Wiretapping and Electronic Surveillance Message to the Congress Reporting on Recommendations of the National Commission for the Review of Federal and State Laws.

To the Congress of the United States:

In accordance with Section 6(b) of the Federal Advisory Committee Act (PL 92463), I am pleased to report to the Congress my views concerning the recommendations contained in the "Report of the National Commission For The Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance."

The Commission was charged by the Congress to study and evaluate the effectiveness of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (PL 90-351; 18 U.S.C. Sec. 2510-2520) which governs the use of electronic surveillance of wire and oral communications, except in matters involving foreign intelligence and counterintelligence.

From my viewpoint, the most significant findings of the Commission in carrying out this Congressional mandate are that the provisions of Title III are an indispensable aid to law enforcement, particularly in obtaining evidence of offenses committed by organized criminals; that the procedural requirements of Title III have effectively minimized the invasion of individual privacy in electronic surveillance investigations by law enforcement officers; and that Title III has reduced the incidence of illegal interceptions through its controls on the manufacture, sale, and advertising of wiretapping devices and its criminal sanctions for their

rise.

It is particularly reassuring to note the Commission's finding that the carefully designed Title III controls and procedures have effectively minimized the invasion of individual privacy in electronic surveillance investigations by law enforcement officers, and that there were no cases among the many studied by the Commission in which law enforcement authorities sought a Title III court order for an apparently corrupt purpose. From the very inception of its use in criminal cases, the Department of Justice has developed a highly centralized review system for the approval of Title III authorization requests as well as detailed instructions governing execution of court orders designed to protect the substantive fights of both innocent persons and those under investigation. In this connection I am pleased to note the Commission's finding that Federal officials responsible for administering wiretap application review procedures have shown a commendable concern for adhering to the requirements of Title III.

We must always bear in mind that Title III both permits law enforcement officials to fight crime while it protects citizens against unjustified invasions of privacy. It is clearly a criminal statute designed both to prohibit private citizens from conducting illegal interceptions and to regulate governmental conduct by prohibiting law enforcement officials from violating or disregarding specific procedures for conducting wiretaps.

The Commission has made a number of findings and recommendations which it believes will both improve the effectiveness of the use of court-authorized electronic surveillance in criminal investigations and will also strengthen enforcement of Title III strictures against illegal electronic surveillance. In general, I support the objectives of most of these proposals. I am, however, strongly opposed to a few and believe others to be unnecessary.

I support the Commission's recommendation that misdemeanor and civil penalties should be included in Title III for the prosecution and punishment of nonprofessional electronic eavesdroppers. At present the only sanction applicable to the nonprofessional who engages in electronic surveillance is the felony provision of 18 U.S.C. Sec. 2511. In many instances it is simply too severe a sanction for the offense committed and has resulted in considerable judicial distaste for prosecutions brought under Section 2511 against nonprofessionals. Such persons frequently indicate a desire not to contest such charges, yet still proceed with a contested trial in the absence of the alternative of pleading guilty to a misdemeanor.

The Commission's recommendation that Title III should be amended to explicitly allow the disclosure of illegal interceptions when relevant in a prosecution for illegal interceptions is sound. I also agree with the Commission that judges should retain the discretion to deny admission of the evidence where relevance is outweighed by undue loss of privacy to the victim. While it is often possible to pursue such a prosecution without playing any of the illegal tapes, situations occasionally arise where a portion of such a tape is critical to the Government's case. A violator should not escape punishment by hiding behind the exclusionary rule embodied in 18 U.S.C. Sec. 2515, which appears on its face to allow him to move to have such evidence excluded from his trial.

In addition, I support those Commission proposals recommending that a court order for electronic surveillance expressly authorize entry upon a private place or premises to install an eavesdropping device if such entry is necessary to execute the warrant and that the Congress undertake studies of encroachments on individual privacy by new forms of the art, such as computer technology. Similarly, periodic comprehensive studies and reviews of the operations of Title III would help to determine their continuing effectiveness in law enforcement and in stemming illegal surveillance. Congressional studies also are needed to determine whether some form of notice should be required to assure that customers whose conversations and actions are monitored in the ordinary course of a business, have given their implied consent based upon some reasonable public understanding of the need for such monitoring.

On the other hand, I am strenuously opposed to those proposals of the Commission which recommend that Title III be amended to authorize the Attorney General to designate, by name, any United States Attorney or any Federal Strike Force Chief to authorize applications for court-ordered wiretapping, and that the Department of Justice consider some decentralization and streamlining of procedures for the review and approval of such applications by greater delegation of screening requests and decision-making responsibility to United States Attorneys or Federal Strike Force Chiefs.

The statute (18 U.S.C. Sec. 2516) permits the Attorney General to delegate application authorization to any Assistant Attorney General and the Attorney General has delegated this authority to specified Assistant Attorneys General. As the legislative history of this statute indicates, this provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. It thus avoids the possibility that divergent practices might develop and insures that if abuses occur the lines of responsibility will lead to an identifiable person subject to the political process. Any further delegation of this authority would greatly attenuate this centralized control and responsibility which the Congress determined was essential to its use. Further .delegation of such authority to the field level would also likely result in a greater number of application requests and court orders. While under existing procedures application requests are currently reviewed by United States Attorneys and Federal Strike Force Chiefs in the field, the final review and approval authority must remain the responsibility of the Assistant Attorneys General designated by the Attorney General to approve such applications.

The Commission has recommended that the Congress consider expanding the list of Federal crimes for which electronic surveillance orders may be obtained to include such crimes as customs offenses, manufacture, sale, and interstate shipment of illegal firearms, and fencing of stolen goods affecting interstate commerce. In view of the expression of Congressional concern respecting the limitation of Federal criminal jurisdiction which was demonstrated by the extensive debate during formulation of this provision (18 U.S.C. Sec. 2516) on the floor of the Congress, I believe that a more up-to-date examination of the experiences of the Treasury and Justice Departments in investigating these crimes should be made before the recommendation of the Commission is either endorsed or rejected. I have asked the Attorney General to consult with the Secretary of Treasury on this matter.

Finally, although I support the substance of certain other of the Commission's important proposals, I do not believe that any remedial legislation in this area is necessary since the essence of these recommendations has been implemented by administrative controls adopted by the Department of Justice as a result of its experience with Title III or in response to court decisions interpreting the statute. Recommendations in this area include amending Title III to require an additional showing of facts in order to obtain an extension of a Title III court order and that the explanation of exhaustion of alternative investigative techniques include consideration of the case under investigation insofar as practicable.

The Commission's final Report and its five volumes of supporting materials constitute the most exhaustive compilation of information on the subject of wiretapping and electronic surveillance ever assembled. The record of the Commission stands as an enduring monument to the difficult and conscientious work of its distinguished members and dedicated staff. While its conclusions may be subject to differing degrees of public acceptance, there can be no doubt that the Commission has rendered outstanding service to the American public by its thorough and sensitive exposition of the conflicting demands of law enforcement and individual privacy which inhere in the use of court authorized electronic eavesdropping.

The Commission's Report has reaffirmed my belief that the Federal Government has used this extraordinarily effective investigative technique in the investigation of serious crimes in a highly responsible and circumscribed manner, and that so used, it has preserved and will continue to preserve the delicate balance that must be maintained between the needs of law enforcement and the demands of personal privacy.

JIMMY CARTER

The White House,

April 2, 1979.