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(ii)  Wire  tormunications 
Paragraph  (1)  of  18  U.S. C.  §2510  defines  "wire  ccnnunicattan"  to 
include  "all  ccxrmunications  carried  by  a  common  carrier,  in  whole  or  In 
part,  through  our  Nation's  communications  network.  The  coverage  is 
intended  to  be  comprehensive."  1968  U.S.  Code  Cong,  and  Adm.  News  2178. 
But  does  this  encompass  International  communications  as  they  pass  over 
foreign  countries?  Or  International  bodies  of  water?  Does  it  really  mean, 
as  it  says,  communications  "carried  through  our  Nation's  cortrnunications 
network"?  If  so,  is  our  "Nation's  cocrmunications  network"  confined  to  the 
communications  network  within  the  Nation? 
Whatever  the  answers  to  the  foregoing,  there  is  no  question  that 
§2511  covers  the  "aural"  acquisition  of  all  wire  portions  of  radio- landline 
telephone  ccrrmunications ,  and  may  also  be  construed  to  cover  the  radio 
portions  as  well.  There  remains  an  obvious  qualitative  difference,  however, 
between  the  radio  and  wire  segments  of  radio-landline  telephone  cocrmunications 
(particularly  international  cccmunications)  —  a  distinction Congress  pointedly 
recognized  and  reaffirmed  in  maintaining  the  concomitant  viability  of  §605 
requiring  both  the  interception  and  divulgence  of  radio  cocrmunications  to 
constitute  a  mere  misdemeanor. 
(iii)  The  "Nation's  Cocrmunications  Network" 
The  "Nation's  cccmunications  network",  according  togr-j^.—  -  -L-_..:..  "  1 
NSA,  is  generally  regarded  by  those  in  the  industry  as  the  cccrmercial 
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cominications  system  within  the  United  States .  This  system  may  be  characterized  / 
as  contiguous,  switched  (e.g.,  from  wire  to  cable  to  microwave),  automatic,  and 
self -routing.  It's  "wireless"  component  is  a  multi-channel  microwave  carriers 
system  capable  of  carrying  up  to  2,000  communications  cm  some  channels. 
International  cotrmercial  radio- telephone  conrnunications ,  on  the 
other  hand,  are  transmitted  by  high-frequency,  single  or  multi- 
channel telephony  which  enters  the  national  cocmunicaticms  network  through 
what  are  known  as  "gateways".  CThe  latter  term  seems  to  connote  passage 
from  one  system  to  another.)  This  high-frequency  telephony  is  not  as  reliable 
as  microwave  transmission  and  is  considerably  more  susceptible  to  inter- 
ception by  unsophisticated  equipment  such  as  ship-to-shore  radio  or  the 
ordinary  Zenith  transoceanic- type  portable  radio. 
Microwave  transmission  is  "straight  line"  and  covers  much  higher 
frequencies  than  "high  frequency  telephony"  which  follows  the  curvature 
of  the  earth.  It  is  estimated,  for  exaqple,  chat  the  radio  portion  of  a 
high  frequency  single- channel  radio- telephone  cccnmunication  from  Montevideo, 
Uruguay,  to  New  York  City,  could  be  intercepted  with  unsohpisticated 
radio  receivers  over  an  area  of  perhaps  30  per  cent  of  the  earth's  surface. 
High  frequency  cultl-channel  transmissions  may  be  de-channeled  by  "home- 
made" amateur  equipment.  An  index  of  the  users  of  international  radio  fre- 
quecies  is  reportedly  published  by  the  FCC  and  may  be  obtained  from  the  Government 
Printing  Office.  The  only  guarantee  of  privacy  in  such  high  frequency  radio 
transmissions  is  the  use  of  special  ciphony  equipment  to  "garble"  the  conmjnica- 
ticns.  Such  equipment,  however,  is  not  in  general  use  by  commercial  carriers. 
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(iv)  Justif ied  Expectations  of  Privacy 
The  three  general  categories  of  cocrrunications  covered  by  Title  III  - 
wire,  oral  and  radio  -  are  distinguished,  implicitly  and  explicitly, 
according  to  the  degree  of  justified  expectations  of  privacy.  VSiile  an 
almost  total  expectation  of  privacy  seems  to  be  justified  in  communications 
transmitted  wholly  by  wire,  the  expectation  of  privacy  of  oral  conainications 
is  justified  only  if  uttered  under  circumstances  justifying  that  expectation, 
e.g. ,  cocraunications  'In  one's  home  or  office.  Carmunications  in  a  jail  cell 
or  an  open  field,  for  example,  would  not  normally  justify  such  expectation. 
1968  U.S.  Code  Cong,  and  Adm.  News  2178. 
(v)  Felony  vs.  Misdemeanor 
The  willful  interception,  alone,  of  a  wire  or  oral  cotrrnunication 
completes  the  felony  offense  under  §2511.  In  the  case  of  a  radio  communica- 
tion, however,  there  must  be  both  an  interception  and  divulgence  to* 
constitute  the  misdemeanor  under  §605.  If  we  ignore  both  the  explicit 
legislative  distinction  between  radio  communications  and  other  types  of 
cccmunications ,  and  the  implicit  legislative  scale  of  justified  expectations 
of  privacy,  the  severity  of  criminal  penalties  imposed  by  Congress  would 
appear  in  some  instances  to  be  inversely  proportionate  to  the  extent  of 
privacy  violated.  (See  vi,  infra.)  Congress  obviously  placed  radio 
communications  below  wire  and  oral  conranications  on  the  ascending 
scale  of  justified  expectations  of  privacy. 
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The  court  In  United  States  v.  Hall,  488  F.2d  193,  197  (9  Cir.  1973),  ' 
observed  that  the  radio  portion  of  a  radio-landline  telephone  communication, 
logically,  should  be  afforded  no  more  protection  than  those  occuring  between 
two  radio  transceivers.  The  court  declined,  however,  to  exercise  its  option 
to  find  that  "surely  Congress  did  not  Intend"  such  as  absurd  result. 
The  specific  issue  in  Hall  was  whether  the  contents  of  defendants' 
radio-telephone  conversations  monitored  by  law  enforcement  officers  should 
have  been  suppressed  In  the  prosecution  of  defendants  for  marijuana  viola- 
tions. Some  of  the  conversations  were  transmitted  between  two  radio  telephones, 
while  others  were  between  a  radio-telephone  and  regular  land-line  telephone. 
The  Court  quickly  found  47  U.S. C.  §605  inapplicable,  stating: 
The  legislative  history  also  explicitly  shows  that 
Congress  intended  to  exclude  law  enforcement  officers 
from  the  purview  of  the  new  §605    It  is  obvious 
that  die  legislature  wanted  law  enforcement  personnel 
to  be  governed  exclusively  by  Chapter  119  of  Title  18. 
Therefore,  because  the  critical  ccmnunications  were 
intercepted  by  lawmen,  §605  offers  no  impedement. 
The  applying  18  U.S.C.  §§2510,  et  seq.,  however,  the  Court  reached  an 
admittedly  "absurd  result": 
...  [W]e  are  forced  to  conclude  that,  when  part  of  a 
cccriunication  is  carried  to  or  from  a  land- line  tele- 
phone, the  entire  conversation  is  a  wire  communication 
and  a  search  warrant  is  required. 
We  realize  that  our  classification  of  a  conversation 
between  a  mobile  and  a  land-line  telephone  as  a  wire 
camunication  produces  what  appears  to  be  an  absurd 
result.  These  conversations  were  intercepted  by  an 
orHInary  radio  receiver  and  not  by  a  phone  tap.  Logi- 
cally they  should  be  afforded  no  more  protection  than 
those  occurring  between  two  radio  transceivers.  They 
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should  be  oral  cairnunications .  Hcwever,  Congress's 
definition  of  a  wire  communication  necessitates 
this  conclusion. 
This  is  especially  ironic  since  Title  III  of  the 
Crime  Control  Act  contains  stringent  civil  and 
criminal  penalties  for  those  who  violate  its  pro- 
visions. In  other  words,  any  citizen  who  listens 
to  a  mobile  telephone  band  does  so  at  its  [sic] 
own  risk,  and  scores  of  mariners  who  listen  to 
the  ship- to- shore  frequency,  cctrmonly  used  to 
call  to  a  land- line  telephone,  commit  criminal 
acts.  (Bnphasis  added.) 
The  "absurd  result"  could  have  been  avoided,  of  course,  by  applying 
47  U.S.C.  §605  to  the  radio  portion  of  the  radio-landline  telephone 
cocrmrii  cations . 
Congress  may  have  been  silent  as  to  its  intent  in  radio-telephone 
situations,  but  it  can  hardly  be  presumed  to  have  intended  a  patently 
"absurd  result".  It  is  a  fundamental  canon  of  statutory  construction 
that  a  legislative  enactment  must  be  so  interpreted  as  to  carry  out  the 
legislative  will  and  in  a  manner  that  would  not  reach  an  "absurd  result". 
United  States  v.  Lewis,  87  F.Supp.  970,  972,  (D.D.C.  1955).  vThe  Fourth 
Amendment  also  "shuns  absurd  results".  489  F.2d  at  198. 
(It  is  one  thing,  of  course,  to  interpret  a  statute  in  favor  of  the 
accused,  but  quite  another  to  expand  its  meaning  where  to  do  so  works 
against  the  accused.  Pugach  v.  Klein,  193  F.Supp.  630,  640  (S.D.N.Y.  1961).) 
The  radio-telephone  conversation  in  Hall  which  did  not  involve 
land-line  telephones,  i.e.,  radio-to-radio,  were  held  not  be  "oral 
coatnunications"  within  the  meaning  of  18  U.S.C.  §2510(2)  because,  the 
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(vi)  Oral  Cceiirjnications 
There  appears  to  be  no  more  reason  for  re-classifying  certain  radio 
ccomunications  as  "oral  communications"  than  there  would  be  to  include 
"wire  conmunications"  under  "oral  corrmunications" . 
Section  2510,  Title  18,  United  States  Code,  contains  separate  and 
distinct  definitions  of  "wire"  and  "oral"  cc>tnnunications .  There  is  no 
indication  of  a  legislative  intent  to  pre-eirpt,  under  the  caption  of  "oral 
ccmnunications",  all  wire  conmunications  transmitted  with  a  reasonable 
expectation  they  will  not  be  intercepted.  Despite  the  expectation  of 
privacy,  the  latter  do  not  become  "oral  communications".  They  remain, 
sin? ly  and  exclusively,  vire  cccmunicaticns  under  18  U.S. C.  §2510(1). 
Similarly,  there  is  no  indication  Congress  intended  to  include  under 
"oral  conmunications"  all  radio  cccmunications  transmitted  with  a  reasonable 
expectation  they  will  not  be  Intercepted.  These  remain  radio  conmunications 
under  the  definition  of  47  U.S.C.  §153 (b). 
It  seems  to  be  stretching  18  U.S.C.  §§2510,  et  secj.. ,  to  construe 
purely  radio  conmunications  (even  those  with  a  reasonable  expectation  of 
privacy)  intercepted  by  law  enforcement  officers  as  "oral  communications".   ' 
Nowhere  in  the  legislative  history  or  language  of  18  U.S.C.  §§2510,  et 
seq-  •  is  there  any  indication  that  Congress  intended  to  single  out,  for 
felony  prosecution,  only  law  enforcement  officers  who  intercept  radio 
conmunications,  while  providing  an  option  to  prosecute,  for  misdemeanors , 
all  others  who  not  only  intercept,  but  divulge,  such  conmunications. 
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Court  found,  they  lacked  the  requisite  expectation  of  privacy.  (The 
district  judge  had  previously  made  a  specific  finding  that  defendants 
knew  they  could  be  heard  by  other  people  and,  therefore,  had  no  right 
to  privacy.) 
This  seems,  however,  to  be  a  case  of  reaching  the  right  result  for 
the  wrong  reason.  The  "new"  Section  605,  enacted  simultaneously  with 
18  U.S.C.  §§2510,  et  seq . ,  was  expressly  intended  as  a  substitute  rather 
than  the  mere  reenactment  of  its  predecessor.  1968  U.S.  Code  Cong. 
and  Adm.  News  2196.  If  it  has  any  substance  at  all,  §605  would  seem  to 
cover  at  least  the  interception  of  all  communications  transmitted  entirely 
by  radio.  It  does  not  apply  to  law  enforcement  officers,  however,  because 
"person",  as  used  in  the  statute,  does  not  include  a  law  enforcement  officer 
acting  in  the  normal  course  of  his  duties.  1968  U.S.  Code  Cong. 
and  Adm.  News  2197.  In  a  letter  to  the  Chairman  of  the  Federal  Oafmuni- 
cations  Commission  on  September  15,  1975  (Tab  NN)  concerning  FCC  monitoring 
of  citizen  band  radio  transmissions,  the  Justice  Department's  Office  of 
Legal  Counsel  stated: 
Giving  the  word  "person"  such  an  interpretation 
would  allow  law  enforcement  officers  generally 
to  intercept  and  divulge  radio  communications . 
The  application  of  §605  in  Hall  would  have  achieved  the  same  result 
with  respect  to  the  interception  of  purely  radio  contnunications ,  but 
without  the  strained  application  of  18  U.S.C.  §§2510,  et  seq. 
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The  statute  specifically  defines  "oral  communication"  as: 
. . .  [A]ny  oral  communication  uttered  by  a  person 
exhibiting  an  expectation  that  such  communication 
is  not  subject  to  interception  under  circumstances 
justifying  such  expectation,  (emphasis  added)  18 
U.S.C.  §2510(2). 
Examples  of  "oral  conrnunications"  cit^d  in  the  legislative  history 
of  Title  III  are  communications  uttered  in  one's  home  or  one's  office. 
1968  U.S.  Code  Cong,  and  Adm.  News  2178. 
There  are  two  references  in  18  U.S.C.  §2511  to  cccmunications  by 
radio ;  One  prohibits  the  interception  of  oral  (not  wire)  canmunications 
by  devices  which  transmit  communications  by  radio  or  interfere  with  the 
transmission  of  such  a  cctrrnunication  (§2511(1)  (b)  (ii)) ;  the  other  merely 
codifies  the  exception  from  criminal  liability  of  FCC  official's  acting 
in  the  normal  course  of  their  duties.  Neither  provision  purports  to 
expand  or  amplify  the  definition  of  "oral  communication"  in  18  U.S-.C. 
§2510(2).  (Prior  to  the  enactment  of  Title  III,  the  exception  of  FCC 
officials  was  "implicit"  in  47  U.S.C.  §605.  United  States  y.  Sugden,  226 
F.2d  281  (9  Cir.  1955),  aff'd,  351  U.S.  916  (1956).) 
The  legislative  history  of  Title  III,  while  not  completely  clear  on 
the  point,  nevertheless  tends  to  equate  the  interception  of  "oral 
cccmunications  transmitted  by  radio"  with  electronic  eavesdropping  (bugging) 
to  overhear  private  oral  conversations.  The  legislative  history  cites 
Katz  v.  Unted  States,  389  U.S.  3A7  (1967),  in  stating  the  definition  of  oral 
ccmrunication  "is  intended  to  reflect  existing  law."  Katz  involved  the  use 
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of  an  electronic  eavesdropping  device.  "Wiretapping"  is  generally 
associated  with  the  interception  of  wire  cctimunicatlons .  1968  U.S. 
Code  Cong,  and  Adm.  News  2153-2156;  2177-2178;  2180-2181. 
In  the  context  of  transmissions  by  radio,  therefore,  the  definition 
of  "oral  cctmunications"  in  18  U.S.C.  §2510(2)  appears  to  contemplate 
private  oral  conversations  intercepted  by  radio  eavesdropping  devices 
rather  than  the  interception  of  communications  transmitted  by  common 
carrier  radio-telephone  facilities.  (Section  2511(1) (b) (i)  would  prohibit 
the  use  of  leased  or  other  telephone  lines  to  transmit  signals  intercepted 
by  eavesdropping  devices.   1968  U.S.  Code  Cong,  and  Adm.  News  2180.) 
(vii)  Overlapping  Definitions 
In  neither  18  U.S.C.  §§2510,  et  se£. ,  nor  47  U.S.C.  §605,  does 
Congress  reconcile  the  statutory  definitions  of  "wire"  and  "oral"  communica- 
tions with  "radio"  communications  in  the  radio-telephone  context.  This 
"overlap"  was  apparently  not  considered  or  even  recognized  by  Congress. 
Even  in  United  States  v.  Hall,  supra,  the  court  conceded  that  "the  definition 
of  wire  ccrnmunication  is  not  free  from  ambiguity",  and  concluded  that 
"[b]y  reading  the  sections  together,  we  can  only  conclude  that  the  Congress 
did  not  mean  that  every  conversation  aided  in  any  part  by  any  wire  would  be 
a  wire  ccnmunication" .  488  F.2d  at  196-197. 
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Thus,  we  have  two  criminal  statutes,  one  a  felony*  the  other  a 
misdetneanoXj  whose  application  must  rest  finally  upon  a  reconciliation 
of  the  overlapping  definitions  of  "wire  communication"  and  "oral  communi- 
cation" in  18  U.S.C.  §2510(1) (2),  and  "radio  contnunication"  in  47  U.S.C. 
§153 (b). 
The  central  question  may  be  stated  precisely:  Which  statute  covers 
the  interception  of  radio  portions  of  common  carrier  radio- telephone 
communications  between  the  United  States  and  other  coutries? 
Perhaps  the  most  succinct  indication  of  overall  legislative  purpose 
in  Title  III  may  be  found,  incidentally,  in  the  definition  of  "oral 
cccmjnications"  in  18  U.S.C.  §2510(2): 
. . .  [A]ny. . .  communication  uttered  by  a  person 
exhibiting  an  expectation  that  such  communica- 
tion is  not  subject  to  interception  under  cir- 
cumstances justifying  such  expectation. 
Obviously,  the  privacy  of  the  wire  portion  of  a  common  carrier  radio- 
landline  telephone  communication  is  inherently  greater  than  the  radio 
portion.  'While  such  communication,  as  a  whole,  might  conform  with  the 
technical  definition  of  "wire  camunication"  in  18  U.S.C.  §2510(1),  the 
radio  portion  fits  equally  the  definition  of  "radio  communication"  set 
forth  in  47  U.S.C.  §153(b).  As  the  Court  observed  in  United  States  v. 
Hall,  supra,  the  latter  is  infinitely  more  vulnerable  to  both  inadvertent 
and  intentional  interception: 
As  with  any  broadcast  into  the  air,  the  invitation 
to  listen  is  afforded  to  all  who  can  hear.  In  the 
instant  case,  the  eavesdropper  merely  tuned  their 
radio  receivers  to  the  proper  station. 
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The  legislative  history  emphatically  states  that  18  U.S.C.  §§2510, 
et  seg[.  ". .  .is  Intended  to  protect  the  privacy  of  the  communication". 
(Emphasis  added.)  1968  U.S.  Code  Cong,  and  Adtn.  News  2178.   The  purpose 
of  the  statutory  protection,  therefore,  is  not  to  maintain  the  absolute 
inviolability  of  the  means  of  carmunication,  but  to  protect  from  inter- 
ception those  communications  which  are  transmitted  by  private  means.  If 
the  method  of  communication  at  a  given  point  in  transmission  is  not 
reasonably  private,  it  is  difficult  to  perceive  a  legislative  intent  to 
pretend  privacy  at  that  point  merely  because  the  means  of  communication 
elsewhere  in  the  chain  of  transmission  are  private. 
A  communication  is  only  as  private  as  the  means  of  transmission 
employed  at  the  point  of  interception.  If  the  privacy  of  a  communication 
is  to  be  protected,  the  communication  itself  must  first  be  private.  If  at 
some  point  in  its  transmission  a  communication  may  be  intercepted  over  30 
per  cent  of  the  earth's  surface  with  readily  available  and  inexpensive  radio 
w/;'  •  .equipment,  the  communication  at  that  point  can  hardly  be  regarded  as 
../'^'private.  (See  iii,  supra.) 
The  legislative  history  further  indicates  that  18  U.S.C.  §§2510, 
et  seq. ,  was  intended  to  govern  "the  regulation  of  the  interception  of 
wire  and  oral  communications",  while  47  U.S.C.  §605  was  designed  to  "regulate 
the  conduct  of  communications  personnel"  as  well  as  prohibit  the  interception 
and  divulgence,  or  use,  or  radio  communications.  1968  U.S.  Code  Cong,  and 
140 
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Adm.  News  2196-2197.  Nothing  in  §605  indicates  that  common  carrier  radio 
communications  are  to  be  excluded  from  its  coverage. 
Notwithstanding  the  seemingly  comprehensive  coverage  of  radio 
ccmnunications  by  §605,  however,  the  legislative  history  and  definitions 
of  wire  and  oral  communications  in  18  U.S.C.  §2510  permit  an  initial 
construction  of  §§2510,  et  seq. ,  to  cover,  inter  alia,  the  interception  of 
all  radio- landline  telephone  communications  transmitted,  in  part,  by  aid 
of  common  carrier  wire  (wire  ccomunications) ,  and  all  "aural"  radio-to- 
radio  communications  where  there  is  a  reasonable  expectation  such  communi- 
cations are  not  subject  to  interception  (oral  communications) . 
This  construction  of  18  U.S.C.  §§2510,  et  se£. ,  would  leave  §605 
with  jurisdiction  over  only  the  interception  of  "non-aural"  radio- landline 
caiman  carrier  coornunications ,  and  only  those  "aural"  radio-to-radio 
communications  which  might  reasonably  be  subject  to  interception.  Such 
a  construction  would,  of  course,  remove  the  interception  or  radio- landline 
telephone  communications  by  "communications  personnel"  from  the  coverage 
of  §605  which  was  specifically  designed  to  "regulate  the  conduct  of 
ccctnunications  personnel".  (Section  2511(2) (a) (i),  Title  18,  United 
States  Code,  expressly  recognizes  and  contemplates  that  officers,  employees 
and  agents  of  communications  common  carriers  may  also  intercept  wire 
camnni  cations.) 
The  foregoing  demonstrates,  if  nothing  else,  that  the  seemingly 
comprehensive  coverage  of  "wire  ccranunication"  in  18  U.S.C.  2511(1)  is 
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neither  all-inclusive  nor  free  of  ambiguity. 
It  is  noted  that  the  only  specific  reference  to  radio  conmunications 
In  the  prohibitions  of  18  U.S. C.  §2511  is  that  -which  appears  In  §2511(1) 
(b)  (ii)  proscribing  the  Interception  of  oral  (not  wire)  conmunications 
by  the  use  of  devices  which  transmit  cccratunications  by  radio  or  interfere 
with  the  transmission  of  radio  communications.  This  reinforces  not  only 
the  contention  that  "oral  communications"  defined  in  18  U.S.C.  §2511(2) 
contemplate  private  oral  conversations  transmitted  by  radio  eavesdropping 
devices;  it  also  points  up  the  omission  of  any  similar  prohibition  against 
the  use  of  radio  devices  to  intercept  "wire  communications"  as  defined  in 
18  U.S.C.  2511(1). 
(viii)  Statutory  Construction 
When  either  of  two  statutes  apply,  the  specific  takes  precedence 
over  the  general.  Robinson  v.  United  States,  142  F. 2d '431  (8  Cir.  1944). 
Therefore,  if  18  U.S.C.  §2511  clearly  applied  to  the  interception  of  radio 
portions  of  radio- landline  telephone  conmunications,  it  should  take  prece- 
dence over  the  general  coverage  of  47  U.S.C.  §605.  Section  §2511,  however,  is 
not  unequivocal  in  its  coverage,  and  sin-    " 'suities  in  criminal  statutes 
and  conflicts  in  statutory  construction  must  je  resolved  in  favor  of  potential 
defendants,  the  misdemeanor  statute  would  seem  to  apply.  United  States  v. 
Bass,  404  U.S.  336,  348  (1971). 
142
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(ix)  Prosecutive  Options 
The  Government  has  the  option  to  proceed  under  47  U.S.C.  §605.  Where 
a  single  act  violates  more  than  one  statute,  the  Government  may  elect  to 
proceed  under  either.  United  States  v.  Burnett,  supra. 
(b)  47  U.S.C.  §605 
The  second  and  fourth  clauses  of  Section  605  prohibit,  respectively, 
the  interception  and  divulgence  of  radio  ccmnunications ,  and  the  receipt 
of  intercepted  radio  coirmunications  and  divulgence  or  use  for  one's  own 
benefit  or  the  benefit  of  another. 
Divulgence  by  one  who  did  not  personally  intercept  the  communication, 
however,  or  cause  another  to  do  so,-  is  not  a  violation  of  the  second  clause 
of  Section  605;  and  use  for  the  benefit  of  the  Government  is  not  the  type 
of  "use"  prohibited  by  the  statute.  Pugach  v.  Klein,  193  F.Supp.  630, 
640-641  (S.D.N.Y.  1961);  United  States  v.  Lewis,  87  F.Supp  970,  974  (D.D.C. 
1950),  reversed  on  other  grounds,  184  F.2d  394  (D.C.  Cir.  1950). 
The  Government  has  consistently  taken  the  position  that "disclosure 
within  the  Executive  Branch  is  not  "divulgence"  within  the  proscriptions 
of  Section  605.  Nardone  v.  United  States,  302  U.S.  379  (1037);  United  States 
v.  Butenko,  494  F.2d  593,  600  (3  Cir.  1974),  cert,  denied,  419  U.S.  881  (1974). 
In  any  event,  "person"  in  Section  605  does  not  include  law  enforcement 
officers  acting  in  the  normal  course  of  their  duties.  1968  U.S.  Code 
143
SC-OO0/8-/6 
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Cong,  and  Adm.  News  2197 .  The  second  clause  of  Section  605  prohibits 
any  "person"  from  intercepting  and  divulging  to  "any  person".  It  would 
seem,  therefore,  that  disclosure  by  NSA  personnel  to  law  enforcement 
officers  of  K©D/DEA  would  not  constitute  "divulgence"  within  the  statute. 
(c)  Presidential  Authorization 
(18  U.S.C.  §2511(3))   
On  October  24,  1969,  President  Nixon  created  the  White  House  Task 
Force  for  Narcotics  Control  and  reportedly  announced  a  decision  to  make 
narcotics  a  matter  of  foreign  policy,  and  further  directed  the  Director  of 
Central  Intelligence  to  contribute  to  the  maximum  extent  possible  in  the 
collection  of  foreign  Intelligence  related  to  traffic  In  opium  and  heroin. 
CTab  T2) 
In  August,  1971,  the  President  created  the  Cabinet  Conmittee  as 
International  Narcotics  Control  (which  included,  inter  alia,  the  DCI 
(CIA),  the  Attorney  General,  Secretary  of  Defense,  et  a'l.)  and  directed 
that  ail  Federal  offices,  department  and  agencies  cooperate  with  the  CCINC 
in  carrying  out  its  functions,  including  the  coordination  of "all  diplomatic, 
intelligence  and  Federal  law  enforcement  programs  and  activities  of  inter- 
national scope.  (Tab  T5)   President  Nixon  also  issued  additional  orders 
and  made  additional  statements  directing  the  mobilization  of  the  full 
resources  of  the  Federal  Government  to  gather  intelligence  on  international 
drug  traffic.  (See  III  (B) ,  supra.) 
— WP-ffi 
orxivr.?.*
Copy  /  012 
President  Ford  was  recently  quoted  as  having  designated  the  illicit 
export  of  opium  to  the  United  States  as  a  "threat  to  our  national  security." 
See  III  (B)(6),  supra. 
Former  Secretary  of  Defense  Melvin  Laird  stated  that  during  the  Viet 
Nam  Conflict,  he  regarded  the  importation  of  drugs  into  the  United  States 
to  be  a  matter  affecting  the  national  security  because  it  undermined  the 
capability  of  the  Armed  Forces  during  a  period  of  national  emergency.  (Tab  X4) 
(For  specific  sources  of  purported  author ization,  see  III,  supra.) 
(d)  Willfulness 
See  V(C) ,  supra. 
2.     Interceptions  of  International 
non-Voice  Conrunications  * 
(a)     18  U.S.C.  §2511 
(i)  Interception 
The  legality  of  the  interception  of  non-voice  communications  turns 
upon  the  interpretation  of  "intercept"  as  defined  in  18  U.S.C.  2510(4): 
(4)  "intercept"  means  the  aural  acquisition 
of  the  contents  of  any  wire  or  oral  cccmunication 
through  the  use  of  any  electronic,  mechanical,  or 
other  device. 
The  statute  thus  restricts  the  definition  of  "intercept"  to  "aural 
acquisition",  and  the  legislative  history  specifically  excludes  all  other 
means  of  acquisition: 
145
copy  /  of2 
. . .  Other  forms  of  surveillance  are  not  within 
the  proposed  legislation. . .   The  proposed  legis- 
lation is  intended  to  protect  the  privacy  of  the 
conrnunication  itself  and  not  the  means  of  cocnmi- 
nication.  1968  U.S.  Code  Cong,  and  Adm.  News  2178. 
The  dictionary  defines  "aural"  as  "of  or  relating  to  the  ear  or  sense 
of  hearing."  The  words  "aural  acquis tion",  literally  translated,  means  to 
come  into  possession  through  the  sense  of  hearing.  Smith  v.  VTunker,  356 
F.Supp.  44,  46  (S.D.  Ohio  1972). 
The  legislative  history  further  amplifies  the  intended  scope  of  "aural 
interceptions": 
Paragraph  (4)  defines  "intercept"  to  include 
the  aural  acquisition  of  the  contents  of  any  wire 
or  oral  communication  by  any  electric,  mechanical, 
or  other  device.  Other  forms  of  surveillance  are 
not  within  the  proposed  legislation.  See  Lee  v. 
United  States,  47  S.Ct.  746,  274  U.S.  559  Tl9~27); 
Corngold  v.TJhited  States,  367  F.2d  (9th  1966). 
An  examination  of  telephone  company  records  by 
law  enforcement  agents  in  the  regular  course  of 
their  duties  would  be  lawful  because  it  would  not 
be  an  "interception''.  (United  States  v.  Russo, 
250  F.Supp.  55  (E.D.  Pa.  1966)).  The  proposed* 
legislation  is  not  designed  to  prevent  the  tracing 
of  phone  calls.  The  use  of  a  "pen  register", 
for  example,  would  be  permissible.  But  see 
United  States  v.  Dote,  371  F.2d  176  (7th  1966). 
The  proposed  legislation  is  intended  to  protect 
the  privacy  of  the  communication  itself  and  not 
the  means  of  communication.  1968  U.S.  Code  Cong. 
and  Adm.  News  2178. 
The  foregoing  clearly  excludes  from  the  coverage  of  18  U.S.C.  §2511 
all  communications  transmitted  mechanically,  i.e.,  transmitted  by  signals 
independent  of  sound,  e.g.,  electrical  pulses. 
146
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(ii) . "Aural" 
"Aural  acquisition"  seems  to  have  been  used  by  the  Congress  neither 
as  a  term  or  art  nor  as  a  term  of  technology.  The  words  "acquistion. . . 
through  the  use  of  any. . .  device"  suggest  that  the  central  concern  is  with 
the  activity  engaged  In  at  the  time  of  the  conmmication  which  causes  such 
cootnunication  to  be  overheard  by  uninvited  listeners,  i.e. ,  the  contem- 
poraneous acquisition  of  the  comnunication.  It  is  the  act  of  contemporaeous 
surveillance  (by  hearing,  recording,  or  otherwise)  which  was  at  the  center 
of  congressional  concern.  United  States  v.  Turk,  526  F.2d  654,  658-659  (5 
Cir.  1976).  This  "interpretation  of  "aural  acquisition"  is  reinforced  by 
18  U.S.C.  2511(1) (c)  which  prohibits  the  subsequent  disclosure  of  an 
intercepted  cocmunication. 
"Aural  acquisition",  would  seem  to  include,  for  example,  the  de-channeling 
of  tape  recordings  of  intercepted  multi-channel  "sound"  ccmnunications .  In 
such  cases,  the  acquisition  of  the  intelligible  contents  of  a  ccramunication 
would  not  necessarily  have  to  be  contenporaneous  with  the  interception  and 
acquisition  of  the  primary  or  "garbled  sounds".  In  short,  "aural  acquisition" 
would  appear  to  generally  cover  the  interception  of  sounds  while  in  the  process 
of  transmission. 
147
(iii)  Teletype  and  Telex  Cccnrunlcations  * 
Teletype  and  telex  transmissions  are  clearly  non-aural.  Teletype 
technology  essentially  connects  two  typewriter  keyboards  by  pulses  of 
electrical  energy  transmitted  by  wire  and/or  radio.  Telex  technology 
maximizes  the  utility  of  teletype  facilities  by  increasing  the  transmitting 
\  capacity. 
*W*S" 
■WW!" 
"    .  ______   1   ^   ^  ^   _."L_3 
J 
-----  ■   -  ■-    — •  ■  '  mm  """' 
(b)  47  U.S.C.  §605 
(i)  Divulgence 
The  Interception  of  non-aural  cornmunications  is  covered,  if  at  all, 
by  47  U.S.C.  §605,  which  requires  divulgence,  or  use,  in  addition  to 
Interception.  There  is  absolutely  no  indication  that  Congress  contemplated 
§605  situations  where  interceptions  were  not  accompanied  by  divulgence. 
United  States  v.  Butenko,  494  F.2d  593,  600  (3  Cir.  1974),  c.d.,  419  U.S. 
881  (1974). 
The  majority  in  Butenko  observed  that  "restricting  any  divulgence 
to  members  of  the  Executive  Branch   does  not  necessarily  mean  that  the 
^jmsmt..'J 
148 
1LILJUIA_4^
surveillance  and  such  divulgence  does  not  fun  afoul  of  §605",  but  the 
dissenting  Chief  Judge  stated  that  while  the  question  did  not  have  to  be 
resolved  In  that  case,  perhaps  such  divulgence  does  not  violate  §605 
"because  the  federal  officers  are  really  acting  as  agents  of  the  executive 
in  making  the  interception  and  the  relevant  "person"  to  be  viewed  as  inter- 
ceptor is,  thus,  the  executive;  divulgence  to  other  agents  of  the  executive, 
who  receive  the  Information  in  such  capacity,  hence  would  not  violate  the 
statute  because  the  divulgees  would  be  part  of  the  same  "person"  as  the 
divulgors."  This  has  been  the  consistent  position  taken  by  the  Government 
in  such  cases.  Nardone  v.  United  States,  302  U.S.  379  (1937);  United  States 
v.  Butenko,  supra. 
Whatever  the  validity  of  the  above  position;  the  Government  could 
hardly  prosecute  one  of  its  own  agents  for  divulging  the  contents  of  an 
intercepted  communication  within  the  Executive  Branch  in  reliance  upon  the 
Government's  long-standing  interpretation  of  the  statute.  Furthermore, 
Section  605  does  not  apply  to  law  enforcement  officers  acting  In  the  course 
of  their  normal  duties.  1968  U.S.  Code  Cong,  and  Adm.  News  2197.  Disclosure 
by  NSA  within  the  Executive  Branch,  particularly  to  BNDD,  Secret  Service  and 
FBI  agents  is,  therefore,  not  proscribed  by  the  statute. 
(ii)  Use 
Section  605  must  face  the  canon  of  strict  construction  in  favor  of  the 
accused.  It  is  one  thing  to  interpret  the  statute  In  favor  of  the  accused, 
149 
7T.  [  I:..    ■.-.  tjtfiZJZ
v»py  /  otz 
but  quite  another  to  expand  its  meaning  where  to  do  so  works  against  the 
accused.  A  strict  construction  In  favor  of  the  accused  impels  the  con- 
clusion that  the  provision  "use. . .  for  his  own  benefit  or  for  the  benefit 
of  another  not  entitled  thereto",  means  another  person  and  does  not  include 
use  for  the  benefit  of  the  Goverment.  Plainly,  such  use  is  not  for  the 
government  agent's  own  benefit.  Pugach  v.  Klein.  193  F.Supp.  630,  640-641 
(S.D.N.Y.  1961);  United  States  v.  Lewis,  87  F.Supp.  970,  974  (D.D.C.  1950), 
reversed  on  other  grounds,  184  F. 2d  394  (D.C.  Cir.  1950). 
(iii)  Interception  and  Divulgence 
or  Use  By  Different  Parties 
Absent  a  conspiracy,  mere  divulgence  by  one  who  did  not  personnally 
Intercept  the  comnunication,  or  cause  another  to  do  so,  is  not  a  violation 
of  the  second  clause  of  Section  605.  Pugach  v.  Klein,  supra.  By  the  same 
reasoning,  the  "receipt  and  divulgence"  prohibitions  of  the  first  clause  of 
Section  605,  and  the  "receipt  and  use"  proscriptions  In  the  third  clause, 
would  seem  also  to  require  that  receipt  and  divulgence  (or  use)  be  accomplished 
by  the  same  person  to  constitute  an  offense  under  §605. 
(c)  Presidential  Authorization 
See  III,  supra. 
150
(d)    Willfulness 
See  V(C),  supra. 
B.  Receipt  of  "Cable  Traffic"  from  International 
CocTrounications  Carriers  (SHAMROCK,  and  Drop- 
Copy  Operation) 
1.     47  U.S.C.  §605 
This  activity  is  covered,  if  at  all,  by  the  first  clause  and/or 
third  clause  of  47  U.S.C.  §605  which  prohibit,  generally,  the  receipt 
and  divulgence  (except  upon  demand  of  lawful  authority,  etc.)  of  inter- 
state or  foreign  cotmunications  by  wire  or  radio;  and  the  receipt  and  use 
of  radio  commaiications.  j
Possible  Violations  of  §605  Involve  persons  in  two  general  categories: 
(1)  cccmercial  cccmunications  personnel;  and  (2)  government  agents  and  officials.  !
(a)  Ccmrunications  Personnel 
The  new  Section  §605  is  designed  to  regulate  the  conduct  of  conmunications 
personnel,  1968  U.S.  Code  Cong,  and  Adm.  News  2197.  As  noted  above,  however, 
§605  apparently  requires  that  both  the  willful  receipt  (or  assistance  in  receiving) 
and  the  willful  divulgence  and/or  use,  be  accomplished  by  the  same  person,  and 
"use"  by  a  Government  agent  for  the  benefit  of  the  Government  is  not  the  type 
of  "use"  contemplated  in  the  proscriptions  of  the  statute.  Pugach  v.  KLeln, 
supra;  United  States  v.  Lewis,  supra. 
151 
HANDLE  VIA  COM1NT  CHANNELS
SC-06C/£wo 
©3py  /    oj  2 
In  addition  to  their  reliance  on  the  foregoing,  conurunications  personnel 
involved  in  SHAMROCK  and  the  Drop-Copy  Operation  may  contend  their  assistance 
to  NSA  and  the  FBI  was  in  resonse  to  requests  made  under  the  Presidential 
power  recognized  by  18  U.S.C.  §2511(3),  i.e.,  "on  demand  of  lawful  authority" 
and,  therefore,  within  the  exceptions  enumerated  in  §605. 
The  FBI  asserts  that  the  legislative  history  of  §605  indicates  Congress 
Intended  the  phrase  "on  demand  of  lawful  authority"  to  be  as  Inclusive  as 
the  similar  provision  of  the  Interstate  Commerce  Act  of  1887  from  which  the 
Cccmunicaticns  AQt  of  1934,  in  part,  was  taken.  (Tab  CO)  The  Interstate 
Conmerce  Act  of  1887,  as  amended  In  1910  to  prohibit  the  disclosure  of 
conmunications  transmitted  by  common  carriers,  provided  that  nothing  therein 
should  be  construed  to  prevent  the  giving  of  information  in  response  to  "any 
officer  or  agent  of  the  Government  of  the  United  States,  or  of  any  State  or 
Territory,  In  the  exercise  of  his  powers,  or  to  any  officer  or  other  duly 
authorized  person  seeking  such  information  for  the  prosecution  of  persons 
charged  with  or  suspected  of  crime. . ." 
The  communications  personnel  might  also  argue  they  were^de  facto, 
agents  of  the  United  States  Government  and  disclosed  only  to  agents  within 
the  Executive  Branch  which  does  not  constitute  "divulgence"  within  the  meaning 
of  Section  605.  United  States  v.  Butenko,  supra. 
152 
HAMHIP   VIA    TOM1MT    rUAMNinr
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(b)  Goverment  Agents  and  Officials 
Agents  and  officials  of  NSA  and  the  FBI  who  were  involved  in  the  daily  / 
conduct  of  SHAMROCK  and  the  Drop  City  Operation  will  perhaps  assert  they 
never  received  or  assisted  in  receiving  any  of  the  conraLmications  furnished 
to  them,  but  rather  obtained  the  comnunications  only  after  the  receipt  of 
same  by  comnunications  personnel.  They  will  likely  contend  also  that  there 
was  no  "divulgence"  because  dissemination  was  confined  to  a  small  segment 
of  the  Executive  Branch. 
Those  officials  who  negotiated  or  maintained  the  informal  agreements 
between  the  Government  and  the  cccnmunications  carriers  were  not  the  same 
persons  who  obtained  and  disseminated  the  actual  comnunications  within  the 
Executive  Branch.  They  will,  of  course,  seek  to  avoid  the  application  of 
Section  605  by  claiming  not  to  have  received  and  divulged  any  cannunications 
themselves.  As  for  criminal  conspriacy,  they  will  probably  attempt  to 
prove  an  implied  delegation  of  Presidential  power  under  18  U.S.C.  2511(3). 
2.  Presidential  Authorization 
See  III,  supra. 
3.  Willfulness 
See  V(C) ,  supra. 
HANDLF  VIA   TOMINT  fHAMNFK
Copy  /  of  2 
C.  Interception  of  Domes cic  Cornnunications 
In  Testing  Electronic  Equipment 
1.  18  U.S.C.  §2511  and  47  U.S.C.  §605 
All  interceptions  which  are  known  to  have  occurred  within  the  five-year 
statute  of  limitations  were  interceptions  of  "radio"  connunications ,  i.e., 
the  radio  portions  of  radio-telephone  comnonications  which  were  not  "divulged" 
within  the  meaning  of  47  U.S.C.  §605.  The  same  defenses  set  forth  in  IV(A), 
supra,  may  be  raised  with  respect  to  this  activity. 
» 
2.  Presidential  Authorization 
See  111(E)(4),  and  III  (F)(6). 
3.  Willfulness 
See  V(D),  supra. 
154
— *0J     otiJriki  f^ 
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VII.  S»M4ARY  OF  POSSIBLE  VIOLATIONS  AND  DEFENSES 
A.  Recapitulation  of  Inquiry 
The  Rockefeller  Ccmiiission  Report  raised  questions  concerning  seven    ' 
areas  of  CIA-related  electronic  surveillance  activity:  CIA  personnel 
security,  activities  of  U.S.  dissidents,  toll  records  of  telephone  calls 
between  the  U.S.  and  a  hostile  country,  the  interception  of  international 
narcotics  trafficker's  telephone  communications,  electronic  equipment  testing, 
a  survey  of  ^the  potential  capaM^ 
T^.^ccOTuntotionSj.and  CIA  assistance  to  the  Secret  Service  and  local 
police  departments  (pp. 1-13,  supra). 
J 
n»  tilm—^mim 
■■■  iK   1 1  i,  tMit  i  wmm±Se±~—'     However,  our  inquiry  revealed'  the  xoiiowing1 
eleven  additional  areas  of  questionable  activity  involving  the  CIA,  NSA  and  FBI: 
tit 
seas  intercepts, g^""  '  ■  ■"■  '.  '  'H'.'LJ  "  '.  :-■■.  ■    T  MINARET,, 
SHAMR0CKA"    i  miiri-t  in  ■land  the  FBI  drop-copy  operation  (pp.  14-39, 
SEES)  •      Flve  °f  these  may  also  contain  the  elements  of  Federal  criminal 
offenses,  i.e.,  MINARET  (pp. 26-29,  surpra)  Mfa*    ' "' ^ff -.  ■•,',•  n| ..  !.  ■    }l  **§ 
JL-Z^ZTZR.  ..-i'.  '■  ■,.■;. wBm&jiwgwii    i  SHAMROCK  (pp.32-36,  supra),  and  the  FBI 
drop-cojy  operation  (p. 39,  supra). 
Eight  specific  electronic  surveillance  operations  thus  require  prosecu^" 
tive  evaluation. 
'TOP  SECRE 
155
SC-05078-76 
Copy  /   oi  2 
Fran  October  1972  to  January  1973,  at  NSA's  request,  the  CIA  intercepted 
the  radio  portions  of  targeted  radio- telephone  cctrrnunications  between  Latin 
America  and  the  United  States  for  the  purpose  of  gathering  intelligence  on 
international  narcotics  trafficking.  wz'Z.   ■  "": '- "-  ..   :     
■    J 
■l.  ■■-■■:•.  ::^^..v;;jM».  jjJ-"'   he  intelligence  product  was  furnished  to  NSA 
which,  in  turn,  forwarded  it  to  ENDD. 
If  the  radio  portions  of  international  radio-telephone  communications  are 
i 
deemed  "wire  camunications"  (see  pp.  139-140,  supra),  the 
would  be  in  clear  violation  of  18  U.S. C.  §2511(1),  but  for  the  apparent 
\ 
blanket  approval  of  such  interceptions  by  Attorneys  General  and  the  Secretary 
i 
of  Defense  in  1971  and  1972  (pp. 81-84,  supra).  Such  approval,  together  with 
the  explicit  Presidential  insistence  that  CIA  contribute  to  the  "maximum 
extent"  and  "to  mobilize  its  full  resources  to  fight  the  international  drug 
trade"  (pp.  46,  58,  112,  supra),  could  be  construed  as  Presidential  direction 
and.  authorization  under  18  U.S.C.  §2511(3).  This  defense  is  particularly 
buttressed  by  prior  Presidential  declarations  that  narcotics,  control  is  a  matter 
of  "foreign  policy"  (p. 46,  supra);  that  it  is  "imperative  that  the  illicit 
flow  of  narcotics  and  dangerous  drugs  into  this  country  be  stopped  as  soon 
as  possible"  (p. 47,  supra);  that  illicit  drugs  are  a  'toenace  to  the  general 
welfare  of  the  United  States"  (p. 46,  supra);  that  "winning  the  battle 
against  drug  abuse  is  one  of  the  most  important,  the  most  urgent  national 
priorities  confronting  the  United  States  today"  (p. 57,  supra);  that  "keeping 
dangerous  drugs  out  of  the  United  States  [is]  just  as  important  as  keeping 
armed  enemy  forces  from  landing  in  the  United  States"  (p. 58,  supra) .  Such 
Presidential  language  could  be  easily  construed  as  equating  narcotics  control 
with  national  security.
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Congress  has  also  recognized  the  need  for  International  narcotics       / 
Intelligence  and  the  general  propriety  of  utilizing  CIA  and  NSA  resources 
to  obtain  it.  (pp.49,  63,  supra;  Tab  T7) 
Although  the  foregoing  does  not  conclusively  establish  legitimate  authori- 
zation, it  sufficiently  clouds  the  issue  to  make  proof  of  willfulness  on  the  part 
of  subordinates  essentially  impossible.  Likewise,  the  purported  "authorization" 
by  the  President,  Attorneys  General  and  Secretary  of  Defense  is  so  general,  so 
amorphous,  that  it  would  be  impossible  to  prove  beyond  a  reasonable  doubt  that  eith< 
of  them  specifically  "authorized"  *--.'.   .,  ,.-  .-.:,■    ,  ",,.  .  ;;,.  .  ...  .:...;...  . 
It  thus  appears  that  no  real  probability  exists  for  convicting  anyone 
Involved  m^'%*  .:. 
MMMMMttfttMhhM 
,4  Consequently,  it  would  not  seem  to  warrant 
further  prosecutive  pursuit. 
(See  Suimary  Outline,  Tab  D,  for  complete  listing  of  possible  defenses.)
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(See  Sunmary  Outline,  Tab  F4,  for  additional  detail.) 
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4.    MINARET 
The  chartering  of  MINARET  on  July  1,  1969,  formalized  NSA's  de  facto 
collection  and  dissemination  of  intelligence  concerning  Presidential  protection 
and  foreign  influences  on  domestic  organizations  and  individuals  which  might 
create  civil  disturbances  and/or  undermine  the  national  security.  The  Attorney 
General  advised  the  PFIAB  on  February  5,  1971  that  electronic  surveillance  to 
obtain  intelligence  concerning  violence-prone  groups  was  clearly  within  the 
jurisdiction  of  the  Presidential  responsibilities  i'or  maintaining  law  and 
order  (pp.107,  supra).  Such  intelligence  was  gathered  and  distributed  by 
NSA  to  Federal  consumer  agencies,  i.e.,  the  CIA,  FBI,  Secret  Service,  ACSI, 
DIA,  and  State  Department,  all  of  whom  levied  requirements  on  NSA  under  NSCID 
6  (pp.  78,  supra) .  BNDD  levied  narcotics  intelligence  requirements  on  NSA 
in  April  1970.  K., ,...:   .:,.-.  ..T  ,..:  -—,T  ''  ,  ....J::::..,", :.— _^ .  : ..;  ..  . 
MINARET  intelligence,  except  one  category  of  international  voice  coumuni- 
cations  involving  narcotics,  was  obtained  incidentally  in  the  course  of 
NSA's  interception  of  aural  and  non-aural  (e.g.,  telex)  international 
conrunications ,  and  the  receipt  of  GCHQ-acquired  telex  and  ILC  cable  traffic 
dwmrmtLL  J'1 " iii^'J "»'J».  " :» ',"  >J 
Possible  violations  in  MDWRET  are  (1)  aural  acquisition  (and/or  use, 
disclosure,  etc.)  of  wire  and  oral  ccouunications  (18  U.S.C.  §2511);  and 
(2)  receipt  or  interception  and  divulgence  or  use  of  radio  connunications 
(47  U.S.C.  §605). 
In  conformity  with  NSA's  one-terminal  rule  (p. 61,  supra),  all  MINARET 
cxcmunications  apparently  had  at  least  one  terminal  in  a  foreign  country  and,
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excluding  SHAMROCK  cannunications ,  were  obtained  through'  the  Interception  of 
radio  portions  of  international  communications  from  sites  both  within  and 
without  the  united  States. 
On  November  6,  1975,  the  Attorney  General  noted  In  his  testimony  before 
the  Senate  Select  Cccunittee  that  it  is  arguable  that  "if  matters  are  picked 
up  out  of  the  air,  so  to  sped.,  as  waves  of  some  kind  across  the  ocean,  that 
there  is  no  reason  for  people  to  assume  that  the  conversations  are  private  end 
therefore  the  fourth  amendment  does  not  apply".   Hearings  Before  the  Select 
Comnittee  to  Study  Governmental  Operations   With  Respect  to  Intelligence 
Activities  of  the  Senate,  94th  Cong. ,  1st  Sess.,  V5,  pp. 115-116  (1975). 
Although  the  Attorney  General  expressly  declined  to  make  such  an  argument 
because  "it  goes  too  far",  it  nonetheless  remains  available  as  a  tentative 
and  plausible  defense.  (See  pp. 128-142,  supra.) 
Assuming,  however,  such  defense  is  not  viable,  the  dissemination 
of  intelligence  incidentally  derived  from  clearly  legitimate  NSA  operations 
to  'provide  for  the  SIGINT  mission  of  the  United  States"  (p. 77,  supra) 
appears  to  be  lawful  under  the  "plain  view"  doctrine  (p.  125,  supra), 
particularly  in  view  of  the  general  absence  of  statutory  restrictions  on 
NSA  intercept  activities. 
Cur  inquiry  confirms  the  following  findings  of  the  Senate  Select 
Cannittee  regarding  the  lack  of  statutory  restrictions  on  NSA: 
*  *  * 
...  [N]o  existing  statutes  control,  limit  or 
define  the  signals  intelligence  activities  of 
NSA.... 
*  *  *
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No  statute  or  executive  directive  prohibits 
NSA's  monitoring  a  telephone  circuit  with 
one  terminal  in  the  United  States. 
*  *  * 
It  is  Important  to  note  that  the  decision 
to  terminate  the  watch  list  was  ultimately 
the  administrative  decision  of  an  executive 
agency.  There  is  no  statute  which  expressly 
forbids  such  activity,  and  no  court  case 
where  it  has  been  squarely  at  issue.  Without 
legislative  controls,  NSA  could  resume  the 
watch  list  activity  at  any  time  upon  order  of 
the  Executive....  (S.Rep.  No.  94-755,  94th 
Cong.,  2nd  Sess.,  Book   ,  pp.736,  756, 
761  Q.976). 
I 
The  apparent  lack  of  statutory  restriction  on  NSA  intercept  activities  was 
i 
reinforced  by  a  memorandum  from  NSA  General  Counsel  to  the  Office  of  the  NSA 
Director  on  July  24. 1 
1968  reporting  that  the  enactment  of  18  U.S.C.  §2511(3) 
on  June  19,  1968  removed  "any  doubt  as  to  the  legality  of  SIGINT...  activities 
of  the  Executive  Branch  of  the  Government",  (p. 85,  supra;  Tab  YZ) 
NSA's  purposeful  interception  of  the  radio  portions  of  international 
radio-telephone  conraunications  to  obtain  narcotics  intelligence  for  BNDD 
began  in  September  1970  and  continued  until  June  1973.  Apparently,  NSA  only 
intercepted  narcotics  ccnnunications  having  one  terminal  (at  least)  in  a  foreign 
country.  Consequently,  this  activity  conformed  with  NSA' 6  long-standing  "one- 
terminal"  rule  (p. 81,  supra),  Presidential  priorities  (pp. 46-58,  109,  111-112, 
supra),  possible  USIB  approval  (p. 97,  supra),  "ground  rules"  approved  in  1971 
and  1972  by  Attorneys  General  and  the  Secretary  of  Defense  (pp. 82-84,  supra),  and 
the  "national  security"  nature  of  drug  trafficking  during  the  Viet  Nam  War 
(Tab  X4) . 
162 
HANDLE  VIA  COMINT  CHANNELS
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The  broad,  sweeping  SIGllTT  responsibilities  and  powers  of  NSA,  combined  c 
with  vague  or  non-existent  restrictions  on  NSA  in  exercising  that  power  to 
carry  out  such  responsibilities,  would  seem  to  render  further  prosecutive 
pursuit  of  MINARET  futile.  The  plain  view  doctrine  appears  to  legitimize  the 
incidentally-acquired  MINARET  intelligence,  and  the  aforementioned  circumstances 
of  gathering  the  narcotics  intelligence  for  INDD  makes  proof  of  willfulness 
highly  improbable,  if  not  impossible. 
(See  Suoinary  Outline,  Tab  N,  for  additional  analysis  and  detail.) 
163 
tiAMTMt  via-  roMINT  CHANNELS
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6.     SHAMROCK 
In  SHAMROCK,  the  NSA  gathered  International  non-aural  cccrnunications  from 
ILC  carriers  (principally  3TT,  RJCA  and  VWI)  fran  1957  to  May  1975.   NSA 
Inherited  this  operation  from  military  agencies  which  began  collecting  cable 
traffic  during  WW  II  and  continued  thereafter  as  essential  to  the  national 
security  with  the  approval  of  Secretaries  of  Defense,  Attorney  General  Tom 
Clark  and  President  Truman. 
The  method  of  obtaining  H£  connunications  varied  with  changing  technology 
and  circumstances,  but  from  the  mid-1960s  to  May  1975,  NSA  employees  received 
or  had  access  to  virtually  all  HjC  traffic  which  passed  through  the  New  York 
City  offices  of  RCA  and  TIT.  The  offices  of  WUT  in  New  York  City  and 
Washington,  D.C.  furnished  NSA  with  microfilm  ofpi''-..  •■•  '   .     and 
possibly  other)  TLC  connunications  until  1969.  The  WJI  connunications  were 
selected  out  and  ndcrolfined  f  or  NSA  by  WI  employees.  CThe  offices  of  RCA, 
ITT,  WI  and  other  ILC  companies  in  several  other  cities  also  contributed  to 
SHAMROCK  at  various  times.) 
NSA  also  requested  and  received  cable  traffic  from  the  FBI  which  the 
latter  obtained  from  RCA,  ITT  and  WJI  until  the  termination  of  its  "Drop-Copy 
Operation"  in  April  1973. 
In  about  1967,  NSA  began  extracting  domestic  intelligence  from  the  ILC 
connunications  (magnetic  tapes)  received  from  RCA  and  ITT.  This  was  done 
without  the  knowledge  of  RCA  or  TTT  and  continued  until  the  termination  of 
JfM't'J  .-  Jjj^^-gy^lqn/*  domestic  intelligence  was  disseminated  to  consumer 
agencies  pursuant  to  the  MINARET  <mri  yaajci'.:.  nhartera . 
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ru  a  
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Notwithstanding  the  extraction  of  MINARET  andCZZI^^ntelligence  In 
addition  tof " '  '  1""  ,  ^SA  officials  contend  that  it  constituted  only  a 
small  portion  of  the  total  traffic  received.  The  remainder  (90%+)  was  not 
used  In  any  respect  In  an  effort  to  minimize  the  NSA  Intrusion. 
SHAMROCK  Involves  possible  violations  of  47  U.S.C.  §605.  (Section  2511 
of  Title  18,  United  States  Code,  does  not  apply  because  none  of  the  cocmunica- 
tions  were  apparently  acquired  by  "aural"  means.  Rather,  they  were  mechanically 
transmitted  and  received  through  pulses  of  electrical  energy,  e.g.,  telex.) 
NSA  finds  support  for  conducting  its  SHAMROCK  operation  in  the  following: 
NSA's  ••inheritance"  of  the  project  which  was  continued  after  W  II  at  the 
instance  of  the  Secretary  of  Defense,  Attorney  General  and  the  President 
(pp. 32-33,  supra);  the  purported  knowledge  and  receipt  of  SHAMROCK-type 
ccmrunications  by  the  President  and  his  National  Security  Advisor  from  1966 
to  1969  (p. 41,  Tab  N);  Presidential  authorization  (pp.46-60.  106-113;  144, 
supra) ;  knowledge  and  approval  of  the  Attorney  General  and  PFIAB  in  1971 
(pp.  107-108,  supra);  knowledge  and  tacit  approval  frcm  1969  to  1973  of 
the  Secretary  of  Defense  (p. 33,  supra);  and  the  mandate  of  NSC3D  6  (pp. 76-80, 
supra) .  (NSA  contends  that  the  exclusion  of  unencrypted  written  conmunicaticns 
from  its  mandate  under  NSCID  6  is  limited  to  mail  and  camunications  other 
than  those  sent  electronically.  S.Rep.  No.  94-755,  94th  Cong.,  2nd  Sess. , 
Book   ,  pp.737-738  (1976).) 
If  NSA  had  prima  facie  authority  to  collect  NSA  traffic  from  UC 
carriers  for  national  security  purposes,  it  may  be  contended  that  domestic 
intelligence  incidentally  derived  therefrom  was  lawfully  obtained  under  the 
"plain  view"  doctrine.  (See  p.  125,  supra)
--lOF'SbCRLii, 
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Section  605  of  Title  47  prohibits  (1)  divulgence  by  anyone  receiving 
any  foreign  communication  by  wire  or  radio,  except  upon  demand  of  lawful 
authority;  or  (2)  receipt  and  use  of  such  conrnunication  by  a  person  not 
entitled  thereto. 
In  addition  to  the  purported  "authority"  defenses  above,  potential 
SHAMROCK  defendants  may  assert  (1)  there  was  no  divulgence  outside  the 
executive  branch  and,  therefore,  no  divulgence  within  the  meaning  of  §605; 
(2)  there  was  no  divulgence  or  use  by  any  person  who  actually  received 
communications;  and  (3)  use  for  the  benefit  of  the  Government  is  not  the 
type  of  "use"  contemplated  In  §605  (pp.  143-153,  supra).  Thus,  the  argument 
may  be  made  that  no  Federal  criminal  statute  covers  the  SHAMROCK  activity. 
Section  605  does  not  apply  to  FBI,  BNDD  or  other  law  enforcement  personnel 
(pp.  133-132,  supra),  nor  to  the  mere  receipt  of  ccanunications  and  divulgence 
within  the  executive  branch. 
While  the  foregoing  defenses  do  not  clearly  absolve  the  participants, 
they  would  seem  to  provide  the  basis  for  a  sufficient  showing  of  good  faith 
and  lack  of  willfulness  to  preclude  successful  prosecution  of  NSA,  FBI 
and  other  consumer  agency  personnel  Involved.  (See  pp.  121-125,  supra.) 
(See  Summary  Outline,  Tab  P,  for  additional  detail.)
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7.  FBI  Drop-Copy  Operation  / 
From  1941  to  April  18,  1973,  the  FBI  obtained  copies  of  International 
"cable  traffic"  from  ILC  carriers  for  purported  national  security 
_      _  m — .«;.*■:...     ,-^;..m--^ 
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By  
1947,   ttie  FBI 
was  receiving  the  cable  traffic  of  14  countries  from  RCA,  WUI  and  Mackay 
Radio.  In  1947  and  1949,  the  Secretary  of  Defense  assured  RCA,  ITT  and  WJI 
that  the  assistance  they  were  providing  was  essential  to  the  national  security 
of  the  United  States,  and  both  the  President  and  Attorney  General  concurred 
In  the  request  that  it  continue. 
When  the  Drop-Copy  Operation  was  terminated  in  1973,  the  FBI  was 
'  i 
obtaining  the  "raw"  cable  traffic  of  21  countries  frcm  the  Washington,  D.C. 
offices  of  m,  RCA  and  WJI.  The  traffic  of  10  of  these  countries  was 
obtained  for  NSA. 
i 
During  the  30-odd  years  of  the  Drop-Copy-  Operation,  the  FBI  obtained 
cable  traffic  from  various  offices  of  six  ILC  companies  In  New  York  City 
San  Francisco,  Los  Angeles,  Portland  and  Washington,  D.C. 
It  appears  that  as  late  as  March  22,  1971,  the  PFIAB  and  Attorney 
General  were  aware  of  the  FBI's  operation  (p.  107,  supra).  The  FBI  finds 
authorization  for  its  Drop-Copy  Operation  In  such  knowledge  and  acquiesence; 
In  NSCID  6  which  authorizes  the  NSA  Director  to  issue  direct  mandatory 
assignments  to  any  agency  engaged  in  SIGTNT  operations  (p. 78,  supra) ;  and 
in  the  FBI's  own  authority  by  virtue  of  Executive  Order  to  conduct  counter- 
intelligence operations  within  the  United  States.  (Tab  R4) 
Possible  violations  and  defenses  are  the  same  in  the  Drop-Copy  Operation 
as  in  SHMROCK,  supra. 
(See  Sunmary  Outline,  Tab  R,  for  further  detail.)
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VIII.  CONCLUSIONS  AND  REOCM-ENDAnCWS 
1    i— t— — ^mn  fin  ■  in  mi  ■  11^ — — 
This  Feport  does  not  present  particulars  upon  which"  affirmative  prosecutive 
decisions  may  be  mada  In  specific  cases.  It  rather  provides  the  legal  and 
factual  detail  for  determining  whether  inquiry  into  specific  activities  should 
be  terminated  for  lack  of  prosecutive  potential  or  further  pursued  by  grand 
jury.  (If  additional  evidence  of  significant  prosecutive  value  exists,  it  is 
not  likely  to  be  obtained  without  a  grand  jury.) 
The  writer  recomnends  that  the  inquiry  be  terminated  in  all  respects  for  lack 
of  prosecutive  potential.  There  appears  to  be  little  likelihood,  if  any,  that 
convictions  could  be  obtained  on  the  basis  of  currently  available  evidence  or 
evidence  which  might  reasonably  be  developed. 
The  investigation  has  not  revealed  a  single  instance  in  which  intelligence 
obtained  by  means  of  electronic  surveillance  was  gathered  or  used  for  per- 
sonal or  partisan  political  purposes.  The  participants  in  every  questionable 
operation,  however  oblivious  or  unmindful,  appear  to  have  acted  under  at  least 
seme  colorable  semblance  of  authority  in  what  they  conscientiously  deemed  to  be 
the  best  interests  of  the  United  States.  While  they  may  be  regarded  in 
current  perspective  as  having  abused  their  broad  discretionary  power  on 
occasion,  that  ill-defined  power  was  conferred  upon  them  and  their  agencies 
with  the  levy  of  sweeping  legislative  and  executive  requirements,  e.g.,  the 
National  Security  Act  and  NSCIDs.  If  the  intelligence  agencies  possessed 
too  much  discretionary  authority  with  too  little  accountability,  that  would 
seem  to  be  a  35-year  failing  of  Presidents  and  the  Congress  rather  than  the 
agencies. 
In  addition  to  the  previously  enumerated  defenses  which  may  be  invoked  in 
the  event  of  prosecution,  there  is  likely  to  be  much  "buck-passing"  from  sub- 
ordinate to  superior,  agency  to  agency,  agency  to  board  or  camrfttee,  board  or 
ccmnittee  to  the  President,  and  from  the  living  to  the  dead.  The  defense 
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way  be  expected  to  subpoena  every  tenuously- Involved  government  official  and 
former  official  to  establish  legitimate  authorization  or  convoluted  theories 
or  purported  authorzation.  While  the  high  office  of  prospective  defense 
witnesses  should  not  enter  icito  the  prosecutive  decision,  the  confusion, 
obfuscation  and  surprise  testimony  which  might  result  cannot  be  ignored. 
Other  practical  considerations  include  the  implications  and  complexities 
of  providing  discovery  of  national  security  materials  (e.g. ,  NSC,  PFIAB, 
DOD,  and  White  House  documents  and  records) ,  as  veil  as  sensitive  foreign 
intelligence-gathering  methodology  and  technology.  These  considerations 
become  particularly  acute  when  weighed  against  the  minimal  chances  of  sus- 
taining the  technical  proof  of  violations  and  the  probable  lack  of  juror 
enthusiasm  for  convicting  those  whom  the  defense  may  plausibly  portray  as 
dedicated  employees  who  only  followed  orders  in  trying  to  protect  the 
national  Interest,  keep  heroin  out  of  the  United  States,  etc. 
The  above  observations  are  made  with  full  appreciation  that  the  subject 
matter  is  an  international  cause  celebre  involving  fundamental  consti- 
tutional  rights  of  United  States  citizens.  While  the  violation  of  those  rights, 
whether  intentional  or  inadvertent,  cannot  be  condoned,  the  prosecution 
of  alleged  malefactors  without  any  reasonable  probability  of  conviction  would 
seem  to  be  equally  indefensible. 
It  is  suggested  that  the  remedy  for  the  peculiar  wrongs  discussed  herein 
might  be  more  effectively  and  appropriately  sought  in  corrective  legislation 
and  adminstrative  revision  than  in  the  pursuit  of  punitive  and  retributive 
measures  which  are  likely  to  fail.  To  that  end,  the  following  innovations 
appear  to  be  as  essential  as  they  are  obvious: 
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1.  Governmental  agencies  charged  with  the  research 
and  development  of  electronic  equipment  essential 
to  the  national  security  should  be  provided  with 
clearly  defined  authority  and  procedures  for  testing 
such  equipment  against  appropriate  conniunications 
systems. 
2.  Consideration  should  be  given  to  seeking  specific 
congressional  and  presidential  designation  of  cer- 
tain international  criminal  activities  as  matters 
affecting  the  national  security  (e.g.,  international 
narcotics  trafficking,  gun-running,  etc.)  for  pur- 
poses of  foreign  intelligence-gathering.  (It  is  pure 
folly,  for  example,  to  pay  millions  of  dollars  to 
Turkey  to  reduce  the  production  of  opium  destined 
(initially)  for  Corsica,  while  at  the  same  time 
deliberately  denying  U.S.  law  enforcement  agencies 
the  benefit  of  our  most  sophisticated  and  effective 
apparatus  for  gathering  intelligence  on  heroin 
en  route  to  the  United  States.) 
3.  National  security  intelligence  agencies  should 
be  authorized  to  provide  appropriate  U.S.  law 
enforcement  agencies  with  criminal  intelligence 
incidentally  obtained  in  the  exercise  of  their 
lawrui  functions,  including  information  indicating 
criminal  activity  on  the  part  of  U.S.  citizens. 
(There  is  no  rational  basis  for  protecting  U.S. 
citizen-criminals  from  the  consequences  of 
such  "plain  view"  evidence.) 
A.  An  effort  should  be  made  (consistent  with  the 
constitutional  rights  of  criminal  defendants) 
to  secure  legislation  and/or  rules  changes 
to  prevent  the  public  identification  of  national 
security  agencies  as  the  source  of  criminal 
intelligence  incidentally  obtained  in  the 
exercise  of  their  lawful  functions,  at  least 
where  such  evidence  is  not  Introduced  at  trial. 
5.  The  authority  of  the  CIA,  NSA  and  FBI  to 
perform  their  respective  missions  in  the 
field  of  electronic  surveillance  should  be 
clearly  delegated  and  delineated  with  speci- 
fic procedures  prescribed  for  the  lawful 
exercise  of  that  authority. 
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6.  The  Office  of  General  Counsel  for  each  Intelligence 
'.  agency  should  be  staffed  with  one  or  more  attorneys 
with  expertise  in  electronic  surveillance  law  and 
Federal  criminal  law  and  procedure. 
7.  Agency  personnel  should  be  required  to  consult 
their  General  Counsel  and  confirm,  in  advance, 
the  legality  of  all  electronic  surveillance 
projects. 
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THE  END