical development was a system that reused frequency

spectrum by dividing a service area into

“cells.” Each cell contains a base station that

serves as a radio transmit-receive-switching

station. Cellular mobile phone calls are relayed

by radio to the base station, which is hooked

up to the mobile phone switching office computer. The switching office then routes calls

to other base stations or to the telephone network via similar routes. If the call is to another

cellular phone it is relayed to the appropriate

cell site transmitter. If the party called is

using a conventional wire-line phone, then the

switching office computer routes it through

the telephone system to the receiver.25

In 1982, the Federal Communications Commission (FCC) accepted applications for cellular license systems. It received 196 applications for the top 30 markets. The FCC decided

to license two types of competitors, a tele-

—. —

“For trend in fiber optic systems, see Les C. Gunderson and

Donald B. Keck, “optical Fibers: Where Light Outperforms

Electronics, ” Technology Review, May/June 1983, pp. 33-44;

Soichi Kobayashi and Tatsuya Kirnura, “Semiconductor Optical Amplifiers, ” IEEE Spectrum, May 1984, pp. 26-33; Jeff

Hecht, “Outlook Brightens for Semiconductor Lasers, ” High

Technology, January 1984, pp. 43-50; and Donald B. Keck,

“Single-mode Fibers Outperform Multimode Cables, ” IEEE

Spectrum, March 1983, pp. 30-37.

“For good descriptions of the technology involved see: Duane L. Huff, “Cellular Radio, ” Technology Review, November/

December 1983, pp. 53-62; George R. Cooper and Ray W. Nettleton, “Cellular Mobile Technology: The Great Multiplier, ”

IEEE Spectrum, June 1983, pp. 30-37; and Television Digest,

Inc., Cellular Radio–Birth of an Industry, 1983.
35

.

phone company and a radio communications

company, in each area. Subsequently, the FCC

received almost 400 applications to provide

service in the 30 next largest markets and 567

applications to provide service for the next 30

markets. 2e

Market analysts expect that the demand for

cellular service will be large-driven by people who want to communicate while on the

move. Cellular phones provide quality communications, and the current high cost will decrease. Some predict that the cost will drop

to $500 per phone within 5 years.27 Service

charges started out around $150 per month,

but are dropping fast.28 The technology on

which cellular phones are based is capable of

providing additional services, e.g., data terminals and printers in a briefcase; public cellular

phones on trains, buses, and planes; answering and message services; dictation services;

and automatic callback.29 In addition, encryption devices to protect privacy are now

available.

Development of the radiotelephone system

has been under way and may be available

soon, subject to FCC approval. This system

does not need an elaborate transmitter system

and would be cheaper than a cellular phone.

Radiotelephones can work either as a telephone or as a car-to-car radio. Although radiotelephones have a limited range, users can subscribe to a repeater service that picks up weak

signals and rebroadcasts them. Radiotelephones (as well as cellular radios) are subject

to eavesdropping. In addition, police scanners

that can listen in on personal radiotelephone

conversations are now on the market.30

Cordless Phones.—The cordless telephone is

designed to meet a perceived consumer interest in being able to talk on the phone while

walking around the house or in the yard. With

the cordless phone, oral messages are no

longer transmitted from the receiver to the

— . . —.—

“)Huff, op. cit., pp. 59-60.

‘-Tele\’ision Digest, Inc., op. cit., p. B-8.

“IIuff, op. cit., p. 60,

“’huff, op. cit., p. 61.

1“Benn Kobb and I~e Greathouse, “Car Radiotelephones Get

Personal, ” High Technolog.~r, No\ember 1984, pp. 18-21.

network via a line, but instead are transmitted

between receiver and base station via radio.

These transmissions can be picked up accidentally on a home or car radio, and also can be

intercepted easily by someone who wants to

eavesdrop.

Companies marketing cordless phones and

the FCC are well aware of the difficulty in ensuring the privacy of cordless phone calls. The

FCC now requires that such phones be labeled

with a warning that the conversation may be

accidentally overheard. One reason cited for

the lack of market interest in cordless phones

is that customers desire privacy for their

phone calls.

Private Carriers.–Until deregulation of the

telephone industry, the market was dominated

by common carriers that offered telecommunications services to any potential customer.

Because of regulatory restrictions, capital

investment requirements, and economies of

scale, it was very difficult for an individual or

company to set up a phone system. However,

deregulation coupled with technological advances now make it possible to set up private

telecommunications systems, which serve a

specific business or a predetermined group of

customers. Parties can also lease dedicated

lines from the telephone company or private

providers, form local area networks (LANS),

and purchase private branch exchanges (PBXs).

This variety of phone systems is not reflected

in current laws that speak primarily to common carrier systems.

2. The contents of phone conversations that are

transmitted in digital form or that are conducted on cellular phones or cordless phones

are not clearly protected by existing statutory

and constitutional prohibitions on the interception of phone calls.

The major statute prohibiting unauthorized

interception of phone calls, Title III of the Omnibus Crime Control and Safe Streets Act, was

written at a time when phone calls were transmitted in analog form, over wires maintained

by common carriers. The technological changes

discussed above have raised a series of questions about the scope of Title III and the possible need for new legislation. The present le-
36

gal status of these new technologies is outlined

below.

Digital/Data Communications. -Title III covers only the “aural acquisition” of an oral or

wire communication, not the acquisition of

communication in digitized form or data communications. Recent court rulings have not expanded the scope of Title III to cover digital

or data communications. In United States v.

New York Telephone Co., 434 U.S. 159 (1977),

the Supreme Court held that to be covered by

Title III, a communication must be capable

of being overheard. In 1978, the Fourth Circuit in United States v. Seidlitz, 589 F.2d 152,

ruled that nonaural communications were not

protected by Title III.

Although it is clear that Title III does not

cover data communication,31 there has been

some discussion whether Title III would cover

phone conversations that are being transmitted in digital form.32 Most interested parties, e.g., AT&T and the ACLU, now appear

satisfied that conversations that are transmitted in digital form are covered by Title III

because the interception is still aural and

therefore covered by the statute. The Justice

Department’s position is similar, i.e., the

analog-digital distinction is not important and

that Title III applies to all phone conversations carried over the wires. Title III focuses

not on the method by which communication

is transmitted, but on the type of acquisition

of that information. Since the Government’s

interception is aural, it does not matter for Title III purposes whether the transmission was

analog or digital or by some other means.

However, the courts have not ruled on the coverage of phone conversations carried in digital form and clarification by statute would

avoid future legal misinterpretations.

The Foreign Intelligence Surveillance Act

of 1978 (FISA) does require a court order for

interception of digital conversations. Phone

conversations being transmitted in digital

31 In ch. 4, Electrom”c Mail Surveillance, more detailed attention will be given to data communication.

“David Bumham, “Loophole in Law Raises Concern About

Privacy in Computer Age, ” IVew York Times, Dec. 19, 1984,

p. A-1.

form would be protected against unauthorized

surveillance if the interception was for intelligence purposes. FISA does not cover law enforcement surveillance.

Section 605 of the Communications Act of

1934 does not provide any protection against

unauthorized acquisition of digital wire communications because the courts have ruled

that Congress intended Title III to be the exclusive remedy with respect to telephone inperceptions. 33

Attempts to afford legal protection against

the interception of digital or data communications through statutes that prohibit theft

are likely to be futile because it is difficult to

calculate or prove the informational value

taken from the person whose communication

is intercepted.

If no statute covers the interception of digital phone conversations, there may still be

constitutional protection in the fourth amendment’s “expectation of privacy” against unreasonable searches and seizures.

Cellular Telephones. –The issue of whether

the interception of cellular phone calls comes

under any existing statute, and thus requires

some form of court order, has not yet come to

the courts. In United States v. Hall, 488 F.2d

193 (9th Cir. 1973), the Ninth Circuit Court

held that Title III protects any communication that is transmitted in part by wire. The

Court ruled that a telephone call from a mobile telephone to a landline telephone is protected by the statute, but that a phone call

from a mobile telephone to another mobile tele

phone is not. The Court characterized this as

“an absurd result, ” but one required by the

statute. Based on the reasoning of the courts

in other cases involving radio transmissions

(cordless telephones and beepers), Title III and

FISA would not apply because the communication was not a wire transmission, and Section 605 would not apply both because of Title

III preemption and because cellular telephones

use radio, not wire, transmissions. The posi-

‘3See: Watkins v. L. M. Barry& Co., 704 F.2d 577 (5th Cir.

1983) and United States v. Hall, 488 F.2d 193 (9th Cir, 1973).
37

tion of the Justice Department is to secure a

Title III warrant before interception because

one cannot tell whether the receiver is on a landline phone and hence using telephone wires.

Cordless Telephones.–The status of the protection afforded communication over cordless

phones from unauthorized interception is not

clear. Two State courts have ruled on the question. In 1984, the Supreme Court of Kansas,

in Kansas v. Howard, 679 P.2d 197, held that

the user of a cordless telephone had no fourth

amendment “expectation of privacy” and that

interception of such communication does not

violate Title III. The Court did not address the

question of the expectation of privacy of the

other party to the conversation. The Rhode Island Supreme Court has recently handed down

a similar ruling in Rhode Island v. Delaurier,

488 A.2d 688 (R.I. 1985). The Justice Department position is that investigatory authorities should get a Title III warrant before

intercepting conversations carried over a cordless telephone. It may be important to note

that in many instances the information resulted not from the Government actively listening to cordless phone calls, but from neighbors who picked it up on an FM radio dial and

turned the information over to Government

authorities.

Private Carriers.–Communications carried

over private carrier communications systems

are not “wire” communications under Title

III. In addition, the AT&T consent decree

may remove the regional holding companies

from the category of common carrier engaged

in interstate commerce as defined by Title III,

and thus remove these companies from Title

III coverage.” Given the market trend toward

private carrier systems and combination common-private systems, the implications of the

current legislative distinction need to be explored for Title III, Sections 605 and 705(a)

of the Communications Act, and FCC regulations.

“E?ru~e E. Fein, “Regulating the Interception and Disclosure

of 11’ire, Radio and Oral Communication: A Case Study of Federal Statutory Antiquation, 22 Har\,ard Journal on I.egislation 47, 69 (1985).

3. Interception of the content of phone calls represents a substantial threat to civil liberties,

but also a significant potential benefit to investigative authorities. This is reflected in the

standards and procedures presently embodied

in Title III for such interception.

The following discussion uses the framework

developed in chapter 2 (see table 6). In terms

of the nature of the information acquired, the

content of intercepted digitized phone communications is quite specific, detailed, complete,

and often of a personal nature. The nature of

the information that can be acquired does not

vary with the system of transmission, the

phone used, or the phone network.

The “private” v. “public” nature of the

phone call does not differ at all based on the

system of transmission or the phone network

employed. It does differ somewhat according

to the phone used, in that cellular and cordless phones using radio transmissions are inherently more vulnerable to interception, and

thus more public. However, because a communication may be more readily overheard does

not necessarily mean that investigative authorities should be able to intercept it with less

authorization than for other calls.

The scope of surveillance is the same regardless of the system of transmission, phone used,

or phone network employed. In any case, all

parties to a phone call are generally overheard.

It is virtually impossible for an individual

to detect whether or not the content of a phone

call is being intercepted when the interception

involves passive reception over the air signals.

Again, this is true regardless of the system of

transmission, phone used, or phone network

employed.

The pre-electronic analogy will most likely

be to analog transmission of phone calls made

on conventional phones via a common carrier.

Such calls are accorded a high level of protection against interception as reflected in Title

III.

The governmental investigative interest in

intercepting the content of phone calls is quite

high. Knowledge of the content of phone calls
38

would be useful for any type of investigation,

at any level of suspicion, and with or without

more traditional techniques. As there is a history of policy in this area, extension of protection could arguably be consistent with what

now exists.

4. OTA has identified three major options for

congressional consideration with respect to

policy on interception of the content of telephone calls: a) treat all phone calls similarly

from the perspective of the extent of protection against unauthorized interception, i.e., extend Title 111 to cover all phone calls whether

analog, digital, cellular, or cordless; b) formulate specific policies depending on the technological constraints and possibilities; and c) do

nothing and leave the development of case law

to determine policy, depending on individual

circumstances.

Each of these options is discussed below in

terms of the dimensions developed in chapter

2 (see table 6).

Option A.–The basic rationale for treating

all phone calls similarly is that a phone call

is a phone call. Therefore, regardless of the system of transmission (digital or analog, wire,

satellite, microwave, or fiber optics), the phone

used (conventional, cordless, or cellular), and

the phone system employed (common carrier

or private), phone conversations would be accorded the same protection.

There are two advantages to this approach.

The first is that both individuals and investigative authorities would know their rights

and responsibilities. A clear policy would disadvantage no one. The second is that the policy incorporates a standard that endures beyond technological changes. If a new type of

phone is invented, or a new system for transmission of phone calls, the legal status would

be clear to manufacturing companies, customers, investigative authorities, and the courts.

Future confusion would be avoided.

Another strong argument for treating all

phone calls similarly is that they have been

accorded a historical expectation of privacy.

Administrative and legislative actions prior

to passage of Title III, experience with Title

III, and public opinion over time are all supportive of protection for the privacy of phone

calls. The analogy here is quite direct.

With respect to the governmental investigative interest involved and the stage of investigation at which it would be appropriate to

allow interception, the standards developed in

Title III for law enforcement and in FISA for

intelligence purposes could be used for all

phone calls. The standards for interception of

phone calls for purposes of the proper administration of Government programs have not

been formulated and are in need of legislative

attention.

Option B.–The advantage of formulating

specific policy depending on the technology involved is that policy would directly address

the peculiarities of each technological situation. Policy would be precise. However, this

option has three disadvantages. First, there

will necessarily be a period in which there is

no policy and in which the temptation will be

to wait and see how the technology develops

and what marketing is successful. Second,

Congress will repeatedly be asked to deal with

similar issues on which it will have to build

individual hearing records and a separate consensus. Third, if Congress does not act quickly

enough, the courts will be called on to set

policy.

If this option were chosen, the standards

relevant to each technology appear to be as

follows:

Digital/Data Communications. -Based on the

nature of the technology, the policy principles

that exist in case law and legislation, and the

investigative practice to date, there appears

to be no reason to treat phone communications

transmitted in digital form differently from

those transmitted in analog form. The preponderance of evidence indicates that data communications are also in need of statutory protection against unauthorized interception. The

Senate Judiciary Committee’s Subcommittee

on Patents, Copyrights and Trademarks held

hearings on this issue on September 12, 1984.

Witnesses from the Justice Department,
AT&T, and the Cellular Communications Industry Association stated the need to develop

legislation protecting data communications.

The easiest and most direct policy alternative may be to amend Title III to include data

communication. In October 1984, Representative Robert Kastenmeier introduced the Electronic Surveillance Act of 1984, which extended Title III definition of “intercept to

include the nonaural acquisition of the contents of such communications. The Kastenmeier

bill was reintroduced in the U.S. House of Representatives in September 1985 as the Electronic Communications Privacy Act of 1985

(H.R. 3378). A similar bill (S. 1667) was introduced in the U.S. Senate by Senator Patrick

Leahy.

Additionally, it should be noted that computer crime legislation may also affect the

security of data and data communications

against unauthorized interception.

Cellular and Cordless Phones.– In designing

policy for cellular and cordless phones, three

separate issues need to be addressed. First,

should the content of cellular and cordless

phone calls be accorded a lower level of protection because the technology makes it easier to overhear such calls? If the answer is yes,

then a standard based on the governmental

investigative interest in intercepting such

communications and the stage of the investigation needs to be fashioned.

The second issue is whether the caller and

receiver should be accorded the same protection. The party using the cellular or cordless

phone may know that the conversation can

more easily be overheard. The other party

most probably assumes that the conversation

is via a conventional phone and that the usual

protections apply, although under the concepts of one-party consent and assumption of

risk, it is possible that the other party may

not have a fourth amendment expectation of

privacy. The Supreme Court’s ruling in United

States v. White, 401 U.S. 745 (197), that such

practices as governmental encouragement and

exploitation of misplaced personal confidence

39

does not implicate the fourth amendment’s

guarantees would also appear to support this.

In the Kansas cordless telephone case, the

Court held that the user of a cordless phone

has no expectation of privacy, but did not discuss the expectation of the other party. Under

traditional principles of equity, it is necessary

that the expectation of privacy for both parties be established and known in advance.

A third issue relates to the tracking potential of cellular phones. By monitoring the

switching of cellular phone calls from one frequency to another, the cellular carrier can determine the location of individuals placing and

receiving calls. Moreover, some companies record this information in a computer for billing

purposes. At this time, precise locations cannot be determined because the cell sizes are

large, but as cellular phones become more

popular, cell sizes will be reduced allowing

more precise tracking.35

The issue of tracking individuals by monitoring cellular phone calls could be dealt with

by requiring investigative authorities to get

a court order before getting such records from

the cellular company. The standards for governmental investigative interest and stage of

investigation at which this is considered appropriate would need to be addressed in legislation. Additionally, the legislation could require the cellular carrier to inform potential

customers of its policies with respect to customer privacy. The model for such legislation

could be the Cable Communications Policy

Act.

Private Carriers.-The trend toward private

carriers and combined common and private

carrier systems throughout the telecommunications field indicates that the legal distinction between common and private carriers

may no longer be valid. It appears that the distinction is based on a market configuration

that is now outdated. Congress could enact

legislation that applies equally to common, private, and hybrid communication systems.

“Robert 1.. Corn, “The Privacy Issue. ” Tekx-ator, September 1984.
40

Option C.—To do nothing and leave case law

development to determine policy, depending

on individual cases, has two serious disadvantages. The first is that, given the universal use

of the phone system as a means of communication, lack of clear policy could lead to continued uncertainty and confusion as to the privacy accorded phone calls. The second is that

major telecommunications changes are now

occurring, and a belated response from Congress could detract from industry stability and

growth.

5. New information technologies have also

greatly increased the ability to collect and

access transactional information about telephone calls, for example, the numbers and

places dialed.

Because of the technological sophistication

of the phone system, information on the numbers dialed and length of phone calls exists in

real time and is stored for billing and administrative purposes. Access to this information

makes it possible to determine patterns and

interconnections in phone transactions.

Pen Registers.-Pen registers are devices

that are attached to a telephone line to record

the dialed pulses based on equipment that

senses changes in magnetic energy. With a rotary phone call, a very sensitive radio receiver

some distance from the wire can also pick up

the pulses. Deciphering the numbers dialed by

touch-tone phones is somewhat more difficult

because the magnetic energy is weaker. Induction coils attached directly to the wire can pick

up the signals, but radio receivers cannot.

Pen registers can pick up the number dialed

and the length of the phone call. With a reverse phone book, one can then determine the

party that was called. In order to install a pen

register, one needs the cooperation of the

phone company. Each pen register costs about

$4,000 to install and monitor, depending on

the length of time it is installed.

Automatic Billing Equipment.–With computer-controlled electronic switching systems,

it is not necessary to use a pen register to determine calls dialed. Instead, the switch controller can automatically collect information

on all calls, toll and flat rate. This can be done

for both online data (real time) and for billing

purposes. The information is retained on tape

and can be accessed when needed.

6. Transactional information about phone calls

(e.g., numbers and places dialed) is not clearly

protected under existing statutes and judicial

precedents on surveillance. Yet access to such

information represents a significant threat to

civil liberties and a significant potential benefit to investigators.

Title III was directed at the interception of

the substance of phone calls and did not address the question of interception of numbers

dialed. Transactional information is becoming

more valuable as more of it is available and

can be cross-referenced.

Pen Registers. –Given the present Supreme

Court interpretation of Title III, Government

officials do not need a Title III warrant to install pen registers. In 1977, the Court ruled

in a 5-4 decision in United States v. New York

Telephone Co., 434 U.S. 159, that the FBI did

not need a Title 111 warrant to use pen registers because the pen register intercepted nonaural communications and because the legislative history of Title III indicated that Congress intended to exclude pen registers.

Given the present Supreme Court interpretation of the scope of the fourth amendment,

an individual cannot claim an expectation of

privacy that numbers dialed will remain free

from Government interception. The Court

reached this ruling in Smith v. Maryland, 442

U.S. 735 (1979), in which it argued that Smith

assumed the risk that the phone company

might reveal all the numbers he dialed.

According to the Justice Department, the

Foreign Intelligence Surveillance Act requires

that law enforcement officers obtain a court

order before using a pen register.3G The Justice Department currently requires its investigative departments to obtain a court order

before installing a pen register. However, the

“John Keeney of the U.S. Department of Justice, Statement

Before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Judiciary Committee, Sept. 12, 1984.
41

court order does not require evidence of a link

to illegal activities and does not require judicial review of the reasons for the pen register.

Its purpose is to secure the cooperation of the

telephone company. The court order generally

authorizes the pen register for 30 days. Other

Federal agencies appear to follow the Justice

Department’s guidance on this matter.

Automatic Billing Information.—The information that the telephone company retains for

billing purposes and the information that is

sent to customers on their bills is currently

available to investigative authorities if the

company chooses to cooperate in relinquishing the information. The telephone company’s

position has been that it will not release information without a court order or subpoena.

Based on the Court’s ruling in United States

v.. Miller, 425 U.S. 435 ( 1976), it is difficult to

see how an individual could successfully argue

that he or she had a privacy interest or property right in this information.

Investigative authorities can generally get

billing information from the phone company

with a court order or a grand jury subpoena,

which does not require probable cause. Recently, the Federal Government announced a

plan to monitor long-distance telephone transactions from Federal offices with computer

software that can be programmed to select

specific information, e.g., phone calls to Diala-Joke, Sports Highlights, and Reno, and

phone calls over a certain duration or at certain times of the day. The President’s Council on Integrity and Efficiency is carrying out

this program to reduce the Federal phone bill

by discouraging and detecting abuse. ” Some

have criticized this program because of the

possibility that phone calls to congressional

offices and news reporters may be monitored

as well.

Civil Liberties v. Governmental Interests. In

terms of the dimensions introduced in chapter 2 to determine the threat to civil liberties

from a particular surveillance technique, the

nature of phone transactional information is

less personal than the content of phone calls

and may, therefore, deserve a lower level of

protection. The nature of the information will

vary depending on whether it is real-time information, in which case the present location

of both parties is also divulged, or historical

information. The former would appear to warrant more protection as it is more specific.

With respect to the public or private nature

of the communication, transactional information is never considered public information,

but rather is proprietary information. Clearly,

the phone company needs to keep this information for billing purposes, but this does not

put the information in the public realm. The

protection accorded transactional information

may be less than information that is kept in

the home, but it is arguably deserving of a

high level of protection.

The scope of surveillance that results from

monitoring phone transactions is quite broad

in that all phone conversations made are

picked up by a pen register or recorded by the

phone company. It would be difficult to minimize the scope of the monitoring, unless investigative authorities knew ahead of time the

numbers they were interested in or the most

likely times that relevant calls would be made,

It is very difficult at present for individuals

to detect that their phone transactions are being monitored by investigative authorities. In

fact, in order to learn of such monitoring, they

would be dependent on the phone company or

the Government. It would be fairly easy to

give individuals notice of the circumstances

under which phone transactional information

would be sought and the uses that might be

made of it.

In terms of pre-electronic analogies, such

transactional information was generally not

kept, not kept in detail, and/or not kept in a

form that could be easily retrieved. It was,

therefore, considered by individuals to be free

from monitoring, The closest historical analogy to the monitoring of transactional information for surveillance purposes may be the

use of mail covers.
42

Information on phone transactions is potentially of great interest to investigative authorities. The Justice Department and other

investigative agencies use such information

primarily in the initial investigation of a case

to determine whether activities of an implicating nature are occurring. Real-time information on phone transactions is also valuable in

determining the location of parties, and is,

therefore, valuable at any stage of an investigation. There are no traditional techniques for

obtaining this information. A related OTA

study on “New Communications Technology:

Implications for Privacy and Security” is exploring telephone monitoring issues and policy options in greater depth.
Chapter 4

Electronic Mail Surveillance
Chapter 4

Electronic Mail Surveillance

SUMMARY

The public expects and is provided with a

high standard of protection against unauthorized opening of first-class letter mail when in

paper form and delivered by the U.S. Postal

Service. Constitutional provisions, case law,

and postal statutes and regulations collectively provide such protection. However, when

mail is sent in electronic form, the existing protections are weak, ambiguous, or nonexistent.

Electronic mail is a relatively recent marriage of computer and communications technology that makes it possible to send, transmit, and receive mail in electronic form. If

desired, the electronic output can be printed

out in hardcopy and delivered by the USPS

or private carrier. But electronic mail also

permits terminal-to-terminal communication

where the message is never in paper form. Various private companies now offer electronic

mail services.

OTA found that there are several discrete

stages at which an electronic mail message

could be intercepted and its contents divulged

to an unintended receiver:

1.

2.

3.

4.

5.

at the terminal or in the electronic files

of the sender,

while being communicated,

in the electronic mailbox of the receiver,

when printed into hardcopy before mailing, and

when retained in the files of the electronic

At each of

technological

these stages, OTA found that

protections vary. Some, like encryption, are still perceived as relatively costly

and difficult, though becoming less so. Existing law offers little protection. Portions of the

Communications Act of 1934, Title III of the

Omnibus Crime Control and Safe Streets Act

of 1968, Postal Reorganization Act of 1970,

and Foreign Intelligence Surveillance Act of

1978 may apply to some portions of the electronic mail process. But overall, electronic mail

remains legally as well as technically vulnerable to unauthorized surveillance.

The interception of electronic mail at any

stage involves a high level of intrusiveness and

a significant threat to civil liberties. The investigative value of intercepting electronic

mail will vary. But, traditionally, paper mail

has been afforded a high level of protection

from interception.

OTA identified three policy options available to Congress:

1.

2.

3.

legislate a high level of protection across

all stages of the electronic mail process

so that electronic mail is afforded the

same degree of protection as is presently

provided for conventional first class mail;

legislate different levels of protection at

different electronic mail stages; and

do nothing at present, pending further

technical and case law developments.

mail company for administrative purposes.

INTRODUCTION

Written communications that are sent be- More and more often, however, substantive

tween two parties via first class mail receive communications between two or more parties

a high standard of protection against unau- are not written and sealed in an envelope, but

thorized opening. This has been well estab- are being typed into a computer system and

lished by both case law, 13x Parte Jackson sent by means of telecommunications. The

(1877 ),’ and postal statutes and regulations. merging of computers and telecommunica-

) Upheld the requirement of search warrants as a condition on that class of mail for which customers pa~’ a certain rate

for opening sealed mail. Applied fourth amendment protections to send in a sealed en~’elope or package.

45
46

tions opens up many possibilities for faster,

cheaper, and more accurate communications.

However, it also raises many questions about

privacy and the security of such communications against unintentional or intentional tampering.

When electronic mail is being transmitted

in data form across wires, it does not come under the purview of either Title III of the Omnibus Crime Control and Safe Streets Act of

1968, which prohibits only aural interception,

or Section 605 of the Communications Act of

1934, which prohibits interception of radio

transmissions. Interception of digital messages for purposes of learning the contents or

altering them is prohibited by the criminal provisions of the Foreign Intelligence Surveillance Act (FISA); however, the scope of such

prohibitions is unclear. When electronic mail

is in the computer memory of the sender or

receiver, there are presently no specific Federal laws prohibiting acquisition of that information, although theft laws may apply as

might the Computer Fraud and Abuse Act of

1984 with respect to Federal computers. Moreover, it can be argued that an individual would

have a fourth amendment expectation of privacy against Government access to the message. If the message was printed into hardcopy and mailed, then the postal statutes

should protect the confidentiality of the message. If the electronic mail company retains

a copy of the message for administrative or

backup purposes, the individual may have no

legal recourse to protect the information from

additional access.

BACKGROUND

During the last few years, electronic mail be

gan to develop a significant commercial market. It is expected that market popularity will

increase as competition brings prices down

and more services and improvements in existing services, especially in the connections between personal computers and electronic mail

systems, are offered.2 The main attraction of

electronic mail is that it reduces, if not eliminates, time that is spent in exchanging information over the phone or via the U.S. Postal

Service or a courier service. The current adage is that electronic mail eliminates telephone

tag. With time, however, the major part of the

electronic mail market may be substantive

messages, e.g., documents and working papers

that would normally be sent through the traditional mail system. Informal messages that

would normally be conveyed via phone calls

may, in the long run, account for a smaller part

of the market.3

2See EMMS Newsletter, May 1, 1985, p. 1.

‘David Roman and Stan Writen, “Electronic Mail: Faster

Than a Speeding Bulletin, ” Computer Dea”sions, July 1984, vol.

16, No. 9, pp. 146-160.

There are currently a number of providers

in the electronic mail marketplace. The U.S.

Postal Service (USPS) was an early entrant

into the electronic mail market offering two

services: E-COM (Electronic Computer-Originated Mail), which was aimed at the domestic business market; and INTELPOST (International Electronic Post), which provides

high-speed facsimile service by satellite between the United States and Europe. E-COM

has been terminated, and INTELPOST, while

still operating, is little used.4

Commercial ventures in the electronic mail

market have proven more successful and more

varied. MCI is now one of the largest electronic mail companies offering both direct

computer-to-computer messaging and mixed

systems that combine electronic input and

transmission with hardcopy output and delivery. One reason MCI can offer inexpensive ef-

‘See James Bovard, “Zapped by Electronic Mail, ” Across the

Board, June 1985, p. 42; House Committee on Government

Operations, “Postal Service Electronic Mail: The Price Still

Isn’t Right, ” House Rep. No. 98-552, 1983; and House Committee on Government Operations, “ I NTELPOST: A Postal

Service Failure in International Electronic Mail, ” House Rep.

No. 98-675, 1984.
47

ficient services is that it owns a low-cost, longdistance telephone network.5 In the spring of

1984, Federal Express entered the electronic

mail market with its Zapmail service which

provides 2-hour delivery of facsimile copies for

up to five pages of text. ITT has targeted its

DIALCOM services, including computer-tocomputer electronic mail, telex, telegram and

courier delivery, into large corporations and

the Federal Government. The White House, for

example, uses DIALCOM for electronic mail

communications with some 22 Federal agencies. GTE Telemail has also been successful

in the corporate marketplace. The Source and

CompuServe provide an array of computer information services, including electronic mail

and various electronic bulletin boards.

As generally used, electronic mail refers to

messages that are sent between computer terminals via telephone lines.G This does not

merely include terminal-to-terminal systems,

but also can be interpreted to encompass telegraph, telex, teletext, facsimile, voice mail,

and mixed systems that electronically transmit messages, some of which may be subsequently delivered by the postal system or a

courier service. A brief description of each of

these is presented below:

. Telegraph: A system that transmits oneway electronic messages along circuits

within a network of central and branch

telegraph offices, where the electronic

messages are translated by the receiving

operator into typed messages that are

hand delivered or telephoned to the recipient.

● Telex: Commonly used for international

communications, this telegraph exchange

system consists of: a teletypewriter terminal to translate and interpret messages

into code; special telegraph circuits designed to carry the code; and a teleprinter

to print the communication. Each subscriber is individually issued his or her

own telex line and number that a caller

dials to send messages that are keyed into

5

See Bovard, op. cit., p. 46; and Lawrence J. Magid, “Electronically Yours, ” PC World, June 1984, pp. 48-54.

‘Bovard, op. cit., p. 42.

the teletypewriter terminal. The message

is then transmitted to the receiver’s automatic teleprinter. For international telex

communications, satellite channels or transoceanic submarine cables are used.

Current Telex systems, such as the

“InfoMaster,” can offer delayed message

delivery and a multiple address message

system, while “FYI News Service” subscribers can receive general news, financial,

market, and weather-related bulletins.

Teletext: This communication system delivers text and graphic messages sequentially in one direction over a television

broadcast signal or cable which are then

received by a display terminal, like a television set. The receiving terminal exhibits

the message on the display screen, and

can store or delete the message after viewing. Similar systems that can receive as

well as send messages (e.g., home banking or shopping) are known as videotex.

Facsimile: Unlike the telex, this system

converts a page of text or images into

data. Once the input data is scanned and

translated into code, ordinary telephone

lines can carry the transmission to a recipient’s terminal to be decoded and

printed for hardcopy distribution. As an

added feature, some facsimile machines,

such as the “FaxPak,” offer store-andforward capability.

A typical facsimile system can transmit

a page in 4 to 6 minutes, while more advanced systems can transmit the same

amount of information in a few seconds.

Voice Mail: Voice mail is a computerbased system designed to digitize voice

from an analog signal for the purposes of

relaying short messages or instructions.

Like a sophisticated digital phone-answering machine, messages can be stored and

forwarded, edited, retrieved, or distributed to a list of users. Future systems are

being designed to incorporate options

such as voice to text conversion.

Electronic Mail: This computer-based

message system can be divided into two

categories. In the first, an electronic message is transmitted between two or more
48

●

terminals and remains in an electronic format. In the second, the message is transmitted electronically, but then converted

to a hardcopy format to be delivered by

traditional mail or courier service. To use

a typical electronic mail system, a personal identifier number, password, the recipient’s account number, and message

are keyed into a terminal. This information is transmitted to a central computer

and stored for viewing at the recipient’s

convenience. Electronic mail systems can

send, receive, file, recall, edit, and store

textual or graphic messages.

Electronic Bulletin Board: An electronic

bulletin board is an electronic mail service (or the equivalent computer-based information service) with a public or private

electronic mailbox that is accessible to

several persons. A public bulletin board

usually is open to many or all subscribers

and/or persons with a general password.

A private bulletin board is limited to persons with special passwords.

The emergence of electronic mail has raised

a number of policy issues, for example: what

standards should be used so that competing

electronic mail systems can be compatible;

should regulations for common carrier systems and private systems be the same or different; and what range of services can or

should electronic mail systems offer?7 Such issues concerning market structure, services,

and regulation are beyond the scope of this report. However, issues concerning the security

and privacy of electronic mail systems are

germane to this study. Indeed, some believe

security and privacy issues are critical to the

widespread acceptance of electronic mail as a

communications medium. The contents of electronic mail communications are of interest to

the same parties that are interested in the contents of first-class mail communications. Thus,

Government officials might be interested in

accessing or maintaining surveillance of electronic mail messages for investigative purposes. Private parties might be interested in

electronic mail surveillance for various competitive, personal, and/or criminal purposes.

“For discussion of telecommunications and industry structure issues see Raymond R. Panko, “Electronic Mail, ” Datamation, vol. 30, No. 16, Oct. 1, 1984, pp. 118-122; Robert E.

Kahn, Albert Vezza, and Alexander P. Roth (eds.), Electronic

Mail and Messa@ Systems– Tecti”cal and Policy Perspectives

(Arlington, VA: American Federation of Information Processing Societies, 198 1): and issues of EMMS IVewsletter.

FINDINGS AND POLICY IMPLICATIONS

1. There are at least five discrete stages at which

an electronic mail message could be intercepted

and its contents divulged to an unintended receiver: at the terminal or in the electronic files

of the sender, while being communicated, in

the electronic mailbox of the receiver, when

printed into hardcopy, and when retained in

the files of the electronic mail company for

administrative purposes. Existing law offers

little protection.

From a policy perspective, the laws that

might be extended or drafted will vary by

these five stages because of the historical development of telecommunications and privacy

law. Moreover, the technological protections

that are available will also depend on the stage

of the communications process. Therefore,

each stage needs to be analyzed separately to

discern policy problems and policy options.”

Terminal or Electronic Files of Sender.–At

this stage, messages could be intercepted by

accessing the computer system of the sender

for purposes of reading the message or altering its content. In the case of interception by

Government officials, the individual would

probably be successful in arguing that he or

she had a fourth amendment expectation of

privacy in the contents of computer files. Although these are not “papers” in the traditional sense, they are arguably the computerage equivalent. They are also stored within a

‘See ACLU Focus Paper on Electronic Mail, Jan. 29, 1985,

for a similar discussion.
49

computer file that belongs to the individual,

perhaps not in a tangible property sense, but

at least in an intangible one, depending on the

storage arrangement. If the computer was at

home, the individual’s expectation of privacy

would be greater than if it was an office computer, but use of passwords and access codes

would indicate that the individual took precautions at the office to ensure an expectation of

privacy. The fourth amendment status of messages held in the computer file of the sender

could be clarified by statute. The FBI reported

that on the occasions where it has had to acquire information from a data bank, it secured

a search warrant as it would have done before

going into a residence looking for information.9

In the case of private parties accessing electronic mail in the terminal of the sender, there

is no specific statute that would protect the

confidentiality of the message. At this time,

State laws probably offer more protection than

Federal laws. Theft laws might apply under

some circumstances, although these are framed

in terms of physical breaking and entering,

and in terms of tangible property. Computer

crime laws may also offer some protection

against unauthorized private access.

There are also some technical measures that

can be adopted to protect the contents of a

computer file. Sophisticated password and/or

key systems can be used to deter unauthorized

access. Audit trails can be developed to detect

unauthorized access. Although such systems

may not be foolproof, their use will give additional legal weight to someone arguing that

their computer mail files are expected to be

private.

In Transmission.—At this stage, messages

can be intercepted by tapping into the wire

over which the message is being sent, breaking into the fiber optic cable, or intercepting

satellite or microwave signals. Regardless of

the technology used to transmit electronic

mail messages, existing law offers little protection against unauthorized interception. Title III of the Omnibus Crime Control and Safe

Streets Act would not require Government of-

- ‘Floyd Clarke, remarks at OTA W’orkshop, May 17, 1985.

ficials to get a court order before setting up

a tap because electronic mail is sent in digital

form. Voice mail may be protected under Title III, depending on the interpretation accorded aural communication. (See chapter 3 on

telephone surveillance.) Section 605 of the

Communications Act of 1934 would not apply

unless the electronic mail was being communicated via radio signals, which is rarely the

case. Additionally, the purviews of Title III

and Section 605 are limited to common carrier communications. Electronic mail systems

that use private carriers, e.g., internal company mail systems, would not come under either act. The criminal penalties of the Foreign

Intelligence Surveillance Act may prevent

Government officials from intercepting digital communications, but it is unclear if these

penalties apply to interceptions other than for

foreign intelligence purposes.

Again, there are some technical measures

that can be used to protect the integrity of a

message during transmission. The message

can be encrypted using the data encryption

standard (DES) or some other code that scrambles or packages the message in a way that

makes it difficult to decipher. However, encryption has been expensive and time-consuming on both ends, although costs are dropping.

In the Electronic Mailbox of the Receiver.—

At this stage, messages can be intercepted by

breaking into the computer terminal of the receiver, if the receiver has one that is used as

an electronic mailbox, or into the computer terminal of the electronic mail company where an

individual has rented his or her mailbox. In

either case, the individual should have a fourth

amendment expectation of privacy against

Government interception. This expectation

will be higher if the mailbox is in the individual’s own computer terminal, but because renting implies property rights the expectation

should also apply if the mailbox is held on the

company’s terminal. Protection against private party interception would depend on the

coverage of theft laws and computer crime

laws.

When Printed Into Hardcopy Before Mailing.—Once mailed, the contents of the enve-
lope would receive the same protections that

are accorded first class mail. However, there

would be no legal protection for the message

during the time it was being printed out and

before it was put into the envelope. During

this time the individual would be dependent

on the policy of the electronic mail company

and the discretion of its employees.

When Retained by the Electronic Mail Company for Administrative Purposes.-All electronic mail companies retain a copy of the

message both for billing purposes and as a convenience in case the customer loses the message. Based on the reasoning in United States

v. Miller, 425 U.S. 435 (1976), where the Court

ruled that records of financial transactions, including copies of personal checks, were the

property of the bank and that an individual

had no legal rights with respect to such records,

it is possible that an individual would not have

a legal basis from which to challenge an electronic mail company’s disclosure of the contents of messages or records of messages sent.

The issue of the privacy of personal information retained by a third party is not unique

to electronic mail. It is important to note, however, that access to the administrative files of

electronic mail companies can reveal a great

deal of information about an individual-the

substance of communications, the record of

persons communicated with, and the locations

of sender and receiver.

The question of the legal status of electronic

mail information retained by the company is

presently before the courts in a case in which

the Government subpoenaed transactional

and substantive records of The Source (Source

Telecomputing Co.) related to M.V.S. Associates, Inc., Elite Fleet, Inc., and/or Leo Radosta.

Leaving aside the questions of the possibly excessive breadth of the subpoenas, the legal

question appears to turn on whether The

Source is merely the temporary custodian of

records, in which case an individual can use

fifth amendment protections to prevent disclosure.’” Regardless of what the courts may

—.. . ._. —---

‘“See: Couch v. United States, 409 U.S. 322 (1973) and Beh!is

v. Um”ted States, 417 U.S. 85 (1975).

decide based on the facts in this case, the issue requires attention.

2. The interception of electronic mail at any

stage involves a high level of intrusiveness

and a significant threat to civil liberties. The

investigative value of intercepting electronic

mail will vary. But traditionally, paper mail

has been afforded a high level of protection

from interception.

In order to determine the implications for

civil liberties of intercepting electronic mail

and the governmental interest in such interception, the electronic mail process as a whole

needs to be evaluated in terms of the dimensions developed in chapter 2 (see table 6). This

will aid in determining if there is a level of protection against interception that should be

guaranteed, regardless of the stage in the process at which the message maybe intercepted.

In terms of the nature of the information,

electronic mail surveillance can include both

the content of specific exchanges of information, and transactional information concerning the time of the communication and location of the parties. Both types of information

may be of a personal nature.

Electronic mail communications generally

are intended to be private communications be

tween two parties or among a specified group.

The technology employed will allow different

degrees of privacy, i.e., personal computer to

personal computer communications are inherently more private than electronic mail company to hardcopy delivery communications.

Despite the variations in technology, electronic mail communications (including private

electronic bulletin boards) usually are intended

for private consumption, with the notable exception of public electronic bulletin boards

that are open to a broad range of subscribers

or users.

In terms of the scope of surveillance, interception of electronic mail communications can

be quite broad depending on the extent to

which electronic mail is used by a particular

individual. Interception of a large volume of

electronic mail communications may well be

construed as a fishing expedition.
It is very difficult for an individual to determine if electronic mail has been intercepted,

regardless of the stage at which it is intercepted. While in the terminal of the sender or

mailbox of the receiver, audit trails and passwords can help in detecting interceptions or

attempted interceptions. While being communicated via the telecommunications system, it

is virtually impossible for the individual to detect interception. If someone attempts to intercept the message while it is physically being mailed, the post office might detect such

an attempt and, if so, might inform the individual. The individual’s ability to detect interception of mail while it is retained in the files

of the electronic mail company will likewise de

penal on the cooperation of the company.

The pre-electronic analogy for electronic

mail is probably quite direct—first class mail.

Traditionally, first class mail has been accorded a high level of protection from interception.

The governmental interest in intercepting

electronic mail will, of course, vary based on

the purpose of the investigation, the degree

of suspicion, and whether or not other means

have been attempted to secure similar information. However, given the high threat to civil

liberties posed by interception of electronic

mail, it appears that the governmental interest in interception would have to be quite compelling.

3. OTA identified three policy options that are

available to Congress. The first would be to

legislate a similar level of protection across

all stages of the electronic mail process. The

second option would be to accord different

protections according to perceived differential

impacts on civil liberties at particular stages.

The third option would be to do nothing.

These three policy options are briefly discussed below.

Option A.–Based on the analogy to conventional first class mail and the level of intrusiveness that interception of electronic mail

entails, Congress could provide the same degree of protection for electronic mail that it

presently provides for conventional first class

51

mail. Using this as an operating assumption,

Congress would need to pass legislation that

included the following:

Prohibition on unauthorized access to an

individual’s computer file or individual’s

electronic mailbox unless a court order

has been obtained. Two levels of court order may be appropriate. For purposes of

intercepting the contents of a file, a court

order could be obtained for national security, domestic security, and law enforcement purposes if there is probable cause

to believe the individual is implicated in

illegal activity. For purposes of determining the transactions the individual engaged in, the requirements for a court order could be the same as for a mail cover

(monitoring the names and addresses on

the outside of the envelope). The same

standards would apply regardless of

whether the mailbox was in a personal

computer or held by an electronic mail

company.

Prohibition on unauthorized interception

of data communication. Although the

analogy is still to first class mail, the

vehicle for protection is more likely an

amendment to Title 11 I that would protect all data communications transmitted

over wire.

Establish the rights of the individual and

responsibilities of the company when information is retained by the electronic

mail company. The ‘‘Subscriber Privacy’

provisions of the Cable Communications

Policy Act of 1984 may serve as a model.

Although it is premature to judge the effectiveness of the “Subscriber Privacy”

provisions of this act, comments on the

enforcement scheme are in order. In general, the subscriber is dependent on the

cable company for information regarding

the potential conflicts between the company’s practices and the individual’s privacy. For example, the company is to

inform the subscriber of the uses and disclosure of personally identifiable information. Practically speaking, this may just

mean that at the time the individual signs
52

-.

the contract, he or she is given a sheet of

paper containing the company’s general

policies. The individual may or may not

understand, or even read, the information.

The act does place restrictions on the

cable company’s collection and disclosure

of personally identifiable information, but

the restrictions are very vague. For example, “A cable operator may disclose such

information if the disclosure is necessary

to render, or conduct a legitimate business activity related to a cable service or

other service provided by the cable operator to the subscriber. ” From a surveillance standpoint, the act does require a

Government entity to obtain a court order for access to personally identifiable information. The court order must offer evidence that the subscriber “is reasonably

suspected of engaging in criminal activity and that the information sought would

be material evidence in the case. The individual must be given “the opportunity

to appear and contest such entity’s claim. ”

Option B.—Under this option, Congress

could decide that stages one and three (the

terminal of sender and electronic mailbox of

receiver) should be accorded more protection

because they involve places that are more Private and because it would be harder for individuals to detect interceptions unless they

were maintaining fairly secure personal computing systems. Congress may not want to

take any specific action with respect to the second stage (transmission), but leave it to the

resolution of the aural limitation in Title III.

Likewise, with respect to interception of information held by the electronic mail company,

Congress may wish to treat, in a systematic

fashion, all personal information held by third

parties.

Option C.–Congress could continue to do

nothing at this time and watch the development of the electronic mail market and evaluate case law development. However, there are

costs in pursuing this option. The market developments seem clear and the time appears

ripe for policy guidance before rights and

responsibilities become more confused. Additionally, because of the number of stages at

which electronic mail can be intercepted and

the range of governmental interests in intercepting electronic mail, the case law development will most likely be very specific to the

issues raised in particular cases, and will fall

short of a national policy.
Chapter 5

Other Surveillance Issues:

Electronic Physical, Electronic

Visual, and Electronic Data Base

Surveillance
Chapter 5

Other Surveillance Issues

SUMMARY

Electronic Physical Surveillance

Maintaining physical surveillance of individuals is, traditionally, one of the most expensive and risky surveillance techniques used by

law enforcement agencies and others. Portable telecommunications devices are now offering a viable substitute in many cases. For example, electronic beepers emit a radio signal

that can be monitored in order to track the

movements of a car or piece of property to

which a beeper is attached. Also, electronic

pagers—increasingly used by busy executives,

repair personnel, doctors, and the like-can be

intercepted to reveal information that may be

useful in determining the subject’s location

and activity.

OTA found that Federal investigative authorities are making extensive use of beepers

for conducting electronic physical surveillance

of persons and goods, but limited use of paging monitors. OTA also found that legislated

policy on beepers and pagers is ambiguous and

incomplete, although the U.S. Department of

Justice believes that at least some beeper and

pager surveillance applications require a search

warrant under judicial interpretations of fourth

amendment protections.

Based on criteria used to determine the

threat to civil liberties-nature of information,

nature of place or communication, scope of

surveillance, surreptitiousness of surveillance,

and pre-electronic analogy-electronic physical surveillance appears to fall somewhere in

the middle. The investigative and law enforcement interest appears to be significant-especially for beepers.

OTA identified three options for congressional consideration: 1) legislate one policy for

all forms of electronic physical surveillance;

2) formulate separate policies for beepers and

pagers; or 3) do nothing at this time.

Electronic Visual Surveillance

Electronic visual surveillance through the

use of cameras is an alternative to physical

surveillance. In the past, however, the size,

cost, and technical requirements of cameras

have limited their effectiveness and usefulness. But the latest generation of cameras is

smaller, cheaper, and easier to operate. There

already is a significant level of video surveillance of public places, such as the use of closed

circuit TV in banks, building lobbies, retail

stores, and the like. In addition, video surveillance of private places is used for investigative and law enforcement purposes.

OTA found that electronic visual surveillance-whether in public or private places—

is not covered by current Federal law, including Title III of the Omnibus Crime Control

and Safe Streets Act. The U.S. Department

of Justice does voluntarily comply with some

provisions of Title III. Even under Department of Justice guidelines, electronic visual

surveillance of private places is considered

legitimate and does not require a warrant if

one party has consented to the surveillance,

even if that party is an undercover agent or

informer.

Electronic visual surveillance appears to

pose a substantial threat to civil liberties, espe

cially if conducted in private places and with

audio surveillance. The law enforcement interest varies depending on the stage of investigation.

OTA identified five congressional policy options for addressing visual surveillance:

●

•

legislate that such surveillance is prohibited as an unreasonable search under

the fourth amendment;

subject electronic visual surveillance to

a higher standard than currently exists

55
under Title III for bugging and wiretapping;

treat electronic visual surveillance in the

same way as electronic audio surveillance;

apply a lower standard; and

do nothing.

Data Base Surveillance

As computerized record systems and data

communication linkages become widespread,

the potential for computer-based surveillance

of the movements and activities of individuals

also increases. Various Federal agencies already maintain computerized record systems

that could be used as part of a data base surveillance network. Four examples of such systems are: the National Crime Information

Center (FBI), Treasury Enforcement Communications System (Treasury), Anti-Smuggling

Information System (Immigration and Naturalization Service—INS), and National Automated Immigration Lookout System (INS).

Federal agencies believe that these and

other systems are essential to carrying out

their authorized responsibilities. However, the

systems could include files on any definable

category or type of persons, and could be interconnected with numerous other computerized systems.

Based on the results of the Federal Agency

Data Request, OTA identified 85 computerized record systems used for law enforcement,

investigative, and/or intelligence purposes

with, collectively, about 288 million records on

114 million persons. The Departments of Justice and Defense have by far the largest number of systems and records. None of the agencies responding provided statistics on record

quality.

Based on a review of technology and policy

developments, OTA found that:

● It is technically feasible to have an interconnected electronic network of Federal

criminal justice, other civilian, and perhaps even military record systems that

would monitor many individual transactions with the Federal Government and

be the equivalent of a national data base

surveillance system.

• The legal and statutory framework for national computer-based surveillance systems is unclear.

● A central policy issue with respect to computer-based surveillance systems is designing and implementing a mechanism

to simultaneously: 1) identify and authorize those applications that have a substantial law enforcement or intelligence

value; 2) minimize any adverse impacts on

individual rights from authorized use of

the systems; and 3) protect against unauthorized and/or expanded use of the

systems and the substantial impacts on

constitutional rights that might result.

Establishment of a data protection board

is one option that warrants consideration.

• Other available options, not necessarily

mutually exclusive with establishing a

data protection board, include: placing

data base surveillance applications under

Title III of the Omnibus Crime Control

Act; requiring congressional approval of

specific data base surveillance systems

(e.g., by statutory amendment or approval of House and Senate authorizing

committees); establishing general statutory standards for surveillance applications; strengthening Office of Management and Budget (OMB) and/or agency

oversight roles with respect to data base

surveillance; and maintaining the status

quo.
57

PART I: ELECTRONIC PHYSICAL SURVEILLANCE

Introduction

In the past, physical surveillance has generally required around-the-clock agents with

backups at various points and has entailed a

high risk of detection by the party under surveillance. Monitoring by portable telecommunications devices, or tracking devices, provides

a much less conspicuous way of following the

physical activities of an individual, a car, or

an item, Monitoring by portable telecommunications devices is relatively risk-free in terms

of detection. Physical surveillance can be more

efficient with the use of portable telecommunications devices. However, electronic tracking may cost more because surveillance can

be carried out for a longer period and because

of the staff necessary to monitor the information received.

Electronic physical surveillance does raise

questions about the rights of individuals under surveillance and the responsibilities of investigative agencies. The availability of new

electronic physical surveillance devices to law

enforcement agencies is likely to have significant effects on the investigative process. Before the invention of such devices, it was generally assumed that an individual who was

engaged in illegal activity was suspicious and

was, therefore, aware that someone might be

watching. It was also assumed that governmental agents would not invest the resources

to watch someone unless they were quite certain that criminal activity would take place.

Therefore, it was not thought necessary to legislate restrictions on investigative physical

surveillance.

However, these assumptions can no longer

be made in an environment that has been

changed so dramatically by portable telecommunications devices. It is now easy to attach

a beeper to a car or item and follow its movements. Pagers also offer opportunities for

monitoring activities. Interception of information destined for pagers that can receive numeric or alphanumeric data could be revealing about the recipient’s location or activities.

While simple tone-only pagers offer no real

surveillance potential, more sophisticated

pagers with the ability to receive messages are

likely to become commonplace in the next few

years. Future paging technology may also be

able to function as an electronic mail or data

communications terminal. Because of these

technological changes, it is necessary to consider whether legislative action is needed to

determine when such devices can or should be

used for monitoring purposes.

Background

Before analyzing policy issues and policy

options, a brief review of the technological

development and potential of portable telecommunications devices will be presented to

provide a context for the policy discussion.

Pagers

Electronic paging became a possibility in

1949 when the Federal Communications Commission (FCC) allocated three bands of radio

frequencies for mobile communications. Those

licensed to use these frequencies were considered radio common carriers. Electronic paging did not become popular until the 1960s

when the FCC allocated more frequencies, and

doctors and traveling salespeople began to use

them to stay in touch with the office. In the

1980s, the use of electronic pagers expanded

as lawmakers, lobbyists, repair personnel,

business executives, and parents began to realize their potential as a means to stay in

touch. The number of pagers in use has grown

significantly and is expected to increase. In
58

1976, there were an estimated 424,000 pagers;

in 1982, an estimated 2.2 million.1 Arthur D.

Little, Inc., expects that by 1990, 10 million

people will carry personal mobile message machines.2 Arthur D. Little anticipates that public systems will carry 80 percent of paging traffic, and private systems 20 percent.’

A number of pagers are available today, and

others are in the development stages.4 Toneonly pagers, which beep or vibrate to inform

the wearer to call in, are still the most popular. There are also tone-voice pagers that give

the wearer a 12-second voice message. A newly

marketed pager uses a 10- or 12-digit liquid

crystal to display messages. Such pagers could

be used to convey information to the wearer,

ranging from phone numbers to stock information to a patient’s medical history to a

coded message. A device that is presently being developed is the voice-retrieval system for

paging. With this pager, the caller’s voice message is stored digitally and is retrieved when

the subscriber is ready to receive the message.

The voice message is broadcast over a regular FM signal or an FM subcarrier signal, as

is the case for cellular phones. Another pager

in development that is thought to have great

market potential is the alphanumeric pager,

which displays alphabetical as well as numerical information. Some companies are developing pagers that could print hard copy, thus

transforming pagers into pocket data terminals.

As the technology develops, the cost of

pagers and the subscription fees are dropping.

The size and attractiveness of pagers are also

adding to their marketability .-Moreover, the

FCC is taking action to expand the market for

pagers. Recent FCC decisions will more than

quadruple the frequency spectrum available

‘Penny Pagano, “Thousands Heed Beeps From Pagers, ” 7’he

Z.os Angeles Times, Oct. 20, 1984.

‘Nell Henderson, “Beepers Said to Link Legions of Area’s

Workaholics, ” The Washington Post, Oct. 22, 1984.

36’ Telocator Members Told That Paging to Prosper in the Future, ” Telocator Network of America Bulletin, Sept. 28, 1984.

‘For a more detailed description of the various pagers and

the technology involved see: John G. Posa, “Radio Pagers Expand Horizons, ” High Technology, March 1983, pp. 44-47, and

“Special Report– RCC, ” Broadcasting, Oct. 4, 1982.

for paging. More paging channels have been

allocated to the Private Carrier Paging Service, and paging can also be provided now over

FM subcarriers.’

A potentially significant effect of recent

FCC decisions is the creation of regional and

national paging networks. In January 1982,

the FCC allocated new frequencies in the 900

MHz band to radio common carriers to develop local and wide-area paging. In May 1982,

the FCC set aside one channel at 900 MHz for

nationwide paging and two channnels for either regional or national paging, depending on

consumer interest. In May 1983, the FCC

made all three channels available for nationwide paging. In April 1984, the FCC, on the

basis of a lottery, awarded licenses for these

three channels. It is expected that a nationwide paging network will be in full operation

in 1986.6 The nationwide networking systems

will use satellites and terrestrial phone systems to transmit signals.’

Paging radio technology also has enabled

the development of automatic vehicle location

(AVL) systems. By using the Long Range

Navigation system (LORAN-C) of the Department of Transportation, it is possible to locate

vehicles based on radio signals sent from the

vehicle, to a transmitter, to a base station.

With the use of an intelligent modem, information on the location of the vehicle can be

communicated to a central points

Beepers

Beepers, also known as “bumper beepers”

or “bird dogs, ” are electronic transmitters

that generate a series of pulses and are used

as a tracking device, frequently by law enforce

ment agencies for covert operations. A series

of pulses is transmitted every 2 seconds.

Beepers are about 4 inches long and 2 inches

5“Telocator Members Told that Paging to Prosper in the Future, ” op. cit.

“’Nationwide Paging, ” Information sheet distributed bs Telocator Network of America.

‘“’ F.C.C. Moves Toward National Pabting System, ” 7’he .VPWF

York Times, Aug. 20, 1984.

“Bob Jane, *’The ‘Landsmart’ AVI. System, ” Telocator. August 1983.
wide with a thickness of three-fourths of an

inch. Three U-shaped magnets on the bottom

of the beeper are covered by a metal ‘‘keeper

plate” which is sheathed over the magnets

when not in use. The metal plate is removed

and magnets exposed to attach the beeper to

a bumper, underneath a dashboard, or to any

metal protrusions. Cars, ships, trucks, and

metal containers can be tracked using beepers.

Self-contained batteries supply the power

source for beeper transmissions. A remote receiver is used to pick up signals. This receiver

can be located in a car, an airplane, or a helicopter, From the air, a helicopter traveling

6,000 feet above the ground can pick up signals within a 250-mile diameter. From the

ground in a metropolitan area, a vehicle can

pick up signals within a distance of approximately 1 mile.

The beeper receiver can pick up three types

of information, The first is directional information that determines the position of a vehicle and the direction it is heading. The second indicates whether a vehicle is stationary

or moving. The third involves the relative distance to the vehicle being tracked.

The FCC sets regulations on beeper frequency levels, power ratings, and the like and

is involved in the authorization and licensing

process for law enforcement use of beepers.

The results of the OTA Federal Agency Data

Request indicated that 13 Federal agency components currently use beepers, with two other

agency components planning such use.

Findings and Policy Implications

1. OTA found that Federal investigative authorities are making extensive use of beepers for

conducting electronic physical surveillance of

persons and goods, but limited use of paging

monitors. Legislated policy for beepers and

pagers is ambiguous and incomplete.

The OTA Federal Agency Data Request and

discussions with representatives of the Departments of Justice, Treasury, and Defense

indicate that investigative authorities are

making extensive use of portable telecommunications devices in conducting physical sur59

veillance of persons or goods. Beepers are

often attached to vehicles or goods, e.g., shipments of guns, drugs, or materials used in the

manufacture of illegal substances. Monitoring

of paging devices is not yet a major surveillance technique, in part because they are not

thought to be used extensively by persons engaged in illegal activities, except for drug

dealers,’ and because the geographic range of

use is narrow. Both of these features are presently changing. Paging devices would clearly

meet the needs of anyone who was trying to

make connections to buy or sell goods, or to

indicate that a meeting was to take place. Once

investigative authorities perceive that paging

devices are being used in this way, there will

be interest in monitoring them. The development of a nationwide paging system will also

make paging devices more attractive to a variety of customers, and also to investigative

authorities as a way of monitoring long-distance movements and transactions.

Pagers

Presently, there is no formal executive, legislative, or judicial policy with respect to the

interception of pagers for investigative purposes. According to the Justice Department,

the protections afforded pagers depend on the

type of pager. The interception of “tonal

pagers, ” emitting only a sound, does not require either a warrantor court order. Title III

does not apply because it is not an aural communication; the Foreign Intelligence Surveillance Act (FISA) does not apply because

paging is not a data communication. The interception of a display pager is not covered by

Title III because it is not an aural interception, but would be covered by FISA because

it conveys information in digital form. The Department of Justice’s policy is that interception of tonal pagers involves a sufficient invasion of privacy that a court order should be

secured prior to interception. Additionally, the

Department of Justice believes that users of

display pagers have a reasonable expectation

of privacy based on the fourth amendment,

“Inter\riew with hlaureen Killian, Department of ,Justice. Sept.

4, 19H5.
60

and that a search warrant should be obtained

under Rule 41 of the Federal Rules of Criminal Procedure. The interception of “tone and

voice pagers” would, the Justice Department

believes, require a Title III warrant because

aural communication is involved.10

Beepers

The use of beepers for surveillance purposes

has been the subject of two Supreme Court

cases. In United States v. Knotts, 103 S. Ct.

1081 (1983), the Court ruled that the warrantless monitoring of a beeper was not a search

or seizure under the fourth amendment, because there was no reasonable expectation of

privacy as the movements being tracked were

all public. A year later, in United States v.

Karo, 104 S. Ct. 3296 (1984), the Court ruled

that using a beeper to trail a container into

a house and to keep in touch with it inside the

house did violate the fourth amendment. The

Court found a legitimate expectation of privacy in the house, and what it considered an

equally legitimate expectation of privacy that

anything coming into a house would do so

without a Government surveillance device.

The Justice Department policy on the use of

beepers follows the Supreme Court’s holding,

i.e., a warrant is required if a beeper is potentially going to invade someone’s privacy. The

Department of Justice advises agents to get

a warrant for any use of beepers beyond use

on a car.11

2. Based on the dimensions used to determine

the threat to civil liberties as introduced in

chapter 2, electronic physical surveillance falls

somewhere in the middle. The governmental

investigative interest appears to be significant—especially for the use of beepers.

The nature of the information obtained by

electronic physical surveillance depends on the

device used. The information divulged by portable telecommunications devices varies with

the device. Beepers only yield limited informa-

‘[’See John Keeney, U.S. Department of Justice, Statement

Before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Judiciary Committee, Sept. 12, 1984.

‘ ‘Remarks, Fred Hess, Criminal Division, U.S. Department

of Justice, OTA Workshop, May 17, 1985.

tion on the location and movements of individuals, cars, or items. Voice pagers and display pagers disclose the content of a message,

however brief and cryptic the message might

be. Beepers and tonal pagers do not disclose

the number of individuals in a location or the

activities in which they are engaged.

Electronic physical surveillance does not discriminate between public and private areas,

and can be considered intrusive when it allows

the monitoring of movements in private areas.

Investigative agents who are conducting the

monitoring can minimize the intrusion by

turning off their devices when parties or objects enter private places.

Electronic physical surveillance casts a narrow net in that it does not involve people who

are not specifically under surveillance, unless

they are passengers in a car.

It is difficult for an individual to determine

whether a beeper has been attached to a car

or article. Beepers are easily concealed because

of their size. Some may be detected with a

metal detector or other sensor; however, one

would have to be looking for a beeper in order

to find it. It is almost impossible for an individual to detect whether a signal or message

that has been transmitted to a pager has been

intercepted. It would be relatively easy to

warn individuals who subscribe to paging

services that the signals and messages received can be monitored by others.

The closest pre-electronic analogy to electronic physical surveillance of public places is

physical surveillance on foot or by automobile,

while the analogy to surveillance inside private

premises is to police undercover work. There

has been limited restriction on the use of undercover agents. If they are too aggressive,

their case may be dismissed because of entrapment. In general, undercover agents have not

been considered an infringement on one’s expectation of privacy because an individual is

thought to assume the risk of his or her involvement with others. Congress has recently

been considering whether such a risk is realistic or if there needs to be some guidance for

the types of roles or relationships in which un-
dercover agents can engage. Although police

undercover work is the closest historical analogy, it may not apply in the same way to electronic physical surveillance because it is based

on the assumption of risk. It would be difficult to argue that one assumes the risk that

one’s movements are always being monitored

by a beeper. It would not be as difficult to assume that, if one was carrying a pager, one’s

activities may be monitored. However, use of

pagers may decline if this assumption were

widely held.

The governmental interest in using electronic physical surveillance will once again vary

with the purpose of the investigation, the degree of suspicion, and whether or not other

means have been attempted to secure similar

information. Use of beepers and interception

of pagers occur in all types of investigations,

although they are probably used most often

in law enforcement investigations. Electronic

physical surveillance is used at all stages of

an investigation, but is probably most useful

in building a record for probable cause. Electronic physical surveillance is more effective

and may be less costly than techniques that

are less technologically sophisticated.

The accountability of authorities for use of

electronic physical surveillance devices is generally fairly low. They are considered tools of

routine investigative use, and can usually be

authorized by the agent in the field. If a question of privacy invasion is raised by the use

of surveillance devices, then authorization

should be obtained from agency headquarters.

It is possible to build in a method of accountability, such as authorization by a bureau head

for a limited period of time with review and

reauthorization possible, and standards of accountability based on the stage of investigation and governmental interest.

3. OTA identified three options for congressional consideration with respect to policy on electronic physical surveillance: a) fashion one

policy for all forms of electronic physical

surveillance; b) design separate policies for

beepers and pagers; and c) do nothing at this

time.

61

— —

Option A.–Fashioning a policy for all forms

of electronic physical surveillance is an attractive option in that it is not dependent on specific technological devices and, therefore, will

set standards and principles for the future as

well as the present. However, given the differences in types of portable telecommunications

devices and the different ways in which they

are used, it may be difficult to design a comprehensive policy for this area.

Option B.—Although pagers and beepers are

similar in that they allow more efficient and

less detectable surveillance of physical movements, from a policy perspective they are

markedly different in that a beeper needs to

be attached by investigative authorities, while

a pager is used by an individual. This contributes to the degree of suspicion that an individual has about the possibility of being monitored. People who carry pagers can be made

aware of the potential for surveillance that

these devices allow. The possibility that one’s

movements may be monitored by a beeper is

more remote for most people. Because of differences in the active involvement of investigative authorities and in the possible awareness

of targets of surveillance, it may be necessary

to treat beepers and pagers separately. At this

time, the differences in the type of information that can be gathered by monitoring beepers

and pagers would also seem to dictate separate legislation for each.

It may also be necessary to treat pagers in

a discriminate fashion depending on the amount

of information that the pager receives. This option would be consistent with the present policy opinion of the Department of Justice.

Option C.–Congress could wait to act until

the technology progresses, especially in terms

of the development of a nationwide paging network. In formulating legislation for the proper

boundaries on police undercover work, Congress may want to consider the parallels between traditional physical surveillance and

electronic physical surveillance and design policy that is consistent for both.
62

PART II: ELECTRONIC VISUAL SURVEILLANCE

Introduction

As cameras have become smaller and easier to activate from a distance, they have become more attractive as a tool for watching

people and recording their activities. The evidence that can be obtained from electronic

visual surveillance, especially if accompanied

by audio surveillance, is as complete as investigative authorities could expect. But there are

questions about the intrusive nature of electronic visual surveillance, and the circumstances under which its use is appropriate.

Electronic visual surveillance, more than any

other form of electronic surveillance, reminds

people of the specter of Big Brother watching

at all times and in all places.

There is presently a great deal of electronic

visual surveillance of public places. Banks

have cameras running continuously to monitor both the interior teller counters and also

the outside automatic teller machine areas.

Airports use electronic visual surveillance in

a number of places to ensure the security of

the passengers and equipment. Many large department stores, as well as all-night convenience stores, use electronic visual surveillance

to deter and detect shoplifting and to compile

a visual record of activity. Many cities use

closed circuit television to survey street corners

in high crime areas, subway platforms, and entrances to public buildings. The Federal Government uses electronic visual surveillance at

various Federal buildings to monitor people

coming and going. Some employers, especially

factory owners and those who maintain large

clerical pools, use electronic visual surveillance

to monitor the activities of workers.

The motivation for this electronic visual surveillance is a heightened concern for security;

the result is that people are becoming more

and more accustomed to being watched as

they carry out their public life. As cameras

become smaller, and easier to install and to

monitor, their attractiveness as a means of

monitoring activities in private places becomes greater. Previously, one could take actions to ensure an expectation of privacy in

a private place, e.g., locking the doors and closing the curtains. But, in the absence of legal

standards, the only effective barriers against

electronic visual surveillance are the limitations of the technology and such limitations

are few.

Electronic visual surveillance of public

places is not specifically addressed by Federal

statutes, although the assumption is that it

is legitimate. Electronic visual surveillance of

private places is not presently addressed by

Federal laws. The Department of Justice has

developed policy guidelines on the use of electronic visual surveillance in private places.

These guidelines are regarded as requirements

for Department of Justice bureaus (FBI, INS,

and DEA) and advisory for other Federal investigatory agencies (Bureau of Alcohol, Tobacco and Firearms and Customs). Electronic

visual surveillance of private places where one

party has consented to the surveillance, even

if that party is an undercover agent or informer, is assumed to be legitimate. The Supreme Court has not ruled on the many questions that are raised by using electronic visual

surveillance. For example, if Government

agents wish to observe private behavior with

the assistance of video cameras or closedcircuit TV, must they get a court order as they

would for the use of electronic eavesdropping

equipment? Can a court, without specific statutory authority, give authorization for new

types of searches or does this overstep the

legitimate boundaries of judicial policymaking?

No one has accurate data on the extent of

the use of visual surveillance, but there is general agreement inside and outside the investigative community that it is increasing. The

Department of Justice has indicated that it

has used electronic visual surveillance 18

times in the past year for investigative purposes. Other Federal agencies, such as Treasury and Defense, use video surveillance routinely to monitor the traffic at ports of entry

or at buildings containing sensitive materials.
63 — —

The ease with which video surveillance of

private places can be used is in dispute. Some

argue that the installation and changing of

film make its use prohibitive unless there is

easy access to the building or room on a regular basis. For example, video surveillance was

used successfully in monitoring the activities

of the FALN group in Chicago,12 but the group

met in a “safe house” and thus it was easy for

law enforcement agents to gain access. Others

argue that the miniaturization of cameras and

the use of film that is triggered by activity

make it easy to install and maintain video

equipment. In support, they cite numerous

technological developments and an R&D trend

that indicates cameras and film will become

more attractive for investigative purposes.

Electronic visual surveillance of private

places is most often used when one party consents to the surveillance and can either install

and monitor the camera or make it possible

for others to do so. Under this circumstance,

no Title III warrant or judicial intervention

is necessary. However, such enhancement of

what an undercover agent or informer can witness and testify to may be significantly more

intrusive than an agent acting alone, and on

that basis might be required to have some

form of judicial authorization.

Background

Before analyzing policy issues and policy options, a review of electronic visual surveillance

developments will be presented to provide a

context for the policy discussion.

The early literature on modern surveillance

techniques warned of the great potential offered by hidden television and video cameras. ”

In the 1960s, this was viewed as a threat

rather than a reality because the size and sophistication of cameras made it difficult to install, conceal, and maintain them for surveilI )See “~nj~e~ s~a~es k,. Torres ( No. 84-1077, decided Dec. 19!

1984).

‘ ‘see: Alan }t’estin, Pri\’ac~r and f+e~yjon] (Ne~ ~’~rk: A theneum, 1967) and Samuel Dash, R. F, Schwartz and Robert Knovlton, The i~at’esdroppers {New }’ork: Da Cape, 1959).

lance purposes. A number of developments

have eliminated such problems. ”

Miniature television cameras equipped with

a “charge-coupled device’ rather than the

traditional bulky television tubes are widely

available at reasonable prices. Closed-circuit

cameras also make use of this technology and

thus can be easily installed. Technological advances have refined the sensor in the chargecoupled device and have made it even smaller

and more powerful. It is predicted that miniature cameras will soon be on the market.

These cameras could be concealed in anything

from a briefcase, to a lamp, to a plant. It would

thus be easy for an agent who has even brief

access to an area under surveillance to install

a miniature camera, leave, and return later to

retrieve the film.

Fiber optics also permits the concealment

of small cameras with the lens located at the

surveillance site and the camera located at a

distance. This is possible because of a “light

pipe, ” a bundle of thin, transparent fibers,

which conducts light and visual images from

a lens to a camera. With these devices, an

agent need only enter the premises once, to install the lens; film changing and retrieval can

be done at a distance.

Low light level television technology makes

it possible to see in the dark. Such devices

have been used in several cities to detect street

crime. Infrared television cameras also make

it possible to see in the dark by detecting infrared radiation with a camera that is sensitive to such radiation or by detecting infrared

radiation and converting it to electrical images. The systems can then produce a detailed

black and white picture.

The major advance in the area of visual technology in the 1980s is the development of machine vision systems. Such systems combine

video and computer technologies to allow computerized analysis of what is being captured

“For a re~’iew of the technologies ay,ailahle in the nlid-I $170s

see: Da\’id P, Hodges, “Electronic Visual Surveillance and the

Fourth Amendment: ‘1’he Arri\al of Big Brother’?” 3 }iastings

Constitutional I.aI$ Quarterljr 261 ( 19761.
64

—

on the camera. Both the computer hardware,

which allows the system to rapidly scan and

pick up the coordinates that define the outline

of images, 15 and the software, which is derived

from artificial intelligence research and enables images to be scanned in relation to preprogrammed patterns, ’G are important to the

effectiveness of machine vision systems. Such

systems have been used primarily in industry

to perform a number of labor-intensive inspection tasks, including: identifying shapes, measuring distances, gauging sizes, determining

orientation, quantifying motion, and detecting surface shading.17

Although the major market for machine vision systems is thought to be factories, there

are other areas in which labor-intensive analysis of films could be done by these systems. ’8

One is in defense for verification of treaties or

evaluation of reconnaissance films from satellites. 19 Another is in the investigative area

where films that are captured through electronic visual surveillance are then analyzed by

machine vision systems to differentiate the

segments of the film that are relevant to an

investigation from those that are not. Use of

machine vision systems would drastically reduce what is presently a very labor-intensive

part of electronic visual surveillance, and thus

might make it more attractive.

Findings and Policy Implications

1. OTA found that electronic visual surveillance

is not currently covered by Title III of the

Omnibus Crime Control and Safe Streets Act.

The U.S. Department of Justice voluntarily

complies with some Title III provisions. Some

judges have asked for, congressional clarification.

“Marsha Johnston Fisher, “Micro-Based ‘Roving’ Eye Sifts

Motion, ” 17fIS T1’eek, No\T. 14, 1984, pp. 1, 42.

“)Paul Kinnuean, “Machines That See, ” Technology}, April

1%3, pp. 30-36.

‘-tJohn Ale}rer, “J’ision Systems: Technology of the Future

at W’ork Today, ” Computerworld, May 27, 1985, p. 13.

‘%ee: F;dith Myhers, “Machines That See, ” Datamation, Nov.

1983, pp. 90-103, and ‘(Machine Vision Merges W’ith Process

Imaging, ” Electronic Market Trends, February 1985, pp. 17-19.

“’Da\ ’id Iiafemeister, “Ad\’ances In Verification Technology, ”

Bulletin of the Atomic Scientists, Januar}’ 1985, pp. 35-40.

The courts have upheld the use of video surveillance for law enforcement purposes in a

number of cases. In evaluating the appropriateness of video surveillance, judges have considered the place under surveillance, the evidence already accumulated, and the warrant

process used.

In 1981, the Court of Appeals of New York,

in People v. Teicher, 439 N.Y. S. 2d 846, upheld the use of video surveillance in a case

where a dentist was charged with sexually

abusing his patients. The judge ruled that the

warrant authorizing video surveillance was

valid because probable cause was clearly established by the affidavit, the warrant described the place to be searched and things to

be seized, the warrant explicitly provided that

surveillance be conducted in such a way as to

minimize coverage of activities not related to

specified crimes, and the warrant gave evidence that there were no less intrusive means

for obtaining needed evidence.

In 1981, the Michigan Court of Appeals in

People v. Dezek, 308 N.W. 2d 652, ruled that

a warrant for video surveillance of a restroom

in a highway rest area where homosexual

activity was suspected was invalid because it

did not limit the search to precise and discriminate circumstances.

In December 1984, the Seventh Circuit

Court of Appeals handed down the major decision to date on the question of video surveillance, United States v. Torres. At issue was

the FBI’s video surveillance of the Puerto

Rican nationalist group FALN for more than

130 hours over 6 months. The Seventh Circuit,

in an opinion authored by Judge Richard Posner, held that the courts could authorize electronic video surveillance if they followed the

requirements of the fourth amendment’s warrant clause, i.e., “no warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized. ” In this case, the Government

asked for the warrants in conjunction with its

application for Title III eavesdropping warrants and followed the Title III requirements.

The Court held that:
65

-—

A warrant for video surveillance that complies with those provisions that Congress put

into Title III in order to implement the fourth

amendment ought to satisfy the fourth amendment’s requirement of particularity as applied

to such surveillance. 2 0

The Court went onto state that it did not suggest that compliance with Title III was necessarily required, but said that “we would

think it a very good thing if Congress responded to the issues discussed in this opinion by amending Title III to bring television

surveillance within its scope. “21 It is important

to note that Judge Posner did not include all

of the Title III requirements, i.e., the exclusionary rule, the limitations on which Federal

officials could make an application, limits on

the severity of the crimes that could be involved, and limits on State and local use.22

The Department of Justice policy is to require a warrant analogous to a Title III warrant for electronic visual surveillance that is

not in a public place or that is conducted in

a nonconsensual situation. The policy is the

result of a desire to have evidence as clean as

possible, and the view that it is better to get

a warrant “just in case” rather than have a

judge rule the results of electronic visual surveillance inadmissible at a later date. The Department of the Treasury reports that it follows the Department of Justice guidelines for

use of electronic visual surveillance.23

Although the present Department of Justice

guidelines require a warrant analogous to a

Title III warrant for electronic visual surveillance, the Attorney General has delegated the

authority to authorize television surveillance

to a responsible official within the Criminal Division who may authorize the surveillance if

he or she:

. . . concludes that the proposed surveillance

would not intrude on the subject’s justifiable

expectation of privacy . . . If such official concludes-that the surveillance would infringe on

‘{’United States \,. 7’orres, No. 84-1077, p. 17 (7th Cir., Dec.

19, 1984).

“ Id, at 19.

‘

iRemarks made at OTA W’orkshop, May 17, 1985.

‘

] Remarks made at OTA W’orkshop, MaJ 17, 1985.

the subject’s justifiable expectations of privacy, he shall initiate proceedings to obtain

a judicial warrant.24

In the case of electronic visual surveillance of

public places or places to which the public has

unrestricted access, the head of each Department of Justice investigative division has responsibility for issuing guidelines for that division.

In 1984, Representative Robert Kastenmeier

introduced the Electronic Surveillance Act of

1984 which, in part, would bring video surveillance under the Title III warrant requirements. In this bill, video surveillance is defined

as “the recording of visual images of individuals by television, film, videotape, or other

similar method, in a location not open to the

general public and without the consent of that

individual. ’25 In September 1985, Congressman Kastenmeier introduced a separate bill,

the Video Surveillance Act of 1985 that deals

exclusively with video surveillance.2G Other

electronic surveillance activities are covered

in the Electronic Communications Privacy Act

of 1985, also introduced in September 1985.27

2. Electronic visual surveillance appears to pose

a substantial threat to civil liberties, especially if conducted in private places and with

audio (as well as video). The governmental interest varies depending on the stage of the investigation in which electronic visual surveillance is to be used.

Before examining specific policy options, it

is useful to examine the policy implications of

electronic visual surveillance in light of the

principles that appear to have guided surveillance policy to date. Based on the dimensions

introduced in chapter 2, electronic visual surveillance, especially when used in conjunction

“Department of Justice, Order No. 985-82, “Delegation of

Authority to Authorize Television Surveillance. ”

25H.R. 6343, sec. 8, 3117, c.

“see H.R. 3455, Video Surveillance Act of 1985 and U.S. Congress, House of Representatives, Congressional Record, Extension of Remarks, Sept. 30, 1985, p. E-4269.

“See H.R. 3378 and S. 1667, Electronic Communications

Privacy Act of 1985; U.S. Congress, House of Representatives,

Congressiontd Record, Extension of Remarks, Sept. 19, 1985,

p. E-4128; and U.S. Congress, Senate, Congressional Record,

Sept. 19, 1985, p. S-11795.
66

with audio surveillance, poses a great, if not

the greatest, threat to civil liberties.

The nature of the information that is gained

with electronic visual surveillance is very personal. The information is quite complete, including the content of movements, facial expressions, and nonverbal communications, as

well as conversations if audio is used.

Video surveillance can be usefully applied

to surveillance of any area. The present controversy is focused on the surveillance of private places. Electronic video surveillance is capable of penetrating the most private places,

where curtains are drawn and doors are locked,

without leaving a trail.

The scope of a video or closed circuit TV

camera is broad. All persons and activities

that come in camera range will be filmed. Depending on the area under surveillance, it is

likely that a number of people unrelated to the

investigation will be covered. In this case, the

more private the area to be monitored, the narrower the scope of the surveillance. The scope

of the surveillance might be minimized by the

use of machine vision systems that could scan

the film for the targets of the surveillance or

for certain types of motions.

Given the miniaturization of video and TV

cameras, it is very difficult for an individual

to detect electronic visual surveillance. Again,

one would have to suspect that he or she was

the target of an investigation and would have

to look carefully to locate a hidden camera. Additionally, the present policy of allowing electronic visual surveillance without a warrant

if one party has consented raises very serious

questions about how the concept of assumption of risk is applied.

The historical analogy would be to undercover agents, although the use of video surveillance is much more powerful in terms of

detail and unimpeachability. While the testimony of an agent or informer could always be

questioned and needs corroboration, the film

would probably be accepted. It is always possible, however, to edit a film to make it more

incriminating and some editing may not be detectable.

The governmental interest in using electronic visual surveillance will vary. Video surveillance would be useful in investigations for

any purpose, but, given the threats to civil liberties involved, would probably be difficult to

justify for investigations to ensure the proper

administration of Government programs and

investigations of minor felonies and misdemeanors. Given the difficulties of installing

and monitoring and the need to have certain

basic information, electronic visual surveillance will most likely be used when there is a

high level of suspicion. As it is such an intrusive form of surveillance, it would be very hard

to justify its use during the early stages of an

investigation. Although electronic visual surveillance is more effective and less costly than

less technologically sophisticated techniques,

the threat to civil liberties involved would

seem to require that other techniques be tried

first.

The present rules on the accountability of

authorities using electronic visual surveillance

are not clear. The Department of Justice guidelines appear to leave officials in the Criminal

Division some discretion, in that they have to

determine if the surveillance would violate an

expectation of privacy and hence require a

court warrant. Also unclear is the definition

of a public place.

3. OTA identified five policy options for addressing electronic visual surveillance—ranging

from prohibiting such surveillance as unconstitutional to doing nothing. In formulating

policy, the issues of consensual v. nonconsensual visual surveillance and surveillance of

public v. private places need to be given careful consideration.

The five policy options are discussed below.

Option A.–The first option is to legislate a

prohibition on electronic visual surveillance be

cause Congress considers it an unreasonable

search under the fourth amendment. The basis for choosing this policy option might be the

assumption or belief that electronic visual surveillance is an inherently unacceptable form

of surveillance because: 1) the information it

secures is so complete and specific; 2) it can

pick up the most private activities in hereto-
— .

fore private places; 3) it captures the activities of people not under investigation; 4) it captures the unrelated activities of the targets;

5) it is very difficult to detect, and 6) its preelectronic analogy, i.e., undercover agents, is

also regarded as intrusive.

Option B.—The second policy option is to regard electronic visual surveillance as more intrusive and invasive than eavesdropping, but

not unacceptable in all circumstances. The

legislative option then would be to subject

electronic visual surveillance to higher authorization standards than exist for bugging and

wiretapping under Title III. This option would

be especially applicable in four areas. First,

new minimization standards or a new concept

to restrict the scope of the invasion, in terms

of both place and content, might be developed.

Additionally, the list of crimes and circumstances for which electronic visual surveillance

is considered appropriate might be developed

independently of the list for wiretapping.

Third, the use of video surveillance might be

restricted to only very sensitive and important

types of investigations. Lastly, documented

exhaustion of other techniques might be required.

67

Option C.–The third policy option would be

to treat electronic visual surveillance in the

same way as electronic audio surveillance. The

advantages of this are that visual surveillance

is generally conducted with audio surveillance

so that only one warrant would be necessary,

and that Title III is a known and tested procedure. The disadvantage is that the use of

both audio and video may pose a greater risk

to civil liberties.

Option D.–The fourth policy option would

be to apply a lower standard to electronic

visual surveillance than to eavesdropping.

This would be hard to justify, given the principles that appear to govern the use of surveillance. It could only be justified if video surveillance were being used alone.

Option E.–The fifth option would be to do

nothing. The disadvantage of this option is

that both Judge Posner’s request to Congress

to deal with the issue and the questions raised

with the existing Department of Justice guidelines would remain unanswered in terms of

legislated policy.

PART III: DATA BASE SURVEILLANCE

Introduction was prohibitive. In addition, the time delay inherent in paper linkages would negate much

A significant implication of widespread com- of the potential surveillance value.

puterized record systems and data communication linkages is the increased potential for

computer-based surveillance of the movements

and activities of individuals.

In modern society, most persons leave a trail

of transactions with various institutions—

governmental, retail, financial, educational,

professional, criminal justice, and others. Before the widespread use of computer-communication systems, linking various kinds of

transactions was very difficult, if not impossible, since transactions were paper based and

the cost of matching or linking paper records

Computer-based record systems and electronic linkages make it possible to overcome

the cost and time barriers associated with paper systems. In theory, the technology permits

the instantaneous linkage of a large number

of record systems that would capture and consolidate, for example, gasoline credit card

transactions, telephone calls, retail credit card

transactions, bank card transactions, and

transactions with Government agencies. Thus,

electronic linkages could be used to conduct

surveillance of individuals who are of investigative, law enforcement, and/or intelligence
68

interest to the Government. This assumes, of

course, that the Government agencies would

have electronic access to transactional record

information.

Background

One example of a Federal computerized record system that could be used for surveillance

purposes is the FBI’s National Crime Information Center. NCIC maintains an “electronic bulletin board” of, among other things,

wanted persons, missing persons, and persons

with criminal history records. Law enforcement and criminal justice agencies make electronic inquiries to the bulletin board to ascertain whether particular individuals are listed

as wanted or missing or have a prior criminal

record.26 The process of making inquiries about

specific persons also generates information

about the location and movement of these individuals and, indirectly by followup with the

inquiring officials, more detailed information

about the nature of a person’s activities at a

given point in time.

NCIC is, in effect, a computer-based system

for locating persons who are listed as wanted

or missing or have a prior criminal record. Until 1982, with one exception, NCIC was not

used for intelligence purposes, that is, for locating individuals not having a formal warrant

outstanding and/or a formal criminal record.

The one exception was during the the early

1970s, when the FBI made very limited use

of NCIC to keep track of, for example, bank

robbery suspects. The objective here was ‘‘to

enable law enforcement agencies to locate,

through NCIC, individuals being sought for

law enforcement purposes who did not meet

the criteria for inclusion in the NCIC wanted

person file. ”29 In other words, NCIC was being used to track individuals who had not been

formally charged with a crime and did not

“For further discussion of NCIC, see OTA, Assessment of

Alternatives for a National Computerized Cn”m”nal History SyStem, October 1982.

‘Letter from Harold R. Tyler, Jr., Deputy Attorney General,

U.S. Department of Justice, to Senator John Tunney, Chairman, Subcommittee on Constitutional Rights, Committee on

the Judiciary, U.S. Senate, Oct. 29, 1975.

have an outstanding warrant for a Federal offense or other extraditable felony or misdemeanor offense.

The early 1970s (actually April 1971 to February 1974) pilot project had not been authorized by Congress. From then until 1982, the

FBI rejected all requests or proposals for intelligence use of NCIC. However, in 1982 the

Department of Justice and FBI approved a

U.S. Secret Service proposal to establish an

NCIC file on persons judged to represent a potential threat to Secret Service protectees.

That Secret Service file is now fully operational, and includes the names of about 125

persons judged by the Secret Service to represent substantial threats. Apparently, according to FBI Director William Webster, the

file has been quite useful in helping the Secret

Service to keep track of (i.e., maintain surveillance on) the location and movement of a significant number of these persons.30

During the past 2 years, several other proposals for intelligence use of NCIC have been

discussed, although none has been approved.

For example, suggestions have been made to

add new NCIC files on white-collar crime suspects and suspected organized crime associates.

Beyond this, the already existing electronic

linkages between NCIC and other Federal law

enforcement communication systems (e.g., the

Treasury Enforcement Communication System, or TECS) easily could be extended to

other Federal criminal justice record systems

and even to Federal noncriminal justice record systems.

TECS is a good example of the extensive

electronic linkages already in place. TECS includes a wide range of information on persons

that are suspected of or wanted for violations

of U.S. Customs or related laws, including persons suspected of or wanted for thefts from

international commerce, and persons with outstanding Federal or State warrants. TECS includes the same kind of information on sus-

‘OStatement of william webster, FBI Director, at Oct. 17,

1984, NCIC Advisory Policy Board Meeting.
69

pects that has proven so controversial when

proposed for NCIC. Of course, TECS is not

accessible on-line to tens of thousands of State

and local law enforcement and criminal justice

agencies, as is NCIC. Nonetheless, TECS is

accessible to numerous Federal agencies (plus

two foreign agencies), as indicated in table 7.

The so-called Border Enforcement System

is the major component of TECS. Computerized information from this system is used,

among other things, to: assist U.S. Customs

and the Immigration and Naturalization Service personnel screen persons and property entering and exiting the United States; alert

Customs and INS officers to potentially dangerous persons or situations; provide investigative data to Customs or other agency law

enforcement or intelligence officers; and aid in

the exchange of data with other Federal, State,

or local law enforcement agencies.

As of May 1, 1985, the TECS Border Enforcement System included computerized records on over 2 million persons. Table 8 gives

the distribution of the record sources.

One of the TECS users and record sources

is INS. INS, in turn, has its own extensive

computerized law enforcement, investigative,

and intelligence systems, with records on, collectively, several tens of millions of persons.

Highlights of several of the INS computerized

record systems are presented in table 9.

Again, two of these systems–Anti-Smuggling

Information System and National Automated

Table 7.—Treasury Enforcement Communication System/

Border Enforcement ,System Users

U.S. Customs Service

Bureau of Alcohol, Tobacco and Firearms

Immigration and Naturalization Service

Federal Bureau of Investigation

U S. Marshals Service

Interpol (International Police Organization)

Drug Enforcement Administration

El Paso Intelligence Center

Internal Revenue Service

U.S. Coast Guard

U.S. Department of State

National Narcotics Border Interdiction System

Royal Canadian Mounted Police

Table 8.—Source of Treasury Enforcement

Communication System/Border Enforcement

System Records

.

Number of

Source records

U.S. Customs Service. . . , 897,963

Immigration and Naturalization

Service . . . . . . . . . . ... . . 32,828

National Narcotics Border

Interdiction System . . . . ... 959

National Crime Information Center . . . 220,693

U.S. Coast Guard . . . . . . . . . . . . . . . . 2

Internal Revenue Service Inspection . . 6,102

Internal Revenue Service Criminal

Investigation. . . . . . . . . ... . 100,692

Drug Enforcement Administration . 114,387

Bureau of Alcohol, Tobacco and

Firearms . . . . . . . . . . 712,720

Royal Canadian Mounted Police . . 22,022

U.S. Department of State. . . . . . . 19,721

Interpol ., . . . . . . . . . . . . . 49,699

Total 2,177,788 records

(on 2,153,888 person)

SOURCE U S Customs as;f May 1 1985

Immigration Lookout System—include information on suspected as well as known violators. And one of the major purposes of these

two systems is to monitor the movements of

suspected violators.

Other Federal agencies maintain similar

computerized record systems. Based on the results of the Federal Agency Data Request,

OTA identified 85 computerized record systems operated by Federal agencies for law enforcement, investigative, and/or intelligence

purposes. Out of 142 agency components responding, 36 (or 25 percent) reported the use

of at least one such computerized system. Collectively, the 85 systems include about 288

million records on about 114 million persons.

(Note that some systems may overlap with

multiple records on the same persons, and

some agencies did not know or did not provide

the number of records and persons per system.

Nonetheless, the overall results provide the

most complete accounting of such systems to

date.) The Departments of Justice and Defense have by far the largest number of systems and records. Justice reports 15 systems

with, collectively, about 241 million records on

87 million persons. Defense reports 18 systems

with about 29 million records on 22 million

SOURCC U S Customs persons.
70

Table 9.—Selected INS Computerized Record Systems

Number of

Name of record system Contents records

Anti-Smuggling Information System (ASIS) . Known or suspected alien smuggling 750,000

operations

Central Index System (CIS) . . . . . . . . . . . . . . . All aliens and naturalized citizens except 152,000,000

temporary visitors

Non-Immigrant Information System (NIIS) . .All temporary visitors to U.S. 24,000,000

Student School System (STSC) . . . . . . . . . . . All foreign students and schools they 750,000a

attend

National Automated Immigration Lookout Known or suspected violators of INS 40,000

System (NAILS) . . . . . . . . . . . . . . . . . . . . . . . laws and other Federal statutes

%87,000 persons plus 18,500 schools

—

Number of

persons

unknown

21,000,000

24,000,000

687,000

40,000

SOURCE Immlgratlon and Natural lzatlon Service, based on June 1985 response to OTA Federal Agency Data Request

OTA also asked agencies for any statistics

on record quality (completeness and accuracy)

for such systems. No such statistics were provided by any of the 142 agency components

responding. The four specific examples noted

earlier illustrate the already extensive development of computerized data base systems

operated by Federal agencies for law enforcement, investigative, and/or intelligence purposes. Federal agencies believe that these

systems are essential to carrying out their authorized responsibilities. However, the systems are capable of including files on any

definable category or type of persons, and are

capable of interconnection with numerous

other computerized systems. As a result, these

systems (and others like them) provide the

technical infrastructure of a data base surveillance system.

Findings and Policy Implications

1. It is technically feasible to have an interconnected electronic network of Federal criminal

justice, other civilian, and perhaps even military record systems that would monitor many

individual transactions with the Federal Government and be the equivalent of a national

data base surveillance system.

For example, the current Secret Service file

on NCIC could be extended so that the list of

dangerous persons would be checked against

not only NCIC wanted person and criminal

history inquiries, but also social security, food

stamp, and other kinds of inquiries or record

transactions that would indicate the location

or activities of listed persons. This scenario

could be further extended to include travel and

credit card transactions and the like.

Of course, these are hypothetical examples

at this point in time, but serve to demonstrate

the vast technical potential for computerbased surveillance inherent in record linkages

among computerized systems. These kinds of

potential applications raise numerous issues,

ranging from whether the application would

be cost effective and serve a significant, useful, and lawful criminal justice purpose to the

possible implications for civil and constitutional rights.

For example, first amendment rights could

be violated to the extent a national computerbased surveillance system was used to monitor the lawful and peaceful activities or associations of citizens or if it were to have the

effect of discouraging such activities or associations. Fourth amendment rights could be

violated if the surveillance amounted to an

unreasonable search and seizure of personal

information. And, as a final example, fifth

amendment rights to due process could be violated if such surveillance was conducted without first establishing probable cause or reasonable suspicion and without serving advance

notice on the subject individual.

The possible civil liberties implications

would need to be balanced against the Government’s interest in, for example, enforcing

public laws, maintaining social order, and protecting the national security. Thus, the tradeoffs could, indeed, be difficult to balance.
2. The legal and statutory framework for national computer-based surveillance systems is

unclear.

The systems would appear to be subject to

the Privacy Act and perhaps other statutes,

depending on the purpose. Law enforcement

investigative record systems are exempt from

key elements of the Privacy Act, but other record systems would have to establish that surveillance use is a routine use under the Privacy

Act, and all such systems would have to publish notices in the Federal Register and withstand the inevitable congressional scrutiny.

This would appear to be quite difficult to do,

although computer matching was defined as

a routine use, apparently with relatively little difficulty. On the other hand, if the surveillance was directed at, say, foreign terrorist

activity, the system might fall under Foreign

Intelligence Surveillance Act and be subject

to little or no public scrutiny. Data base surveillance does not appear to fall under Title

III of the Omnibus Crime Control and Safe

Streets Act since there would be no “aural”

acquisition.

3. A central policy issue with respect to computer-based surveillance systems is designing and

implementing a mechanism to simultaneously: 1) identify and authorize those applications that have a substantial law enforcement

or intelligence value; 2) minimize any adverse

impacts on individual rights from authorized

and/or expanded use of the systems and the

substantial impacts on constitutional rights

that might result. Establishment of a data

protection board is one option that warrants

consideration.

One policy option that has been proposed

from time to time in the United States and has

been implemented in other countries is a data

protection board. Such a board was proposed

in the 1970s with respect to NCIC, and in particular the computerized criminal history

(CCH) program As early as September 1970,

OMB recommended the establishment of a

strong “policy control board’ that would report directly to the U.S. Attorney General.

The board was to include officials from the

FBI, the Law Enforcement Assistance Administration (LEAA), and the States, and rep71

resent all elements of the criminal justice community. Comprehensive legislative proposals

developed in 1974 included an independent

Federal Information Systems Board that was

to be responsible for the operation and regulation of a national CCH system. On a broader

level, several European countries have established independent data protection boards or

authorities that have some oversight authority over law enforcement and intelligence systems, as well as a wide range of privacy-related

systems (e.g., social services, health, and education).

The institutional placement of such a board

or authority would be important. If it were to

be a new board within an existing department,

its power might be too dependent on that of

the department and its character shaped by

that department. Additionally, the department might well have interests that might

conflict or interfere with the responsibilities

of the board. If it were to be a board reporting to the President, it would have added stature and potential influence, but it might easily be politicized, and its visibility and stature

might well change with changes in administrations. If the board were to report to Congress, either directly or through a special joint

committee, it would be independent of the executive agencies that have stakes in personal

information collection and use. It might be less

open to partisan uses, but the board might become too removed from the realities of agency

operations.

The responsibilities of such a board or authority are also important. Should the board’s

jurisdiction be limited to some surveillance applications, all surveillance applications, all law

enforcement/intelligence uses, privacy-related

applications, and so forth? The broader the

responsibilities, the larger the necessary size

and budget of the board, or, in the absence of

adequate resources, the greater the work overload. On the other hand, a broad mandate may

be necessary to gain the necessary political

support, thus contributing to a better overall

understanding of agency technologies and

practices and resulting in more effective oversight and better decisions.
72

Other questions include the size and composition of the board, process of appointments,

scope of authority, and extent of decisionmaking v. advisory, research, and/or information

clearinghouse responsibilities.

4. Other available options, not necessarily mutually exclusive with establishing a data protection board, include: placing data base surveillance applications under Title III of the

Omnibus Crime Control Act; requiring congressional approval of specific data base surveillance systems (e.g., by statutory amendment

or approval of House and Senate authorizing

committees); establishing general statutory

standards for surveillance applications; maintaining the status quo; and strengthening

OMB and/or agency roles with respect to data

base surveillance.

One congressional option would be to amend

Title III, making data base surveillance subject to the Title III procedural and balancing

requirements. Another legislative option would

be to amend the enabling statutes of the various individual computerized systems that are

or could be used for surveillance purposes (or

enact specific enabling statutes where none exist) to require that new surveillance applications must be approved by Congress. The

strongest (and most difficult) form of approval

would be to require an act of Congress in the

form of a further amendment to the enabling

statute. Short of that, formal approval of the

relevant House and Senate authorizing committees could be required. Alternatively, agencies could be required to give the authorizing

committees 60 to 90 or 120 days’ formal advance notice, so that an investigation could be

conducted and oversight hearings held, if

desired.

As an alternative or complement to such

congressional notice and/or approval options,

OMB’S role could be strengthened by setting

up a separate, statutory office within OMB

and mandating a minimum staff. However,

some of OMB’S other responsibilities may conflict, and it is unclear that such an office located in OMB would or could provide effective oversight. There is also the option of

establishing agency staff in the data protection area and/or assigning new responsibilities

to the Privacy Officers and/or Inspector General offices.