b'United States Secret Service Use of the\nNational Crime Information Center\nT he United States Secret Service (U SSS) has authority under 18 U .S .C . \xc2\xa7 3056 to investigate and\nm aintain files on an individual who it reasonably believes might pose a threat to the physical safety\no f those it is responsible for protecting, even though that individual is not the subject of an arrest\nwarrant or under investigation for any prior crim inal activity.\nT he USSS has authority to disclose inform ation in its investigative files to the Federal Bureau of\nInvestigation (FB I) and other law enforcem ent agencies through entry of this inform ation into the\nNational C rim e Inform ation Center (NCIC). The Attorney G eneral is also independently author\xc2\xad\nized by 28 U .S .C . \xc2\xa7 534 to dissem inate inform ation on crim inal investigations, including\ninform ation on U SSS-m onitored subjects, for law enforcem ent purposes.\nAn exchange o f inform ation am ong law enforcem ent agencies through the NCIC must satisfy the\nrequirem ents o f the Privacy Act. In o rder to avoid that statute\xe2\x80\x99s general prohibition on disclosure,\nthe USSS and FBI m ust satisfy the procedural requirem ents o f the \xe2\x80\x9c routine u se\xe2\x80\x9d exem ption\ncontained in 5 U .S C. \xc2\xa7 552a(b)(3).\nD isclosure of inform ation from the NCIC on USSS-m onitored subjects for non-law enforcem ent\npurposes, such as em ploym ent or licensing, is prohibited by the Privacy Act, and may raise serious\nconstitutional problem s under the Fifth and Fourteenth Am endm ents\nBoth 28 U .S .C . \xc2\xa7 534 and the Privacy Act require that reasonable efforts be m ade to assure that\ninform ation contained in the NCIC is accurate and relevant to its use for law enforcem ent\npurposes.\n\nJune 9, 1982\nMEMORANDUM FOR THE ASSISTANT DIRECTOR,\nTECHNICAL SERVICES DIVISION,\nFEDERAL BUREAU OF INVESTIGATION\nThis memorandum responds to your request for our opinion regarding several\nissues raised by the proposed entry of data from the United States Secret Service\n(USSS) into the National Crime Information Center (NCIC). Specifically, you\nhave asked: (1) whether the USSS has the authority to monitor the activities of\nindividuals who are not the subject of outstanding arrest warrants but who may\nthreaten the physical safety of the public figures it protects; and (2) whether the\nUSSS may enter information about such individuals into the NCIC, the Federal\nBureau of Investigation\xe2\x80\x99s (FBI\xe2\x80\x99s) computerized criminal justice information\nsystem. For the reasons set forth in detail below, we conclude that the USSS has\nthe authority to gather information and maintain files on such individuals and\nenter the proposed information about them into the NCIC. We caution, however,\n313\n\n\x0cthat the NCIC should disseminate this information, as you have proposed, only to\nlaw enforcement agencies for law enforcement purposes, and not for non-law\nenforcement purposes, such as employment or licensing.\nI. Background\nThe USSS is authorized by 18 U.S.C. \xc2\xa7 3056 to \xe2\x80\x9c protect\xe2\x80\x9d various public\nfigures, including the President and Vice President (protectees).1In discharging\nthis responsibility, the USSS gathers information and maintains files on certain\nindividuals \xe2\x80\x9c whose actions or spoken words indicate that [they] may constitute a\nthreat\xe2\x80\x9d to protectees. Opinion Request, p. 1. We understand that most of these\npersons are not the subject of an outstanding arrest warrant.2 The USSS has\nproposed to enter into the NCIC the names and certain information about those\npersons \xe2\x80\x9c who are determined to be dangerous and about whom a decision is\nmade to ensure that the individual is not permitted to inflict harm on protectees.\xe2\x80\x9d\n1 U nder 18 U .S C \xc2\xa7 3056, the Secret Service is authorized lo:\nprotect the person of the President of the United States, the members of his immediate family, the\nPresident-elect, the Vice President or other officer next in the order of succession to the Office of\nPresident, and the Vice President-elect, and the members of their immediate families unless the\nmembers decline such protection, protect the person of a former President and his wife dunng his\nlifetim e, the person o f a widow of a form er President until her death or remarriage, and minor\nchildren o f a former President until they reach sixteen years of age, unless such protection is\ndeclined; protect the person of a visiting head of a foreign state or foreign government and, at the\ndirection of the President, other distinguished foreign visitors to the United States and official\nrepresentatives of the United States performing special missions abroad\nIn addition, the Act of June 6, 1968, Pub L N o. 90-331, 82 Stat. 170, as amended, reprinted in 18 U.S C. \xc2\xa7 3056\nnote, authorizes the USSS to \xe2\x80\x9c furnish protection to persons who are determined from time to time by the Secretary\nof the Treasury, after consultation with the advisory committee, as being major presidential or vice presidential\ncandidates who should receive such protection,\xe2\x80\x9d and, in certain circumstances, their spouses.\n2 Pursuant to the Privacy Act, 5 U S C \xc2\xa7 552a(e)(4) & ( 11), the USSS has announced that it maintains protective\ninformation files on the following categories o f individuals:\n(a) Individuals who have been or are currently the subject of a criminal investigation by the U.S\nSecret Service o r another law enforcement agency for the violation of certain criminal statutes\nrelating to the protection of persons or the security of properties, (b) Individuals who are the subjects\nof investigative records and reports supplied to the Secret Service by Federal, state, and local law\nenforcement agencies, foreign and domestic, other governmental agencies; private institutions and\nindividuals for evaluation by the Secret Service in connection with the performance by that agency of\nits authorized protective functions; (c) Individuals who are the subjects of non-cnminal protective\nand background investigations by the Secret Service and other law enforcement agencies where the\nevaluation of such individuals, in accordance with criteria established by the Secret Service,\nindicates a need for such investigations; (d) Individuals who are granted ingress and egress to areas\nsecured by the Secret Servtce, the Executive Protective Service, or to areas in close proximity to\npersons protected by the Secret Service, including but not limited to invitees, passholders, trades\xc2\xad\nmen, law enforcement, maintenance and service personnel; (e) Individuals who have attempted or\nsolicited unauthorized entry into areas secured by the Secret Service; individuals who have sought an\naudience o r contact with persons protected by the Secret Service or who have been involved in\nincidents or events which relate to the protective functions of the Secret Service; ( 0 Individuals who\nare w itnesses, protectees, complainants, informants, suspects, defendants, fugitives, released\nprisoners, and correspondents who have been identified by the Secret Service or from information\nsupplied by other law enforcement agencies, governmental units, private institutions, and members\no f the general public in connection w ith the performance by the Secret Service of its authorized\nprotective functions\n46 Fed. Reg\n\n16643 (1981).\n\n314\n\n\x0cOpinion Request, p. 2. It estimates this group to number at any given time\nbetween 300 to 400 individuals (USSS-monitored subjects).3\nThe stated purpose of this dissemination is to monitor the location and\nactivities of these individuals by using the network of state and federal agencies\nwhich obtain information from the NCIC. At present, the NCIC contains\nseparate files on wanted persons, missing persons, stolen property, and criminal\nhistories. It supplies information about a particular individual or property from\nthese files to federal, state, and local criminal justice agencies that make an\ninquiry about that individual or property.4 Under the proposal, the NCIC would\nestablish a new file on the USSS-monitored subjects which would be accessible\nto government law enforcement agencies seeking to use the information for law\nenforcement purposes, in particular, criminal investigation and arrests. When\xc2\xad\never any participating law enforcement agency seeks information for these\npurposes from the NCIC about an individual who is in this file, the USSS would\nbe informed about the request. This would permit the USSS to contact the\ninquiring agency, learn the reasons for the request, and thereby monitor the\nsubject\xe2\x80\x99s current activities. If a law enforcement agency seeks information on\nsuch an individual for non-law enforcement purposes, such as employment or\nlicensing, the NCIC would not disclose any information about the subject.5\nWhile the FBI has not determined finally the specific information which would\nbe included in the NCIC entry on each USSS-monitored subject, we understand\nthat it would probably include identifying information about the subject, such as\nhis height and weight; a notation that the USSS considers him to be a \xe2\x80\x9c threat\xe2\x80\x9d or\n3 In determining whether an individual will be considered dangerous to a protectee and included in the NCIC file,\nthe USSS would follow these procedures\n(A) Through numerous and varied means, individuals may be brought lo the attention of the USSS.\nAn investigation is begun which usually includes a personal interview with the individual.\nSome criteria used in a determination are. the interview, the facts of the action bringing the\nsubject to the attention of USSS, the potential or capability of the subject to carry out any threat,\nand a background investigation including criminal and mental checks/inquines.\n(B) If, based upon this initial investigation, an individual is determined to be a potential threat by an\ninvestigatory agent, his evaluation and determination are reviewed for concurrence by field\nsupervisors\n(C) The original investigation and evaluation, and the field evaluation are reviewed at USSS\nHeadquarters by a Senior Agent/Intelligence Research Specialist\n(D) These evaluations are then reviewed and approved by an Intelligence Division supervisor\n(E) Once evaluated as dangerous, the individual is subject to a periodic review process.\n(F) The decision to enter such individual into the NCIC System will be under the Assistant Director\nfor Protective Research, with the Special Agent in Charge, Intelligence Division, acting on his\nbehalf\nOpinion Request, p. 3.\n4 Access to the criminal history file is currently more limited than access to the other files. The non-cnmuial\nhistory files are generally available to state or federal \xe2\x80\x9c criminal justice agencies\xe2\x80\x9d for any authorized purpose. See 46\nFed. Reg 60293, 60294 (1981) (description of system\xe2\x80\x99s operation) While criminal history files are accessible to\ncriminal justice agencies for any criminal justice purpose, and to any federal agency authorized to receive it, state\ncriminal justice agencies can only obtain the information for non-law enforcement purposes, such as licensing or\nemployment, if access is specifically authorized by state law and approved by the Attorney General. Id. See 28\nC F R . \xc2\xa7 20.33 (1981)\n5 Our understanding that dissemination of this information from the NCIC would be limited to government law\nenforcement agencies using the information for law enforcement purposes is based on a discussion with B. Bryan\nMasterson, Editorial Staff, NCIC.\n\n315\n\n\x0c\xe2\x80\x9c potentially dangerous\xe2\x80\x9d to a protectee; and a request that any agency inquiring\nabout the subject contact the USSS. In addition, in order to protect law enforce\xc2\xad\nment officials who come into contact with a subject, the USSS would also include\na brief description of the subject\xe2\x80\x99s dangerous characteristics, for example, that he\nis \xe2\x80\x9c mentally unstable\xe2\x80\x9d or \xe2\x80\x9c armed and dangerous.\xe2\x80\x9d Finally, the entry would warn\nofficials not to arrest the subject based on the NCIC entry.6\nII.\nAuthority of the USSS to Investigate and Maintain Files on\nIndividuals Who Are Not the Subject of an Outstanding Arrest Warrant\nUnder 18 U .S.C . \xc2\xa7 3056, the USSS is authorized to \xe2\x80\x9c protect\xe2\x80\x9d the person of\nthe President, Vice President, and other designated public figures,7 and to\n\xe2\x80\x9c detect and arrest\xe2\x80\x9d any person who has made a threat against the President or his\nsuccessor in violation of 18 U.S.C. \xc2\xa7 871. Although neither the language of\n\xc2\xa7 3056 nor its legislative history explains what specific activities are included\nwithin the protective responsibilities of the USSS, it is clear that the USSS\xe2\x80\x99s\nduties necessarily require it to engage in a broad range of prophylactic investiga\xc2\xad\ntions and preventive actions.8The USSS is not only charged with identifying and\napprehending persons who have threatened the safety of the President or other\nprotectees, but also with preventing any person from jeopardizing their physical\nsafety. This charge necessarily presumes that the USSS has the authority to\ninvestigate individuals who might threaten the safety of protectees but who have\nnot yet taken any concrete action toward realizing that goal.9\nThis authority was specifically recognized by the Fifth Circuit in Moorefield v.\nUnited States Secret Service, 611 F.2d 1021 (5th Cir.), cert, denied, 449 U.S.\n909 (1980). In that case, the plaintiff, Moorefield, had sought disclosure under\nthe Freedom of Information Act (FOIA), 5 U.S.C. \xc2\xa7 552, of a USSS protective\nfile maintained on him. Even though he was not being investigated to detect any\n6 This description of the NCIC entry is based on an \xe2\x80\x9c example\xe2\x80\x9d of an \xe2\x80\x9c NCIC inquiry\xe2\x80\x9d and " a positive U.S Secret\nService response\xe2\x80\x9d which was furnished us by the staff of the NCIC.\n7 The public figures are listed in note I , supra\n8 The Supreme Court has described the USSS\xe2\x80\x99s responsibility for assuring the physical safety of the President as\nrepresenting an \xe2\x80\x9c overw helm ing\xe2\x80\x9d national interest Watts v United States, 394 U S 705, 707 (1969) (per cunam)\n9 The implied authority of the executive branch generally to take appropriate action lo prevent the commission of\nfederal crimes was recognized over 90 years ago m In Re Neagle, 135 U.S. 1 (1890). There the Supreme Court\nnoted.\nIt has in m odem times become apparent that the physical health of the community is more efficiently\npromoted by hygienic and preventive m eans, than by the skill which is applied to the cure of disease\nafter it has become fully developed. So also the law, which is intended to prevent crime, in its general\nspread among the community, by regulations, police organization, and otherwise, which are adapted\nfor the protection o f the lives and property of citizens, for the dispersion of mobs, for the arrest of\nthieves and assassins, for the watch which is kept over the community, as well as over this class of\npeople, is more efficient than punishment o f crimes after they have been committed. Id at 59 More\nrecently, the Office of Management and Budget has specifically observed that \xe2\x80\x9c [a]gencies can denve\nauthority to collect information about individuals [either by direct constitutional or statutory\nauthorization] o r [b]y the Constitution, a statute, or Executive order authorizing or directing the\nagency to perform a function, the discharge o f which requires the maintenance of a system of\nrecords \xe2\x80\x9d Office o f M anagement and Budget Privacy Act Implementation: Guidelines and Respon\xc2\xad\nsibilities, 40 Fed. Reg. 28948, 28960 (1975) Section 3056, which directs the USSS to assure the\nphysical safety o f protectees, is a statute \xe2\x80\x9c directing the agency to perform a function, the discharge\nof which requires ihe maintenance of a system of records.\xe2\x80\x9d\n\n316\n\n\x0cprior criminal activity,10the court held that the file was maintained pursuant to the\nUSSS\xe2\x80\x99s statutory authority and therefore constituted \xe2\x80\x9c investigatory records\xe2\x80\x9d\nprepared for \xe2\x80\x9c law enforcement purposes\xe2\x80\x9d within the meaning of FOIA, 5 U.S.C.\n\xc2\xa7 552(b)(7)(A).11 The materials in the file, it reasoned,\ninclude[d] background and other matters specifically relevant to\nMoorefield, and were prepared to help the Service fulfill its duty\nunder 18 U.S.C. \xc2\xa7 3056 (1976) [of] ensuring the lives and safety\nof the President, members of his family, and certain other\npersons.\nId. at 1024 (footnote omitted). Gathering of this information, therefore, served\nthe \xe2\x80\x9c prophylactic purpose of keeping Service protectees from harm.\xe2\x80\x9d Id. at 1024\n\nn.3. The court went on to conclude that the file was exempt from disclosure under\nFOIA because disclosure would have directly undermined an \xe2\x80\x9c enforcement\nproceeding,\xe2\x80\x9d which the court defined to mean, in that case, the protection of the\nPresident:\nIn discharging its responsibility to protect the President, the\nSecret Service does not conduct its routine investigations with a\nview towards apprehending law-breakers and bringing them to\njustice. Thus, if the Service has succeeded in its prophylactic\nmission, it should never appear in an adjudicatory proceeding to\nprosecute the assailant of a President, or any of its other protec\xc2\xad\ntees. Its job is to prevent an attack from ever being made. . . .\nNotwithstanding that Service investigations are not directed to\xc2\xad\nward trials or hearings, they are certainly directed toward an\nactive and concrete effort to enforce the law\xe2\x80\x94 in fact, nothing\ncould be more \xe2\x80\x9c active and concrete\xe2\x80\x9d than activities that are part\nof the security apparatus that surrounds the President of the\nUnited States.\nId. at 1025 (citations omitted and emphasis in original).12\n\nCongress also recognized the broad scope of the USSS\xe2\x80\x99s investigatory au\xc2\xad\nthority and protective files when it passed the Privacy Act, 5 U.S.C. \xc2\xa7 552a.\nAlthough the Privacy Act grants the subject of many agency records access to\n10 Moorefield had previously been convicted of making threats against the President See 611 F .2 d a tl0 2 2 , 1024.\n11 Section 552(b)(7)(A) prohibits disclosure of \xe2\x80\x9c investigatory records compiled for law enforcement purposes,\n. . to the extent that the production of such records would\ninterfere with enforcement proceedings.\'* See\ngenerally Federal Bureau c f Investigation v. Abramson, 456 U.S 615 (1982).\n12 Similarly, in Scherer v Brennan, 379 F 2d 609, 611 (7th C ir), cert, denied, 389 U S 1021 (1967), the Seventh\nCircuit held that Treasury Department agents were acting within the scope of their duty to protect the person of the\nPresident when they monitored the activities of an individual who they believed might pose a threat to the President,\neven though he was not the subject of an arrest warrant or under investigation for any prior criminal activity The\nagents were thus held to be immune from suit for any damages to the subject that might have resulted from their\nsurveillance C f Galella v. Onassis, 487 F 2d 986, 993 (2d Cir 1973) (USSS charged \xe2\x80\x9c with guarding against and\npreventing any activity by any individual which could create a nsk to the safety and well being o f \xe2\x80\x99 protectees).\n\n317\n\n\x0cthem ,13 it authorizes an agency head to exempt from this requirement any files\n\xe2\x80\x9c maintained in connection with providing protective services to the President of\nthe United States or other individuals pursuant to section 3056.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 552a(k)(3). Speaking against an amendment which would have deleted this\nexemption from the Act, Representative Moorhead recognized that \xe2\x80\x9c [t]he list of\nthe protective service by the Secret Service has gotten too broad,\xe2\x80\x9d but added that\nthe \xe2\x80\x9c list also contains the names of people who are a real threat\xe2\x80\x9d and \xe2\x80\x9c that an\namendment which completely eliminates the secrecy of the legitimate protective\nright of the Secret Service just goes too far.\xe2\x80\x9d 120 Cong. Rec. 36966 (1974).\nSimilarly, the House Committee Report on the Act noted that \xe2\x80\x9c [ajccess to Secret\nService intelligence files on certain individuals would vitiate a critical part of\nSecret Service work which was specifically recommended by the Warren Com\xc2\xad\nmission [the Commission to Investigate the Assassination of President Ken\xc2\xad\nnedy].\xe2\x80\x9d H.R. Rep. No. 1416, 93rd Cong., 2d Sess. 19 (1974). The Warren\nCommission had recommended that the USSS expand its activities beyond the\ninvestigation of \xe2\x80\x9c persons communicating actual threats to the President,\xe2\x80\x9d or\npersons expressing \xe2\x80\x9c some manifestation of animus against a Government of\xc2\xad\nficial.\xe2\x80\x9d The President\xe2\x80\x99s Commission on the Assassination of President Kennedy\n(Warren Commission Report) at 461-62 (1964). In its view, such a limitation was\n\xe2\x80\x9c unduly restrictive.\xe2\x80\x9d Id. at 462. \xe2\x80\x9cA basic element of Presidential protection,\xe2\x80\x9d it\nadvised, \xe2\x80\x9c is the identification and elimination of possible sources of danger to the\nPresident before the danger becomes actual.\xe2\x80\x9d Id. at 429.14 In passing the\nexemption for the USSS protective files, therefore, Congress apparently recog\xc2\xad\nnized that the USSS would be engaged in the prophylactic investigation and\nsurveillance of a variety of individuals, including many who are not the subject of\nan arrest warrant or suspected o f any prior criminal activity.15\nAccordingly, we believe that the USSS has the authority to monitor the\nactivities of individuals who are not the subject of an outstanding arrest warrant\nor being investigated for the commission of prior crimes, so long as the USSS\n13 The Act generally covers any \xe2\x80\x9c sysiem of records\xe2\x80\x9d \xe2\x80\x9c maintained\xe2\x80\x9d by an agency on an individual \xe2\x80\x9c M aintain\xe2\x80\x9d is\ndefined to include \xe2\x80\x9c maintain, collect, use or disseminate \xe2\x80\x9d 5 U.S C \xc2\xa7 552a(a)(3) A \xe2\x80\x9c system of records\xe2\x80\x9d is defined\nas a \xe2\x80\x9c group of any records under the control of any agency from which information is retrieved by the name of the\nindividual,\xe2\x80\x9d or by some other symbol 5 IT S C. \xc2\xa7 552a(a)(5). The USSS protective files are a \xe2\x80\x9c system of records\xe2\x80\x9d\nwithin the meaning of the Act. See 46 Fed R eg 16643 (1981).\n14 The Warren Commission apparently assumed that the USSS has the authority to undertake such investigation\nunder \xc2\xa7 3056. Although the Commission criticized the prior lack of preventive investigation, and strongly\nrecommended that the USSS and FBI expand such activity in the future, it did not suggest that any new statutory\nauthority was necessary for such investigation. T h e only recommendations made by the Commission with respect to\nthe authority o f the USSS under \xc2\xa7 3056 were that Congress should make assaults or attempted assaults on the\nPresident o r his successor a federal crime, and grant its agents the authority to make arrests without a warrant.\nWarren Commission Report at 4 5 4 -5 6 Congress adopted these recommendations by amending \xc2\xa7 3056 in Pub L.\nNo. 89^218, 79 Stat. 890(1965), to give the USSS the authority to make arrests without a warrant, and by enacting\n18 U .S C. \xc2\xa7 1751 to make an assault on the President (-elect). Vice President (-elect), or the President\'s successor a\nfederal crime.\n13 In adopting this provision. Congress also failed lo rely on a more general exemption from the Privacy Act\nrequirements for files \xe2\x80\x9c m aintained\xe2\x80\x9d \xe2\x80\x9c for the purpose of a criminal investigation" by an agency or component\nthereof \xe2\x80\x9c which performs as its principal function any activity pertaining to the enforcement of criminal laws.\xe2\x80\x9d 5\nU .S .C \xc2\xa7 552a(j)(2)(B). This may suggest that Congress believed investigations undertaken by the USSS might be\nsomewhat broader than traditional \xe2\x80\x9c criminal investigations \xe2\x80\x9d Cf. 120 Cong Rec 36966 (1974) (remarks of Rep.\nErlenbom) (supporting USSS exemption even though it \xe2\x80\x9c falls under the same general category of law enforcement\nwhere we already have an exem ption\xe2\x80\x9d )\n\n318\n\n\x0creasonably believes that the individuals might pose a threat to the physical safety\nof protectees.16\nIII. Authority of USSS to Enter Information About\nUSSS-Monitored Subjects into the NCIC\nHaving determined that the USSS has the authority to collect information\nabout, and maintain files on, individuals who are not the subject of an arrest\nwarrant, we next consider whether it may disclose the proposed information\nabout these individuals to the FBI, and whether the FBI may in turn disclose it to\nother agencies, by creating the proposed new file in the NCIC. These disclosures\nraise two issues: first, whether the USSS has the statutory authority to dissemi\xc2\xad\nnate this information to the FBI, or the FBI, in turn, to other agencies; and\nsecond, even if they do, whether the Privacy Act prohibits such disseminations.\nA. Statutory Authority of the USSS and FBI to Disseminate Information on\nUSSS-Monitored Subjects to Agencies with Access to the NCIC\n\nThe USSS clearly has the authority to transmit information on individuals it\nbelieves may threaten a protectee to the FBI in order to facilitate protection of\nprotectees. Such authority is implicit in its power under \xc2\xa7 3056 and explicit in its\nauthority under the Presidential Protection Assistance Act of 1976, Pub. L. No.\n94\xe2\x80\x94524, \xc2\xa7 6, 90 Stat. 2475, as amended, reprinted in 18 U.S.C. \xc2\xa7 3056 note, to\nseek the assistance of other federal agencies in its protective responsibilities. We\nalso believe that the FBI has the authority to disseminate this information to law\nenforcement agencies in the circumstances you have proposed, although this\nconclusion requires a more detailed explanation.\nSection 534, Title 28 (1976), authorizes the Department of Justice to collect\nand disseminate various types of \xe2\x80\x9c records.\xe2\x80\x9d It states in pertinent part:\nThe Attorney General shall\xe2\x80\x94\n(1) acquire, collect, classify, and preserve identification, criminal\nidentification, crime, and other records; and\n(2) exchange these records with, and for the official use of,\nauthorized officials of the Federal Government, the States, cities,\nand penal and other institutions.\nBy authorizing the collection and dissemination of \xe2\x80\x9c identification, criminal\nidentification, crime, and other records,\xe2\x80\x9d the language of this provision appears\n16 We note that the Privacy Act generally requires that an agency \xe2\x80\x9c maintain no record descnbing how any\nindividual exercises rights guaranteed by the First Amendment " 5 U S C \xc2\xa7 552a(e)(7). This restriction, however,\nwould not limit surveillance of individuals or maintenance of files for the protection of protectees The Act provides\nan exception to this prohibition for surveillance which is \xe2\x80\x9c pertinent to and within the scope of an authorized law\nenforcement activity\xe2\x80\x9d The Attorney General has previously determined that USSS and FBI protective investiga\xc2\xad\ntions undertaken pursuant to \xc2\xa7 3056 constitute a \xe2\x80\x9c law enforcement activity\xe2\x80\x9d See Memorandum from Edward H.\nLevi, Attorney General, to Clarence M. Kelley, Director, FBI, \xe2\x80\x98\xe2\x80\x98Gathering and Reporting Data Regarding Civil\nDisturbances.\xe2\x80\x9d p. 2 (Mar. 4, 1976) We see no reason lo reconsider this conclusion\n\n319\n\n\x0cto support the Attorney General\xe2\x80\x99s power to collect and disseminate a wide variety\nof criminal investigatory information, including the proposed entry on USSSmonitored subjects.17\nSome question about this interpretation, however, is raised by the D.C. Circuit\ndecision in M enard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), which interpreted\nthe Attorney General\xe2\x80\x99s authority under \xc2\xa7 534 very narrowly. In Menard, the\nplaintiff had brought suit to expunge an FBI record of his \xe2\x80\x9c detention\xe2\x80\x9d by\nCalifornia State Police.18In granting him relief, the court held that the FBI lacked\nstatutory authority under \xc2\xa7 534 to retain a record of a detention in the arrest file\nfor dissemination to law enforcement agencies. It appeared to reason that the\nDepartment only had authority to disseminate \xe2\x80\x9c criminal records,\xe2\x80\x9d i.e., criminal\nmatters of record, such as arrests or convictions, and not criminal investigatory\ninformation. Since a record of a \xe2\x80\x9c detention\xe2\x80\x9d was, in its view, a type of inves\xc2\xad\ntigatory information, the FBI had no authority to maintain the record in a file for\ndissemination.\nThe court based its narrow reading of \xc2\xa7 534 on the brief congressional debate\nattendant to its \xe2\x80\x9c original enactment.\xe2\x80\x9d The Chairman of the House Judiciary\nCommittee had described the practice of the Identification Bureau during this\ndebate as follows:\nThere are two classes of information that [are] gathered. One is\ncriminal records, and another is the information that is gathered\nabout criminals that is not a matter of record. That they do not give\nout, but the criminal records they do give out. That information is\ngathered for the department itself and its agents, in order that they\nmore effectually do their work.\n72 Cong. Rec. 1989 (1930) (remarks of Rep. Graham). Thus, according to the\ncourt, Congress did not intend to authorize the dissemination of investigatory\ninformation, such as the plaintiff\xe2\x80\x99s detention record, which was not a \xe2\x80\x9c matter of\nrecord.\xe2\x80\x9d 498 F.2d at 1028-29 n.42.\nThe M enard decision should undoubtedly be read narrowly. As a practical\nmatter, the FBI disseminates criminal investigatory information in many cases to\nother federal and state agencies. See, e .g ., 46 Fed. Reg. 60311, 60321 (1981)\n(describing dissemination of criminal investigatory information in FBI Central\nRecords System). The court in M enard, however, was concerned principally with\nthe FB I\xe2\x80\x99s dissemination of inaccurate or misleading information from its files,\nsuch as a record of a \xe2\x80\x9c detention\xe2\x80\x9d in an arrest file, where that information would\nbe used for employment decisions. In its opinion, the court specifically found\nthat the retention of plaintiffs\xe2\x80\x99 file was \xe2\x80\x9c not consistent with the FBI\xe2\x80\x99s duty,\n17 The Attorney General has delegated his authority under \xc2\xa7 534 to the Director of the FBI. See 28 C.F.R. \xc2\xa7 0.85\n(1981)\n18 A fter the plaintiff was arrested by California police, the police were unable to connect him with any felony or\nmisdemeanor, and therefore they classified his custody as a detention pursuant to California law Nevertheless, this\nincident was initially entered into the FBI criminal identification files as an arrest A fter plaintiff brought suit, the\nFBI amended the entry in its arrest file to show that the plaintiff had been \xe2\x80\x9c detained\xe2\x80\x9d underCalifom ia law 498 F 2d\nat 1019-20\n\n320\n\n\x0ccorollary to its function of keeping identification records, to take appropriate\nmeasures to assure that this function is discharged responsibly and that the\nrecords are reliably informative.\xe2\x80\x9d Id. at 1027-28. A subsequent District of\nColumbia decision emphasized this aspect of the decision. See Tarlton v. Saxbe,\n507 F.2d 1116, 1121 & n.7 (D.C. Cir. 1974). Thus, the decision should probably\nbe read as only prohibiting the NCIC from disseminating inaccurate records in\nthis context, and not from disseminating accurate investigatory information to\nother law enforcement agencies.\nIndeed, even if M enard were read to prohibit the dissemination of general\ncriminal investigatory information, we believe that this limitation would not\napply to the Attorney General\xe2\x80\x99s dissemination of information to assist in the\nprotection of the President and other protectees. There is no doubt, for example,\nthat the USSS and the FBI may contact local law enforcement officials in the area\nwhere the President or another protectee is traveling in order to provide back\xc2\xad\nground information on USSS-monitored subjects. Such authority flows directly\nfrom the USSS\xe2\x80\x99s ability to protect such figures pursuant to 18 U.S.C. \xc2\xa7 3056 and\nto obtain assistance in this effort from other executive agencies. See Presidential\nProtection Assistance Act of 1976, \xc2\xa7 6, reprinted in notes to 18 U.S.C. \xc2\xa7 3056.\nFor similar reasons, we believe that both the USSS and the FBI have implied\nauthority to disseminate generally some limited background information in order\nto monitor the subject\xe2\x80\x99s activities. This authority would not only permit the\ndisclosure of identifying information about the subject, but also USSS evalua\xc2\xad\ntions. These descriptions would assist police in handling the subject and ul\xc2\xad\ntimately contribute indirectly to the USSS protection of protectees.\nEven if M enard could not be distinguished, however, we believe that 28\nU.S.C. \xc2\xa7 534 clearly authorizes the Attorney General to disseminate criminal\ninvestigatory information. Our conclusion that other courts should not and will\nnot adopt M enard\xe2\x80\x99s analysis of \xc2\xa7 534, at least with respect to the entry on USSSmonitored subjects, is based on three weaknesses in the Menard analysis.\nFirst, the legislative history of \xc2\xa7 534 does not support the court\xe2\x80\x99s narrow\ninterpretation. The court relied on the congressional debates during the enact\xc2\xad\nment of a predecessor statute, 5 U.S.C. \xc2\xa7 340 (1964), repealed by Pub. L. No.\n89-554, \xc2\xa7 8(a), 80 Stat. 632, 648 (1966), which had authorized dissemination of\nonly \xe2\x80\x9c criminal identification and other crime records.\xe2\x80\x9d In 1966, however, Con\xc2\xad\ngress had combined \xc2\xa7 340 with 5 U.S.C. \xc2\xa7 300 (1964), repealed by Pub. L. No.\n89-554, \xc2\xa7 8(a), 80 Stat. 632, 648 (1966), to form present \xc2\xa7 534. Section 300 had\nauthorized the Attorney General to appoint officials to exchange \xe2\x80\x9c identification\nand other records.\xe2\x80\x9d 19 Section 534, which combines both provisions, not only\nauthorizes the dissemination of \xe2\x80\x9c criminal identification\xe2\x80\x9d and \xe2\x80\x9c crime records,\xe2\x80\x9d\nbut also \xe2\x80\x9c identification\xe2\x80\x9d and \xe2\x80\x9c other records.\xe2\x80\x9d Accordingly, Congress\xe2\x80\x99 narrow\nintent in passing 5 U.S.C. \xc2\xa7 340 (1964), on which the court in M enard relied,\ndoes not limit the dissemination of records under the broader language of 28\n19 Section 300 was based on the Department of Justice Appropriation Act, 1965, Pub L. No. 88-527, 78 Stat. 71\n\xc2\xa7 201 (1964) Similar provisions authorizing the exchange of "identification and other records\xe2\x80\x9d had been passed\nevery year since 1932 See, e g , ch. 361, 47 Stat. 488 (1932).\n\n321\n\n\x0cU .S.C . \xc2\xa7 534.20 Moreover, while the separate legislative history of 5 U.S.C.\n\xc2\xa7 300 (1964), does not clarify the meaning of \xe2\x80\x9c other records,\xe2\x80\x9d there is no\nindication that Congress intended to give it the restrictive interpretation which the\ncourt in M enard gave to 5 U.S.C. \xc2\xa7 340 (1964).\nSecond, M enard\xe2\x80\x99s interpretation of the language of the statute is illogical. The\ncourt apparently did not challenge the obvious authority of the Attorney General\nto gather and maintain records on criminal investigations. See 498 U.S. at 1029.\nThus, the definition of records for purposes of acquisition and storage of informa\xc2\xad\ntion covers records of criminal investigations. The court adopted a narrower\ninterpretation of records, however, with respect to the dissemination of criminal\ninformation. In such cases, \xe2\x80\x9crecords\xe2\x80\x9d were defined as matters of official record.\nThis bifurcated definition of record obviously finds no support in the text of\n\xc2\xa7 534. The section authorizes the exchange of \xe2\x80\x9c these records,\xe2\x80\x9d meaning the\nsame \xe2\x80\x9c records\xe2\x80\x991\xe2\x80\x99 which the Attorney General is permitted to \xe2\x80\x9c acquire, collect,\nclassify, and preserve.\xe2\x80\x9d Therefore, unless the provision is interpreted to prohibit\nthe Attorney General from maintaining investigatory records, a position that not\neven the court in M enard was willing to adopt, the language of \xc2\xa7 534 and its\nlegislative history authorize the dissemination of some types of investigatory\ninformation, including, we believe, the entry on USSS-monitored subjects.\nThird, the Court in Menard partly based its narrow reading of \xc2\xa7 534 on the\nview that dissemination of criminal investigation information would create a\nconstitutional problem which should be avoided through narrow statutory con\xc2\xad\nstruction. See 498 F.2d at 1029. After M enard was decided, however, the\nSupreme Court in Paul v. Davis, 424 U.S. 693 (1976), held that no liberty or\nprivacy interest was implicated by the dissemination of criminal justice informa\xc2\xad\ntion unconnected with any tangible property interests such as employment.\nThus, there is no justification for interpreting \xc2\xa7 534 so as to avoid constitutional\nproblems with respect to the dissemination of investigatory information only for\nlaw enforcement purposes.\nIn light of all of these factors, we believe that federal courts should not and will\nnot adopt M enard\xe2\x80\x99s narrow interpretation of \xc2\xa7 534 in this context. Section 534, in\nour view, authorizes the dissemination of investigatory information for law\nenforcement purposes, including the USSS entry on USSS-monitored subjects.\nB. The Privacy Act\n\nAlthough the USSS and FBI have the authority to disseminate this informa\xc2\xad\ntion, this disclosure must still satisfy the requirements of the Privacy Act. The\nUSSS files are a \xe2\x80\x9c system of records\xe2\x80\x9d within the meaning of the Privacy A ct.21\n20 The C ourt in A/enar*/ignored the more expansive language o f 28 U .S.C. \xc2\xa7 534 because the 1966 amendments\nspecifically stated that they were not intended to change the substantive meaning of the predecessor statutes. See 498\nF.2d at 1028-29 n .42, citing Pub. L. No. 89 -5 5 4 , \xc2\xa7 7a, 80 Stat 611, 631 (1966). However, if \xc2\xa7 300 authorized the\ndissemination of investigatory records before it was combined with \xc2\xa7 340, then the court\xe2\x80\x99s exclusive reliance on the\nlanguage and history of \xc2\xa7 340 was misplaced.\n21 \xe2\x80\x9c System of records\xe2\x80\x9d is defined as \xe2\x80\x9c any records under the control of any agency for which information is\nretrieved by the name o f the individual or by som e identifying\xe2\x80\x9d symbol. 5 U S.C . \xc2\xa7 552a(5). The USSS\xe2\x80\x99s Privacy\nAct notice on its protective files recognizes that they constitute a \xe2\x80\x9c system of records.*\xe2\x80\x99 See 48 Fed Reg. 16643\n(1981).\n\n322\n\n\x0cThe Act prohibits an agency from \xe2\x80\x9c disclosing\xe2\x80\x9d to another agency any record\nwhich is contained in a \xe2\x80\x9c system of records\xe2\x80\x9d unless the subject of the record gives\nhis consent or one of several other exceptions are met. The only exemption that\nmight permit the transmission of information on USSS-monitored subjects is that\nexemption which authorizes disclosure for a \xe2\x80\x9c routine use\xe2\x80\x9d of the information, 5\nU.S.C. \xc2\xa7 552a(b)(3), i.e ., \xe2\x80\x9c use [of the record] for a purpose which is compatible\nwith the purpose for which it was collected.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552a(a)(7).22 Thus,\ndissemination of the records from the USSS to the NCIC, and from the NCIC to\nthe various participating law enforcement agencies, must each come within this\nexception to satisfy the requirements of the Act.\nThe precise meaning and outer limits of the \xe2\x80\x9c routine use\xe2\x80\x9d exception have not\nbeen clearly delineated. In adopting this admittedly \xe2\x80\x9c ambiguous\xe2\x80\x9d language, 120\nCong. Rec. 36957 (1974) (remarks of Reps. Ichord and Erlenbom), it was\nrecognized that \xe2\x80\x9c [i]t would be an impossible legislative task to attempt to set\nforth all of the appropriate uses of Federal records about an identifiable individu\xc2\xad\nal.\xe2\x80\x9d 120 Cong. Rec. 36967 (1974) (remarks of Rep. Moorhead). It is clear, for\nexample, that the exemption may cover the dissemination of information even\nthough it is used for a purpose different from the one for which it was collected.\nSee, e.g ., 120 Cong. Rec. 36967 (1974) (remarks of Rep. Moorhead); 120 Cong.\nRec. 40406 (1974) (remarks of Sen. Ervin); OMB Circular No. A-108 (1975),\n40 Fed. Reg. 28953 (1974); United States v. Collins, 596 F.2d 166 (6th Cir. 1979)\n(per curiam); Burley v. United States Drug Enforcement Administration, 443 F.\nSupp. 619, 623 (M.D. Tenn. 1977). The \xe2\x80\x9c routine use\xe2\x80\x9d exemption may also\npermit dissemination of information for a particular purpose even though the\ndissemination occurs infrequently. See 120 Cong. Rec. 36967 (1974) (remarks of\nRep. Moorhead).\nBecause of the difficulty in defining legislatively the limits of the routine use\nexception, Congress chose to prevent irregular disclosures under this exemption\nprimarily by requiring agencies to promulgate the regulations setting forth the\n\xe2\x80\x9c routine uses\xe2\x80\x9d of their own information. Under 5 U.S.C. \xc2\xa7 552a(e)(4) & (11),\nagencies must publish the routine uses of information in the Federal Register 30\ndays before dissemination for notice and comment. This \xe2\x80\x9c public scrutiny\xe2\x80\x9d was\nintended to \xe2\x80\x9c caution . . . agencies to think out in advance what uses it will make\nof information,\xe2\x80\x9d 120 Cong. Rec. 40406 (1974) (remarks of Sen. Ervin) and\nprovide a \xe2\x80\x9c check\xe2\x80\x9d against \xe2\x80\x9c potential bureaucratic abuses.\xe2\x80\x9d 120 Cong. Rec.\n22 The Privacy Act also exempts disclosure to any government agency \xe2\x80\x9c for a civil or criminal law enforcement\nactivity,\xe2\x80\x9d but only \xe2\x80\x9c if the head of the agency or instrumentality has made a written request to the agency which\nmaintains the record specifying the particular portion desired and the law enforcement activity for which the record\nis sought \xe2\x80\x9d 5 U .S.C \xc2\xa7 552a(b)(7) Because requesting agencies in the NCIC do not make written requests for\ninformation, this exception would not exempt the exchange of information through the NCIC\nThe other exceptions also do not cover the exchange of information through the NCIC They exempt the\ndisclosure of information to employees of the agency that maintains the record; to the Bureau of the Census for\nCensus purposes; to the Natural Archives if the information is of historical value; to either House of Congress; to a\ncommittee of Congress if within its jurisdiction, to the Comptroller General if pursuant to its GAO duties, to a court\nof competent jurisdiction if pursuant to court order, to a recipient who gives adequate assurances that the\ninformation will be used for statistical purposes and the information is transmitted so as not to be personally\nidentifiable, to a person who can show \xe2\x80\x9c compelling circumstances\xe2\x80\x9d affecting the health or safety of the subject of\nthe file; and pursuant to the Freedom of Information Act 5 U S C \xc2\xa7 552a(b).\n\n323\n\n\x0c36655 (1974) (remarks of Rep. Moorhead). The only cases to date in which\ncourts have disallowed disclosures of information sought to be transmitted under\nthis exception have arisen where the agency failed to satisfy the procedural\nrequirements of public notice and comment. See, e .g ., Parks v. United States\nInternal Revenue Service, 618 F.2d 677 (10th Cir. 1980).\nAssuming the USSS and FBI satisfy these procedural requirements of public\nnotice and comment, we believe that the transmission of the proposed informa\xc2\xad\ntion on USSS-monitored subjects into the NCIC, and from the NCIC to other\nfederal and state agencies, would come within the \xe2\x80\x9c routine use\xe2\x80\x9d exception. The\nproposal involves the transmission of two types of information. First, the names\nof and identifying information about these individuals would be disclosed to a\nparticipating agency in order to obtain current information from that agency\nabout the subject. In such cases, the information on the subject is being disclosed\nfor the same purpose for which it was originally collected\xe2\x80\x94 protection of protec\xc2\xad\ntees\xe2\x80\x94 and therefore is clearly a \xe2\x80\x9c routine use.\xe2\x80\x9d\nSecond, certain evaluative descriptions, such as \xe2\x80\x9c potentially dangerous to a\nprotectee,\xe2\x80\x9d \xe2\x80\x9c mentally unstable,\xe2\x80\x9d or \xe2\x80\x9c armed and dangerous,\xe2\x80\x9d are disclosed,\naccording to your letter, essentially to assist law enforcement personnel in their\nown dealings with the subject. See Opinion Request, p. 3. So long as law\nenforcement personnel are obtaining the information to further a criminal inves\xc2\xad\ntigation or an arrest, and the information may be of assistance in this effort, this\nuse would appear to be \xe2\x80\x9c compatible\xe2\x80\x9d with the use for which the information has\nbeen collected. The information is being used to assess the subject with regard to\nthe possible commission of a crime and his danger to police officers. Moreover,\nthis disclosure may also assist in the protection of the President and other\nprotectees by making local law enforcement personnel aware of possible threats\nto protectees and the specific danger they pose.23\nWe caution, however, that disclosure of the information for the purpose of\nmaking non-law enforcement decisions, such as licensing or employment, which\nare unrelated to criminal investigation, would present different issues. Such use\nmight well not satisfy the underlying intent of the routine use exemption in many\ncases. The purpose of the \xe2\x80\x9c routine use\xe2\x80\x9d exception is \xe2\x80\x9c to discourage the un\xc2\xad\nnecessary exchange of information to another person or to agencies who may not\nbe as sensitive to the collecting agency\xe2\x80\x99s reasons for using and interpreting the\nmaterial.\xe2\x80\x9d 120 Cong. Rec. 40406 (1974) (remarks of Sen. Ervin) (\xe2\x80\x9cAnalysis of\nHouse and Senate Compromise Amendments to the Federal Privacy Act\xe2\x80\x9d ).\nDesignation of certain individuals as dangerous to protectees or \xe2\x80\x9c mentally\nunstable,\xe2\x80\x9d as the above discussion has suggested, may often be based on\nnecessarily tentative, highly prejudicial and conclusory judgments. While such\nevaluations may be valuable to law enforcement investigation, they may be\n23 We note, however, that this issue will probably be litigated if individuals in the file believe that they have been\nsubjected to police harassment as a result of this designation Accordingly, we recommend, as discussed m greater\ndetail below, that adequate precautions be taken to assure that designations are accurate, timely, and no more\nderogatory than is necessary to provide needed information. It is also extremely important, as the proposed entry\nprovides, to warn local officials not to arrest the subject based on the NCIC entry.\n\n324\n\n\x0cunduly prejudicial when used for purposes such as employment or licensing,\nwhich are unrelated to criminal investigation. Employment personnel clearly\n\xe2\x80\x9c may not be as sensitive to the [USSS\xe2\x80\x99s] reasons for using and interpreting the\nmaterial.\xe2\x80\x9d 24\nThis possibility is underscored by the legislative history of 5 U .S.C .\n\xc2\xa7 552a(k)(3), which permits USSS protective files to be exempted from the\naccess requirements of the Act. In speaking against a proposed amendment that\nwould have deleted this exemption, Representative Erlenbom conceded that\n\xe2\x80\x9c real harm\xe2\x80\x9d could result from the dissemination of USSS investigatory informa\xc2\xad\ntion \xe2\x80\x9c to some other agency where the person would be harmed in his application\nfor employment or some other right or privilege under the laws of the United\nStates.\xe2\x80\x9d 120 Cong. Rec. 36966 (1974). He recommended that the exemption for\nUSSS protective files should be passed only because the \xe2\x80\x9c prohibition of transfer\nto other agencies,\xe2\x80\x9d except for routine uses, would still apply to USSS files. Id.\nThus, Congress may have exempted USSS protective files from the access\nrequirements of the Act with the understanding that the restrictions on dissemina\xc2\xad\ntion of these files to other agencies would be carefully scrutinized.\nDissemination of this information for non-law enforcement purposes could\nalso create serious constitutional problems. In Paul v. Davis, 424 U.S. 693\n(1976), the Supreme Court held that no liberty or privacy interest of the plaintiff\nwas violated by a police department\xe2\x80\x99s dissemination of a flyer identifying him as\nan \xe2\x80\x9c active shoplifter.\xe2\x80\x9d The Court reasoned that defamation, \xe2\x80\x9c standing alone,\xe2\x80\x9d\ndoes not deprive an individual of any liberty interest protected by the procedural\nguarantees of the Fifth and Fourteenth Amendments. 424 U.S. at 709. The Court\nsuggested in dicta, however, that imposition by the government of a stigma plus a\nloss in government employment might trigger a liberty interest. Other cases have\nsimilarly suggested that a stigmatizing government disclosure coupled with the\nloss of employment or property interest might trigger due process protection. See\nOwen v. City of Independence, M o., 445 U.S. 622, 633 n. 13 (1980); B oard cf\nRegents v. Roth, 408 U.S. 564, 573 (1972). Although we need not reach the\nquestion of whether and when dissemination of information on USSS-monitored\nsubjects for non-law enforcement purposes would be impermissible, in light of\nthese decisions and the legislative history of the Privacy Act,25 we strongly\n24 We note that one court has held that the disclosure of drug investigation records about a state pharmacist to a\nstate licensing board constituted a routine use See Burley v United Slates Drug Enforcement Administration, 443 F\nSupp 619, 623-24 (M D Tenn 1977). In contrast to the general and conclusory designation of individuals as a\n\xe2\x80\x9c threat to a protectee\xe2\x80\x9d or \xe2\x80\x9c mentally unstable,\xe2\x80\x9d however, drug investigation information is directly relevant to the\nlicensing decision of such boards. Moreover, as the court noted, 21 U .S.C \xc2\xa7 873 specifically authorizes the\nAttorney General to disclose drug investigation information to state officials\n25 Dissemination for non-cnminal investigation purposes could also restrict the flexibility of the USSS in\ngathering information about USSS-monitored subjects The Privacy Act requires federal agencies to \xe2\x80\x9c collect\ninformation to the greatest extent practicable directly from the subject individual when the information may result in\nadverse determinations about an individual\'s rights, benefits, and privileges under Federal programs.\xe2\x80\x9d 5 U .S.C\n\xc2\xa7 552a(e)(2) Dissemination of information on USSS-monitored subjects in a way that would result \xe2\x80\x9c in adverse\ndeterminations about an individual\'s rights, benefits, and privileges under Federal programs\xe2\x80\x9d would therefore\nrequire the USSS to collect information on USSS-monitored subjects \xe2\x80\x9c as much as practicable\xe2\x80\x9d from the subjects\nthemselves, unless the information were construed to come within the law enforcement exemption to this\nrequirement See 5 U .S.C \xc2\xa7 552a(j)(2)(B).\n\n325\n\n\x0crecommend that care be taken to assure that dissemination of this information is\nstrictly limited to law enforcement purposes.26\nIV. Maintaining the Accuracy of Information on\nUSSS-Monitored Subjects\nFinally, we note that even though the NCIC has the authority to disseminate\nthis information to law enforcement agencies, \xc2\xa7 534 and the Privacy Act, 5\nU .S.C . \xc2\xa7 552a(e)(6), require that reasonable efforts be made to assure that the\ninformation is accurate and relevant to its use for law enforcement purposes. In\nTarlton v. Saxbe, 507 F.2d at 1125, the D.C. Circuit \xe2\x80\x9c interpret[ed] \xc2\xa7 534 in a\nmanner designed to prevent government dissemination of inaccurate criminal\ninformation without reasonable precautions to ensure accuracy.\xe2\x80\x9d See also Pruett\nv. Levi, 622 F.2d 256, 257 (6th Cir. 1980); United States v. Doe, 556 F.2d 391,\n393 (6th Cir. 1977); Menard v. Saxbe, 498 F.2d at 1026. Tarleton recognized,\nhowever, that this \xe2\x80\x9c duty must be accommodated to the particular role the FBI\nplays in the collection and dissemination of criminal information in the Federal\nsystem, the FB I\xe2\x80\x99s capacity to take reasonable measures to ensure accuracy and\nthe practicalities of judicial administration and executive efficiency.\xe2\x80\x9d Id. at 1126.\nSimilarly, the Privacy Act, 5 U.S.C. \xc2\xa7 552a(e)(6), provides that \xe2\x80\x9c prior to\ndisseminating any record about an individual to any person other than an agency\n. . ., [an agency must] make reasonable efforts to assure that such records are\naccurate, complete, timely, and relevant for agency purposes.\xe2\x80\x9d Since state law\nenforcement agencies with access to the NCIC are not agencies within the\nmeaning of the Privacy Act, 5 U.S.C. \xc2\xa7 552a(a)(l),27 the FBI should satisfy this\nstandard if the records are to be introduced into the NCIC for general\ndissemination.28\nBecause we are not sufficiently familiar with the process by which individuals\nreceive designations such as \xe2\x80\x9c dangerous\xe2\x80\x9d to a protectee or \xe2\x80\x9c mentally unstable,\xe2\x80\x9d\nwe believe that it would be inappropriate for us at this time to express an opinion\non what procedural safeguards should be provided. We emphasize that some\nperiodic reassessment of these designations, as your proposal indicates will be\nundertaken, would probably be necessary. We also believe that the entry on\nUSSS-monitored subjects should clearly note, as the current proposal provides,\nthat the individual should not be arrested as a result of the entry.29 Cf. Testa v.\n26 We note that information on USSS-monitored subjects in the NCIC file would remain exempt under 5 U S C.\n\xc2\xa7 552a(k)(3) from the access requirements of the Privacy Act. This provision permits the head of an agency to\nexempt files which are \xe2\x80\x9c maintained in connection with providing protective services\npursuant to section\n3056\n\xe2\x80\x9d Although the new NCTC files on USSS-monitored subjects are not maintained \xe2\x80\x9c by\xe2\x80\x9d the USSS. they are\nmaintained \xe2\x80\x9c in connection w ith\xe2\x80\x9d providing protective services under \xc2\xa7 3056\n27 Agency means \xe2\x80\x9c agency as defined in \xc2\xa7 552(e) of Title 5 .\xe2\x80\x9d which does not include state institutions.\n28 Section 552a(e)(5) also requires that an agency \xe2\x80\x9c maintain all records which are used by the agency in making\nany determination about any individual with such accuracy, relevance, timeliness, and completeness as is\nreasonably necessary to assure fairness to the individual in the determination.\xe2\x80\x9d Because dissemination of these files\nthrough the NCIC is clearly covered by 5 U S.C \xc2\xa7 552a(e)(6), we need not decide whether inclusion of an\nindividual in the file on USSS-monitored subjects for law enforcement purposes is a \xe2\x80\x9c determination\xe2\x80\x9d within the\nmeaning o f the section\n29 See note 3, supra.\n\n326\n\n\x0cWinquist, 451 F. Supp. 388, 394\xe2\x80\x9495 (D.R.I. 1978) (operator of criminal history\ncomputer system may be held liable for knowing dissemination of inaccurate\ninformation which leads to unconstitutional arrest). If you would like us to look\ninto this issue after being briefed in more detail about the investigation process,\nwe will be happy to do so.30\n\nConclusion\nWe believe that the USSS has the authority to monitor the activities of\nindividuals who are not the subject of an arrest warrant so long as the USSS\nreasonably believes they may pose a threat to protectees. We also believe that the\nUSSS can introduce the proposed information about USSS-monitored subjects\ninto the NCIC. We emphasize, however, that care should be taken to assure that\nevaluative information about such individuals is periodically reevaluated and not\ndisseminated from the NCIC for non-law enforcement purposes.\nT h e o d o r e B . O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n30 Finally, we note that establishment of the new file in the NCIC would require amendment of the present\nregulations on the operation of the NCIC, see 28 C .F R . \xc2\xa7\xc2\xa7 20 1-20 38 (1981), as well as a new Privacy Act\ndisclosure statement for both the USSS and NCIC See 5 U .S.C . \xc2\xa7 552a(e)(4) & (11)\n\n327\n\n\x0c'


b'Bureau of Prisons Disclosure of Recorded Inmate Telephone\nConversations\nT he policy o f the C rim inal D ivision requiring outside law enforcem ent officials to obtain som e form\no f legal process authorizing access to contents o f inm ate telephone conversations is not m andated\nby the C onstitution or T itle III o f the O m nibus C rim e Control and Safe Streets Act o f 1968.\nT he practice o f profiling specific groups o f inm ates for m onitoring raises concerns when it requires\nor causes the Bureau of Prisons to alter its established m onitoring procedures for purposes unrelated\nto prison security or adm inistration.\nInm ates have a First A m endm ent right to som e m inim um level o f telephone access, subject to reason\xc2\xad\nable restrictions related to prison security and adm inistration. U nder certain circum stances they\nalso may have a Sixth A m endm ent right to m ake telephone calls to their attorneys\n\nJanuary 14, 1997\nM e m o r a n d u m O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l\nC r im in a l D iv is io n\n\nYou have requested our views on the extent to which Bureau of Prisons\n(\xe2\x80\x9c BOP\xe2\x80\x9d ) officials may disclose tape recordings of non-privileged inmate tele\xc2\xad\nphone conversations to other law enforcement officials to assist in criminal inves\xc2\xad\ntigations unrelated to prison security or administration.1 In addition, you have\nasked for our views on the legal necessity of the Department of Justice\xe2\x80\x99s current\npolicy regarding access by non-BOP law enforcement officials to such tapes.2\nAt the outset, we believe it is helpful to distinguish several questions raised\nby your memorandum. The first question is the extent to which BOP officials\nmay take tape recordings made for prison security and administration purposes\nand disclose their contents to outside law enforcement officials for reasons unre\xc2\xad\nlated to institutional purposes. We understand this question to encompass the\nrelated issues whether outside law enforcement officials may obtain this same\ninformation by participating in routine prison monitoring and whether those offi\xc2\xad\ncials must seek legal process prior to obtaining the information, as required by\nthe Department\xe2\x80\x99s current policy. A second question is the extent to which BOP\nmay monitor and record (and thereafter, disclose) inmate telephone conversations\nfor reasons unrelated to prison security and administration. Finally, there is a ques\xc2\xad\ntion whether inmates have a constitutional or other legal right to telephone privi\xc2\xad\n1Memorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from John\nC Keeney, Acting Assistant Attorney General, Criminal Division, Re Request fo r an Opinion Regarding the Legality\no f the Disclosure by Bureau o f Prison Officials, Acting Without Court Process, o f Monitored/Recorded Non-Privileged\nInmate Telephone Conversations to Law Enforcement to Assist in Criminal investigations Unrelated to Prison Secu\xc2\xad\nrity or Administration (Oct 11, 1996) ( \xe2\x80\x9c Keeney M emorandum\xe2\x80\x9d )\n2 Id\n\n11\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nleges while incarcerated. We address each of these questions after setting forth\nsome basic background principles that guide the analysis.3\nBACKGROUND\nAs a general matter, the interception of wire communications is governed by\ntwo sources of law: the Fourth Amendment4 and the federal wiretapping statute,\nTitle III o f the Omnibus Crime Control and Safe Streets Act of 1968 ( \xe2\x80\x9c Title\nIII\xe2\x80\x9d ), Pub. L. No. 90-351, 82 Stat. 197, 211-225, amended by the Electronic\nCommunications Privacy Act of 1986, 18 U.S.C. \xc2\xa7\xc2\xa72510-2522 (1994). The\nSupreme Court has not addressed the applicability of the Fourth Amendment or\nTitle III to the practice of monitoring and recording inmate telephone conversa\xc2\xad\ntions to ensure prison security and orderly administration. Many lower courts have\naddressed the issue, agreeing that neither poses an obstacle to the practice. These\ncourts, however, have provided little analysis with respect to the Fourth Amend\xc2\xad\nment and have diverged in their analyses with respect to Tide III. See Attachment\nI to Keeney Memorandum (collecting cases). Because we believe that the par\xc2\xad\nticular analysis that is controlling may affect the answers to your questions, we\nlay out the proper approaches below.\nI. Fourth Amendment\nThe Fourth Amendment protects individuals from \xe2\x80\x9c unreasonable searches.\xe2\x80\x9d\nU.S. Const, amend. IV. The applicability of the Fourth Amendment in a particular\ncase turns on whether \xe2\x80\x9c the person invoking its protection can claim a \xe2\x80\x98justifiable,\xe2\x80\x99\na \xe2\x80\x98reasonable,\xe2\x80\x99 or a \xe2\x80\x98legitimate expectation of privacy\xe2\x80\x99 that has been invaded by\ngovernment action.\xe2\x80\x9d Smith v. Maryland, 442 U.S. 735, 740 (1979). This inquiry,\nin turn, requires both an \xe2\x80\x9c \xe2\x80\x98actual (subjective) expectation of privacy\xe2\x80\x99 \xe2\x80\x9d and one\nthat, viewed objectively, \xe2\x80\x9c \xe2\x80\x98society is prepared to recognize as \xe2\x80\x9c reasonable.\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d\nId. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concur\xc2\xad\nring)).\nIn Hudson v. Palmer, 468 U.S. 517, 530 (1984), the Supreme Court held that\n\xe2\x80\x9c the Fourth Amendment\xe2\x80\x99s prohibition on unreasonable searches does not apply\nin prison cells.\xe2\x80\x9d In that case, a prison inmate brought a \xc2\xa7 1983 action, see 42\nU.S.C. \xc2\xa7 1983 (1994), alleging that prison officials had conducted a random, unan\xc2\xad\nnounced \xe2\x80\x9c shakedown\xe2\x80\x9d of his cell solely to harass him. The Court rejected his\nclaim, holding that prison inmates have no legitimate expectation of privacy in\n3 We respectfully decline to answ er your question concerning the extent to which an inmate\xe2\x80\x99s recorded conversa\xc2\xad\ntions constitute Jencks Act o r Brady material in the main because that question is the subject o f ongoing litigation.\nSee Keeney M emorandum at 5\n4 The Fourth Amendment provides: \xe2\x80\x9c The right o f the people to be secure in their persons, houses, papers, and\neffects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon\nprobable cause, supported by Oath ot affirmation, and particularly describing the place to be searched, and the\npersons o r things to be seized \xe2\x80\x9d U.S. Const, amend. IV.\n\n12\n\n\x0cBureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations\n\ntheir cells. 468 U.S. at 530. Although the Court observed that prisoners retain\ncertain constitutional rights while incarcerated, it reasoned that an expectation of\nprivacy in the contents of a prison cell is incompatible with \xe2\x80\x9c what must be consid\xc2\xad\nered the paramount interest [of the prison] in institutional security.\xe2\x80\x9d Id. at 528.\nThis interest is so compelling, the Court found, that it justifies categorical treat\xc2\xad\nment of cell searches. Thus, given the complete absence of any legitimate expecta\xc2\xad\ntion of privacy, even when a particular cell search is conducted for \xe2\x80\x9c calculated\nharassment unrelated to prison needs,\xe2\x80\x9d the Fourth Amendment provides no protec\xc2\xad\ntion. Id. at 530.5\nAlthough Hudson concerned the applicability of the Fourth Amendment to\nprison cells, we believe its reasoning applies with full force to inmate telephone\nconversations. As in Hudson, recognizing an expectation of privacy in inmate tele\xc2\xad\nphone conversations would conflict with the objectives of prison officials. See\nUnited States v. Clark, 651 F. Supp. 76, 81 (M.D. Pa. 1986) (recognition of a\nreasonable expectation of privacy would frustrate BOP objectives \xe2\x80\x9c to enhance\nthe security of federal prisons through monitoring and recording of telephone con\xc2\xad\nversations\xe2\x80\x9d ), a j f d sub. nom. United States v. Weeden, 869 F.2d 592 (3d Cir.),\ncert, denied, 490 U.S. 1073 (1989); United States v. Van Poyck, 11 F.3d 285,\n291 (9th Cir.), cert, denied, 519 U.S. 912 (1996). Inmates may use their telephone\nprivileges in a variety of ways that violate prison regulations and threaten prison\nsecurity. For example, they may request illegal drugs or weapons from the outside;\nthey may plan prison escapes; they may relate information concerning illegal\nactivities within the prison; they may facilitate illegal activities outside of the\nprison. The prison\xe2\x80\x99s interest in detecting and preventing this type of conduct out\xc2\xad\nweighs any expectation of privacy inmates might have in their telephone conversa\xc2\xad\ntions.\nFurthermore, we believe inmates lack a credible claim of privacy with respect\nto their telephone conversations because they receive ample notice of the moni\xc2\xad\ntoring and taping practice. BOP, for example, posts notices of its monitoring\nsystem in English and Spanish on each inmate telephone and requires inmates\nto sign forms acknowledging their awareness of the system. In addition, public\nnotice of the system is contained in the Code of Federal Regulations. 28 C.F.R.\n\xc2\xa7\xc2\xa7540.100\xe2\x80\x94540.101 (1996). Under these circumstances, it would be difficult for\ninmates to argue that they have an actual expectation of privacy. See United States\nv. Amen, 831 F.2d 373, 379-80 (2d Cir. 1987), cert, denied, 485 U.S. 1021\n(1988).6 Even if inmates nonetheless subjectively expected their telephone con\xc2\xad\n5 In such a case, however, Che Court stated that a prisoner may pursue claims under the Eighth Amendment or\nstate tort and common-law remedies. Hudson, 468 U.S. at 530\n6 Indeed, it could be argued that inmates expressly or impliedly consent to have their telephone conversations\nmonitored and recorded. See Amen, 831 F.2d at 379, Van Poyck, 77 F 3 d at 291. Consent \xe2\x80\x94 whether express of\nim plied\xe2\x80\x94 would render the prison\xe2\x80\x99s monitoring procedure lawful, even if it constituted a search See Schneckloth\nv. Bustamonte, 412 U S. 218, 219 (1973) (consent is \xe2\x80\x9c one o f the specifically established exceptions to the require\xc2\xad\nments of both a warrant and probable cause\xe2\x80\x9d ); McGann v Northeast H i Regional Commuter R R Corp., 8 F.3d\nContinued\n\n13\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nversations to remain private, we believe that expectation would not be \xe2\x80\x9c one that\nsociety is prepared to recognize as \xe2\x80\x98reasonable.\xe2\x80\x99 \xe2\x80\x9d Katz, 389 U.S. at 361. \xe2\x80\x9c If\nsecurity concerns can justify strip and body cavity searches and wholly random\ncell searches, then surely it is reasonable to monitor prisoners\xe2\x80\x99 telephone conversa\xc2\xad\ntions, particularly where they are told that the conversations are being monitored.\xe2\x80\x9d\nAmen, 831 F.2d at 379-80 (citations omitted). But even if inmates possessed a\nsubjectively and objectively reasonable expectation of privacy in their telephone\nconversations, we believe that monitoring such conversations would be \xe2\x80\x9c reason\xc2\xad\nable\xe2\x80\x9d in light of the prison\xe2\x80\x99s compelling interest in security and orderly adminis\xc2\xad\ntration so long as the monitoring w as conducted consistent with that purpose. See\nVan Poyck, 77 F.3d at 291.\nII. Title III\nTitle III generally prohibits the use of any \xe2\x80\x9c electronic, mechanical, or other\ndevice\xe2\x80\x9d to intercept \xe2\x80\x9c any wire, oral, or electronic communication,\xe2\x80\x9d in the absence\nof authorization by a court order. 18 U.S.C. \xc2\xa7 2 5 1 1(a), (b) (1994).7 The statute\nprovides several exceptions to this general prohibition, however. For example, it\npermits interception of oral communications uttered by a person with no justifiable\nexpectation of privacy. See 18 U.S.C. \xc2\xa72510(2). Interception o f wire communica\xc2\xad\ntions\xe2\x80\x94 the type of communications at issue here \xe2\x80\x94 does not similarly turn on\nexpectation of privacy. Rather, Title III contains specific conditions under which\ninterception of such communications is permissible. Section 2510(5)(a), for\nexample, permits interception of wire communications by \xe2\x80\x9c an investigative or\nlaw enforcement officer in the ordinary course o f his duties.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa72510(5)(a) (\xe2\x80\x9c ordinary course of duties exception\xe2\x80\x9d ).8 Section 2511(l)(c) permits\ninterception upon consent from a party to the communication. Id. \xc2\xa7 2511(1 )(c)\n(\xe2\x80\x9c consent exception\xe2\x80\x9d ).9 Courts have held that one or both o f these exceptions\napply to monitoring and recording o f inmate telephone conversations.\nTo qualify for the ordinary course of duties exception to Title III, interception\nof a wire communication must b e conducted (1) by an investigative or law\nenforcement officer (2) in the ordinary course of his duties. Courts generally have\n1174, 1181 (7th Cir. 1993) (reviewing factors establishing implied consent, including whether \xe2\x80\x9c the person searched\nwas on notice that undertaking certain conduct . . . would subject him to a search\xe2\x80\x9d ). As discussed infra in the\nTitle III context, several courts have questioned w hether consent based solely on notice is valid.\n7 It is well settled that Title III applies to the prison system. See Van Poyck, 77 F.3d at 291; Am en, 831 F.2d\nat 377; U nited States v. Paul, 614 F.2d 115, 117 (6th Cir.), cert, denied, 446 U.S. 941 (1980); Campiti v. Walonis,\n611 F.2d 387, 392 (1st Cir. 1979).\n8Section 2510(5)(a) does so by excluding from the definition o f \xe2\x80\x9c electronic, mechanical, or other device\xe2\x80\x9d equip\xc2\xad\nment used by \xe2\x80\x9c an investigative o r law enforcement officer in the ordinary course o f his duties.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa72510(5)(a). Investigative officers using an electronic, mechanical, or other device in the ordinary course of duties\nmay intercept any wire, oral, o r electronic communication\n9 Such consent may be express o r implied. S e e United States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988)\n(citing S. Rep. No. 90-1097, at 94 (1968), reprinted in 1968 U .S.C .C A .N . 2112, 2182), cert, denied, 488 U.S.\n1033 (1989).\n\n14\n\n\x0cBureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations\n\nassumed that prison officials constitute \xe2\x80\x9c law enforcement\xe2\x80\x9d officers.10 The \xe2\x80\x9c ordi\xc2\xad\nnary course of duties\xe2\x80\x9d requirement has engendered more discussion. Courts have\nconcluded that prison monitoring occurs in the ordinary course of duties if con\xc2\xad\nducted pursuant to an established policy that is related to institutional security,\ngenerally applicable rather than directed at a particular inmate, and made known\nto inmates.11 We agree that a prison monitoring program will not violate Title\nIII if it exhibits these characteristics.\nMany courts have gone considerably further, holding that prison monitoring is\nexempt under Title III if inmates merely have notice of its occurrence. These\ncourts imply consent under \xc2\xa7 251 l(l)(c) from circumstances suggesting that\ninmates voluntarily choose to make telephone calls with knowledge that they will\nbe tape recorded.12 Other courts have rejected or criticized this application of\n\xc2\xa7 2511(1 )(c). Some reason that consent to monitoring is not voluntary because\ninmates have no choice but to forego telephone privileges.13 Others frame the\nproblem as a failure to distinguish between knowledge and implied consent.14\nAs Judge Posner has stated:\n[KJnowledge and consent are not synonyms. Taking a risk [that\nprison officials will not detect an abuse of telephone privileges]\nis not the same thing as consenting to the consequences if the risk\nmaterializes. A person who walks by himself late at night in a dan\xc2\xad\ngerous neighborhood takes a risk of being robbed; he does not con\xc2\xad\nsent to being robbed. We would be surprised at the argument that\n10 An \xe2\x80\x9c (i)nvestigalive or law enforcement officer\xe2\x80\x9d is defined as \xe2\x80\x9c any officer of the United States or of a State\nor political subdivision thereof, who is empowered by law to conduct investigations of or to make arTests for offenses\nenumerated in this chapter \xe2\x80\x9d 18 U S C \xc2\xa7 2510(7). Although prison officials are not empowered to conduct investiga\xc2\xad\ntions of offenses directly related to Title 111, they have authority to conduct investigations relating to prison security\nSee 28 C F R \xc2\xa7 541 14(b) (1996) Courts have found such authority sufficient for Title III purposes See, e.g., Clark,\n651 F Supp at 78-79, Crooker v United States Dept o f Justice, 497 F. Supp 500, 503 (D. Conn. 1980)\n11 Sec, e .g , United States v Lanoue, 71 F.3d 966, 982 (1st Cir. 1995) ( \xe2\x80\x9c If the call was intercepted to gather\nevidence for Agent Brosnan\xe2\x80\x99s investigation, rather than for prison security purposes, it was not done in the ordinary\ncourse o f d u ty \xe2\x80\x9d ), Paul, 614 F.2d at 117 (monitoring in ordinary course of duties where conducted pursuant to\nthe policy of the BOP and local prison rules that were posted by each telephone), Campiti, 611 F 2 d at 390-92\n(monitoring not in ordinary course o f duties where unrelated to prison security, not pursuant to prison policy, without\nnotice to inmates, and focused on one inmate); United States v Green, 842 F Supp 68, 73-74 (W.D.N Y. 1994)\n( \xe2\x80\x9c These facts, including the focus on the calls o f one particular prisoner, the extraordinary long time period in\nwhich the taping continued, and the large volume o f tapes sent to other investigative agencies, all contrast starkly\nwith pnor cases in which a few calls were taped in the course o f routine monitoring.\xe2\x80\x9d ), a f f d sub nom United\nStates v. Workman, 80 F.3d 688 (2d C ir), cert denied, 519 U S 955 (1996), United States v. Cheely, 814 F Supp\n1430, 1442-43 (D Alaska 1992) (defining \xe2\x80\x9c ordinary course of duties\xe2\x80\x9d to exclude \xe2\x80\x9c ad hoc monitoring of a single\ninmate\xe2\x80\x9d and distinguishing Camptn), a ffd , 36 F 3d 1438 (9th Cir. 1994); Clark, 651 F Supp at 79-80 (same).\nUnited States v Noriega, 764 F Supp 1480, 1491 (D. Fla. 1991) ( \xe2\x80\x9c If in fact the interception o f Noriega\xe2\x80\x99s conversa\xc2\xad\ntions was unrelated to any institutional considerations, then it would fall outside the scope of an MCC official\xe2\x80\x99s\n\xe2\x80\x98ordinary course of duties.\xe2\x80\x99 \xe2\x80\x9d )\n12 United States v Workman, 80 F 3d 688, 693 (2d C ir), cert denied. 519 U S 955 (1996), Van Poyck, 11\nF 3d at 291, United States v Horr, 963 F 2d 1124, 1126 (8th C ir ). cert denied, 506 U S 848 (1992), Willoughby,\n860 F 2d at 20, Amen, 831 F.2d at 378; Green, 842 F Supp at 72\nn See Langton v Hogan, 71 F 3d 930, 936 (1st C ir 1995)\n14 United States v Daniels, 902 F 2 d 1238, 1245 (7th C ir) (Posner, J ), cert, denied, 498 U S 981 (1990), Cheely,\n814 F Supp. at 1443; Crooker, 497 F. Supp at 503\n\n15\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nif illegal wiretapping were widespread anyone who used a phone\nwould have consented to its being tapped and would therefore be\ndebarred from complaining o f the illegality.\nUnited States v. Daniels, 902 F.2d at 1245.\nAlthough we believe Judge Posner\xe2\x80\x99s analogy inapt, equating assumption of a\nrisk with knowledge for the purpose of distinguishing voluntary consent, we do\nagree that, in certain circumstances, construing or equating knowledge as implied\nconsent would allow the government to evade the requirements of Title III (and\nthe Fourth Amendment) simply by announcing its intention to do so. We further\nappreciate without necessarily conceding that such circumstances may arise in the\nprison setting, on the theory that inmates have no alternative comparable to tele\xc2\xad\nphone facilities and thus no choice but acquiescence with respect to wiretapping.\nWe therefore have reservations about reliance on the consent exception to Title\nIII to monitoring of inmate telephone conversations based solely on evidence of\nnotice. Nonetheless, we include this theory in our discussion below because it\nremains valid in several jurisdictions.\n\nDISCUSSION\nI. Monitoring for Purposes of Prison Security and Administration\nIn this section, we address issues related to BOP\xe2\x80\x99s practice of monitoring and\nrecording inmate telephone conversations pursuant to established policy and for\nreasons related to prison security o r administration. We address each issue under\nthe applicable Fourth Amendment and Title III standards.\nA. Disclosure for Purposes Unrelated to Prison Security\nBecause we believe inmates have no legitimate expectation of privacy in their\ntelephone conversations, the seizure of those conversations by BOP officials\n(through routine monitoring and recording) does not implicate the Fourth Amend\xc2\xad\nment. As a result, the subsequent disposition of those conversations does not\nimplicate the Fourth Amendment. Cf. Hudson, 468 U.S. at 538-39 (O\xe2\x80\x99Connor,\nJ., concurring) ( \xe2\x80\x9c [I]f the act of taking possession and the indefinite retention of\nthe property are themselves reasonable, the handling o f the property while in the\ngovernment\xe2\x80\x99s custody is not itself of Fourth Amendment concern.\xe2\x80\x9d ). Thus, the\nFourth Amendment does not prevent BOP officials from disclosing the contents\nof those conversations to outside law enforcement officials, even for purposes\nunrelated to prison security or administration.\nAlthough Title III may impose greater constraints than the Fourth Amendment\non the interception of wire communications, it furnishes no greater barrier to their\ndisclosure in this instance. Title III expressly authorizes law enforcement officers\n16\n\n\x0cBureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations\n\nto disclose the contents of lawfully obtained communications to \xe2\x80\x9c another inves\xc2\xad\ntigative or law enforcement officer to the extent that such disclosure is appropriate\nto the proper performance of the official duties of the officer making or receiving\nthe disclosure.\xe2\x80\x9d 18 U.S.C. \xc2\xa72517(1). In addition, Title III permits law enforce\xc2\xad\nment officers to use the contents of lawfully obtained communications \xe2\x80\x9c to the\nextent such use is appropriate to the proper performance of his official duties.\xe2\x80\x9d\nId. \xc2\xa72517(2).15 We believe that either or both of these provisions permits BOP\nto disclose the contents of inmate telephone conversations to other law enforce\xc2\xad\nment officials consistent with statutory limitations.\nB. Participation of Non-BOP Law Enforcement Officials\nFrom a Fourth Amendment perspective, the presence of outside law enforcement\nofficials during taping is indistinguishable from disclosure thereafter.16 Because\ninmates have no reasonable expectation of privacy in their telephone calls, the\nFourth Amendment simply has nothing to say about the circumstances under\nwhich, or even the manner in which, the BOP seizes those conversations. Cf.\nHudson, 468 U.S. at 529 (Fourth Amendment provides no protection for destruc\xc2\xad\ntion of property during the course of lawful prison cell search). Thus, we believe\nthat the Fourth Amendment does not prevent outside law enforcement officials\nfrom participating in routine prison monitoring and recording.17\nIn our view, Title III presents a more complicated question. Unlike the Fourth\nAmendment, the ordinary course of duties exception to Title III requires courts\nto consider the circumstances under which monitoring occurs. Under certain condi\xc2\xad\ntions, the unannounced or sporadic presence of outside law enforcement officials\nmight indicate a course of conduct out of the ordinary. Cf. United States v. Green,\n842 F. Supp. at 73 (dicta) (monitoring not in ordinary course of duties where,\namong other things, special arrangements for recording were set up and prison\nofficials sent an unusually large volume of tapes to outside investigative agencies).\nAs a general matter, however, we do not believe that the presence of outside\nlaw enforcement officials \xe2\x80\x94 in the absence of other unusual circumstances \xe2\x80\x94 is\nsufficient to call into question otherwise routine monitoring. Nor is it enough in\nour view, to vitiate implied consent to monitoring, particularly where inmates have\n15 Inmates have argued that disclosure to other law enforcement officials renders the initial monitoring unlawful\nunder Title III, such that neither \xc2\xa72517(1) nor \xc2\xa72517(2) applies. Specifically, inmates have claimed that disclosure\ntakes the initial seizure outside the ordinary course o f duties. For the reasons discussed infra citing Green, we do\nnot believe, however, that disclosure to outside law enforcement officials\xe2\x80\x94 absent other peculiar circumstances \xe2\x80\x94\nis sufficient to taint otherwise routine monitoring and recording Inmates also have argued that disclosure to other\nlaw enforcement officials exceeds the scope o f their implied consent to monitoring In Noriega, the court flatly\nrejected this argument, reasoning that Title 111 treats issues of consent and disclosure separately 764 F. Supp. at\n1491.\nl6For purposes of this discussion, we assume that the presence or participation o f outside law enforcement officials\nis not so significant as to change the routine and established nature o f the monitoring.\n17Although the Eighth Amendment \xe2\x80\x9c always stands as a protection against \xe2\x80\x98cruel and unusual punishments,\xe2\x80\x99 \xe2\x80\x9d\nHudson, 468 U S at 530, we do not believe that the presence o f outside law enforcement officials dunng routine\nmonitoring rises to that level.\n\n17\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nnotice of the periodic presence of outside law enforcement personnel. Even when\ninmates have no notice of the precise conditions under which monitoring occurs,\ntheir consent to the practice of monitoring remains valid and sufficient for Title\nIII purposes. C f Workman, 80 F.3d at 694 (consent to monitoring valid even\nthough inmates had no notice that their calls were recorded).\nC. The Extent to Which Court Process is Required\nWe understand that the Criminal Division has voluntarily adopted a policy\nrequiring outside law enforcement officials to obtain some form of legal process\nauthorizing access to the contents of inmate telephone conversations.18 With\nrespect to previously recorded communications of a specifically identified inmate,\nthe policy requires the requesting agency to obtain a search warrant, grand jury\nsubpoena, administrative summons, or national security letter.19 For future tele\xc2\xad\nphone conversations, the policy requires a Title III interception order from the\ncourts.20\nWe do not believe that the policy of the Criminal Division is either constitu\xc2\xad\ntionally or statutorily mandated. As discussed above, neither the Fourth Amend\xc2\xad\nment nor Title III limits or otherwise conditions disclosure to outside law enforce\xc2\xad\nment officials. While the Criminal Division or BOP may voluntarily adopt proce\xc2\xad\ndural restrictions as a policy matter, they are not compelled by law to do so.\nThus, the Criminal Division is free to modify or repeal its current policy.\nII. Monitoring Unrelated to Prison Security and Administration\nIn this section, we address whether non-BOP law enforcement agencies may\n\xe2\x80\x9c profile\xe2\x80\x9d specific groups of inmates for BOP to monitor and record. It is our\nunderstanding that these profiles m ay enable non-BOP law enforcement agencies\nto prevent inmates from using their telephone privileges to facilitate criminal\nactivities outside the institution and to gather information concerning the outside\ncriminal activities themselves.\nW e believe the practice of profiling raises concerns only to the extent it requires\nor causes BOP to alter its established monitoring procedures. BOP has authority\nto monitor and record all inmate telephone conversations for institutional purposes.\nAs discussed above, those conversations, once lawfully obtained, may be used\nfor purposes unrelated to prison security and administration. If profiling merely\nenables outside law enforcement agencies to identify potentially useful inmate\ntelephone conversations before they are lawfully seized, it is no more problematic\n18 See M emorandum for All United Slates A ttorneys and Stnke Force Chiefs, from William F. W eld, Assistant\nAttorney General, Criminal Division, Re Electronic Surveillance Procedures Within the Federal Prison System (Jan\n9, 1987) (attaching guidelines).\n\xe2\x84\xa2I d\n\n20 Id.\n\n18\n\n\x0cBureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations\n\nthan allowing those officers to participate during the seizure or disclosing the tapes\nto them thereafter.\nIf profiling requires or causes BOP either to adopt special monitoring procedures\nor change its monitoring policy for purposes unrelated to prison security or\nadministration, however, it may jeopardize the application of the ordinary course\nof duties exception. In Green, the court held that monitoring was not in the ordi\xc2\xad\nnary course of duties for purposes of Title III where focused on a particular inmate\nand recorded on special audio cassettes, rather than reel-to-reel tapes. 842 F. Supp.\nat 73; see also Campiti, 611 F.2d at 390-92 (monitoring not in ordinary course\nof duties where directed at a specific inmate for reasons unrelated to prison secu\xc2\xad\nrity and conducted without notice or regard to prison policy).21 Similarly, if a\nprison that maintained a general policy of random monitoring (or random\nscreening of monitored calls) decided to monitor or review all telephone conversa\xc2\xad\ntions of certain inmates at the behest of outside law enforcement officers, a court\nmight find the monitoring beyond the ordinary course of duties. Such a finding\nwould be fatal in jurisdictions that reject the implied consent theory of monitoring.\nEven in jurisdictions that accept the implied consent theory, however, the prac\xc2\xad\ntice of targeting inmates for reasons unrelated to prison security raises troubling\nissues. For example, inmates who receive express notice of random monitoring\n(or random screening of monitored calls) might argue that their consent does not\nextend to the unwritten practice of monitoring or review all of their telephone\nconversations. To the extent inmates have been misled or deceived with respect\nto prison policy, a court might refuse to find implied consent.\nIII. Constitutional Right to Telephone Privileges\nIn this section, we discuss the extent to which the Constitution requires prisons\nto provide inmates with access to telephones. We believe that inmates have a\nFirst Amendment right to some minimal level of telephone access, subject to\nreasonable restrictions related to prison security and administration. Under certain\ncircumstances, they also may have a Sixth Amendment right to make telephone\ncalls to their attorneys, subject again to reasonable restrictions.22\nThe Supreme Court has recognized that \xe2\x80\x9c \xe2\x80\x98[p]rison walls do not form a barrier\nseparating prison inmates from the protections of the Constitution,\xe2\x80\x99 . . . nor do\nthey bar free citizens from exercising their own constitutional rights by reaching\nout to those on the \xe2\x80\x98inside.\xe2\x80\x99 \xe2\x80\x9d Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)\n21 See also Cheely, 814 F Supp at 1441 ( \xe2\x80\x9c ad hoc monitoring\xe2\x80\x9d of particular inmates is beyond ordinary course\nof duties), Lanoue, 71 F.3d at 982 ( \xe2\x80\x9c If the call was intercepted to gather evidence for Agent Brosnan\xe2\x80\x99s investigation,\nrather than for prison security purposes, it was not done in the ordinary course of duty.\xe2\x80\x9d ), Noriega, 764 F. Supp\nat 1491 ( \xe2\x80\x9c If in fact the interception o f N onega\xe2\x80\x99s conversations was unrelated to any institutional considerations,\nthen it would fall outside the scope o f an MCC official\xe2\x80\x99s \xe2\x80\x98ordinary course o f duties.\xe2\x80\x99 \xe2\x80\x9d ).\n22 At least one court has held that inmates have no Eighth Amendment claim to telephone access because it is\nnot a basic human need, such as food, medical care, and physical safety. See Douglas v DeBruyn, 936 F Supp.\n572, 578 (S D. Ind 1996)\n\n19\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n(quoting Turner v. Safley, 482 U.S. 78, 84, 94\xe2\x80\x9499 (1987)). Thus, \xe2\x80\x9c a prison inmate\nretains those [consititutional] rights that are not inconsistent with his status as\na prisoner [and] with the legitimate penological objectives of the corrections\nsystem.\xe2\x80\x9d Pell v. Procunier, 417 U.S. 817, 822 (1974). With respect to telephone\nprivileges, courts generally agree that inmates have a First Amendment right to\nsome minimal level of access.23 Although courts have not reached consensus on\nthe precise level of access required,24 the touchstone is reasonableness.25 Thus,\nlimitations on the right to telephone access will not violate the First Amendment\nif they are reasonable.26 We acknowledge, however, that certain bases exist that\njustify a complete ban on telephone access by a particular inmate or a class of\ninmates, consistent with the First Amendment. See 28 C.F.R. \xc2\xa7 501.2 (1996) (upon\ndirection of Attorney General, Director of BOP may authorize Warden to limit\ntelephone use as reasonably necessary to prevent the disclosure of classified\ninformation); id. \xc2\xa7501.3 (upon direction of Attorney General, Director of BOP\nmay authorize Warden to limit telephone use as reasonably necessary to protect\npersons against the risk of acts o f violence or terrorism). There may be other\ncircumstances as well that support a similar revocation of telephone privileges.\nIn addition to the First Amendment, the Sixth Amendment may guarantee\ninmates a right to some telephone contact with their attorneys.27 Even this right\nis not unlimited, however.28 A prison need only provide access to counsel that\nis \xe2\x80\x9c adequate, effective, and meaningful when viewed as a whole.\xe2\x80\x9d Aswegan, 981\nF.2d at 314.29 Thus, reasonable restrictions on access to attorney telephone calls\nare permissible, especially when other means o f attorney contact are available.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n23 See Pope v. H ightower, 101 F.3d 1382, 1384 (11th Cir. 1996); Washington v. Reno. 35 F.3d 1093. 1099 (6th\nCir. 1994); Tucker v. Randall, 948 F.2d 388, 391 (7th C ir 1991), Strandberg v. City o f Helena, 791 F.2d 744,\n747 (9th Cir. 1986); Morgan v. LaVallee, 526 F.2d 221, 225 (2d C ir 1975); Montana v. Commissioners Court,\n659 F.2d 19, 23 (5th Cir. 1981), cert, denied, 455 U S 1026 (1982), Feeley v. Sampson, 570 F.2d 364, 374 (1st\nCir. 1978); Johnson v. Gallic 596 F. Supp. 135, 138 (D. Nev. 1984). This is true even though other forms of commu\xc2\xad\nnication with the outside exit. C f Pell v Procunier, 417 U.S. 817 (upholding prison regulations prohibiting faceto-face interviews by media o f individual inmates because alternative means of communication existed).\n24 See Wooden v Norris, 637 F. Supp 543, 555 n.4 (M.D. Tenn. 1986) (collecting cases).\n25 See Pope, 101 F.3d at 1384 ( \xe2\x80\x9c [W]hen a prison regulation impinges upon an inmate\xe2\x80\x99s constitutional rights,\nthe regulation is valid if reasonably related to legitimate penological interests.\xe2\x80\x9d ) (citing Turner, 482 U.S. at 89),\nWashington, 35 F 3 d at 1100 (prisoner\xe2\x80\x99s right to telephone access is \xe2\x80\x9c \xe2\x80\x98subject to rational limitations in the face\no f legitimate security interests o f the penal institution\xe2\x80\x99 \xe2\x80\x9d ); Strandberg, 791 F.2d at 747\n26See Washington, 35 F.3d at 1099; Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir.), cert, denied, 493 U.S.\n895 (1989); Strandberg, 791 F 2 d at 747; Lopez v. Reyes, 692 F 2 d 15, 17 (5th Cir 1982); Carter v. O \xe2\x80\x99Sullivan,\n924 F. Supp. 903, 909 (C.D. 111. 1996).\n27 See Tucker, 948 F.2d at 391; Strandberg, 791 F.2d at 747; Carter, 924 F. Supp. at 909\n28 See Asw egan v Henry, 981 F.2d 313, 314 (8th Cir. 1992) ( \xe2\x80\x9c Although prisoners have a constitutional right\no f meaningful access to the courts, prisoners do not have a right to any particular means o f access, including unlimited\ntelephone use.\xe2\x80\x9d ) (citing Bounds v. Smith, 430 U.S. 817, 823, 832 (1977)).\n29 See also Wooden, 637 F Supp. at 554-55 (coinless telephone system does not violate First or Sixth Amendment\nrights o f inmates o r First A mendment rights of inm ates\xe2\x80\x99 families).\n\n20\n\n\x0c'