Federal Government Information Technology Electronic Surveillance and Civil Liberties

CONGRESS OF THE UNITED STATES Office of Technology Assessment Washington D C. 20510 Office of Technology Assessment

Congressional Board of the 99th Congress

TED STEVENS, Alaska, Chairman MORRIS K. UDALL, Arizona, Vice Chairman

Senate House ORRIN G. HATCH GEORGE E. BROWN, JR. Utah California CHARLES McC. MATHIAS, JR. JOHN D. DINGELL Maryland Michigan EDWARD M. KENNEDY CLARENCE E. MILLER Massachusetts Ohio ERNEST F. HOLDINGS COOPER EVANS South Carolina Iowa CLAIBORNE PELL DON SUNDQUIST Rhode Island Tennessee JOHN H. GIBBONS (Nonvoting)

Advisory Council

WILLIAM J. PERRY, Chairman CLAIRE T. DEDRICK MICHEL T. HALBOUTY H&Q Technology Partners California Land Commission Michel T. Halbouty Energy Co. DAVID S. POTTER, Vice Chairman JAMES C. FLETCHER CARL N. HODGES General Motors Corp. (Ret.) University of Pittsburgh University of Arizona EARL BEISTLINE S. DAVID FREEMAN RACHEL McCULLOCH Consultant Consultant University of Wisconsin CHARLES A. BOWSHER GILBERT GUDE LEWIS THOMAS General Accounting Office Library of Congress Memorial Sloan-Kettering Cancer Center

Director

JOHN H. GIBBONS

The Technology Assessment Board approves the release of this report. The views expressed in this report are not necessarily those of the Board, OTA Advisory Council, or individual members thereof. U.S. DEPARTMENT OF JUSTICE Criminal Branch Library First Floor F.T.R.I.

OCT 2 1 1986

Federal Government Information Technology Electronic Surveillance and Civil Liberties

#27

OTA Reports are the principal documentation of formal assessment projects. These projects are approved in advance by the Technology Assessment Board. At the conclusion of a project, the Board has the opportunity to review the report, but its release does not necessarily imply endorsement of the results by the Board or its individual members.

CONGRESS OF THE UNITED STATES Office of Technology Assessment Washington, D. C. 20510 Recommended Citation: Federal Government Information Technology: Electronic Surveillance and Civil Liberties (Washington, DC: U.S. Congress, Office of Technology Assessment, OTA­ CIT-293, October 1985).

Library of Congress Catalog Card Number 85-600609

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, DC 20402 Foreword

Public policy on the use of information technology to electronically monitor individual movements, actions, and communications has been based on a careful balancing of the civil liberty versus law enforcement or investigative interests. New technologies—such as data transmission, electronic mail, cellular and cord­ less telephones, and miniature cameras—have outstripped the existing statutory framework for balancing these interests. The primary technical focus of this report is on technological developments in the basic communication and information infrastructure of the United States that present new or changed opportunities for and vulnerabilities to electronic surveillance, not on the details of specific surveillance devices. The primary pol­ icy focus is on domestic law enforcement and investigative applications, not on foreign intelligence and counterintelligence applications. Thus, this report addresses four major areas: 1) technological developments relevant to electronic surveillance; 2) current and prospective Federal agency use of surveillance technologies; 3) the interaction of technology and public law in the area of electronic surveillance, with special attention to the balancing of civil lib­ erty and investigative interests; and 4) policy options that warrant congressional consideration, including the amendment of existing public law to eliminate gaps and ambiguities in current legal protections. Conducted at the request of the House Committee on the Judiciary, Subcom­ mittee on Courts, Civil Liberties, and the Administration of Justice, and the Sen­ ate Committee on Governmental Affairs, this report is one component of the OTA assessment of "Federal Government Information Technology: Congressional Over­ sight and Civil Liberties." Other topics covered in the assessment include: infor­ mation technology management, planning, procurement, and security; computer crime; computer matching and privacy; electronic dissemination of Government information; and computer-based decision support, modeling, and Government foresight. These will be published under separate cover. In preparing this report on electronic surveillance, OTA has drawn on work­ ing papers developed by OTA staff and contractors, the comments of participants at an OTA workshop on this topic, and the results of an OTA Federal Agency Data Request that was completed by over 140 agency components. The draft of this report was reviewed by the OTA project advisory panel, officials from the U.S. Department of Justice, and a broad spectrum of interested individuals from the governmental, academic, private industry, and civil liberty communities. OTA appreciates the participation of the advisory panelists, workshop par­ ticipants, external reviewers, Federal agency officials, and others who helped bring this report to fruition. The report itself, however, is solely the responsibility of OTA, not of those who so ably advised and assisted us in its preparation.

JOHN H. GIBBONS Director Electronic Surveillance and Civil Liberties Advisory Panel

Theodore J. Lowi, Chairman Professor of Political Science, Cornell University

Arthur G. Anderson Marilyn Gell Mason IBM Corp. (Ret.) Director Atlanta Public Library Jerry J. Berman Legislative Counsel William Joe Skinner American Civil Liberties Union Corporate Vice President Electronic Data Systems Corp. R. H. Bogumil Past President Terril J. Steichen IEEE Society on Social Implications of President Technology New Perspectives Group, Ltd. James W. Carey George B. Trubow Dean, College of Communications Director, Center for Information University of Illinois Technology and Privacy Law The John Marshall Law School Melvin Day Vice President Susan Welch Research Publications Professor and Chairperson Department of Political Science Joseph W. Duncan University of Nebraska Corporate Economist The Dun & Bradstreet Corp. Alan F. Westin Professor of Public Law and Government William H. Dutton Columbia University Associate Professor of Communications and Public Administration Langdon Winner Annenberg School of Communications Associate Professor of Political Science University of Southern California Rensselaer Polytechnic Institute David H. Flaherty Congressional Agency Participants Professor of History and Law University of Western Ontario Robert L. Chartrand Senior Specialist Carl Hammer Congressional Research Service Sperry Corp. (Ret.) Robert D. Harris Starr Roxanne Hiltz Deputy Assistant Director for Professor of Sociology Upsala College Budget Analysis Congressional Budget Office John C. Lautsch Kenneth W. Hunter Chairman, Computer Law Division Senior Associate Director for American Bar Association Program Information Edward F. Madigan U.S. General Accounting Office Office of State Finance State of Oklahoma

NOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by these advisory panel members. The views expressed in this OTA report, however, are the sole responsibility of the Office of Technology Assessment.

IV OTA Electronic Surveillance and Civil Liberties Project Staff

John Andelin, Assistant Director, OTA Science, Information, and Natural Resources Division

Frederick W. Weingarten, Communication and Information Technologies Program Manager

Project Staff Fred B. Wood, Project Director Jean E. Smith, Assistant Project Director Priscilla M. Regan, Principal Author and Analyst Jim Dray, Research Analyst Jennifer Nelson, Research Assistant

Administrative Staff Elizabeth A. Emanuel, Administrative Assistant Shirley Gayheart, Secretary Audrey Newman, Secretary Renee Lloyd, Secretary Patricia Keville, Clerical Assistant

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

Stanley S. Arkin Paul Lyon Attorney Chief of Special Operations Bureau of Alcohol, Tobacco and Firearms Peter Benitez U.S. Department of the Treasury New York County District Attorney's Office Gary Marx Professor, Department of Urban Studies Kier Boyd and Planning Deputy Assistant Director Massachusetts Institute of Technology Technical Services Division Federal Bureau of Investigation Ronald S. Plesser Attorney James C. Carr Blum, Nash & Railsback U.S. Magistrate Christopher Pyle Floyd Clarke Professor, Political Science Department Deputy Assistant Director Mount Holyoke College Criminal Division Federal Bureau of Investigation James B. Rule Professor, Department of Sociology Russell Cestare State University of New York at Chief of Liaison and Communication Stony Brook Financial Investigations Division U.S. Customs Service Herman Schwartz Professor of Law Ronald C. Fann The American University Chief, Counterintelligence Operations U.S. Department of the Army L. Britt Snider Director, Counterintelligence and Richard Gerstein Security Policy Partner Office of the Secretary of Defense Bailey, Gerstein, Rashkind & Dresnick Morton H. Halperin Other Reviewers Director Michael Cavanagh American Civil Liberties Union Electronic Mail Association Frederick D. Hess Charles Miller Head, Office of Enforcement Operations American Telephone & Telegraph Co. Criminal Division U.S. Department of Justice David Peyton Mary Lawton Information Industry Association Counsel, Office of Intelligence and Barbara Philips Policy Review Telocator Network of America U.S. Department of Justice Harold Relyea Frederick B. Lothrop Congressional Research Service Analyst/Project Manager PSC, Inc.

vi Contents

Chapter Page Chapter Page 1. Summary 3 Part II: Electronic Visual Surveillance 62 2. Introduction and Overview 9 Introduction 62 Summary 9 Background , 63 Introduction 11 Findings and Policy Implications . . 64 Background 12 Part III: Data Base Surveillance .... 67 Technology and Use 12 Introduction 67 Policy 15 Background 68 Findings and Policy Implications ... 21 Findings and Policy Implications . . 70 Appendix 2A: Key Supreme Court Decisions on Electronic Surveillance 24 List of Tables . Appendix 2B: Key Statutes Relevant Table No. Page to Electronic Surveillance 25 1. Categories of Surveillance 3. Telephone Surveillance 29 Technology 13 Summary 29 2. Categories of Behavior Subject Introduction 30 to Electronic Surveillance 13 Background 31 3. Top Fifteen Agency Components Using Findings and Policy Implications ... 34 Electronic Surveillance Technology .. 14 4. Electronic Surveillance Technology: 4. Electronic Mail Surveillance 45 Current and Planned Agency Use ... 15 Summary 45 5. Agency Components Indicating Introduction 45 the Largest Projected Use of Electronic Background 46 Surveillance Technology 15 Findings and Policy Implications ... 48 6. Dimensions for Balancing Civil 5. Other Surveillance Issues 55 Liberty Interest v. Government Summary 55 Investigative Interest . . 22 Electronic Physical Surveillance ... 55 7. Treasury Enforcement Communication Electronic Visual Surveillance 55 System/Border Enforcement Data Base Surveillance 56 System Users 69 Part I: Electronic Physical 8. Source of Treasury Enforcement Surveillance . .. 57 Communication System/Border Introduction 57 Enforcement System Records 69 Background 57 9. Selected INS Computerized Findings and Policy Implications. . 59 Record Systems 70

vii Chapter 1 Summary

(1) INTENTIONAL BLANK PAGE

(2) Chapter 1 Summary

In the last 20 years, there has been a virtu­ telephones, electronic mail, computer confer­ al revolution in the technology relevant to elec­ encing, and electronic bulletin boards. Con­ tronic surveillance. Advances in electronics, tinued advances in computer-communications semiconductors, computers, imaging, data technology such as the Integrated Services bases, and related technologies have greatly Digital Network (ISDN), now close to imple­ increased the technical options for surveillance mentation, are likely to present additional new activities. Closed circuit television, electronic opportunities for electronic surveillance.1 beepers and sensors, and advanced pen regis­ The law has not kept pace with these tech­ ters are being used to monitor many aspects nological changes. The courts have, on several of individual behavior. Additionally, new elec­ occasions, asked Congress to give guidance. tronic technologies in use by individuals, such Most recently, U.S. Circuit Court Judge Rich­ as cordless phones, electronic mail, and pagers, ard Posner, in a case involving the use of video can be easily monitored for investigative, com­ surveillance in a law enforcement investiga­ petitive, or personal reasons. tion, said: The existing statutory framework and judi­ ... we would think it a very good thing if Con­ cial interpretations thereof do not adequately gress responded to the issues discussed in this cover new electronic surveillance applications. opinion by amending Title III to bring tele­ The fourth amendment—which protects "the vision surveillance within its scope ... judges right of the people to be secure in their per­ are not authorized to amend statutes even to sons, houses, papers and effects, against un­ bring them up to date. reasonable searches and seizures"—was writ­ ten at a time when people conducted their In legislating the appropriate uses of elec­ affairs in a simple, direct, and personalized tronic surveillance, Congress attempts to fashion. Telephones, credit cards, computers, strike a balance between civil liberties—espe­ and cameras did not exist. Although the prin­ cially those embodied in the first, fourth, and ciple of the fourth amendment is timeless, its fifth amendments to the U.S. Constitution—and application has not kept abreast of current the needs of domestic law enforcement and in­ technologies. vestigative authorities for electronic surveillance in fighting crime, particularly white-collar and organized crime, and generally for drug, gam­ The major public law addressing electronic 2 surveillance is Title III of the Omnibus Crime bling, and racketeering investigations. Control and Safe Streets Act of 1968 which was designed to protect the privacy of wire Law enforcement and investigative agen­ and oral communications. At the time Con­ cies, at least at the Federal level, are making gress passed this act, electronic surveillance significant use of electronic surveillance tech­ was limited primarily to simple telephone taps niques and are planning to use many new tech­ and concealed microphones (bugs). Since then, niques. Based on a review of available reports the basic communications infrastructure in the United States has been in rapid technological change. For example, satellite communication 1 ISDN permits the transmission of voice, video, and data sig­ systems and digital switching and transmis­ nals as needed over a common multi-purpose communications sion technology are becoming pervasive, along network. with other easily intercepted technical appli­ 2 Note: This study did not review technology or policy issues concerning foreign intelligence and counterintelligence appli­ cations such as cellular mobile radio, cordless cations of electronic surveillance.

3 4

and the results of its Federal Agency Data Re­ —none of the 85 system operators pro­ quest,3 OTA found that: vided the requested statistics on record quality (completeness and accuracy). • The number of Federal court-approved Most do not maintain such statistics. bugs and wiretaps in 1984 was the high­ est ever. After conducting a review of the technology • About 25 percent of Federal agency com­ and policy history of electronic surveillance, ponents responding (35 out of 142) indi­ OTA found that: cated some current and/or planned use of various electronic surveillance technol­ • The contents of phone conversations that ogies, including, but not limited to, the are transmitted in digital form or calls following: made on cellular or cordless phones are not clearly protected by existing statutes. —closed circuit television (29 agencies); • Data communications between computers —night vision systems (22); and digital transmission of video and —miniature transmitters (21); graphic images are not protected by ex­ —electronic beepers and sensors (15); isting statutes. —telephone taps, recorders, and pen reg­ • There are several stages at which the con­ isters (14); tents of electronic mail messages could be —computer usage monitoring (6); intercepted: 1) at the terminal or in the —electronic mail monitoring or intercep­ electronic files of the sender, 2) while be­ tion (6); ing communicated, 3) in the electronic —cellular radio interception (5); mailbox of the receiver, 4) when printed —pattern recognition systems (4); and into hardcopy, and 5) when retained in the —satellite interception (4). files of the electronic mail company or pro­ • About 25 percent of Federal agency com­ vider for administrative purposes. Exist­ ponents responding (36 out of 142) report ing law offers little or no protection at use of computerized record systems for most of these stages. law enforcement, investigative, or intel­ • Legislated policy on electronic physical ligence purposes: surveillance (e.g., pagers and beepers) and —agencies reported a total of 85 com­ electronic visual surveillance (e.g., closed puterized systems with, collectively, circuit TV and concealed cameras) is am­ about 288 million records on 114 million biguous or nonexistent. persons;4 —examples of four such systems that • Legislated policy on data base surveil­ could be used in part for data base sur­ lance (e.g., monitoring of transactions on veillance purposes are the: computerized record systems and data communication linkages) is unclear. 1. National Crime Information Center (FBI), • There is no immediate technological an­ swer to protection against most electronic 2. Treasury Enforcement Communica­ surveillance, although there are emerging tions System (Treasury), techniques to protect communication sys­ 3. Anti-Smuggling Information System tems from misuse or eavesdropping (e.g., (Immigration and Naturalization Serv­ low-cost data encryption).5 ice—INS), and 4. National Automated Immigration OTA identified a range of policy options for Lookout System (INS). congressional consideration: 3 The data request was sent to all major components within • Congress could do nothing and leave pol­ the 13 cabinet-level agencies and to 20 selected independent agencies. Due to the unclassified focus of this study, two icymaking up to the development of case Department of Defense components—the National Security 5 Technical options are being addressed in a separate OTA Agency and Defense Intelligence Agency—along with the Cen­ study on "New Communications Technology: Implications for tral Intelligence Agency were excluded from the data request. Privacy and Security," expected to be published in winter 4 Extent of multiple records on the same person is unknown. 1986/87. 5

law and administrative discretion. How­ —requiring congressional approval of spe­ ever, this would lead to continued uncer­ cific Federal data base surveillance ap­ tainty and confusion regarding the pri­ plications (e.g., by statutory amend­ vacy accorded phone calls, electronic mail, ment or approval of House and Senate data communication, and the like, and authorizing committees); ignores judicial requests for clarification —establishing a data protection board to in areas such as electronic visual sur­ administer and oversee general statu­ veillance. tory standards for creating and using • Congress could bring new electronic tech­ data bases for purposes of surveillance. nologies and services clearly within the Congress also could amend the Computer purview of Title III of the Omnibus Crime Fraud and Abuse Act of 1984 to cover in­ Control and Safe Streets Act, for exam­ terstate computer crime. ple by: —This option, not detailed here, could pro­ —treating all telephone calls similarly vide additional legal protection against with respect to the extent of protec­ unauthorized penetration (whether for surveillance or other reasons, e.g., theft tion against unauthorized interception, 6 whether analog or digital, cellular or or fraud) of computer systems. cordless, radio or wire; Chapters 2 through 5 of this report provide —legislating statutory protections against technical and policy analyses relevant to pro­ unauthorized interception of data com­ posed legislation on electronic surveillance and munication; civil liberties, such as the "Electronic Com­ —legislating a level of protection across munications Privacy Act of 1985 "7 and the all stages of the electronic mail process "Video Surveillance Act of 1985."8 so that electronic mail is afforded the same degree of protection as is pres­ ently provided for conventional first class mail; 6 See the computer crime chapter of the forthcoming OTA re­ —subjecting electronic visual surveillance port on "Federal Government Information Technology: Key to a standard of protection similar to Trends and Policy Issues" for discussion. 7 H.R. 3378 introduced by Rep. Robert Kastenmeier and S. or even higher than that which cur­ 1667 introduced by Sen. Patrick Leahy. See U.S. Congress, rently exists under Title III for bugging House of Representatives, Congressional Record, Extension of and wiretapping. Remarks, Sept. 19, 1985, p. E-4128; and U.S. Congress, Sen­ ate, Congressional Record, Sept. 19, 1985, p. S-11795. • Congress also could set up new mecha­ 8 H.R. 3455 introduced by Representative Kastenmeier. See nisms for control and oversight of Federal U.S. Congress, House of Representatives, Congressional Rec­ data base surveillance, for example by: ord, Extension of Remarks, Sept. 30, 1985, p. E-4269. INTENTIONAL BLANK PAGE

(6) Chapter 2 Introduction and Overview

(7) INTENTIONAL BLANK PAGE

(8) Chapter 2 Introduction and Overview

SUMMARY Electronic surveillance is the epitome of the although costs are declining and ease of use two-edged sword of technology for many Amer­ is improving. icans. Public opinion polls evidence consider­ The primary purpose of electronic surveil­ able concern about possible excessive and lance is to monitor the behavior of individuals, abusive use of electronic surveillance by the including individual movements, actions, com­ Government (and others), and show support munications, emotions, and/or various combi­ for strong safeguards and protections to nations thereof, as well as the movement of tightly control the use of such technology. property or objects. Some uses of electronic But, at the same time, the public is concerned surveillance devices may infringe on the pro­ about crime—especially violent crime—and tections afforded by the first, fourth, and fifth supports the appropriate use of technology to amendments to the U.S. Constitution and combat and prevent crime and bring offenders various public laws. to justice.1 This chapter surveys the Federal Govern­ Until the past 10 years or so, the balancing ment's use of electronic surveillance and out­ of these concerns was relatively straightfor­ lines a framework for the analysis of electronic ward from a technological perspective. Elec­ surveillance issues. tronic surveillance was limited primarily to au­ dio surveillance devices such as telephone taps Based on a review of available reports and and concealed microphones ("bugs"). Now, the results of its Federal Agency Data Re­ however, technological developments have sig­ quest, OTA found that: nificantly expanded the range of electronic sur­ • The extent of use of electronic surveil­ veillance options. These include miniaturized transmitters for audio surveillance, light­ lance by the private sector is unknown. weight compact television cameras for video The number of Federal and State court- surveillance, improved night vision cameras approved wiretaps and bugs reported in and viewing devices, and a rapidly growing ar­ 1984 was the highest since 1973. ray of computer-based surveillance techniques. • The number of Federal court-approved In addition, most forms of electronic commu­ bugs and wiretaps in 1984 was the high­ nication—whether via wire, coaxial cable, mi­ est ever. crowave, satellite, or even fiber optics—can be • According to early reports, an average of monitored if one has the time, money, and about 25 percent of intercepted commu­ technical expertise. Encryption—the only tech­ nications in 1984 were reported to be in­ nological countermeasure thought at this time criminating in nature, with 2,393 persons to be generally effective—is still too expensive arrested as a result of electronic sur­ and cumbersome for widespread application, veillance. • About 25 percent of Federal agency com­ ponents responding to the OTA Federal 1 Data Request indicated some use of elec­ See Alan F. Westin, "Public and Group Attitudes Toward 2 Information Policies and Boundaries for Criminal Justice," in tronic surveillance. U.S. Department of Justice, Bureau of Justice Statistics, In­ formation Policy and Crime Control Strategies, Proceedings of a BJS/SEARCH Conference, July 1984, pp. 32-46; and William H. Dutton and Robert G. Meadow, "Public Perspectives on 2 Due to the unclassified focus of this study, two Department Government Information Technology: A Review of Survey Re­ of Defense components-the National Security Agency and De­ search on Privacy, Civil Liberties, and the Democratic Proc­ fense Intelligence Agency—along with the Central Intelligence ess," OTA contractor report, January 1985. Agency were excluded from the data request.

9 53-548 0-85-2 : QL 3 10

— Federal agency use is concentrated in an investigation the use of a particu­ components of the Departments of Jus­ lar surveillance technique is appro­ tice, Treasury, Defense, Agriculture, priate; and Interior. 4. a justification for the need to use a par­ — The Drug Enforcement Administra­ ticular surveillance technique; tion and Federal Bureau of Investiga­ 5. an account of how the scope of the sur­ tion (Justice), U.S. Customs Service veillance will be minimized; (Treasury), and Air Force Office of Spe­ 6. a requirement to give notice after the cial Investigations (Defense) use the fact to the subject of the surveillance; greatest number of different types of and electronic surveillance technologies. 7. remedies and sanctions, including a — The FBI, which currently uses nine statutory exclusionary rule or a civil different types of surveillance technol­ remedy. ogies, has plans to use eight additional • In setting electronic surveillance policy, types of technologies. Congress, the executive branch, and the courts, implicitly or explicitly, balance the A thorough review of the technology and societal interest in maintaining civil lib­ policy history of electronic surveillance led erties protections for the individual against OTA to conclude that: the societal interest in successful Govern­ • The existing statutory framework and ju­ ment investigations. Based on an evalu­ dicial interpretations thereof do not ade­ ation of previous policy formulation, pol­ quately cover new and emerging elec­ icymakers, more or less consciously, have tronic surveillance technologies. Indeed, looked to certain dimensions in determin­ the courts have asked Congress for guid­ ing this balance. ance on the new technologies. • In determining the civil liberty interest • There is no immediate technological an­ with respect to electronic surveillance, swer to protection against most electronic policymakers look to five dimensions— surveillance, although there are emerging the nature of information, the nature of techniques to protect communication sys­ the place or communication, the scope of tems from misuse or eavesdropping (e.g., the surveillance, the surreptitiousness of low-cost data encryption). surveillance, and the pre-electronic analogy • Despite a lack of coordination in elec­ of the surveillance technique or device. tronic surveillance policymaking among • In determining the Government's inter­ the three branches of Government and the est, policymakers have used three dimen­ ad hoc nature of that policy, there are sions to evaluate the need for using an seven general components that are found electronic surveillance technique or de­ in existing policies, be they legislative, vice—the purpose of the investigation, the executive, or judicial: degree of individualized suspicion, and the 1. a way of checking on the discretion of effectiveness of the electronic device as an the Government agent in the field; investigatory tool compared to nonelec­ 2. a listing of the crimes and circum­ tronic options. stances for which a particular type of This policy framework is applied in the fol­ electronic surveillance is considered lowing chapters to specific types of electronic appropriate; surveillance technology. 3. a standard to indicate at what stage in 11

INTRODUCTION The capabilities for surveillance—the obser­ required for case investigation, and the expan­ vation and monitoring of individual or group sion of the options for preventing and deter­ behavior including communication—are greatly ring crimes. From a societal perspective, the expanded and enhanced with the use of tech­ possible benefits are also important—includ­ nological devices. For example, technology ing the potential to increase one's sense of makes it more efficient and less conspicuous physical security in the home and on the to track movements, to hear conversations, to streets, improve the capability to know when know the details of financial and other per­ someone is in need of assistance, strengthen sonal transactions, and to combine informa­ efforts to prevent the sale of illegal substances, tion from diverse sources into a composite file. and enhance the protection of citizens and New surveillance tools are technically more Government officials from terrorist actions. difficult to detect, of higher reliability and However, while providing increased secu­ sensitivity, speedier in processing time, less rity, the use of sophisticated technologies for costly, more flexible and adaptable, and eas­ surveillance purposes also presents possible ier to conceal because of miniaturization and dangers to society.3 Over time, the cumulative remote control. Current R&D will produce de­ effect of widespread surveillance for law en­ vices with increased surveillance capabilities, forcement, intelligence, or other investigatory e.g., computer speech recognition and speaker purposes could change the climate and fabric identification, fiber optics, and expert systems. of society in fundamental ways. For example, how will hotlines that encourage people to Many electronic devices are currently avail­ anonymously report potentially damaging in­ able for monitoring individual or group be­ formation and one-party consent to the moni­ havior. For example, phone conversations toring of conversations affect the level of trust might be overheard, records of phone numbers in our society? Will private space and anonym­ dialed might be accessed, movements at home ity be preserved when individuals increasingly and in the workplace might be video-recorded, must make private information widely avail­ and movements outside the home or work­ able, e.g., to banks, medical clinics, and credit place, even in the dark, could be observed. In agencies, in order to carry on everyday activ­ addition, bank and credit records could be ex­ ities? How will informality and spontaneity in amined electronically to determine financial communications and behavior be affected as habits and general movements, and conversa­ more personal activities are "on the record" tions in a public place could be recorded by a or "in view?" parabolic microphone. Further, it is possible that actions might be evaluated by computer But most importantly for the purposes of to determine whether they match any profiles this study, the use of electronic surveillance or have a pattern, that electronic mail commu­ devices may infringe on the protections af­ nication might be accessed and read, that the forded in the first amendment (freedom of movements of physical objects such as a car speech and press, and the right to peaceably might be tracked by a beeper, and that a new assemble and to petition the Government for friend or local taxi driver might be wired for a redress of grievances), fourth amendment sound. (unreasonable searches and seizures), and fifth amendment (protection against self-incrimi­ From a law enforcement and investigative nation). The use of such devices may also con­ standpoint, the potential benefits offered flict with procedural and substantive protec­ through new electronic technologies may be tions in specific statutes, e.g., Title III of the substantial—e.g., the development of more ac­ curate and complete information on suspects, 3 Gary T. Marx, "The New Surveillance," Technology Review, the possible reduction in time and manpower vol. 88, No. 4, May/June 1985, pp. 42-48. 12

1968 Omnibus Crime Control and Safe Streets veillance activities, it may be difficult to de­ Act, the Privacy Act of 1974, the Foreign In­ tect when one's rights have been violated. telligence Surveillance Act of 1978, the Elec­ The use of electronic surveillance devices tronic Funds Transfer Act of 1978, and the Ca­ may result in more efficient law enforcement. ble Communications Policy Act of 1984. Their use may be required in part by the use Many innovations in electronic surveillance of more evasive and sophisticated devices by technology have outstripped constitutional those suspected of engaging in criminal activ­ and statutory protections, leaving areas in ities. Yet, the cumulative impact of the in­ which there is currently no legal protection creased use of surveillance, with or without a against, or controls on the use of, new surveil­ court order, is an important consideration for lance devices. In 1928, Justice Louis Brandeis, any society that prides itself on limited gov­ in his dissenting opinion in Olmstead v. United ernment and individual freedom. States, warned that: The key policy issue is to determine the Subtler and more far reaching means of in­ appropriate balance between the civil liberty vading privacy have become available to the interests and the intelligence, law enforce­ Government ... the progress of science in fur­ ment, or other governmental interests in­ nishing the Government with means of espi­ volved. In some circumstances, the law en­ onage is not likely to stop with wiretapping. forcement interest will be great enough to Ways may some day be developed by which the Government, without removing papers outweigh the civil liberty interest. In other cir­ from secret drawers, can reproduce them in cumstances, the reverse will be the case. Pol­ court, and by which it will be enabled to ex­ icy, be it judicial, legislative, or administra­ pose to a jury the most intimate occurrences tive, seeks to define the parameters for this of the home.4 balancing process. Although use of some surveillance tech­ James Madison addressed this basic di­ niques requires a court order, many do not re­ lemma of democratic governments in Feder­ quire any authorized approval and some are alist #51: not even covered by judicial interpretation of If men were angels, no government would the fourth amendment prohibition on unrea­ be necessary. If angels were to govern men, sonable searches and seizures. Additionally, neither external nor internal controls on gov­ the privacy and procedural rights of those sub­ ernment would be necessary. In framing a ject to surveillance may also be violated, since government which is to be administered by their activities may be monitored even though men over men, the great difficulty lies in this: no criminal suspicion has attached to them. You must first enable the Government to con­ Finally, given the unobtrusive nature of sur­ trol the governed; and in the next place, oblige it to control itself. 4Olmstead v. United States, 277 U.S. 438, 473-474 (1928).

BACKGROUND Technology and Use included miniaturized transmitters for audio surveillance, lightweight compact television For much of the 20th century, electronic sur­ cameras for video surveillance, improved night veillance technology was limited primarily to vision cameras and viewing devices, and the audio surveillance devices such as telephone first computer-based surveillance techniques. taps and concealed microphones ("bugs"). In In the 1970s, congressional attention focused the late 1960s, however, technological devel­ on electronic surveillance, partly due to the use opments began to significantly expand the of surveillance technologies during the Civil range of electronic surveillance options. These Rights Movement and in Watergate, but also 13 due to a perception of a growing application Table 2.—Categories of Behavior Subject to of such technology in various sectors of soci­ Electronic Surveillance ety. Table 1 presents a list of categories and 1. Movements—where someone is. Individuals can be tracked types of surveillance technology as developed electronically via beepers as well as by monitoring com­ by the Subcommittee on Constitutional Rights puterized transactional accounts in real time. 2. Actions—what someone is doing or has done. Electronic of the Senate Committee on the Judiciary in devices to monitor action include: monitoring of keystrokes 1976. on computer terminals, monitoring of telephone numbers called with pen registers, cable TV monitoring, monitor­ The primary purpose of electronic surveil­ ing of financial and commercial computerized accounts, lance technology is to monitor the behavior of and accessing computerized law enforcement or investiga­ tory systems. individuals. As illustrated in table 2, electronic 3. Communications—what someone is saying or writing, and devices can be used to monitor individual hearing or receiving. Two-way electronic communications movements, actions, communications, emo­ can be intercepted whether the means be analog or digi­ tal communication via wired telephones, communication tions, and/or various combinations thereof. via cordless or cellular phones, or digital electronic mail communication. Two-way nonelectronic communication It appears that many of the electronic sur­ can be intercepted via a variety of microphone devices and veillance technologies identified in table 1 were other transmitters. not widely used in 1976, partly because the 4. Actions and communications—the details of what some­ one is doing or saying. Electronic visual surveillance, gener­ underlying media of communication (e.g., elec- ally accompanied by audio surveillance, can monitor the actions and communications of individuals in both private and public places, in daylight or darkness. 5. Emotions—the psychological and physiological reactions Table 1.—Categories of Surveillance Technology to circumstances. Polygraph testing, voice stress analyz­ ers, breath analyzers, and brain wave analyzers attempt to 1. Electronic eavesdropping technology (audio determine an individual's reactions. surveillance) • radiating devices and receivers (e.g., miniaturized SOURCE: Office of Technology Assessment. transmitters) • nonradiating devices (e.g., wired surveillance tronic mail and cellular radio) were not in wide systems, including telephone taps and concealed microphones) service. However, there is no authoritative in­ • tape recorders formation on the full extent of their use. 2. Optical/imaging technology (visual surveillance) • photographic techniques In the private sector (not involving the Gov­ • television (closed circuit and cable) ernment), the FBI notes that the number of • night vision devices (use image intensifier to view objects under low light) reported incidents of illegal interception of pri­ • satellite based vate sector communications declined from 524 3. Computers and related technologies (data surveillance) in 1981 to 392 in 1984.5 However, it is likely • microcomputers—decentralization of machines and distributed processing that only a small fraction of total incidents • computer networks occurring are reported, and it is probable that • software (e.g., expert systems) many forms of private sector electronic sur­ • pattern recognition systems 4. Sensor technology veillance go undetected, and if detected, go un­ • magnetic sensors reported. • seismic sensors • infrared sensors Statistics on Government use of some elec­ • strain sensors tronic surveillance techniques, primarily tele­ • electromagnetic sensors 5. Other devices and technologies phone wiretaps and hidden microphones, are • citizen band radios collected and published by the Administrative • vehicle location systems Office of the U.S. Courts. The April 1985 re­ • machine-readable magnetic strips • polygraph port indicates that in 1984, Federal and State • voice stress analyzer judges approved 801 out of 802 requests for • voice recognition electronic surveillance—289 by Federal judges • laser interception • cellular radio 5 SOURCE: Based on the framework developed by the Senate Judiciary Commit­ John Horgan, "Thwarting the Information Thieves," IEEE tee's Subcommittee on Constitutional Rights in its report, Surveillance Spectrum, July 1985, p. 32, which cites the source as FBI Technology—1976 (see pp. 29-37). spokesperson William Carter. 14

and 512 by State judges. The 1984 combined Table 3.—Top Fifteen Agency Components total of 801 was the highest since 1973. The Using Electronic Surveillance Technology 1984 Federal total of 289 was the highest ever, Number of with the prior peak year being 1971. Overall, technologies the number of State electronic surveillance Agencya currently used orders has slowly declined since 1973, while Drug Enforcement Administration (DOJ) . . 10 Federal Bureau of Investigation (DOJ) 9 Federal surveillance orders declined from 1971 U.S. Customs Service (Treasury) 9 to 1977, remained about constant from 1977 U.S. Air Force (DOD) 9 to 1980, and increased from 1981 to the present. National Park Service (DOI) 8 Internal Revenue Service (Treasury) 7 The number of electronic interceptions author­ Criminal Division (DOJ) 7 ized by Federal courts in 1984 is almost tri­ U.S. Forest Service (USDA) 7 ple the 1981 level.6 Inspector General (USDA) 7 Agricultural Stabilization and In general, the reported electronic surveil­ Conservation Service (USDA) 7 U.S. Army (DOD) . , 6 lance is used primarily in narcotics and gam­ Fish and Wildlife Service (DOI) 6 bling cases; in 1974 gambling was first and U.S. Marshals Service (DOJ) 6 narcotics second, and in 1984 the order was U.S. Mint (Treasury) 6 Bureau of Alcohol, Tobacco and reversed. The reported cost of electronic sur­ Firearms (Treasury) 6 veillance has increased dramatically, from aThe Central Intelligence Agency, National Security Agency, and Defense Intel­ about $8,000 each in 1974 to about $45,000 ligence Agency were excluded due to the unclassified focus of this study. each in 1984. An average of about 25 percent SOURCE: Office of Technology Assessment. of intercepted communications in 1984 was re­ ported to be incriminating in nature, with 2,393 persons arrested as a result of electronic National Security Agency, and Defense Intel­ surveillance and about 27 percent of those con­ ligence Agency were excluded from the data victed.7 The figures for arrests and convictions request.) are necessarily incomplete because of the time Use of specific technologies varied widely, involved in concluding a Federal criminal case. with use of closed circuit television, night vi­ Because of the general lack of information sion systems, radio scanners, and miniature on Federal use of electronic surveillance, ques­ transmitters indicated by many agencies that tions on this topic were included in the OTA conduct electronic surveillance, and use of tele­ Federal Agency Data Request sent to the 13 phone taps, vehicle location systems (e.g., cabinet-level departments and 20 selected in­ beepers), sensors, and pen registers indicated dependent agencies. Of 142 agency compo­ by a smaller but still significant number of nents responding, 35 or about 25 percent agencies. The other technologies are used by reported some current use of electronic surveil­ relatively few or very few agencies. Actual re­ lance technology for monitoring the move­ sults of the OTA Data Request are summa­ ment, activity, conversation, or information rized in table 4. Out of the 35 agencies indicat­ pertaining to individuals or agencies in which ing some electronic surveillance activity, the the agency has an investigative, law enforce­ FBI and DOD Inspector General's Office in­ ment, and/or intelligence interest. Of these 35 dicated the largest planned expansion in use agency components, the top 15 agencies re­ of electronic surveillance technologies (see porting use of the largest number of electronic table 5). surveillance technologies are listed in table 3. The technical literature suggests that most (Note that the Central Intelligence Agency, forms of electronic communication can be in­ tercepted, although it may be difficult and 6Administrative Office of the United States Courts, Report costly. The cost of equipment needed to inter­ on Applications for Orders Authorizing or Approving the In­ cept microwave telephone circuits has been terception of Wire or Oral Communications, for Calendar 1984, Washington, DC, April 1985, pp. 3, 6, 21. estimated at about $40,000, but it can be done 7Ibid., pp. 6, 7, 21. relatively easily and without the awareness of 15

Table 4.—Electronic Surveillance Technology: lieve that encryption is the only sure way to Current and Planned Agency Use "protect any form of electronic communica­ 8 9 Number of agency tions end-to-end." components reporting Current Planned Policy Technology use use Total Closed circuit television 25 4 29 The history of electronic surveillance policy Night vision systems 21 1 22 significantly involves all three branches of Miniature transmitters 19 2 21 Radio receivers (scanners) 19 1 20 Government: the judiciary, Congress, and the Vehicle location systems (e.g., executive branch. Key activities and policy ac­ electronic beepers) ... 13 2 15 tions are highlighted below. Sensors (e.g., electromagnetic, electronic, acoustic) 12 3 15 Telephone taps and recorders .1 3 1 14 Judicial Pen registers 11 3 14 Telephone usage monitoring... 7 3 10 The courts have had a significant role in in­ Computer usage monitoring ... 426 terpreting the Constitution and various sta­ Electronic mail monitoring or interception 1 5 6 tutes as they apply to electronic surveillance. Cellular radio interception 3 2 5 Pattern recognition systems ... 2 2 4 Constitutional questions regarding the legit­ Satellite interception 1 3 4 imacy of the use of electronic surveillance de­ Expert systems/artificial vices under specific circumstances most often intelligence 0 3 3 Voice recognition 0 3 3 turn on an interpretation of fourth amendment Satellite-based visual protections. The fourth amendment provides surveillance systems 112 that: Microwave interception 1 1 2 Fiber optic interception 0 1 1 The right of people to be secure in their per­ SOURCE: Office of Technology Assessment. sons, houses, papers and effects, against un­ reasonable searches and seizures, shall not be violated, and no Warrants shall issue, but Table 5.—Agency Components Indicating the Largest Projected Use of Electronic Surveillance Technologies upon probable cause, supported by Oath or af­ firmation, and particularly describing the Number of current place to be searched, and the persons or things plus planned to be seized. Agency technologies Federal Bureau of Investigation (DOJ)... 17 The critical triggering phrase of the fourth Office of the Inspector General (DOD)... 13 amendment is "searches and seizures." If Drug Enforcement Administration (DOJ). 11 there is no search or seizure, then official be­ U.S. Customs (Treasury) 10 U.S. Air Force (DOD) 9 havior is not covered by the fourth amend­ National Park Service (DOI) 9 ment, and it need not be reasonable, based on Internal Revenue Service (Treasury) 9 probable cause, or carried out pursuant to a Office of the Inspector General (USDA) . 9 Agricultural Stabilization and warrant. Although there may be statutory Conservation Service (USDA) 9 protections that require certain conduct, an in­ SOURCE: Office of Technology Assessment. dividual does not have fourth amendment pro­ tections unless there is a search and seizure. the network owner. Some believe that even fi­ The secondary triggering phrase of the fourth ber optic circuits can be tapped (but with dif­ amendment is "unreasonable." Even if official ficulty), although this technology is so new conduct is regarded as a search or seizure, that reliable information is scarce. The major there is no invasion of fourth amendment pro­ electronic countermeasures include radiation shielding of electronic equipment (to prevent 8Horgan, op. cit., pp. 30, 31, 33, 34, 38. eavesdropping of signals given off by such 9For further discussion of technical vulnerabilities and related security measures, see the forthcoming OTA study on "New equipment), spread-spectrum transmission, Communications Technology: Implications for Privacy and and encryption. Many technical experts be­ Security" expected to be published in winter 1986/87. 16

tections if the conduct is reasonable. Determi­ Following Katz, judicial determination of nation of reasonableness depends on the ju­ whether a "search or seizure"-has occurred de­ dicial balancing of the individual interest, pends on whether or not the individual has a generally regarded as a privacy interest, "reasonable expectation of privacy" in the against the governmental interest, including area or activity under surveillance. In deter­ law and order, national security, internal secu­ mining whether or not an individual has such rity, and the proper administration of the laws. an expectation, the Supreme Court has adopted Reasonableness generally entails a predicate as its test the two-part formulation from Jus­ of probable cause and, with many exceptions, tice Harlan's concurring opinion: the issuance of a warrant. ... first that a person have exhibited an ac­ The meaning and scope of the fourth amend­ tual (subjective) expectation of privacy and, second, that the expectation be one that soci­ ment have involved judicial construction of 14 these key phrases. Definition of "searches" ety is prepared to recognize as "reasonable." has come to be a crazy patchwork quilt, de­ The subjective part of the test focuses atten­ pending partly on whether the search involves tion on the means the individual employs to a person's body or home, partly on how pub­ protect his or her privacy, e.g., closing the door lic the activity is, partly on the degree of in­ of a phone booth or closing curtains. Addition­ vasion or intrusiveness involved in conduct­ ally, the assumption of risk that the individ­ ing the search, partly on the facts of the case ual appears to take is considered in determin­ under consideration, and partly on who is on ing the individual's actual expectation of the Court.10 privacy. Under assumption of risk, an individ­ ual is presumed to assume the risk that another Searches using some form of electronic mon­ party to a conversation or activity may con­ itoring at first posed difficult problems for the sent to a search. This assumption of risk pre­ Court because the searches did not comport vails even if the consenting party is an in­ with traditional definitions of a search—they former or undercover agent.15 did not involve physical trespassing and were often conducted in a public place. Until 1967, The objective part of the test looks to what electronic monitoring of conversations was not society regards as a reasonable expectation of regarded as a search under the fourth amend­ 11 privacy. Yet, it requires this without specify­ ment. In the landmark case of Katz v. United ing an objective referent. Is "society" today's States (1967), the Court ruled that wiretapping opinion polls, longstanding norms and tradi­ was a search under the fourth amendment. As tions, a reasonable person, or the knowledge is often the result of landmark cases, subse­ that people have in common? The result of the quent legal analysis and judicial construction objective part of the test is that the Court has have raised more questions than the case first implicitly constructed a continuum of circum­ resolved. This is especially true with respect stances under which society would regard an to the two phrases most important for subse­ individual as having a reasonable expectation quent legal decisions—a "reasonable expecta­ tion of privacy"12 and "the fourth amendment 13 14Id. at 361. protects people, not places." 15See the "false friends cases"— United States v. White, 401 U.S. 745 (1971), Hoffa v. United States, 385 U.S. 293 (1966), and Lopez v. United States, 373 U.S. 427 (1967). In White the 10For summary of Supreme Court rulings see: Anthony G. Court ruled that agents can be wired for sound and still be cov­ Amsterdam, "Perspectives on the Fourth Amendment," 58 ered by the assumption of risk, reasoning that the risk did not Minnesota Law Review 349 (1974); and Peter Goldberger, "Con­ increase materially simply because the informers were trans­ sent, Expectation of Privacy, and the Meaning of 'Searches' mitting the conversation electronically. See also: Eric F. Saun­ in the Fourth Amendment," 75 The Journal of Criminal Law ders, "Electronic Eavesdropping and the Right to Privacy," and Criminology 319 (1984). 52 Boston University Law Review 831 (1973). Smith v. Mary­ 11See app. 2A for summary of relevant Supreme Court land, 442 U.S. 735 (1979) and United States v. Knotts, 103 S. opinions. Ct. 1081 (1983) suggest that an individual forfeits his expecta­ 12Katz v. United States, 389 U.S. 347, 360 (1967). tion of privacy by risking the possibility that his activities will 13Id. at 351. be revealed to the police. 17

of privacy. The continuum ranges from pub­ It has been argued that, based on Katz, anal­ lic places ("open fields," "in plain view," "pub­ ysis of privacy interests should replace the lic highway"), in which there is no objective more traditional property analysis when the expectation of privacy except in unusual cir­ Government uses nonphysical methods of cumstances, to the inside of one's home with search and where relevant privacy interests do the windows and curtains shut and the door not have physical characteristics. The prop­ bolted, in which there is an objective expec­ erty aspect is viewed as still important be­ tation of privacy. The objective expectation cause it gives specificity and concreteness to of privacy along the continuum (shopping fourth amendment analysis.18 Yet, in some re­ centers, motels, offices, automobiles, and cent rulings the Court has treated privacy as yards) depends on judicial interpretation. Re­ the only interest protected by the fourth cently, the Court has modified the objective amendment.19 This implies a further narrow­ element, referring to it as a "legitimate" ex­ ing of fourth amendment protection, both be­ pectation of privacy.16 cause property interests are not considered and because of the problems of defining pri­ The second important component of Katz is vacy. As one legal commentator, concerned the holding that "the fourth amendment pro­ with the influx of new surveillance devices, tects people, not places." The question of what noted: protection the fourth amendment offers peo­ ple remains unanswered, and defining the Confusion over the fourth amendment sta­ scope of such protection still necessitates ref­ tus of the beeper is unavoidable so long as erence to places. Moreover, the distinction be­ privacy remains the central theoretical focus tween "people" and "places" has raised the of fourth amendment analysis. Privacy, like question of whether the fourth amendment most concepts of fundamental value, is a rela­ tive, indeterminate concept that is not easily still protects property interests, or whether it 20 now protects only more personal interests. The converted into a workable legal standard. issue of the protection afforded people as dis­ In evaluating the appropriateness of the use tinct from that afforded places has become of electronic surveillance technologies by Gov­ more significant with the growth of third- ernment officials, the courts have worked party recordkeepers, e.g., banks. The thrust within the framework established by Katz. By of the Court's opinion in Katz seemed to rep­ analogy to traditional surveillance devices, the resent an expansion, not a replacement, of the courts have attempted to determine whether existing fourth amendment protections: or not individuals have a "reasonable expec­ tation of privacy." This becomes more diffi­ The amendment protects individual privacy cult as surveillance devices become more tech­ against certain kinds of governmental intru­ nologically sophisticated because the analogy sion, but its protections go further, and often 17 is often more remote and hence less convinc­ have nothing to do with privacy at all. ing. The courts have generally continued to 16First used by Justice Powell in Couch v. United States, 409 consider the place in which a surveillance de­ U.S. 322 (1973) in rejecting a fourth amendment objection to vice is located or the place that a device is an IRS summons and later used by Powell in United States monitoring. The courts generally have adopted v. Miller, 425 U.S. 435 (1976). In Rakas v. Illinois, 439 U.S. 128 (1978), Justice Rehnquist referred to expectations of privacy the more expansive interpretation of Katz and "which the law recognizes as 'legitimate.' " This modification have not abandoned higher levels of protection gives the objective part of the test a positive law, rather than for certain places, e.g., homes and yards. societal expectation, meaning. This has practical as well as theo­ retical importance in that the courts would not ask whether so­ ciety would regard an expectation of privacy in a particular case Yet, the Katz framework has not offered the as reasonable, but would instead examine the laws to determine courts sufficient policy guidance to deal with expectation. Although this would require less subjective anal­ ysis by the courts, it seems to assume that the laws are cor­ the range and uses of new surveillance tech­ rect and need not be evaluated against fundamental law, i.e., the fourth amendment. See Goldberger, op. cit.; and Gerald G. 18Note, "Tracking Katz: Beepers, Privacy and the Fourth Ashdown, "The Fourth Amendment and the 'Legitimate Ex­ Amendment," 86 Yale Law Journal, pp. 1461,1479-80 (1977). pectation of Privacy,' "34 Vanderbilt Law Review 1289 (1981). 19Ashdown, op. cit., p. 1321. "Katz v. United States, 389 U.S. 347, 350 (1967). 20Note, Yale Law Journal, op. cit., p. 1477. 18 nologies. "Reasonable expectation of privacy" circumstances and with certain procedural re­ is an inherently nebulous phrase and, despite quirements. But the session ended before the 20 years of judicial application, predicting its conference committee could resolve a differ­ meaning in a new context is difficult. Deter­ ence between the two bills—the House bill ex­ mining whether a place is sufficiently private plicitly criminalized unauthorized official sur­ to offer protection against official surveillance veillance.25 is more and more difficult as the public sphere Despite Congress's failure to overrule Nar­ of activities encroaches on what was once done by legislation, wiretapping continued be­ deemed private. cause the Justice Department construed Sec­ Thus, the courts have, on several occasions, tion 605 as not prohibiting wiretapping itself, asked Congress to legislate in the area of elec­ but only the interception and subsequent tronic surveillance technology.21 Most recently, divulgence outside the Federal establishment. Judge Richard Posner, in a case involving the Additionally, the President issued an Execu­ use of video surveillance, said: tive order to allow wiretapping for national security purposes. [W]e would think it a very good thing if Con­ gress responded to the issues discussed in this In the immediate post-war period, numer­ opinion by amending Title III [of the 1968 ous bills authorizing electronic surveillance Omnibus Crime Control and Safe Streets Act] were introduced, but none was enacted into to bring television surveillance within its 22 law. Starting in 1960, electronic surveillance scope. became a major public issue and congressional 23 activity became more focused and purposeful. Congressional The target was organized crime, a major pri­ Congress did not play an active or effective ority of the Kennedy Administration. role in surveillance policy until 1968. Prior to that time, the only legislation affecting offi­ The first major congressional action regard­ cial use of surveillance technology was unin­ ing surveillance was Title III of the Omnibus tended. In 1934, Congress recodified the Ra­ Crime Control and Safe Streets Act of 1968. dio Act of 1927 as the Communications Act. Because it has served as a model for control­ Section 605 of the 1934 Act provided that "No ling Government surveillance, analysis of the person not being authorized by the sender statute is necessary. shall intercept any communication and divulge The basic legislative history document, S. ... the contents." There was no specific legis­ Rep. No. 1097, 90th Cong., 3d sess. (1968), de­ lative history for this section and it appears scribes the purpose of the statute as follows: that the 1934 bill was not intended to change existing law.24 This was the interpretation un­ [T]he U.S. Supreme Court, on June 12, 1967, til 1938 when the Supreme Court, in Nardone handed down the decision in Berger v. New York, 388 U.S. 41, which declared unconstitu­ v. United States, 302 U.S. 379, ruled that Sec­ tional the New York State statute authoriz­ tion 605 prohibited all telephone wiretapping, ing electronic eavesdropping (bugging) by law even when done by Federal Government offi­ enforcement officers in investigating certain cers. In response, bills passed both houses of types of crimes. The Court held that the New Congress allowing wiretapping under certain York statute, on its face, failed to meet cer­ tain constitutional standards. In the course of the opinion, the Court delineated the con­ 21See, for example, United States v. U.S. District Court (Keith), 407 U.S. 297 (1972) in which the court suggested that stitutional criteria that electronic surveillance Congress should devise a scheme for foreign intelligence. legislation should contain. Title III was 22United States v. Torres, No. 84-1077, p. 19 (7th Cir., Dec. drafted to meet these standards and to con­ 19, 1984). 23 form with Katz v. United States, 389 U.S. 347 Material in this section is derived in large part from Her­ (1967). man Schwartz, "Surveillance: Historical Policy Review," OTA contractor paper, March 1985. 24 See: S. Rep. No. 781, 73 Cong., 2d sess. 11 (1934). 25See: S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1983). 19

Title III has as its dual purpose (1) protect­ 1. an application for a court order approved ing the privacy of wire and oral communica­ by a high-ranking prosecutor (not by a tions, and (2) delineating on a uniform basis policeman); the circumstances and conditions under which 2. surveillance only for one of the crimes the interception of wire and oral communica­ 26 specified in Title III (the list was expanded tions may be authorized. in the early 1970s and again in October The problem the statute was designed to 1984 in the Comprehensive Crime Control solve was seen as a combination of "tremen­ Act); dous scientific and technological developments 3. probable cause to believe that a crime has that have taken place in the last century [that] occurred, the target of the surveillance is have made possible today the widespread use involved, and the evidence of that crime and abuse of electronic surveillance tech­ will be obtained by the surveillance; niques," and "a body of law [that] from the 4. a statement indicating that other inves­ point of view of privacy or justice [i.e., law en­ tigative procedures are ineffective; and forcement] is ... totally unsatisfactory."27 The 5. an effort to minimize the interception. preamble to Title III reflects these aims: 1) to obtain evidence of "certain major types of A judge must pass on the application and offenses," and to cope with "organized crimi­ may issue the order, and any extensions, if it nals"; and 2) to safeguard the privacy of in­ meets the statutory requirements. Shortly af­ ter the surveillance ends, notice of the surveil­ nocent persons and to provide "assurances lance must be given to some or all of the peo­ that the interception is justified and that the ple affected, as the judge decides, unless the information obtained thereby will not be judge agrees to postpone the notice. Illegally misused." obtained evidence may not be used in any offi­ In order to achieve these purposes, the stat­ cial proceedings, and a suit for damages may ute provides that electronic surveillance of be brought for illegal surveillance, though a conversations is prohibited, upon pain of a very strong good faith defense is allowed. In substantial jail sentence and fine, except for: addition, the manufacture, distribution, pos­ 1) law enforcement surveillance under a court session, and advertising of devices for elec­ order; 2) certain telephone company monitor­ tronic surveillance for nonpublic use are pro­ ing to ensure adequate services or to protect hibited. company property; 3) surveillance of a conver­ sation where one participant consents to the There was little discussion of electronic sur­ surveillance; and 4) surveillance covered by the veillance by State officials during the legisla­ Foreign Intelligence Surveillance Act of 1978 tive debates. Nevertheless, §2516(2) of Title (as Title III was later amended). Law enforce­ III gives State officials wiretapping author­ ment surveillance must meet certain proce­ ity, if a State passes legislation modeled on dural requirements, which include: the Federal act, for the investigation of: .. . murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic 26Id. at 66. Three definitions in Title III are important in de­ drugs, marijuana or other dangerous drugs, termining the scope of the act: or other crime dangerous to life, limb or prop­ 1. wire communication means any communication made in whole or in part through the use of facilities for the transmission of erty and punishable by imprisonment for communications by the aid of wire, cable, or other like connec­ more than one year .. . or any conspiracy to tion between the point of origin and the point of reception fur­ nished or operated by any person engaged as a common car­ commit any of the foregoing offenses. rier in providing or operating such facilities for the transmission of interstate or foreign communications; As of December 31, 1984, some 29 States and 2. oral communication means any oral communication uttered by the District of Columbia have authorized their a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying law enforcement officials to wiretap, though such expectation; and the State statutes differ in various ways. 3. intercept means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, me­ chanical, or other device (Section 2510 of Title III). On its face, Title III covers the interception 27Id. at 67, 69. of only conversations that are capable of be­ 20

ing heard by the human ear; data transmis­ mitted permanent resident aliens, and domes­ sion, the video part of videotaping, pen regis­ tic organizations or corporations that are not ters, and other forms of communication are openly acknowledged to be directed and con­ not covered.28 The statute also permits inter­ trolled by foreign governments) in the United ception for official purposes where one of the States. The procedural requirements of FISA parties to the conversation has consented to apply only to electronic surveillance for for­ the interception; private interceptions where eign intelligence purposes, but the criminal one party consents are also exempt from the penalties appear to apply more broadly to in­ statutory ban unless the interception is for a clude law enforcement surveillance.31 criminal, "injurious," or tortious purpose. Evi­ There are a number of other statutes that dence obtained in violation of the statute is place controls on the procedures and tech­ excluded from all judicial or administrative niques of Government surveillance depending proceedings, but only someone whose privacy on the type of information that is being sought, was invaded can challenge the evidence. e.g., the Privacy Act of 1974, the Right to Fi­ The other major statute regulating the use nancial Privacy Act of 1978, the Electronic of surveillance devices by Government offi­ Funds Transfer Act of 1980, the Privacy Pro­ cials is the Foreign Intelligence Surveillance tection Act of 1980, and the Cable Communi­ Act of 1978 (FISA). This act establishes legal cations Policy Act of 1984. (See appendix 2B standards and procedures for the use of elec­ for a summary of these statutes.) tronic surveillance in collecting foreign intel­ ligence and counter-intelligence within the Executive United States. This was the first legislative authorization for foreign intelligence wiretap­ Because of ambiguities in existing laws, ping and other forms of electronic surveil­ executive officials have issued orders and lance.29 The scope of this act is broader than guidelines to clarify the application of specific Title III. FISA defines electronic surveillance statutes or protections under particular cir­ broadly to include four categories: 1) wiretaps, cumstances or with respect to certain techno­ including not only voice communications but logical devices. Clarification of the scope and intent of FISA can be found in a number of also teleprinter, telegraph, facsimile, and dig­ 32 ital communications; 2) radio intercepts; 3) Executive orders. monitoring devices, which may include micro­ In the absence of statutory or judicial guid­ phone eavesdropping, surreptitious closed cir­ ance in the use of electronic surveillance for cuit television (CCTV) monitoring, transmit­ law enforcement and intelligence purposes, the ters that track movements of vehicles, and Department of Justice (DOJ) generally issues other techniques; and 4) watch listing. How­ policy guidelines that are regarded as require­ ever, the application of FISA protection in the ments on agents of DOJ bureaus (FBI, Im­ latter three categories is limited to those cir­ migration and Naturalization Service, and cumstances in which a person has a reason­ Drug Enforcement Administration), and are able expectation of privacy and a warrant usually considered as advisory by other agen­ would be required for law enforcement pur­ 30 cies engaged in surveillance activities (e.g., poses. The act created the Foreign Intelli­ Customs, Bureau of Alcohol, Tobacco and gence Surveillance Court, composed of seven Federal District Judges, to review and ap­ Firearms, IRS). For example, DOJ has issued policy guidelines for the use of electronic prove surveillance capable of monitoring U.S. persons (defined as U.S. citizens, lawfully ad­ 31See Mar. 9, 1984 letter from John Keeney of the U.S. De­ partment of Justice to U.S. Senator Patrick Leahy. 32See, e.g., Executive Order No. 12036, "United States In­ 28See S. Rep. No. 1097 at 90 (pen registers, etc., not included). telligence Activities," Jan. 24, 1978 and updated as Executive 29See S. Rep. No. 98-660, "The Foreign Intelligence Surveil­ Order No. 12333 on Dec. 4, 1981; also Executive Order No. lance Act of 1978: The First Five Years," p. 1. 12139, "Exercise of Certain Authority Regarding Electronic 30Id. at 4. Surveillance," May 23, 1979. 21

visual surveillance and the use of pen regis- surveillance, and that, therefore, information ters. Such guidelines are issued to ensure that that is gathered through such surveillance will there are adequate procedural and substantive not be excluded as evidence in court. protections for individuals who are subject to

FINDINGS AND POLICY IMPLICATIONS 1. The existing statutory framework and judicial jor felonies. Circumstances are often defined interpretations thereof do not adequately in terms of the governmental interest in pur­ cover new electronic surveillance technologies. suing the investigation. There is an implicit Indeed, some courts have asked Congress for ranking of the importance of governmental in­ guidance on the new technologies. terests for which surveillance devices are See preceding discussion of policy history employed—national security, domestic secu­ and background. rity, law enforcement, and the proper admin­ istration of Government programs. 2. Despite a lack of coordination in electronic surveillance policymaking among the three The third component of surveillance policies branches of Government and the ad hoc na­ is some standard to indicate the degree of con­ ture of that policy, there are seven general fidence about alleged criminal behavior that is components that are found in existing policies, necessary before the use of a particular surveil­ be they legislative, executive, or judicial. Al­ lance technique is appropriate. This involves a though the specifics of these components will showing of the evidence that has been accu­ vary given the different types of electronic mulated to date, and a showing that the tar­ surveillance being used, the general model is get of surveillance will provide additional evi­ the same. dence. The standard may range from probable The first component of surveillance policies cause, to reasonable suspicion, to reason to be­ is a way of checking on the discretion of the Gov­ lieve, to no need for any showing of evidence. ernment agent in the field over whether to in­ stitute such surveillance. This can range from The fourth component is some justification a field supervisor's approval to department- for the need to use a particular surveillance tech­ level approval to a U.S. Attorney's approval nique or device. Generally, this requires a show­ to a judicial warrant. The critical distinction ing that more traditional forms of surveillance in terms of level of approval necessary is whether have failed, and some explanation as to how the executive branch agency is responsible for the surveillance technique under discussion authorizing the electronic surveillance or will secure the necessary information. whether judicial approval is also necessary. In The fifth component of surveillance policies terms of checking agent discretion, judicial ap­ is a requirement for an account of how the scope proval obviously represents a higher standard. of the surveillance will be minimized to the par­ The second component is a listing of the ticular party or parties under investigation crimes or circumstances for which a particular and to those activities that seem criminally type of electronic surveillance is considered related. appropriate. Title III is a good example of this, The sixth component is the requirement that as is the Foreign Intelligence Surveillance Act. the individual be given some notice after the fact In some situations, the list may be quite broad that he or she has been subject to surveillance, but the principle remains. Crimes are catego­ except in circumstances where notice would rized as misdemeanors and felonies with classes jeopardize an investigation or national secu­ within each group. Electronic surveillance is rity interests. There is no provision for notice generally only used for investigations of ma­ in FISA, unless the party is being prosecuted. 22

The seventh component is a statement of the Table 6.—Dimensions for Balancing Civil Liberty sanctions that apply if evidence is not collected Interest v. Government Investigative Interest in conformity with the requirements of the stat­ Civil liberty interest ute. An example of this is the exclusionary 1. Nature of information: The more personal or intimate the rule. Additionally, some statutes contain pen­ information that is to be gathered about a target, the more intrusive the surveillance technique and the greater the alties for investigative agents who violate the threat to civil liberties. statute, thus providing the individual with a 2. Nature of place orcommunication: The more "private" the civil remedy. area or type of communication to be placed under surveil­ lance, the more intrusive the surveillance and the greater 3. In applying the major components of elec­ the threat to civil liberties. 3. Scope of surveillance: The more people and activities that tronic surveillance policy, the legislature, are subject to surveillance, the more intrusive the surveil­ executive agency, or court, implicitly or ex­ lance and the greater the threat to civil liberties. plicitly, uses a framework for analysis. This 4. Surreptitiousness of surveillance: The less likely it is for framework involves balancing the societal in­ the individual to be aware of the surveillance and the harder terest in maintaining civil liberties protections it is for the individual to detect it, the greater the threat to civil liberties. for the individual against the societal inter­ 5. Pre-electronic analogy: Pre-electronic analogies are often est in successful Government investigations. considered in determining intrusiveness, but with widely Based on an evaluation of previous policy for­ varying interpretations. mulation, it appears that policymakers, more Government Investigative interest: or less consciously, have looked at certain 1. Purpose of investigation: Importance ranked as follows: dimensions in determining this balance. national security, domestic security, law enforcement, and the proper administration of Government programs. Table 6 outlines the dimensions of the civil 2. Degree of individualized suspicion: The lower the level of suspicion, the harder it is to justify the use of surveillance liberty interest v. the Government investiga­ devices. tive interest found in existing electronic sur­ 3. Relative effectiveness: More traditional investigative tech­ niques should be used and proven ineffective before using veillance policy. technologically sophisticated techniques. The dimensions of a civil liberty interest pro­ SOURCE: Office of Technology Assessment. vide, to some extent, indicators for a "reason­ able expectation of privacy" (Katz test) and dividual cases seem to be determinative. Yet, the level of intrusiveness of the surveillance based on court rulings, congressional statutes, technology. In general, the more intrusive the and executive orders, it is possible to isolate technology, the more it violates "expectations five dimensions that are important in deter­ of privacy" and the greater the threat to civil mining the level of intrusiveness and the civil liberties. This has been an accepted principle liberties interest that warrants protection. since surveillance technologies were first used. Prior to Katz, the fourth amendment was in­ The first dimension is the nature of the in­ terpreted to mean that "unreasonable" searches formation (content) that can be acquired. The required physical intrusion into a constitution­ more personal or intimate the information that ally protected area. Following Katz, the phys­ is gathered, the more intrusive the surveillance ical trespass requirement was dropped. The technique and the greater the threat to civil Court has implicitly, if not often explicitly, liberties. Although ambiguous or incomplete continued to consider the intrusiveness of a information poses a threat to civil liberties, a search in determining its reasonableness, but surveillance technique that gathers more intrusion is more broadly construed to go be­ detailed information is generally regarded as yond mere physical trespass. more intrusive than one that gathers less detailed information. As a way of evaluating The difficulty in using intrusiveness as a the specificity of information, the categoriza­ principle by which to evaluate an "expectation tion of types of behavior that may be subject of privacy" and the appropriateness of using to surveillance (and illustrative surveillance a particular surveillance device is that no cri­ technologies) may be useful (see table 2). Un­ teria have yet been explicitly formulated to de­ der this scheme, a surveillance technique that termine intrusiveness. Instead, the facts of in- gathers information on movements would be 23

regarded as less intrusive than one that gathers electronic analogy of the surveillance tech­ information on actions and communication. nique. This focuses attention on a historical measure of privacy that provides a standard The second dimension is the "public" or "pri­ for preserving a certain level of privacy. Anal­ vate" nature of the area (place) or communica­ ogies are made to policy choices for a pre­ tion to be placed under surveillance. The fourth electronic era. For example, what kinds of amendment explicitly protects persons, houses, communications have traditionally been pro­ papers, and effects. The difficulty is that these tected, i.e., first class mail and phone calls, and can be more private or less private depending what modern communications are their coun­ on where they are kept or who else is given terparts? Two policy difficulties are presented access to them. Homes, phone conversations, by this factor. The first is that different peo­ and first class mail have traditionally been ple see different analogies. The second is that regarded as "private." In general, the more the intrusiveness of a pre-electronic device and "private" the area or communication, the more its electronic counterpart is not always cor­ intrusive the surveillance and the greater the respondent. threat to civil liberties. The third dimension is the scope of the sur­ In evaluating the legitimacy of the Govern­ veillance or the extent to which the surveil­ ment's use of surveillance devices, three di­ lance covers persons not specifically under sur­ mensions are considered. The first is the pur­ veillance.33 The importance of this principle is pose of the investigation (the governmental reflected in the minimization requirements of interest). There is an implicit ranking of the Title III and FISA. The broader the net cast, importance of governmental interests for the more intrusive the surveillance and the which investigations are carried out—national greater the threat to civil liberties. security, domestic security, law enforcement, and the proper administration of Government The fourth dimension is the surreptitiousness programs. The nature of the governmental in­ of the surveillance or the individual's ability terest determines the level of judicial or admin­ to detect whether he or she is the target of sur­ istrative control, both initially and at speci­ veillance. This ability to detect involves both fied review stages. With respect to the use of the likelihood that the individual will be aware electronic surveillance, the importance of the of the surveillance and also his or her ability governmental interest is always considered, to locate the source. This dimension is re­ but is not determinative of the level of sur­ flected in the concept of assumption of risk, veillance. The law enforcement interest is which has been used as a justification for one- broadest, but most well developed in statute, party consent to surveillance. It is also re­ e.g., Title III categories of crimes for which flected in the lower standards for physical eavesdropping may be used. The national surveillance because it is assumed that an in­ security and domestic security purposes have dividual can easily monitor whether or not constitutionally allowed Government officials someone is following him or her. The harder the greatest discretion in determining whether it is for the individual to detect the surveil­ surveillance should be used. The rules for lance, the greater the threat to civil liberties. administrative searches are fairly well devel­ The final factor that policymakers often con­ oped in statutes, but standards for the use of sider in evaluating the civil liberty threat of electronic surveillance often are not included. an electronic surveillance device is the pre­ The second dimension is the degree of in­ 33See Donald L. Doerenberg, " 'The Right of the People': dividualized suspicion. In general, the earlier Reconciling Collective and Individual Interests Under the in the investigation the harder it is to justify Fourth Amendment," 58 New York University Law Review 259 the use of surveillance devices. This is so be­ (1983), who distinguishes the following possible targets of a search—all citizens, categories or classes of individuals, or a cause it may be difficult to document that selected individual. criminality is involved and that the target of 24

the surveillance is involved or can provide evi­ niques have been used and proven ineffective dence. Traditionally, the standard for the Gov­ before using technologically sophisticated elec­ ernment's need to know varies depending on tronic techniques. An analysis of the effective­ what it already knows. In theory, the more the ness of the surveillance technology or device Government knows, the less likely that it is is important in determining the legitimacy of engaging in a fishing expedition. If the Gov­ its use. If more accurate and complete evi­ ernment has probable cause to believe that dence can be gathered through the use of an someone is implicated in a crime or terrorist electronic surveillance device than through activity, then it has a need to know more than pre-electronic means, then serious considera­ if it had only a reasonable suspicion or reason tion will be given to its use. to believe that someone was involved. The following chapters describe a number The third dimension is the relative effective­ of new electronic surveillance devices and tech­ ness of electronic surveillance compared to niques that have been made possible by tech­ other means that are available to secure the nological advances and analyze their policy im­ same information. In existing policies, the as­ plications using the framework developed in sumption is that there should be a demonstra­ this chapter. tion that more traditional investigative tech­

APPENDIX 2A: KEY SUPREME COURT DECISIONS ON ELECTRONIC SURVEILLANCE

Olmstead v. United States, 277 U.S. 438 (1928) Nardone v. United States, 302 U.S. 379 (1937)— —a 5-4 decision ruling that neither the fourth nor Court ruled that Section 605 prohibited telephone fifth amendments to the Constitution applied to wiretapping by anyone, including Federal Govern­ wiretapping. The fourth amendment did not apply ment officers. Decision was criticized as "judicial because: there was no trespass; its protection is legislation." Bills were introduced in Congress to limited to material effects, not to intangibles like allow wiretapping under certain circumstances, speech; and there was no protection for voice com­ but none passed. Evidence indicates that wiretap­ munication projected outside the house. The fifth ping continued at the time despite decision. amendment did not apply because there was no Berger v. New York, 388 U.S. 41 (1967)—Court evidence of compulsion to talk over the phone and declared the New York wiretapping statute uncon­ because the fourth was not first violated. Brandeis stitutional because it was not particular enough argued in his dissent that the fourth amendment in describing the crime, or "the place to be protected a right to privacy, and stated: searched," or the "persons or things to be seized" Moreover, "in the application of a Constitution, as specifically required by the fourth amendment. our contemplation cannot be only of what has Katz v. United States, 389 U.S. 347 (1967)— been, but of what may be." The progress of science Court overruled Olmstead, thus bringing wiretap­ in furnishing the Government with means of es­ ping under the fourth amendment. The Court de­ pionage is not likely to stop with wiretapping. veloped a general formula to determine whether Ways may some day be developed by which the an investigative technique conflicts with the Government, without removing papers from secret fourth amendment—does the individual evidence drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the an expectation of privacy and is the expectation most intimate occurrences of the home. Advances of privacy "one that society is prepared to recog­ in the psychic and related science may bring means nize as 'reasonable?' " The Court's criteria for of exploring unexpressed beliefs, thoughts and valid surveillance involved a warrant, particulari­ emotions... Can it be that the Constitution af­ zation and probable cause requirements for sus­ fords no protection against such invasions of in­ pect, crime, phone, and time. dividual security? United States v. U.S. District Court for the Public reaction to the decision was negative; bills Eastern District of Michigan, 407 U.S. 297 (1972)— were introduced in Congress, but none passed. Court prohibited unauthorized electronic surveil­ 25 lance to gather intelligence for domestic security Smith v. Maryland, 442 U.S. 735 (1979)—Court purposes, holding that: held that the use of a pen register did not violate ... prior judicial approval is required for the type the fourth amendment. of domestic security surveillance involved in this United States v. Knotts, 103 S. Ct. 1081 (1983) case and that such approval may be made in ac­ —Court held that the warrantless monitoring of cordance with such reasonable standards as the a beeper is not a search and seizure under the fourth Congress may prescribe. amendment because there is no reasonable expec­ United States v. Miller, 425 U.S. 435 (1976)— tation of privacy as the movements tracked are Court ruled that a bank customer's financial rec­ public. ord is the property of the bank, and thus he or she United States v. Karo, 104 S. Ct. 3296 (1984)— has no legitimate "expectation of privacy" in these Court held that using a beeper to trail a container records. into a house and "to keep in touch with it inside United States v. New York Telephone Co., 434 the house" did violate the fourth amendment. U.S. 159 (1977)—Court held that to be covered by Title III, a communication must be capable of be­ ing overheard.

APPENDIX 2B: KEY STATUTES RELEVANT TO ELECTRONIC SURVEILLANCE Section 605 of the Communications Act of 1934 pose collected except with an individual's consent provided that "No person not being authorized by or where exempted; no record of an individual's the sender shall intercept any communication and exercise of first amendment rights is to be kept divulge .. . the contents ... " unless authorized by statute; information cannot Title III of the 1968 Omnibus Crime Control and be sold or rented for mailing list use. The following Safe Streets Act is designed to protect the privacy are exempted: CIA records; records maintained by of wire and oral communications and also to allow law enforcement agencies; Secret Service records; evidence to be obtained for "certain types of ma­ Federal testing materials; etc. jor offenses." Law enforcement electronic surveil­ Foreign Intelligence Surveillance Act of 1978 es­ lance of conversations is thus prohibited except tablishes legal standards and procedures for the under a court order, which a judge may issue after use of electronic surveillance to collect foreign being convinced that the following procedural re­ intelligence and counter-intelligence within the quirements have been met: United States. This was the first legislative au­ 1. application by a high-ranking prosecutor; thorization for wiretapping and other forms of 2. surveillance for one of the crimes specified in electronic surveillance (including radio intercepts, Title III; microphone eavesdropping, closed circuit televi­ 3. probable cause to believe that a crime has oc­ sion, beepers, and other monitoring techniques). curred, that the target of the surveillance is It created the Foreign Intelligence Surveillance involved, and that the evidence of that crime Court, composed of seven Federal District Judges, will be obtained by the surveillance; to review and approve surveillance capable of mon­ 4. a statement indicating that other investiga­ itoring U.S. persons (defined as U.S. citizens, law­ tive procedures are ineffective; and fully admitted permanent resident aliens, and do­ 5. an effort to minimize the interception. mestic organizations or corporations that are not Crime Control Act of 1973 requires that State openly acknowledged to be directed and controlled criminal justice information systems, developed by foreign governments) in the United States. The with Federal funds, be protected by measures to procedural requirements of FISA apply only to ensure the privacy and security of information. electronic surveillance for foreign intelligence Privacy Act of 1974 requires agencies to com­ purposes, but the criminal penalties appear to ply with fair information practices in their han­ apply more broadly to include law enforcement dling of personal information, including the follow­ surveillance. ing: records must be necessary, lawful, current, High t to Financial Privacy Act of 1978 provides and accurate; records must be used only for pur­ bank customers with some privacy regarding their

53-548 O-85-3 : QL 3 26 records held by banks and other financial institu­ of: the nature of personally identifiable informa­ tions, and provides procedures whereby Federal tion collected and the nature of the use of such in­ agencies can gain access to such records. formation; the disclosures that may be made of Electronic Funds Transfer Act of 1980 provides such information; the period during which such in­ that any institution providing EFT or other bank formation will be maintained; and the times dur­ services must notify its customers about third- ing which an individual may access such informa­ party access to customer accounts. tion. Also places restrictions on the cable services' Privacy Protection Act of 1980 prohibits Gov­ collection and disclosures of such information. The ernment agents from conducting unannounced act creates a subscriber right to privacy against searches of press offices and files if no one in the Government surveillance. press room is suspected of a crime. Cable Communications Policy Act of 1984 requires the cable service to inform the subscriber INTENTIONAL BLANK PAGE

(27) Chapter 3 Telephone Surveillance

(28) Chapter 3 Telephone Surveillance

SUMMARY The public generally expects that telephone on cellular or cordless phones are not conversations are private, and that electronic clearly protected by existing statutory surveillance of telephone calls (sometimes and constitutional prohibitions on the in­ known as wiretapping or eavesdropping) is ille­ terception of phone calls. gal, except in very narrowly circumscribed law • Interception of the content of phone calls enforcement and national security investiga­ represents a substantial threat to civil lib­ tions. But technological innovations now make erties, but also a significant benefit to in­ it easier to electronically monitor both the con­ vestigative authorities. This balancing is tent of phone calls and phone transactions reflected in the standards and procedures (e.g., number called, time, and place called). presently embodied in Title III for such Furthermore, the new telephone technology interception. was not envisioned when current legal protec­ • New information technologies—e.g., ad­ tions were enacted, and thus the statutory pro­ vanced pen registers and automatic bill­ tection against telephone surveillance is weak, ing equipment—have also greatly increased ambiguous, or nonexistent. the ability to collect and access transac­ tional information about telephone calls After reviewing and assessing relevant tech­ nological developments and the statutory (e.g., the numbers and places called). framework, OTA found that: • Transactional information is also not clearly protected under existing statutes • A host of new information technologies and judicial precedents. has revolutionized the telephone system since 1968—the last time Congress passed OTA identified three major options for con­ major legislation (Title III of the Omni­ gressional consideration with respect to pol­ bus Crime Control and Safe Streets Act) icy on interception of the content of telephone that covered telephone surveillance by calls: law enforcement agencies and private • treat all calls similarly with respect to the parties. extent of protection against unauthorized • Significant new technologies include digi­ interception, i.e., extend Title III of the tal transmission (whereby many phone Omnibus Crime Control and Safe Streets calls are converted from analog to digital Act to cover all phone calls—whether ana­ form for transmission) and cellular and log, digital, cellular, or cordless—and both cordless phones, as well as the increased voice and data communications; use of telephones for electronic transmis­ • formulate special policies for specific tele­ sion of data. phone technologies; and • Deregulation of the telephone industry, • do nothing and leave policymaking up to the proliferation of common carriers, and the development of case law depending on the growth of private (as opposed to com­ individual circumstances. mon carrier) telephone companies also raise questions as to the applicability of OTA also concluded that the deregulatory existing legal protections for telephone and market trends toward private telephone privacy. systems and hybrid common carrier-private • The contents of phone conversations that systems indicate the need for congressional re­ are transmitted in digital form or made view of applicable provisions of the Commu­

29 30

nications Act of 1934 and Federal Communi­ OTA study is examining future technical cations Commission regulations, as well as trends and safeguards against misuse as well Title III of the Omnibus Crime Control Act, as issues and options relevant to monitoring with respect to telephone privacy protection. of transactional—as contrasted with content- information.* Finally, OTA concluded that at present there is no feasible and cost-effective techno­ *See the separate OTA study on "New Communications Tech­ logical method to provide universal protection nology: Implications for Privacy and Security," expected to be against telephone surveillance. A separate published in winter 1986/87.

INTRODUCTION Most phone users have assumed a high de­ carry messages between the phone base sta­ gree of confidentiality for their phone calls. tion and the cordless phone handset. Section This has been especially true as private lines 605 of the 1934 Communications Act prohibits and improved connections replaced party lines interception of radio communications. How­ and broken connections. In some respects, the ever, it does not protect phone calls because technology has brought more assurances for the courts have ruled that Congress intended the protection of the privacy of phone calls Title III to be the exclusive remedy with re­ than did the law. However, this is now chang­ spect to telephone interceptions. ing. Four technological innovations in phone service—digital transmission, new types of Another growing gap in the protection af­ phones, new phone networks, and the ability forded phone calls is between common carrier to easily collect detailed information on phone calls and private network calls. Legislation has usage—make it easier both to overhear the addressed the former, while the latter have not content of phone calls and also to monitor been given any legal protection. Thus, the phone transactions. The law has not yet ad­ privacy of the content of digitized phone calls, dressed these innovations, thus leaving gaps cellular and cordless phone calls, and private between the privacy that people expect and carrier calls may not be afforded protection the privacy that they are assured. against interception by either Government officials or private parties. With the conventional telephone, phone calls Moreover, technological changes make it far were transmitted in analog form across wire easier today to monitor phone transactions. lines. Today, an increasing percentage of Pen registers are devices by which Govern­ phone calls are converted from analog to digi­ ment officials or private parties can monitor tal form and then transmitted. Transmission the numbers dialed on a given line. Presently, may be over wire, but is often via microwave a court order is not necessary to install a pen radio and satellite systems and, increasingly, register under Title III or the fourth amend­ via fiber optic transmission facilities. Statutes ment, but is required under the Foreign In­ prohibiting wiretapping, primarily Title III of telligence Surveillance Act. Increasingly, the Omnibus Crime Control and Safe Streets computerized telecommunications switching Act, were written to regulate the interception equipment can collect and store information of oral communications transmitted in whole on the numbers dialed and length of phone or in part by wire. calls. This information may be kept for bill­ Additionally, new phones are making use, ing and administrative purposes, but it also in whole or in part, of radio communications. has monitoring capabilities. As automatic call Cellular or mobile phones use radio to trans­ accounting becomes widespread, pen registers mit messages between a phone and a switch­ will become unnecessary. A detailed histori­ ing center, while cordless phones use radio to cal record of long-distance and sometimes lo­ 31

cal phone calls is now kept for perhaps 3 Before analyzing in detail the policy issues months by phone companies and can be ac- presented by these gaps in the protection for cessed by Government officials with a sub- the content of phone calls and the record of poena. However, if a phone system is wholly phone transactions, a brief review of the his- or in part private, then this calling informa- tory and background of technology and pol­ tion is legally available to Government offi- icy regarding wiretapping will be presented. cials without a subpoena.

BACKGROUND1 Telegraph and telephone tapping by both and offices of members of Congress had been private citizens and public officials began soon eavesdropped on. after the telegraph and telephone were in­ In 1924, Attorney General Harlan Fiske vented. Some States tried to deal with tele­ Stone banned wiretapping by the Department phone tapping either through their trespass of Justice, including the Bureau of Investiga­ statutes or by expanding early laws barring tion (the FBI's predecessor). This effort at telegraph interceptions. However, the legality administrative control was only partially suc­ of Government surveillance under these stat­ cessful. The order bound only the Department utes was usually unclear because there was no of Justice and not the Treasury, which had rule excluding illegally obtained evidence. By jurisdiction over Prohibition enforcement, the 1927, despite questions about the scope of cov­ law enforcement area that came to rely most erage, some 28 States had made wiretapping 2 on electronic surveillance. Prohibition agents a crime. continued to wiretap, even though the Treas­ ury Department purported to be officially op­ Federal concern about wiretapping first sur­ 5 faced in 1918 when the Federal Government posed to wiretapping. began regulating the telephone system, but the concern was primarily for "the protection The Treasury's wiretapping ultimately of the government and the property of the tele­ brought the matter to the courts in Olmstead phone and telegraph companies while under v. United States, 277 U.S. 438 (1928). The 3 Court, in a 5-4 opinion by Chief Justice Taft, governmental control." The Government ruled that neither the fourth nor fifth amend­ barred tapping of, or interference with, tele­ ments to the Constitution provided protection phone and telegraph messages, if the tap was against wiretapping.6 The public reaction to done "without authority." This legislation the Olmstead decision was largely and strongly expired in 1919. Civil liberties concerns first negative.7 Immediately after Olmstead was became important in the early 1920s, when decided, bills were proposed in Congress to wiretapping was used by the Department of 8 Justice in its raids against aliens.4 At this ban wiretapping. time, there were also reports that the phones 5Walter F. Murphy, Wiretapping on Trial: A Case Study in the Judicial Process (New York: Random House, 1965), p. 13. 6 The Court gave three reasons why the fourth amendment 1Material in this section is based in part on Herman Schwartz, was not implicated: 1) officials had not trespassed onto Olm­ "Surveillance: Historical Policy Review," contractor paper pre­ stead's property; 2) the amendment did not apply to intangi­ pared for OTA, March 1985. bles like speech, but only to material "effects"; and 3) there 2See amicus brief for the telephone companies in Olmstead was no protection for voice communications projected outside v. United States, 277 U.S. 438 (1928). the house. Justice Holmes wrote a short dissent, condemning 3H. R. Rep. No. 800, 65th Cong., 2d sess. (1918), reprinted the agents' conduct as "dirty business." Justice Brandeis wrote in Wiretapping, Eavesdropping and the Bill of Rights, Hear­ the main dissent in which he disagreed with the majority's read­ ings Before the Subcommittee on Constitutional Rights of the ing of the precedents, its very narrow view of the fourth amend­ Senate Judiciary Committee, Part 4, Appendix to Part 3, 86th ment, and its willingness to countenance criminal activity by Cong., 1st sess. 792 (1959) ("1914-1959 Leg. Hist"). the Government. 1914-59 Leg. Hist. 770-73. 4Alan Westin, The Wire-tapping Problem, 52 Columbia Law 7Murphy, op. cit., p. 125. Review 164, 172 n. 35 (1952). 81914-59 Leg. Hist. 881-83. 32

In 1934, Congress recodified the Radio Act imminent. But this did not happen, even of 1927, which was itself a recodification of leg­ though, despite the Nardone decision, the Fed­ islation going back to 1912. Section 605 of the eral Government and State officials continued 1934 Act provided that: to wiretap.14 No person not being authorized by the During and after World War II, the FBI en­ sender shall intercept any communication and gaged in large amounts of electronic surveil­ divulge .. . the contents .. . lance. Between 1940 and 1960, the FBI installed There was no specific legislative history for over 7,000 national security surveillances, this section and it appears that the 1934 bill with 519 taps and 186 bugs in 1945 alone; and was not intended to change existing law.9 the Treasury Department installed over 10,000 Apparently no one thought Congress had taps during 1934 to 1948. Other Federal agen­ taken an important step in dealing with elec­ cies, like the military, also engaged in tapping tronic surveillance. and bugging. On the local level, the New York City police installed thousands of taps each It thus came as a surprise to many when the year (e.g., 3,588 in 1953-54), mostly in morals Supreme Court in 1938 ruled that Section 605 and bookmaking investigations; studies by prohibited all telephone wiretapping, even 10 Samuel Dash and others have documented when done by Federal Government officers. widespread tapping elsewhere.15 In 1957, the Court ruled that this applied to State officers as well.11 The Nardone decision The tapping and bugging targeted many was generally criticized both in 1938 and later people who might not normally appear to be as "judicial legislation."12 appropriate targets, a situation that continued at least into the 1960s. In 1941, for example, Congressional response to Nardone was the Los Angeles Chamber of Commerce was swift, but did not result in legislation. This tapped, on the authority of Attorney General time, bills were introduced to allow wiretap­ Francis Biddle. Presidential aides and others ping, provided that the head of a department were similarly tapped. The most complete in­ believed a felony had been or was about to be formation on these practices, as developed by committed by two or more people. Congres­ the Church Committee, relates to FBI surveil­ sional concern about organized crime was one lances in the post-1960 period when Dr. Mar­ of the two primary reasons for authorizing tin Luther King, Jr., Congressman Harold electronic surveillance, the other being na­ Cooley, journalists, and many others were put tional security. Bills allowing wiretapping under electronic surveillance.16 passed both houses, but the session ended be­ fore the conference committee could resolve At this time, questions were also being a difference between the two bills—the House raised concerning the effectiveness of elec­ bill explicitly criminalized unauthorized offi­ tronic surveillance and of judicial protections, cial surveillance.13 The ease with which both as well as the persistent use of electronic sur­ Houses passed bills allowing Federal surveil­ veillance in State law enforcement for minor lance might lead one to think legislation was crimes.17 There was also much documentation

9See S. Rep. No. 781, 73d Cong., 2d sess. 11 (1934), reprinted 14See generally Samuel Dash, Richard F. Schwartz, and Rob­ in 1914-59 Leg. History 895; Report of the National Commis­ ert E. Knowlton, The Eavesdroppers (New York; DeCapo, 1959). sion for the Review of Federal and State Laws Relating to 15Ibid.; and Herman Schwartz, Taps, Bugs, and Fooling the Wiretapping and Electronic Surveillance 35 (1976). People (New York: Field Foundation, 1977). 10Nardone v. United States, 302 U.S. 379 (1937). 16See U.S. Congress, Senate Select Committee to Study Gov­ 11Benanti v. United States, 355 U.S. 96 (1957). ernmental Operations With Respect to Intelligence Activities, 12Report of the National Commission for the Review of Fed­ Supplementary Detailed Reports on Intelligence Activities, vol. eral and State Laws Relating to Wiretapping and Electronic III, 94th Cong., 2d sess. (Washington, DC: U.S. Government Surveillance, Electronic Surveillance (Washington, DC: NWC, Printing Office, 1976). 1976), p. 35. 17See Wiretapping Hearings before Subcommittee No. 5. U.S. 13S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1938), reprinted House of Representatives Judiciary Committee, 84 Cong., 1st in 1914-59 Leg. Hist. 961; Murphy, op. cit., p. 135. sess. 53, 67 (1955), ("1955 Hearings"), 194, 347, 359. 33

of illegal private wiretapping, by private de­ Washington's Sheraton-Carlton Hotel and law­ tectives and others for industrial espionage yer-client conversations were overheard. This and in domestic relations matters, and of the led to a series of court-ordered revelations of ineffectiveness of either Federal or State law illegal Federal surveillance involving some 50 to cope with this. or more cases. As a result, in 1965 President Lyndon B. Johnson ordered an end to all elec­ Competing pressures continued throughout tronic surveillance except in national security the 1960s. The President's Commission on cases.19 Law Enforcement and the Administration of Justice issued a report in 1967, and near the During this period, the Supreme Court over­ top of its priorities was organized crime. While ruled Olmstead in Katz v. United States, 389 it did not explicitly recommend the use of wire­ U.S. 347 (1967). The Katz decision set out both tapping, a majority of the Commission mem­ a general formula for the interests protected bers did so. The American Bar Association pro­ by the fourth amendment and specific criteria posed a statute that became the model for for a statute authorizing law enforcement wire­ legislation permitting wiretapping that was tapping.20 The Court's specific criteria for a ultimately enacted in 1968. Because of this valid surveillance involved the conventional activity, the arguments for wiretapping were magistrate's warrant, and the equally conven­ repeatedly being made and given considera­ tional probable cause requirements applied to tion. For example, Professor G. Robert Blakey, a specific telephone, for a specific need and the chief draftsman of the ABA report and crime, to the specific suspect's conversations proposals and also of the 1968 Wiretap Act, and the specific time during which he spoke. told a congressional committee in 1967: The Court also stressed that prior notice to the suspect of the interception was unneces­ The normal criminal situation deals with an sary, and indicated that notice after the inter­ incident, a murder, a rape, or a robbery, prob­ ception was constitutionally acceptable. These ably committed by one person. The criminal requirements were drawn from previous re­ investigation normally moves from the known lated cases and from conventional fourth crime toward the unknown criminal. This is a sharp contrast to the type of procedures you amendment principles. must use in the investigation of organized crime. Here in many situations you have All these factors, plus a growing concern known criminals but unknown crimes. about crime, came together to break the 30­ So it is necessary to subject the known year impasse since Nardone and produced Ti­ criminals to surveillance, that is, to monitor tle III of the Omnibus Crime Control and Safe their activities. It is necessary to identify their Streets Act of 1968, 18 U.S.C. §2500ff, which criminal and noncriminal associates; and their authorizes telephone tapping and microphone areas of operation, both legal and illegal. Stra­ surveillance by Federal and State officials, if tegic intelligence attempts to paint this broad, antecedent judicial approval is obtained.21 overall picture of the criminal's activities in Other than the Foreign Intelligence Surveil­ order that an investigator can ultimately lance Act in 1978, there has been no signifi­ move in with a specific criminal investigation and prosecution.18 cant legislative action since that time, despite a virtual revolution in technology. The pressures, however, were not all one- sided. In the mid-1960s, illegal tapping and bugging by the FBI, IBS, and others came to light when FBI bugs were accidentally discov­ ered in a Las Vegas gambler's office and in

18Hearings onControlling Crime Through More Effective Law 19III Church Comm. 298-300. Enforcement before the Subcommittee on Criminal Law and 20Katz expressly excluded national security surveillance from Procedures of the Senate Judiciary Committee, 90th Cong., 2d its discussion. See 389 U.S. at n. 21. sess. 957-58 (1967). 21See ch. 2 for a detailed analysis of the statute. 34

FINDINGS AND POLICY IMPLICATIONS 1. A host of new information technologies has tion for the content of the call. Transmission revolutionized the telephone system since over fiber optic lines may offer more protec­ 1968—the last time Congress passed major tion against illegal interception, to the extent legislation on telephone surveillance by law that the operating company can more easily enforcement agencies and private parties. tell when the line has been broken into and These technologies include digital transmis­ 24 sion and cellular and cordless phones. where along the line the break has occurred. Each of the major technological develop­ Cellular Phones.—The cellular telephone is ments affecting the telephone system is dis­ a technological innovation in providing qual­ cussed briefly below. ity mobile phone service to a large number of customers over an expansive geographic area. Digital Transmission.—Initially, the phone The basic technology was first developed at system carried only analog signals over tele­ AT&T Bell Labs in the 1950s, and the neces­ phone wires. Much of the telephone system in sary computer and switching technologies the United States, and especially overseas, is were developed in the 1960s. The critical devel­ heavily dependent on analog systems, at least opment was a system that reused frequency for part of a phone call. Increasingly, however, spectrum by dividing a service area into analog voice signals are digitized. The phone "cells." Each cell contains a base station that system of the future will carry digitized infor­ serves as a radio transmit-receive-switching mation (voice, data, and image) across wires, station. Cellular mobile phone calls are relayed optical fibers, microwave radios, and satellite by radio to the base station, which is hooked links. The evolution of digital communica­ up to the mobile phone switching office com­ tions, as well as the digital switching devices puter. The switching office then routes calls that enable the system to function smoothly, to other base stations or to the telephone net­ is beginning to provide expanded services to work via similar routes. If the call is to another customers. cellular phone it is relayed to the appropriate cell site transmitter. If the party called is The computing and telecommunications in­ using a conventional wire-line phone, then the dustries worldwide are gradually evolving switching office computer routes it through toward a new system, the Integrated Services Digital Network (ISDN), which will allow the the telephone system to the receiver.25 transmission of data, voice, image, and video In 1982, the Federal Communications Com­ over the same digital system worldwide. The mission (FCC) accepted applications for cellu­ future trend is toward a wholly digitized, ef­ 22 lar license systems. It received 196 applica­ ficient, and integrated phone system. Some tions for the top 30 markets. The FCC decided predict that, in the future, the microphones to license two types of competitors, a tele­ and speakers in the telephone handset will be the only analog components of the system.23 24For trend in fiber optic systems, see Les C. Gunderson and Legal or illegal interception and interpreta­ Donald B. Keck, "Optical Fibers: Where Light Outperforms Electronics," Technology Review, May/June 1983, pp. 33-44; tion of digital signals is not significantly more Soichi Kobayashi and Tatsuya Kimura,. "Semiconductor Op­ difficult than for analog signals; the intercep­ tical Amplifiers," IEEE Spectrum, May 1984, pp. 26-33; Jeff tor just needs a coder-decoder and knowledge Hecht, "Outlook Brightens for Semiconductor Lasers," High Technology, January 1984, pp. 43-50; and Donald B. Keck, of the modulation scheme. Digitization of "Single-mode Fibers Outperform Multimode Cables," IEEE phone calls, thus, does not offer more protec­ Spectrum, March 1983, pp. 30-37. 25For good descriptions of the technology involved see: Du­ ane L. Huff, "Cellular Radio," Technology Review, November/ 22William Stallings, "The Integrated Services Digital Net­ December 1983, pp. 53-62; George R. Cooper and Ray W. Net­ work," Datamation, Dec. 1, 1984, pp. 68-70. tleton, "Cellular Mobile Technology: The Great Multiplier," 23John G. Posa, "Phone Net Going Digital," High Technol­ IEEE Spectrum, June 1983, pp. 30-37; and Television Digest, ogy, May 1983, p. 41. Inc., Cellular Radio—Birth of an Industry, 1983. 35

phone company and a radio communications network via a line, but instead are transmitted company, in each area. Subsequently, the FCC between receiver and base station via radio. received almost 400 applications to provide These transmissions can be picked up acciden­ service in the 30 next largest markets and 567 tally on a home or car radio, and also can be applications to provide service for the next 30 26 intercepted easily by someone who wants to markets. eavesdrop. Market analysts expect that the demand for Companies marketing cordless phones and cellular service will be large—driven by peo­ the FCC are well aware of the difficulty in en­ ple who want to communicate while on the suring the privacy of cordless phone calls. The move. Cellular phones provide quality commu­ FCC now requires that such phones be labeled nications, and the current high cost will de­ with a warning that the conversation may be crease. Some predict that the cost will drop accidentally overheard. One reason cited for to $500 per phone within 5 years.27 Service the lack of market interest in cordless phones charges started out around $150 per month, is that customers desire privacy for their but are dropping fast.28 The technology on phone calls. which cellular phones are based is capable of providing additional services, e.g., data termi­ Private Carriers.—Until deregulation of the nals and printers in a briefcase; public cellular telephone industry, the market was dominated phones on trains, buses, and planes; answer­ by common carriers that offered telecommu­ ing and message services; dictation services; nications services to any potential customer. and automatic callback.29 In addition, en­ Because of regulatory restrictions, capital cryption devices to protect privacy are now investment requirements, and economies of available. scale, it was very difficult for an individual or company to set up a phone system. However, Development of the radiotelephone system deregulation coupled with technological ad­ has been under way and may be available vances now make it possible to set up private soon, subject to FCC approval. This system telecommunications systems, which serve a does not need an elaborate transmitter system specific business or a predetermined group of and would be cheaper than a cellular phone. customers. Parties can also lease dedicated Radiotelephones can work either as a tele­ lines from the telephone company or private phone or as a car-to-car radio. Although radio­ providers, form local area networks (LANS), telephones have a limited range, users can sub­ and purchase private branch exchanges (PBXs). scribe to a repeater service that picks up weak This variety of phone systems is not reflected signals and rebroadcasts them. Radiotele­ in current laws that speak primarily to com­ phones (as well as cellular radios) are subject mon carrier systems. to eavesdropping. In addition, police scanners that can listen in on personal radiotelephone 2. The contents of phone conversations that are conversations are now on the market.30 transmitted in digital form or that are con­ ducted on cellular phones or cordless phones Cordless Phones.—The cordless telephone is are not clearly protected by existing statutory designed to meet a perceived consumer inter­ and constitutional prohibitions on the inter­ est in being able to talk on the phone while ception of phone calls. walking around the house or in the yard. With The major statute prohibiting unauthorized the cordless phone, oral messages are no interception of phone calls, Title III of the Om­ longer transmitted from the receiver to the nibus Crime Control and Safe Streets Act, was written at a time when phone calls were trans­ 26Huff, op. cit., pp. 59-60. mitted in analog form, over wires maintained 27Television Digest, Inc., op. cit., p. B-8. by common carriers. The technological changes 28Huff, op. cit., p. 60. 29Huff, op. cit., p. 61. discussed above have raised a series of ques­ 30Benn Kobb and Lee Greathouse, "Car Radiotelephones Get tions about the scope of Title III and the pos­ Personal," High Technology, November 1984, pp. 18-21. sible need for new legislation. The present le­ 36

gal status of these new technologies is outlined form would be protected against unauthorized below. surveillance if the interception was for intel­ ligence purposes. FISA does not cover law en­ Digital/Data Communications.—Title III cov­ forcement surveillance. ers only the "aural acquisition" of an oral or wire communication, not the acquisition of Section 605 of the Communications Act of communication in digitized form or data com­ 1934 does not provide any protection against munications. Recent court rulings have not ex­ unauthorized acquisition of digital wire com­ panded the scope of Title III to cover digital munications because the courts have ruled or data communications. In United States v. that Congress intended Title III to be the ex­ New York Telephone Co., 434 U.S. 159 (1977), clusive remedy with respect to telephone in­ the Supreme Court held that to be covered by terceptions.33 Title III, a communication must be capable Attempts to afford legal protection against of being overheard. In 1978, the Fourth Cir­ the interception of digital or data communi­ cuit in United States v. Seidlitz, 589 F.2d 152, cations through statutes that prohibit theft ruled that nonaural communications were not are likely to be futile because it is difficult to protected by Title III. calculate or prove the informational value Although it is clear that Title III does not taken from the person whose communication cover data communication,31 there has been is intercepted. some discussion whether Title III would cover phone conversations that are being trans­ If no statute covers the interception of dig­ mitted in digital form.32 Most interested par­ ital phone conversations, there may still be ties, e.g., AT&T and the ACLU, now appear constitutional protection in the fourth amend­ satisfied that conversations that are trans­ ment's "expectation of privacy" against un­ mitted in digital form are covered by Title III reasonable searches and seizures. because the interception is still aural and Cellular Telephonies.—The issue of whether therefore covered by the statute. The Justice the interception of cellular phone calls comes Department's position is similar, i.e., the under any existing statute, and thus requires analog-digital distinction is not important and some form of court order, has not yet come to that Title III applies to all phone conversa­ the courts. In United States v. Hall, 488 F.2d tions carried over the wires. Title III focuses 193 (9th Cir. 1973), the Ninth Circuit Court not on the method by which communication held that Title III protects any communica­ is transmitted, but on the type of acquisition tion that is transmitted in part by wire. The of that information. Since the Government's Court ruled that a telephone call from a mo­ interception is aural, it does not matter for Ti­ bile telephone to a landline telephone is pro­ tle III purposes whether the transmission was tected by the statute, but that a phone call analog or digital or by some other means. from a mobile telephone to another mobile tele­ However, the courts have not ruled on the cov­ phone is not. The Court characterized this as erage of phone conversations carried in digi­ "an absurd result," but one required by the tal form and clarification by statute would statute. Based on the reasoning of the courts avoid future legal misinterpretations. in other cases involving radio transmissions (cordless telephones and beepers), Title III and The Foreign Intelligence Surveillance Act FISA would not apply because the communi­ of 1978 (FISA) does require a court order for cation was not a wire transmission, and Sec­ interception of digital conversations. Phone tion 605 would not apply both because of Title conversations being transmitted in digital III preemption and because cellular telephones 31In ch. 4, Electronic Mail Surveillance, more detailed atten­ use radio, not wire, transmissions. The posi­ tion will be given to data communication. 32David Burnham, "Loophole in Law Raises Concern About Privacy in Computer Age," New York Times, Dec. 19, 1984, 33See: Watkins v. L. M. Barry & Co., 704 F.2d 577 (5th Cir. p. A-1. 1983) and United States v. Hall, 488 F.2d 193 (9th Cir. 1973). 37 tion of the Justice Department is to secure a 3. Interception of the content of phone calls rep­ Title III warrant before interception because resents a substantial threat to civil liberties, one cannot tell whether the receiver is on a land- but also a significant potential benefit to in­ line phone and hence using telephone wires. vestigative authorities. This is reflected in the standards and procedures presently embodied Cordless Telephones.—The status of the pro­ in Title III for such interception. tection afforded communication over cordless phones from unauthorized interception is not The following discussion uses the framework clear. Two State courts have ruled on the ques­ developed in chapter 2 (see table 6). In terms tion. In 1984, the Supreme Court of Kansas, of the nature of the information acquired, the in Kansas v. Howard, 679 P.2d 197, held that content of intercepted digitized phone commu­ the user of a cordless telephone had no fourth nications is quite specific, detailed, complete, amendment "expectation of privacy" and that and often of a personal nature. The nature of interception of such communication does not the information that can be acquired does not violate Title III. The Court did not address the vary with the system of transmission, the question of the expectation of privacy of the phone used, or the phone network. other party to the conversation. The Rhode Is­ The "private" v. "public" nature of the land Supreme Court has recently handed down phone call does not differ at all based on the a similar ruling in Rhode Island v. Delaurier, system of transmission or the phone network 488 A.2d 688 (R.I. 1985). The Justice Depart­ employed. It does differ somewhat according ment's position is that investigatory author­ to the phone used, in that cellular and cord­ ities should get a Title III warrant before less phones using radio transmissions are in­ intercepting conversations carried over a cord­ herently more vulnerable to interception, and less telephone. It may be important to note thus more public. However, because a commu­ that in many instances the information re­ nication may be more readily overheard does sulted not from the Government actively lis­ not necessarily mean that investigative au­ tening to cordless phone calls, but from neigh­ thorities should be able to intercept it with less bors who picked it up on an FM radio dial and authorization than for other calls. turned the information over to Government authorities. The scope of surveillance is the same regard­ less of the system of transmission, phone used, Private Carriers.—Communications carried or phone network employed. In any case, all over private carrier communications systems parties to a phone call are generally overheard. are not "wire" communications under Title III. In addition, the AT&T consent decree It is virtually impossible for an individual may remove the regional holding companies to detect whether or not the content of a phone from the category of common carrier engaged call is being intercepted when the interception in interstate commerce as defined by Title III, involves passive reception over the air signals. and thus remove these companies from Title Again, this is true regardless of the system of III coverage.34 Given the market trend toward transmission, phone used, or phone network private carrier systems and combination com­ employed. mon-private systems, the implications of the The pre-electronic analogy will most likely current legislative distinction need to be ex­ be to analog transmission of phone calls made plored for Title III, Sections 605 and 705(a) on conventional phones via a common carrier. of the Communications Act, and FCC regu­ Such calls are accorded a high level of protec­ lations. tion against interception as reflected in Title III. 34Bruce E. Fein, "Regulating the Interception and Disclosure The governmental investigative interest in of Wire, Radio and Oral Communication: A Case Study of Fed­ eral Statutory Antiquation," 22 Harvard Journal on Legisla­ intercepting the content of phone calls is quite tion 47, 69 (1985). high. Knowledge of the content of phone calls 38

would be useful for any type of investigation, III, and public opinion over time are all sup­ at any level of suspicion, and with or without portive of protection for the privacy of phone more traditional techniques. As there is a his­ calls. The analogy here is quite direct. tory of policy in this area, extension of pro­ tection could arguably be consistent with what With respect to the governmental investiga­ now exists. tive interest involved and the stage of inves­ tigation at which it would be appropriate to 4. OTA has identified three major options for allow interception, the standards developed in congressional consideration with respect to Title III for law enforcement and in FISA for policy on interception of the content of tele­ intelligence purposes could be used for all phone calls: a) treat all phone calls similarly phone calls. The standards for interception of from the perspective of the extent of protec­ tion against unauthorized interception, i.e., ex­ phone calls for purposes of the proper admin­ tend Title III to cover all phone calls whether istration of Government programs have not analog, digital, cellular, or cordless; b) formu­ been formulated and are in need of legislative late specific policies depending on the techno­ attention. logical constraints and possibilities; and c) do nothing and leave the development of case law Option B.—The advantage of formulating to determine policy, depending on individual specific policy depending on the technology in­ circumstances. volved is that policy would directly address the peculiarities of each technological situa­ Each of these options is discussed below in tion. Policy would be precise. However, this terms of the dimensions developed in chapter option has three disadvantages. First, there 2 (see table 6). will necessarily be a period in which there is Option A.—The basic rationale for treating no policy and in which the temptation will be all phone calls similarly is that a phone call to wait and see how the technology develops is a phone call. Therefore, regardless of the sys­ and what marketing is successful. Second, tem of transmission (digital or analog, wire, Congress will repeatedly be asked to deal with satellite, microwave, or fiber optics), the phone similar issues on which it will have to build used (conventional, cordless, or cellular), and individual hearing records and a separate con­ the phone system employed (common carrier sensus. Third, if Congress does not act quickly or private), phone conversations would be ac­ enough, the courts will be called on to set corded the same protection. policy. There are two advantages to this approach. If this option were chosen, the standards The first is that both individuals and inves­ relevant to each technology appear to be as tigative authorities would know their rights follows: and responsibilities. A clear policy would dis­ advantage no one. The second is that the pol­ Digital/Data Communications.—Based on the icy incorporates a standard that endures be­ nature of the technology, the policy principles yond technological changes. If a new type of that exist in case law and legislation, and the phone is invented, or a new system for trans­ investigative practice to date, there appears mission of phone calls, the legal status would to be no reason to treat phone communications be clear to manufacturing companies, custom­ transmitted in digital form differently from ers, investigative authorities, and the courts. those transmitted in analog form. The prepon­ Future confusion would be avoided. derance of evidence indicates that data com­ munications are also in need of statutory pro­ Another strong argument for treating all tection against unauthorized interception. The phone calls similarly is that they have been Senate Judiciary Committee's Subcommittee accorded a historical expectation of privacy. on Patents, Copyrights and Trademarks held Administrative and legislative actions prior hearings on this issue on September 12, 1984. to passage of Title III, experience with Title Witnesses from the Justice Department, 39

AT&T, and the Cellular Communications In­ does not implicate the fourth amendment's dustry Association stated the need to develop guarantees would also appear to support this. legislation protecting data communications. In the Kansas cordless telephone case, the Court held that the user of a cordless phone The easiest and most direct policy alterna­ has no expectation of privacy, but did not dis­ tive may be to amend Title III to include data cuss the expectation of the other party. Under communication. In October 1984, Represent­ ative Robert Kastenmeier introduced the Elec­ traditional principles of equity, it is necessary tronic Surveillance Act of 1984, which ex­ that the expectation of privacy for both par­ tended Title III's definition of "intercept" to ties be established and known in advance. include the nonaural acquisition of the con­ A third issue relates to the tracking poten­ tents of such communications. The Kastenmeier tial of cellular phones. By monitoring the bill was reintroduced in the U.S. House of Rep­ switching of cellular phone calls from one fre­ resentatives in September 1985 as the Elec­ quency to another, the cellular carrier can de­ tronic Communications Privacy Act of 1985 termine the location of individuals placing and (H.R. 3378). A similar bill (S. 1667) was intro­ receiving calls. Moreover, some companies rec­ duced in the U.S. Senate by Senator Patrick ord this information in a computer for billing Leahy. purposes. At this time, precise locations can­ not be determined because the cell sizes are Additionally, it should be noted that com­ large, but as cellular phones become more puter crime legislation may also affect the popular, cell sizes will be reduced allowing security of data and data communications more precise tracking.35 against unauthorized interception. The issue of tracking individuals by moni­ Cellular and Cordless Phones.—In designing toring cellular phone calls could be dealt with policy for cellular and cordless phones, three by requiring investigative authorities to get separate issues need to be addressed. First, a court order before getting such records from should the content of cellular and cordless the cellular company. The standards for gov­ phone calls be accorded a lower level of pro­ ernmental investigative interest and stage of tection because the technology makes it eas­ investigation at which this is considered ap­ ier to overhear such calls? If the answer is yes, propriate would need to be addressed in leg­ then a standard based on the governmental islation. Additionally, the legislation could re­ investigative interest in intercepting such quire the cellular carrier to inform potential communications and the stage of the investi­ customers of its policies with respect to cus­ gation needs to be fashioned. tomer privacy. The model for such legislation The second issue is whether the caller and could be the Cable Communications Policy receiver should be accorded the same protec­ Act. tion. The party using the cellular or cordless phone may know that the conversation can Private Carriers.—The trend toward private more easily be overheard. The other party carriers and combined common and private most probably assumes that the conversation carrier systems throughout the telecommuni­ is via a conventional phone and that the usual cations field indicates that the legal distinc­ protections apply, although under the con­ tion between common and private carriers cepts of one-party consent and assumption of may no longer be valid. It appears that the dis­ risk, it is possible that the other party may tinction is based on a market configuration not have a fourth amendment expectation of that is now outdated. Congress could enact privacy. The Supreme Court's ruling in United legislation that applies equally to common, pri­ States v. White, 401 U.S. 745 (197), that such vate, and hybrid communication systems. practices as governmental encouragement and "Robert L. Corn, "The Privacy Issue," Telocator, Septem­ exploitation of misplaced personal confidence ber 1984. 40

Option C.—To do nothing and leave case law troller can automatically collect information development to determine policy, depending on all calls, toll and flat rate. This can be done on individual cases, has two serious disadvan­ for both online data (real time) and for billing tages. The first is that, given the universal use purposes. The information is retained on tape of the phone system as a means of communi­ and can be accessed when needed. cation, lack of clear policy could lead to con­ tinued uncertainty and confusion as to the pri­ 6. Transactional information about phone calls (e.g., numbers and places dialed) is not clearly vacy accorded phone calls. The second is that protected under existing statutes and judicial major telecommunications changes are now precedents on surveillance. Yet access to such occurring, and a belated response from Con­ information represents a significant threat to gress could detract from industry stability and civil liberties and a significant potential ben­ growth. efit to investigators. Title III was directed at the interception of 5. New information technologies have also greatly increased the ability to collect and the substance of phone calls and did not ad­ access transactional information about tele­ dress the question of interception of numbers phone calls, for example, the numbers and dialed. Transactional information is becoming places dialed. more valuable as more of it is available and can be cross-referenced. Because of the technological sophistication of the phone system, information on the num­ Pen Registers.—Given the present Supreme bers dialed and length of phone calls exists in Court interpretation of Title III, Government real time and is stored for billing and admin­ officials do not need a Title III warrant to in­ istrative purposes. Access to this information stall pen registers. In 1977, the Court ruled makes it possible to determine patterns and in a 5-4 decision in United States v. New York interconnections in phone transactions. Telephone Co., 434 U.S. 159, that the FBI did not need a Title III warrant to use pen reg­ Pen Registers.—Pen registers are devices isters because the pen register intercepted non- that are attached to a telephone line to record aural communications and because the legis­ the dialed pulses based on equipment that lative history of Title III indicated that Con­ senses changes in magnetic energy. With a ro­ gress intended to exclude pen registers. tary phone call, a very sensitive radio receiver some distance from the wire can also pick up Given the present Supreme Court interpre­ the pulses. Deciphering the numbers dialed by tation of the scope of the fourth amendment, touch-tone phones is somewhat more difficult an individual cannot claim an expectation of because the magnetic energy is weaker. Induc­ privacy that numbers dialed will remain free tion coils attached directly to the wire can pick from Government interception. The Court up the signals, but radio receivers cannot. reached this ruling in Smith v. Maryland, 442 U.S. 735 (1979), in which it argued that Smith Pen registers can pick up the number dialed assumed the risk that the phone company and the length of the phone call. With a re­ might reveal all the numbers he dialed. verse phone book, one can then determine the According to the Justice Department, the party that was called. In order to install a pen Foreign Intelligence Surveillance Act requires register, one needs the cooperation of the that law enforcement officers obtain a court phone company. Each pen register costs about order before using a pen register.36 The Jus­ $4,000 to install and monitor, depending on tice Department currently requires its inves­ the length of time it is installed. tigative departments to obtain a court order Automatic Billing Equipment.—With com­ before installing a pen register. However, the puter-controlled electronic switching systems, 36John Keeney of the U.S. Department of Justice, Statement it is not necessary to use a pen register to de­ Before the Subcommittee on Patents, Copyrights and Trade­ termine calls dialed. Instead, the switch con­ marks of the Senate Judiciary Committee, Sept. 12, 1984. 41

court order does not require evidence of a link nature of phone transactional information is to illegal activities and does not require judi­ less personal than the content of phone calls cial review of the reasons for the pen register. and may, therefore, deserve a lower level of Its purpose is to secure the cooperation of the protection. The nature of the information will telephone company. The court order generally vary depending on whether it is real-time in­ authorizes the pen register for 30 days. Other formation, in which case the present location Federal agencies appear to follow the Justice of both parties is also divulged, or historical Department's guidance on this matter. information. The former would appear to war­ rant more protection as it is more specific. Automatic Biffing Information.—The infor­ mation that the telephone company retains for With respect to the public or private nature billing purposes and the information that is of the communication, transactional informa­ sent to customers on their bills is currently tion is never considered public information, available to investigative authorities if the but rather is proprietary information. Clearly, company chooses to cooperate in relinquish­ the phone company needs to keep this infor­ ing the information. The telephone company's mation for billing purposes, but this does not position has been that it will not release infor­ put the information in the public realm. The mation without a court order or subpoena. protection accorded transactional information Based on the Court's ruling in United States may be less than information that is kept in v. Miller, 425 U.S. 435 (1976), it is difficult to the home, but it is arguably deserving of a see how an individual could successfully argue high level of protection. that he or she had a privacy interest or prop­ The scope of surveillance that results from erty right in this information. monitoring phone transactions is quite broad Investigative authorities can generally get in that all phone conversations made are billing information from the phone company picked up by a pen register or recorded by the with a court order or a grand jury subpoena, phone company. It would be difficult to mini­ which does not require probable cause. Re­ mize the scope of the monitoring, unless in­ cently, the Federal Government announced a vestigative authorities knew ahead of time the plan to monitor long-distance telephone trans­ numbers they were interested in or the most actions from Federal offices with computer likely times that relevant calls would be made. software that can be programmed to select specific information, e.g., phone calls to Dial- It is very difficult at present for individuals a-Joke, Sports Highlights, and Reno, and to detect that their phone transactions are be­ phone calls over a certain duration or at cer­ ing monitored by investigative authorities. In tain times of the day. The President's Coun­ fact, in order to learn of such monitoring, they cil on Integrity and Efficiency is carrying out would be dependent on the phone company or this program to reduce the Federal phone bill the Government. It would be fairly easy to by discouraging and detecting abuse.37 Some give individuals notice of the circumstances have criticized this program because of the under which phone transactional information possibility that phone calls to congressional would be sought and the uses that might be offices and news reporters may be monitored made of it. as well. In terms of pre-electronic analogies, such transactional information was generally not Civil Liberties v. Governmental Interests. In kept, not kept in detail, and/or not kept in a terms of the dimensions introduced in chap­ form that could be easily retrieved. It was, ter 2 to determine the threat to civil liberties therefore, considered by individuals to be free from a particular surveillance technique, the from monitoring. The closest historical anal­

37 ogy to the monitoring of transactional infor­ See: William Safire, "Thanks for Calling," New York Times, Mar. 7, 1985; and Elizabeth Tucker, "U.S. to Bye All Federal mation for surveillance purposes may be the Phone Calls," Washington Post, Mar. 9, 1985. use of mail covers. 42

Information on phone transactions is po­ determining the location of parties, and is, tentially of great interest to investigative au­ therefore, valuable at any stage of an investi­ thorities. The Justice Department and other gation. There are no traditional techniques for investigative agencies use such information obtaining this information. A related OTA primarily in the initial investigation of a case study on "New Communications Technology: to determine whether activities of an implicat­ Implications for Privacy and Security" is ex­ ing nature are occurring. Real-time informa­ ploring telephone monitoring issues and pol­ tion on phone transactions is also valuable in icy options in greater depth. INTENTIONAL BLANK PAGE

(43) Chapter 4 Electronic Mail Surveillance

(44) Chapter 4 Electronic Mail Surveillance

SUMMARY The public expects and is provided with a At each of these stages, OTA found that high standard of protection against unauthor­ technological protections vary. Some, like en­ ized opening of first-class letter mail when in cryption, are still perceived as relatively costly paper form and delivered by the U.S. Postal and difficult, though becoming less so. Exist­ Service. Constitutional provisions, case law, ing law offers little protection. Portions of the and postal statutes and regulations collec­ Communications Act of 1934, Title III of the tively provide such protection. However, when Omnibus Crime Control and Safe Streets Act mail is sent in electronic form, the existing pro­ of 1968, Postal Reorganization Act of 1970, tections are weak, ambiguous, or nonexistent. and Foreign Intelligence Surveillance Act of 1978 may apply to some portions of the elec­ Electronic mail is a relatively recent mar­ tronic mail process. But overall, electronic mail riage of computer and communications tech­ remains legally as well as technically vulner­ nology that makes it possible to send, trans­ able to unauthorized surveillance. mit, and receive mail in electronic form. If desired, the electronic output can be printed The interception of electronic mail at any out in hardcopy and delivered by the USPS stage involves a high level of intrusiveness and or private carrier. But electronic mail also a significant threat to civil liberties. The in­ permits terminal-to-terminal communication vestigative value of intercepting electronic where the message is never in paper form. Var­ mail will vary. But, traditionally, paper mail ious private companies now offer electronic has been afforded a high level of protection mail services. from interception. OTA found that there are several discrete OTA identified three policy options avail­ stages at which an electronic mail message able to Congress: could be intercepted and its contents divulged 1. legislate a high level of protection across to an unintended receiver: all stages of the electronic mail process 1. at the terminal or in the electronic files so that electronic mail is afforded the of the sender, same degree of protection as is presently 2. while being communicated, provided for conventional first class mail; 3. in the electronic mailbox of the receiver, 2. legislate different levels of protection at 4. when printed into hardcopy before mail­ different electronic mail stages; and ing, and 3. do nothing at present, pending further 5. when retained in the files of the electronic technical and case law developments. mail company for administrative purposes.

INTRODUCTION Written communications that are sent be­ More and more often, however, substantive tween two parties via first class mail receive communications between two or more parties a high standard of protection against unau­ are not written and sealed in an envelope, but thorized opening. This has been well estab­ are being typed into a computer system and lished by both case law, Ex Parte Jackson sent by means of telecommunications. The (1877),1 and postal statutes and regulations. merging of computers and telecommunica­ 1Upheld the requirement of search warrants as a condition on that class of mail for which customers pay a certain rate for opening sealed mail. Applied fourth amendment protections to send in a sealed envelope or package. 45 46 tions opens up many possibilities for faster, prohibitions is unclear. When electronic mail cheaper, and more accurate communications. is in the computer memory of the sender or However, it also raises many questions about receiver, there are presently no specific Fed­ privacy and the security of such communica­ eral laws prohibiting acquisition of that infor­ tions against unintentional or intentional tam­ mation, although theft laws may apply as pering. might the Computer Fraud and Abuse Act of 1984 with respect to Federal computers. More­ When electronic mail is being transmitted over, it can be argued that an individual would in data form across wires, it does not come un­ have a fourth amendment expectation of pri­ der the purview of either Title III of the Om­ vacy against Government access to the mes­ nibus Crime Control and Safe Streets Act of sage. If the message was printed into hard­ 1968, which prohibits only aural interception, copy and mailed, then the postal statutes or Section 605 of the Communications Act of should protect the confidentiality of the mes­ 1934, which prohibits interception of radio sage. If the electronic mail company retains transmissions. Interception of digital mes­ a copy of the message for administrative or sages for purposes of learning the contents or backup purposes, the individual may have no altering them is prohibited by the criminal pro­ legal recourse to protect the information from visions of the Foreign Intelligence Surveil­ additional access. lance Act (FISA); however, the scope of such

BACKGROUND During the last few years, electronic mail be­ There are currently a number of providers gan to develop a significant commercial mar­ in the electronic mail marketplace. The U.S. ket. It is expected that market popularity will Postal Service (USPS) was an early entrant increase as competition brings prices down into the electronic mail market offering two and more services and improvements in exist­ services: E-COM (Electronic Computer-Origi­ ing services, especially in the connections be­ nated Mail), which was aimed at the domes­ tween personal computers and electronic mail tic business market; and INTELPOST (Inter­ systems, are offered.2 The main attraction of national Electronic Post), which provides electronic mail is that it reduces, if not elimi­ high-speed facsimile service by satellite be­ nates, time that is spent in exchanging infor­ tween the United States and Europe. E-COM mation over the phone or via the U.S. Postal has been terminated, and INTELPOST, while Service or a courier service. The current ad­ still operating, is little used.4 age is that electronic mail eliminates telephone tag. With time, however, the major part of the Commercial ventures in the electronic mail electronic mail market may be substantive market have proven more successful and more messages, e.g., documents and working papers varied. MCI is now one of the largest elec­ that would normally be sent through the tradi­ tronic mail companies offering both direct tional mail system. Informal messages that computer-to-computer messaging and mixed would normally be conveyed via phone calls systems that combine electronic input and may, in the long run, account for a smaller part transmission with hardcopy output and deliv­ of the market.3 ery. One reason MCI can offer inexpensive ef­

4See James Bovard, "Zapped by Electronic Mail," Across the Board, June 1985, p. 42; House Committee on Government Operations, "Postal Service Electronic Mail: The Price Still 2See EMMS Newsletter, May 1, 1985, p. 1. Isn't Right," House Rep. No. 98-552, 1983; and House Com­ 3David Roman and Stan Writen, "Electronic Mail: Faster mittee on Government Operations, "INTELPOST: A Postal Than a Speeding Bulletin," Computer Decisions, July 1984, vol. Service Failure in International Electronic Mail," House Rep 16, No. 9, pp. 146-160. No. 98-675, 1984. 47 ficient services is that it owns a low-cost, long- the teletypewriter terminal. The message distance telephone network.5 In the spring of is then transmitted to the receiver's auto­ 1984, Federal Express entered the electronic matic teleprinter. For international telex mail market with its Zapmail service which communications, satellite channels or trans­ provides 2-hour delivery of facsimile copies for oceanic submarine cables are used. up to five pages of text. ITT has targeted its Current Telex systems, such as the DIALCOM services, including computer-to­ "InfoMaster," can offer delayed message computer electronic mail, telex, telegram and delivery and a multiple address message courier delivery, into large corporations and system, while "FYI News Service" sub­ the Federal Government. The White House, for scribers can receive general news, financial, example, uses DIALCOM for electronic mail market, and weather-related bulletins. communications with some 22 Federal agen­ • Teletext: This communication system de­ cies. GTE Telemail has also been successful livers text and graphic messages sequen­ in the corporate marketplace. The Source and tially in one direction over a television CompuServe provide an array of computer in­ broadcast signal or cable which are then formation services, including electronic mail received by a display terminal, like a tele­ and various electronic bulletin boards. vision set. The receiving terminal exhibits the message on the display screen, and As generally used, electronic mail refers to can store or delete the message after view­ messages that are sent between computer ter­ 6 ing. Similar systems that can receive as minals via telephone lines. This does not well as send messages (e.g., home bank­ merely include terminal-to-terminal systems, ing or shopping) are known as videotex. but also can be interpreted to encompass tel­ egraph, telex, teletext, facsimile, voice mail, • Facsimile: Unlike the telex, this system and mixed systems that electronically trans­ converts a page of text or images into mit messages, some of which may be subse­ data. Once the input data is scanned and quently delivered by the postal system or a translated into code, ordinary telephone courier service. A brief description of each of lines can carry the transmission to a re­ these is presented below: cipient's terminal to be decoded and printed for hardcopy distribution. As an • Telegraph: A system that transmits one- added feature, some facsimile machines, way electronic messages along circuits such as the "FaxPak," offer store-and­ within a network of central and branch forward capability. telegraph offices, where the electronic A typical facsimile system can transmit messages are translated by the receiving a page in 4 to 6 minutes, while more ad­ operator into typed messages that are vanced systems can transmit the same hand delivered or telephoned to the re­ amount of information in a few seconds. cipient. • Voice Mail: Voice mail is a computer- • Telex: Commonly used for international based system designed to digitize voice communications, this telegraph exchange from an analog signal for the purposes of system consists of: a teletypewriter ter­ relaying short messages or instructions. minal to translate and interpret messages Like a sophisticated digital phone-answer­ into code; special telegraph circuits de­ ing machine, messages can be stored and signed to carry the code; and a teleprinter forwarded, edited, retrieved, or distrib­ to print the communication. Each sub­ uted to a list of users. Future systems are scriber is individually issued his or her being designed to incorporate options own telex line and number that a caller such as voice to text conversion. dials to send messages that are keyed into • Electronic Mail: This computer-based message system can be divided into two 5See Bovard, op. cit., p. 46; and Lawrence J. Magid, "Elec­ categories. In the first, an electronic mes­ tronically Yours," PC World, June 1984, pp. 48-54. 6Bovard, op. cit., p. 42. sage is transmitted between two or more 48

terminals and remains in an electronic for­ should regulations for common carrier sys­ mat. In the second, the message is trans­ tems and private systems be the same or dif­ mitted electronically, but then converted ferent; and what range of services can or to a hardcopy format to be delivered by should electronic mail systems offer?7 Such is­ traditional mail or courier service. To use sues concerning market structure, services, a typical electronic mail system, a per­ and regulation are beyond the scope of this re­ sonal identifier number, password, the re­ port. However, issues concerning the security cipient's account number, and message and privacy of electronic mail systems are are keyed into a terminal. This informa­ germane to this study. Indeed, some believe tion is transmitted to a central computer security and privacy issues are critical to the and stored for viewing at the recipient's widespread acceptance of electronic mail as a convenience. Electronic mail systems can communications medium. The contents of elec­ send, receive, file, recall, edit, and store tronic mail communications are of interest to textual or graphic-messages. the same parties that are interested in the con­ • Electronic Bulletin Board: An electronic tents of first-class mail communications. Thus, bulletin board is an electronic mail serv­ Government officials might be interested in ice (or the equivalent computer-based in­ accessing or maintaining surveillance of elec­ formation service) with a public or private tronic mail messages for investigative pur­ electronic mailbox that is accessible to poses. Private parties might be interested in several persons. A public bulletin board electronic mail surveillance for various com­ usually is open to many or all subscribers petitive, personal, and/or criminal purposes. and/or persons with a general password. A private bulletin board is limited to per­ sons with special passwords. 1For discussion of telecommunications and industry struc­ ture issues see Raymond R. Panko, "Electronic Mail," Data­ The emergence of electronic mail has raised mation, vol. 30, No. 16, Oct. 1, 1984, pp. 118-122; Robert E. a number of policy issues, for example: what Kahn, Albert Vezza, and Alexander P. Roth (eds.), Electronic Mail and Message Systems— Technical and Policy Perspectives standards should be used so that competing (Arlington, VA: American Federation of Information Process­ electronic mail systems can be compatible; ing Societies, 1981); and issues of EMMS Newsletter.

FINDINGS AND POLICY IMPLICATIONS 1. There are at least five discrete stages at which each stage needs to be analyzed separately to an electronic mail message could be intercepted discern policy problems and policy options.8 and its contents divulged to an unintended re­ ceiver: at the terminal or in the electronic files Terminal or Electronic Files of Sender.—At of the sender, while being communicated, in this stage, messages could be intercepted by the electronic mailbox of the receiver, when accessing the computer system of the sender printed into hardcopy, and when retained in for purposes of reading the message or alter­ the files of the electronic mail company for ing its content. In the case of interception by administrative purposes. Existing law offers Government officials, the individual would little protection. probably be successful in arguing that he or From a policy perspective, the laws that she had a fourth amendment expectation of might be extended or drafted will vary by privacy in the contents of computer files. Al­ these five stages because of the historical de­ though these are not "papers" in the tradi­ velopment of telecommunications and privacy tional sense, they are arguably the computer- law. Moreover, the technological protections age equivalent. They are also stored within a that are available will also depend on the stage 8See ACLU Focus Paper on Electronic Mail, Jan. 29, 1985, of the communications process. Therefore, for a similar discussion. 49

computer file that belongs to the individual, ficials to get a court order before setting up perhaps not in a tangible property sense, but a tap because electronic mail is sent in digital at least in an intangible one, depending on the form. Voice mail may be protected under Ti­ storage arrangement. If the computer was at tle III, depending on the interpretation ac­ home, the individual's expectation of privacy corded aural communication. (See chapter 3 on would be greater than if it was an office com­ telephone surveillance.) Section 605 of the puter, but use of passwords and access codes Communications Act of 1934 would not apply would indicate that the individual took precau­ unless the electronic mail was being commu­ tions at the office to ensure an expectation of nicated via radio signals, which is rarely the privacy. The fourth amendment status of mes­ case. Additionally, the purviews of Title III sages held in the computer file of the sender and Section 605 are limited to common car­ could be clarified by statute. The FBI reported rier communications. Electronic mail systems that on the occasions where it has had to ac­ that use private carriers, e.g., internal com­ quire information from a data bank, it secured pany mail systems, would not come under ei­ a search warrant as it would have done before ther act. The criminal penalties of the Foreign going into a residence looking for information.9 Intelligence Surveillance Act may prevent Government officials from intercepting digi­ In the case of private parties accessing elec­ tal communications, but it is unclear if these tronic mail in the terminal of the sender, there penalties apply to interceptions other than for is no specific statute that would protect the foreign intelligence purposes. confidentiality of the message. At this time, State laws probably offer more protection than Again, there are some technical measures Federal laws. Theft laws might apply under that can be used to protect the integrity of a some circumstances, although these are framed message during transmission. The message in terms of physical breaking and entering, can be encrypted using the data encryption and in terms of tangible property. Computer standard (DES) or some other code that scram­ crime laws may also offer some protection bles or packages the message in a way that against unauthorized private access. makes it difficult to decipher. However, en­ cryption has been expensive and time-consum­ There are also some technical measures that ing on both ends, although costs are dropping. can be adopted to protect the contents of a computer file. Sophisticated password and/or In the Electronic Mailbox of the Receiver.— key systems can be used to deter unauthorized At this stage, messages can be intercepted by access. Audit trails can be developed to detect breaking into the computer terminal of the re­ unauthorized access. Although such systems ceiver, if the receiver has one that is used as may not be foolproof, their use will give addi­ an electronic mailbox, or into the computer ter­ tional legal weight to someone arguing that minal of the electronic mail company where an their computer mail files are expected to be individual has rented his or her mailbox. In private. either case, the individual should have a fourth amendment expectation of privacy against In Transmission.—At this stage, messages Government interception. This expectation can be intercepted by tapping into the wire will be higher if the mailbox is in the individ­ over which the message is being sent, break­ ual's own computer terminal, but because rent­ ing into the fiber optic cable, or intercepting ing implies property rights the expectation satellite or microwave signals. Regardless of should also apply if the mailbox is held on the the technology used to transmit electronic company's terminal. Protection against pri­ mail messages, existing law offers little pro­ vate party interception would depend on the tection against unauthorized interception. Ti­ coverage of theft laws and computer crime tle III of the Omnibus Crime Control and Safe laws. Streets Act would not require Government of­ When Printed Into Hardcopy Before Mail­ 9Floyd Clarke, remarks at OTA Workshop, May 17, 1985. ing.—Once mailed, the contents of the enve­ 50

lope would receive the same protections that decide based on the facts in this case, the is­ are accorded first class mail. However, there sue requires attention. would be no legal protection for the message 2. The interception of electronic mail at any during the time it was being printed out and stage involves a high level of intrusiveness before it was put into the envelope. During and a significant threat to civil liberties. The this time the individual would be dependent investigative value of intercepting electronic on the policy of the electronic mail company mail will vary. But traditionally, paper mail and the discretion of its employees. has been afforded a high level of protection from interception. When Retained by the Electronic Mail Com­ pany for Administrative Purposes.—All elec­ In order to determine the implications for tronic mail companies retain a copy of the civil liberties of intercepting electronic mail message both for billing purposes and as a con­ and the governmental interest in such inter­ venience in case the customer loses the mes­ ception, the electronic mail process as a whole sage. Based on the reasoning in United States needs to be evaluated in terms of the dimen­ v. Miller, 425 U.S. 435 (1976), where the Court sions developed in chapter 2 (see table 6). This ruled that records of financial transactions, in­ will aid in determining if there is a level of pro­ cluding copies of personal checks, were the tection against interception that should be property of the bank and that an individual guaranteed, regardless of the stage in the proc­ had no legal rights with respect to such records, ess at which the message may be intercepted. it is possible that an individual would not have a legal basis from which to challenge an elec­ In terms of the nature of the information, tronic mail company's disclosure of the con­ electronic mail surveillance can include both tents of messages or records of messages sent. the content of specific exchanges of informa­ tion, and transactional information concern­ The issue of the privacy of personal infor­ ing the time of the communication and loca­ mation retained by a third party is not unique tion of the parties. Both types of information to electronic mail. It is important to note, how­ may be of a personal nature. ever, that access to the administrative files of Electronic mail communications generally electronic mail companies can reveal a great are intended to be private communications be­ deal of information about an individual—the tween two parties or among a specified group. substance of communications, the record of The technology employed will allow different persons communicated with, and the locations degrees of privacy, i.e., personal computer to of sender and receiver. personal computer communications are inher­ The question of the legal status of electronic ently more private than electronic mail com­ mail information retained by the company is pany to hardcopy delivery communications. presently before the courts in a case in which Despite the variations in technology, elec­ the Government subpoenaed transactional tronic mail communications (including private and substantive records of The Source (Source electronic bulletin boards) usually are intended Telecomputing Co.) related to M.V.S. Associ­ for private consumption, with the notable ex­ ates, Inc., Elite Fleet, Inc., and/or Leo Radosta. ception of public electronic bulletin boards Leaving aside the questions of the possibly ex­ that are open to a broad range of subscribers cessive breadth of the subpoenas, the legal or users. question appears to turn on whether The Source is merely the temporary custodian of In terms of the scope of surveillance, inter­ records, in which case an individual can use ception of electronic mail communications can fifth amendment protections to prevent dis­ be quite broad depending on the extent to closure.10 Regardless of what the courts may which electronic mail is used by a particular individual. Interception of a large volume of 10See: Couch v. United States, 409 U.S. 322 (1973) and Bellis electronic mail communications may well be v. United States, 417 U.S. 85 (1975). construed as a fishing expedition. 51

It is very difficult for an individual to de­ mail. Using this as an operating assumption, termine if electronic mail has been intercepted, Congress would need to pass legislation that regardless of the stage at which it is inter­ included the following: cepted. While in the terminal of the sender or • Prohibition on unauthorized access to an mailbox of the receiver, audit trails and pass­ individual's computer file or individual's words can help in detecting interceptions or electronic mailbox unless a court order attempted interceptions. While being commu­ has been obtained. Two levels of court or­ nicated via the telecommunications system, it der may be appropriate. For purposes of is virtually impossible for the individual to de­ intercepting the contents of a file, a court tect interception. If someone attempts to in­ order could be obtained for national secu­ tercept the message while it is physically be­ rity, domestic security, and law enforce­ ing mailed, the post office might detect such ment purposes if there is probable cause an attempt and, if so, might inform the indi­ to believe the individual is implicated in vidual. The individual's ability to detect inter­ illegal activity. For purposes of determin­ ception of mail while it is retained in the files ing the transactions the individual en­ of the electronic mail company will likewise de­ gaged in, the requirements for a court or­ pend on the cooperation of the company. der could be the same as for a mail cover The pre-electronic analogy for electronic (monitoring the names and addresses on mail is probably quite direct—first class mail. the outside of the envelope). The same Traditionally, first class mail has been ac­ standards would apply regardless of corded a high level of protection from inter­ whether the mailbox was in a personal ception. computer or held by an electronic mail company. The governmental interest in intercepting electronic mail will, of course, vary based on • Prohibition on unauthorized interception the purpose of the investigation, the degree of data communication. Although the of suspicion, and whether or not other means analogy is still to first class mail, the have been attempted to secure similar infor­ vehicle for protection is more likely an mation. However, given the high threat to civil amendment to Title III that would pro­ liberties posed by interception of electronic tect all data communications transmitted mail, it appears that the governmental inter­ over wire. est in interception would have to be quite com­ • Establish the rights of the individual and pelling. responsibilities of the company when in­ formation is retained by the electronic 3. OTA identified three policy options that are mail company. The "Subscriber Privacy" available to Congress. The first would be to provisions of the Cable Communications legislate a similar level of protection across Policy Act of 1984 may serve as a model. all stages of the electronic mail process. The' second option would be to accord different Although it is premature to judge the ef­ protections according to perceived differential fectiveness of the "Subscriber Privacy" impacts on civil liberties at particular stages. provisions of this act, comments on the The third option would be to do nothing. enforcement scheme are in order. In gen­ eral, the subscriber is dependent on the These three policy options are briefly dis­ cable company for information regarding cussed below. the potential conflicts between the com­ Option A.—Based on the analogy to conven­ pany's practices and the individual's pri­ tional first class mail and the level of intru­ vacy. For example, the company is to siveness that interception of electronic mail inform the subscriber of the uses and dis­ entails, Congress could provide the same de­ closure of personally identifiable informa­ gree of protection for electronic mail that it tion. Practically speaking, this may just presently provides for conventional first class mean that at the time the individual signs 52

the contract, he or she is given a sheet of because they involve places that are more pri­ paper containing the company's general vate and because it would be harder for indi­ policies. The individual may or may not viduals to detect interceptions unless they understand, or even read, the information. were maintaining fairly secure personal com­ The act does place restrictions on the puting systems. Congress may not want to cable company's collection and disclosure take any specific action with respect to the sec­ of personally identifiable information, but ond stage (transmission), but leave it to the the restrictions are very vague. For exam­ resolution of the aural limitation in Title III. ple, "A cable operator may disclose such Likewise, with respect to interception of infor­ information if the disclosure is necessary mation held by the electronic mail company, to render, or conduct a legitimate busi­ Congress may wish to treat, in a systematic ness activity related to a cable service or fashion, all personal information held by third other service provided by the cable oper­ parties. ator to the subscriber." From a surveil­ Option C—Congress could continue to do lance standpoint, the act does require a nothing at this time and watch the develop­ Government entity to obtain a court or­ ment of the electronic mail market and evalu­ der for access to personally identifiable in­ ate case law development. However, there are formation. The court order must offer evi­ costs in pursuing this option. The market de­ dence that the subscriber "is reasonably velopments seem clear and the time appears suspected of engaging in criminal activ­ ripe for policy guidance before rights and ity and that the information sought would responsibilities become more confused. Addi­ be material evidence in the case." The in­ tionally, because of the number of stages at dividual must be given "the opportunity which electronic mail can be intercepted and to appear and contest such entity's claim." the range of governmental interests in inter­ Option B.—Under this option, Congress cepting electronic mail, the case law develop­ could decide that stages one and three (the ment will most likely be very specific to the terminal of sender and electronic mailbox of issues raised in particular cases, and will fall receiver) should be accorded more protection short of a national policy. INTENTIONAL BLANK PAGE

(53) Chapter 5 Other Surveillance Issues: Electronic Physical, Electronic Visual, and Electronic Data Base Surveillance

(54) Chapter 5 Other Surveillance Issues

SUMMARY Electronic Physical Surveillance Electronic Visual Surveillance Maintaining physical surveillance of individ­ Electronic visual surveillance through the uals is, traditionally, one of the most expen­ use of cameras is an alternative to physical sive and risky surveillance techniques used by surveillance. In the past, however, the size, law enforcement agencies and others. Porta­ cost, and technical requirements of cameras ble telecommunications devices are now offer­ have limited their effectiveness and useful­ ing a viable substitute in many cases. For ex­ ness. But the latest generation of cameras is ample, electronic beepers emit a radio signal smaller, cheaper, and easier to operate. There that can be monitored in order to track the already is a significant level of video surveil­ movements of a car or piece of property to lance of public places, such as the use of closed which a beeper is attached. Also, electronic circuit TV in banks, building lobbies, retail pagers—increasingly used by busy executives, stores, and the like. In addition, video surveil­ repair personnel, doctors, and the like—can be lance of private places is used for investiga­ intercepted to reveal information that may be tive and law enforcement purposes. useful in determining the subject's location and activity. OTA found that electronic visual surveil­ lance—whether in public or private places- OTA found that Federal investigative au­ is not covered by current Federal law, includ­ thorities are making extensive use of beepers ing Title III of the Omnibus Crime Control for conducting electronic physical surveillance and Safe Streets Act. The U.S. Department of persons and goods, but limited use of pag­ of Justice does voluntarily comply with some ing monitors. OTA also found that legislated provisions of Title III. Even under Depart­ policy on beepers and pagers is ambiguous and ment of Justice guidelines, electronic visual incomplete, although the U.S. Department of surveillance of private places is considered Justice believes that at least some beeper and legitimate and does not require a warrant if pager surveillance applications require a search one party has consented to the surveillance, warrant under judicial interpretations of fourth even if that party is an undercover agent or amendment protections. informer. Based on criteria used to determine the Electronic visual surveillance appears to threat to civil liberties—nature of information, pose a substantial threat to civil liberties, espe­ nature of place or communication, scope of cially if conducted in private places and with surveillance, surreptitiousness of surveillance, audio surveillance. The law enforcement inter­ and pre-electronic analogy—electronic physi­ est varies depending on the stage of investi­ cal surveillance appears to fall somewhere in gation. the middle. The investigative and law enforce­ ment interest appears to be significant—espe­ OTA identified five congressional policy op­ cially for beepers. tions for addressing visual surveillance: OTA identified three options for congres­ • legislate that such surveillance is pro­ sional consideration: 1) legislate one policy for hibited as an unreasonable search under all forms of electronic physical surveillance; the fourth amendment; 2) formulate separate policies for beepers and • subject electronic visual surveillance to pagers; or 3) do nothing at this time. a higher standard than currently exists

55 56

under Title III for bugging and wire­ • It is technically feasible to have an inter­ tapping; connected electronic network of Federal • treat electronic visual surveillance in the criminal justice, other civilian, and per­ same way as electronic audio surveillance; haps even military record systems that • apply a lower standard; and would monitor many individual trans­ • do nothing. actions with the Federal Government and be the equivalent of a national data base Data Base Surveillance surveillance system. • The legal and statutory framework for na­ As computerized record systems and data tional computer-based surveillance sys­ communication linkages become widespread, tems is unclear. the potential for computer-based surveillance • A central policy issue with respect to com­ of the movements and activities of individuals puter-based surveillance systems is de­ also increases. Various Federal agencies al­ signing and implementing a mechanism ready maintain computerized record systems to simultaneously: 1) identify and author­ that could be used as part of a data base sur­ ize those applications that have a sub­ veillance network. Four examples of such sys­ stantial law enforcement or intelligence tems are: the National Crime Information value; 2) minimize any adverse impacts on Center (FBI), Treasury Enforcement Commu­ individual rights from authorized use of nications System (Treasury), Anti-Smuggling the systems; and 3) protect against un­ Information System (Immigration and Natu­ authorized and/or expanded use of the ralization Service—INS), and National Auto­ systems and the substantial impacts on mated Immigration Lookout System (INS). constitutional rights that might result. Federal agencies believe that these and Establishment of a data protection board other systems are essential to carrying out is one option that warrants consideration. their authorized responsibilities. However, the • Other available options, not necessarily systems could include files on any definable mutually exclusive with establishing a category or type of persons, and could be in­ data protection board, include: placing terconnected with numerous other computer­ data base surveillance applications under ized systems. Title III of the Omnibus Crime Control Act; requiring congressional approval of Based on the results of the Federal Agency specific data base surveillance systems Data Request, OTA identified 85 computer­ (e.g., by statutory amendment or ap­ ized record systems used for law enforcement, proval of House and Senate authorizing investigative, and/or intelligence purposes committees); establishing general statu­ with, collectively, about 288 million records on tory standards for surveillance applica­ 114 million persons. The Departments of Jus­ tions; strengthening Office of Manage­ tice and Defense have by far the largest num­ ment and Budget (OMB) and/or agency ber of systems and records. None of the agen­ oversight roles with respect to data base cies responding provided statistics on record surveillance; and maintaining the status quality. quo. Based on a review of technology and policy developments, OTA found that: 57

PART I: ELECTRONIC PHYSICAL SURVEILLANCE Introduction ments. Pagers also offer opportunities for monitoring activities. Interception of informa­ In the past, physical surveillance has gen­ tion destined for pagers that can receive nu­ erally required around-the-clock agents with meric or alphanumeric data could be reveal­ backups at various points and has entailed a ing about the recipient's location or activities. high risk of detection by the party under sur­ While simple tone-only pagers offer no real veillance. Monitoring by portable telecommu­ surveillance potential, more sophisticated nications devices, or tracking devices, provides pagers with the ability to receive messages are a much less conspicuous way of following the likely to become commonplace in the next few physical activities of an individual, a car, or years. Future paging technology may also be an item. Monitoring by portable telecommu­ able to function as an electronic mail or data nications devices is relatively risk-free in terms communications terminal. Because of these of detection. Physical surveillance can be more technological changes, it is necessary to con­ efficient with the use of portable telecommu­ sider whether legislative action is needed to nications devices. However, electronic track­ determine when such devices can or should be ing may cost more because surveillance can used for monitoring purposes. be carried out for a longer period and because of the staff necessary to monitor the informa­ tion received. Background Electronic physical surveillance does raise Before analyzing policy issues and policy questions about the rights of individuals un­ options, a brief review of the technological der surveillance and the responsibilities of in­ development and potential of portable tele­ vestigative agencies. The availability of new communications devices will be presented to electronic physical surveillance devices to law provide a context for the policy discussion. enforcement agencies is likely to have signifi­ cant effects on the investigative process. Be­ Pagers fore the invention of such devices, it was gen­ erally assumed that an individual who was Electronic paging became a possibility in engaged in illegal activity was suspicious and 1949 when the Federal Communications Com­ was, therefore, aware that someone might be mission (FCC) allocated three bands of radio watching. It was also assumed that govern­ frequencies for mobile communications. Those mental agents would not invest the resources licensed to use these frequencies were consid­ to watch someone unless they were quite cer­ ered radio common carriers. Electronic pag­ tain that criminal activity would take place. ing did not become popular until the 1960s Therefore, it was not thought necessary to leg­ when the FCC allocated more frequencies, and islate restrictions on investigative physical doctors and traveling salespeople began to use surveillance. them to stay in touch with the office. In the 1980s, the use of electronic pagers expanded However, these assumptions can no longer as lawmakers, lobbyists, repair personnel, be made in an environment that has been business executives, and parents began to re­ changed so dramatically by portable telecom­ alize their potential as a means to stay in munications devices. It is now easy to attach touch. The number of pagers in use has grown a beeper to a car or item and follow its move­ significantly and is expected to increase. In 58

1976, there were an estimated 424,000 pagers; for paging. More paging channels have been in 1982, an estimated 2.2 million.1 Arthur D. allocated to the Private Carrier Paging Serv­ Little, Inc., expects that by 1990, 10 million ice, and paging can also be provided now over people will carry personal mobile message ma­ FM subcarriers.5 2 chines. Arthur D. Little anticipates that pub­ A potentially significant effect of recent lic systems will carry 80 percent of paging traf­ 3 FCC decisions is the creation of regional and fic, and private systems 20 percent. national paging networks. In January 1982, A number of pagers are available today, and the FCC allocated new frequencies in the 900 others are in the development stages.4 Tone- MHz band to radio common carriers to de­ only pagers, which beep or vibrate to inform velop local and wide-area paging. In May 1982, the wearer to call in, are still the most popu­ the FCC set aside one channel at 900 MHz for lar. There are also tone-voice pagers that give nationwide paging and two channnels for ei­ the wearer a 12-second voice message. A newly ther regional or national paging, depending on marketed pager uses a 10- or 12-digit liquid consumer interest. In May 1983, the FCC crystal to display messages. Such pagers could made all three channels available for nation­ be used to convey information to the wearer, wide paging. In April 1984, the FCC, on the ranging from phone numbers to stock infor­ basis of a lottery, awarded licenses for these mation to a patient's medical history to a three channels. It is expected that a nation­ coded message. A device that is presently be­ wide paging network will be in full operation ing developed is the voice-retrieval system for in 1986.6 The nationwide networking systems paging. With this pager, the caller's voice mes­ will use satellites and terrestrial phone sys­ sage is stored digitally and is retrieved when tems to transmit signals.7 the subscriber is ready to receive the message. The voice message is broadcast over a regu­ Paging radio technology also has enabled lar FM signal or an FM subcarrier signal, as the development of automatic vehicle location is the case for cellular phones. Another pager (AVL) systems. By using the Long Range in development that is thought to have great Navigation system (LORAN-C) of the Depart­ market potential is the alphanumeric pager, ment of Transportation, it is possible to locate which displays alphabetical as well as numer­ vehicles based on radio signals sent from the ical information. Some companies are devel­ vehicle, to a transmitter, to a base station. oping pagers that could print hard copy, thus With the use of an intelligent modem, infor­ mation on the location of the vehicle can be transforming pagers into pocket data ter­ 8 minals. communicated to a central point. As the technology develops, the cost of Beepers pagers and the subscription fees are dropping. The size and attractiveness of pagers are also Beepers, also known as "bumper beepers" adding to their marketability. Moreover, the or "bird dogs," are electronic transmitters FCC is taking action to expand the market for that generate a series of pulses and are used pagers. Recent FCC decisions will more than as a tracking device, frequently by law enforce­ quadruple the frequency spectrum available ment agencies for covert operations. A series of pulses is transmitted every 2 seconds. Beepers are about 4 inches long and 2 inches 1 Penny Pagano, "Thousands Heed Beeps From Pagers," The Los Angeles Times, Oct. 20, 1984. 2 Nell Henderson, "Beepers Said to Link Legions of Area's 5 "Telocator Members Told that Paging to Prosper in the Fu­ Workaholics," The Washington Post, Oct. 22, 1984. ture," op. cit. 3 "Telocator Members Told That Paging to Prosper in the Fu­ 6 "Nationwide Paging," Information sheet distributed by Telo­ ture," Telocator Network of America Bulletin, Sept. 28, 1984. cator Network of America. 4 For a more detailed description of the various pagers and 7 "F.C.C. Moves Toward National Paging System," The New the technology involved see: John G. Posa, "Radio Pagers Ex­ York Times, Aug. 20, 1984. pand Horizons," High Technology, March 1983, pp. 44-47, and 8 Bob Janc, "The 'Landsmart' AVL System," Telocator, Au­ "Special Report—RCC," Broadcasting, Oct. 4, 1982. gust 1983. 59 wide with a thickness of three-fourths of an veillance of persons or goods. Beepers are inch. Three U-shaped magnets on the bottom often attached to vehicles or goods, e.g., ship­ of the beeper are covered by a metal "keeper ments of guns, drugs, or materials used in the plate" which is sheathed over the magnets manufacture of illegal substances. Monitoring when not in use. The metal plate is removed of paging devices is not yet a major surveil­ and magnets exposed to attach the beeper to lance technique, in part because they are not a bumper, underneath a dashboard, or to any thought to be used extensively by persons en­ metal protrusions. Cars, ships, trucks, and gaged in illegal activities, except for drug metal containers can be tracked using beepers. dealers,9 and because the geographic range of use is narrow. Both of these features are pres­ Self-contained batteries supply the power ently changing. Paging devices would clearly source for beeper transmissions. A remote re­ meet the needs of anyone who was trying to ceiver is used to pick up signals. This receiver can be located in a car, an airplane, or a heli­ make connections to buy or sell goods, or to copter. From the air, a helicopter traveling indicate that a meeting was to take place. Once 6,000 feet above the ground can pick up sig­ investigative authorities perceive that paging nals within a 250-mile diameter. From the devices are being used in this way, there will ground in a metropolitan area, a vehicle can be interest in monitoring them. The develop­ pick up signals within a distance of approxi­ ment of a nationwide paging system will also mately 1 mile. make paging devices more attractive to a va­ riety of customers, and also to investigative The beeper receiver can pick up three types authorities as a way of monitoring long-dis­ of information. The first is directional infor­ tance movements and transactions. mation that determines the position of a ve­ hicle and the direction it is heading. The sec­ Pagers ond indicates whether a vehicle is stationary or moving. The third involves the relative dis­ Presently, there is no formal executive, legis­ tance to the vehicle being tracked. lative, or judicial policy with respect to the interception of pagers for investigative pur­ The FCC sets regulations on beeper fre­ poses. According to the Justice Department, quency levels, power ratings, and the like and the protections afforded pagers depend on the is involved in the authorization and licensing type of pager. The interception of "tonal process for law enforcement use of beepers. pagers," emitting only a sound, does not re­ The results of the OTA Federal Agency Data quire either a warrant or court order. Title III Request indicated that 13 Federal agency com­ does not apply because it is not an aural com­ ponents currently use beepers, with two other munication; the Foreign Intelligence Sur­ agency components planning such use. veillance Act (FISA) does not apply because paging is not a data communication. The inter­ Findings and Policy Implications ception of a display pager is not covered by Title III because it is not an aural intercep­ 1. OTA found that Federal investigative author­ tion, but would be covered by FISA because ities are making extensive use of beepers for it conveys information in digital form. The De­ conducting electronic physical surveillance of partment of Justice's policy is that intercep­ persons and goods, but limited use of paging tion of tonal pagers involves a sufficient in­ monitors. Legislated policy for beepers and vasion of privacy that a court order should be pagers is ambiguous and incomplete. secured prior to interception. Additionally, the The OTA Federal Agency Data Request and Department of Justice believes that users of discussions with representatives of the De­ display pagers have a reasonable expectation partments of Justice, Treasury, and Defense of privacy based on the fourth amendment, indicate that investigative authorities are making extensive use of portable telecommu­ 9 Interview with Maureen Killian, Department of Justice, Sept. nications devices in conducting physical sur­ 4, 1985. 60

and that a search warrant should be obtained tion on the location and movements of indi­ under Rule 41 of the Federal Rules of Crimi­ viduals, cars, or items. Voice pagers and dis­ nal Procedure. The interception of "tone and play pagers disclose the content of a message, voice pagers" would, the Justice Department however brief and cryptic the message might believes, require a Title III warrant because be. Beepers and tonal pagers do not disclose aural communication is involved.10 the number of individuals in a location or the activities in which they are engaged. Beepers Electronic physical surveillance does not dis­ The use of beepers for surveillance purposes criminate between public and private areas, has been the subject of two Supreme Court and can be considered intrusive when it allows cases. In United States v. Knotts, 103 S. Ct. the monitoring of movements in private areas. 1081 (1983), the Court ruled that the warrant­ Investigative agents who are conducting the less monitoring of a beeper was not a search monitoring can minimize the intrusion by or seizure under the fourth amendment, be­ turning off their devices when parties or ob­ cause there was no reasonable expectation of jects enter private places. privacy as the movements being tracked were all public. A year later, in United States v. Electronic physical surveillance casts a nar­ Karo, 104 S. Ct. 3296 (1984), the Court ruled row net in that it does not involve people who that using a beeper to trail a container into are not specifically under surveillance, unless a house and to keep in touch with it inside the they are passengers in a car. house did violate the fourth amendment. The It is difficult for an individual to determine Court found a legitimate expectation of pri­ whether a beeper has been attached to a car vacy in the house, and what it considered an or article. Beepers are easily concealed because equally legitimate expectation of privacy that of their size. Some may be detected with a anything coming into a house would do so metal detector or other sensor; however, one without a Government surveillance device. would have to be looking for a beeper in order The Justice Department policy on the use of to find it. It is almost impossible for an indi­ beepers follows the Supreme Court's holding, vidual to detect whether a signal or message i.e., a warrant is required if a beeper is poten­ that has been transmitted to a pager has been tially going to invade someone's privacy. The intercepted. It would be relatively easy to Department of Justice advises agents to get warn individuals who subscribe to paging a warrant for any use of beepers beyond use 11 services that the signals and messages re­ on a car. ceived can be monitored by others. 2. Based on the dimensions used to determine The closest pre-electronic analogy to elec­ the threat to civil liberties as introduced in tronic physical surveillance of public places is chapter 2, electronic physical surveillance falls physical surveillance on foot or by automobile, somewhere in the middle. The governmental while the analogy to surveillance inside private investigative interest appears to be signifi­ premises is to police undercover work. There cant—especially for the use of beepers. has been limited restriction on the use of un­ The nature of the information obtained by dercover agents. If they are too aggressive, electronic physical surveillance depends on the their case may be dismissed because of entrap­ device used. The information divulged by port­ ment. In general, undercover agents have not able telecommunications devices varies with been considered an infringement on one's ex­ the device. Beepers only yield limited informa­ pectation of privacy because an individual is thought to assume the risk of his or her in­ 10 See John Keeney, U.S. Department of Justice, Statement volvement with others. Congress has recently Before the Subcommittee on Patents, Copyrights and Trade­ been considering whether such a risk is real­ marks of the Senate Judiciary Committee, Sept. 12, 1984. istic or if there needs to be some guidance for 11 Remarks, Fred Hess, Criminal Division, U.S. Department of Justice, OTA Workshop, May 17, 1985. the types of roles or relationships in which un­ 61 dercover agents can engage. Although police Option A.—Fashioning a policy for all forms undercover work is the closest historical anal­ of electronic physical surveillance is an attrac­ ogy, it may not apply in the same way to elec­ tive option in that it is not dependent on spe­ tronic physical surveillance because it is based cific technological devices and, therefore, will on the assumption of risk. It would be diffi­ set standards and principles for the future as cult to argue that one assumes the risk that well as the present. However, given the differ­ one's movements are always being monitored ences in types of portable telecommunications by a beeper. It would not be as difficult to as­ devices and the different ways in which they sume that, if one was carrying a pager, one's are used, it may be difficult to design a com­ activities may be monitored. However, use of prehensive policy for this area. pagers may decline if this assumption were widely held. Option B.—Although pagers and beepers are similar in that they allow more efficient and The governmental interest in using electron­ less detectable surveillance of physical move­ ic physical surveillance will once again vary ments, from a policy perspective they are with the purpose of the investigation, the de­ markedly different in that a beeper needs to gree of suspicion, and whether or not other be attached by investigative authorities, while means have been attempted to secure similar a pager is used by an individual. This contrib­ information. Use of beepers and interception utes to the degree of suspicion that an indi­ of pagers occur in all types of investigations, vidual has about the possibility of being mon­ although they are probably used most often itored. People who carry pagers can be made in law enforcement investigations. Electronic aware of the potential for surveillance that physical surveillance is used at all stages of these devices allow. The possibility that one's an investigation, but is probably most useful movements may be monitored by a beeper is in building a record for probable cause. Elec­ more remote for most people. Because of dif­ tronic physical surveillance is more effective ferences in the active involvement of investiga­ and may be less costly than techniques that tive authorities and in the possible awareness are less technologically sophisticated. of targets of surveillance, it may be necessary to treat beepers and pagers separately. At this The accountability of authorities for use of time, the differences in the type of informa­ electronic physical surveillance devices is gen­ tion that can be gathered by monitoring beepers erally fairly low. They are considered tools of and pagers would also seem to dictate sepa­ routine investigative use, and can usually be rate legislation for each. authorized by the agent in the field. If a ques­ tion of privacy invasion is raised by the use It may also be necessary to treat pagers in of surveillance devices, then authorization a discriminate fashion depending on the amount should be obtained from agency headquarters. of information that the pager receives. This op­ It is possible to build in a method of account­ tion would be consistent with the present pol­ ability, such as authorization by a bureau head icy opinion of the Department of Justice. for a limited period of time with review and reauthorization possible, and standards of ac­ Option C.—Congress could wait to act until countability based on the stage of investiga­ the technology progresses, especially in terms tion and governmental interest. of the development of a nationwide paging net­ work. In formulating legislation for the proper 3. OTA identified three options for congression­ boundaries on police undercover work, Con­ al consideration with respect to policy on elec­ gress may want to consider the parallels be­ tronic physical surveillance: a) fashion one tween traditional physical surveillance and policy for all forms of electronic physical electronic physical surveillance and design pol­ surveillance; b) design separate policies for icy that is consistent for both. beepers and pagers; and c) do nothing at this time. 62

PART II: ELECTRONIC VISUAL SURVEILLANCE Introduction tions to ensure an expectation of privacy in a private place, e.g., locking the doors and clos­ As cameras have become smaller and eas­ ing the curtains. But, in the absence of legal ier to activate from a distance, they have be­ standards, the only effective barriers against come more attractive as a tool for watching electronic visual surveillance are the limita­ people and recording their activities. The evi­ tions of the technology and such limitations dence that can be obtained from electronic are few. visual surveillance, especially if accompanied by audio surveillance, is as complete as inves­ Electronic visual surveillance of public tigative authorities could expect. But there are places is not specifically addressed by Federal questions about the intrusive nature of elec­ statutes, although the assumption is that it tronic visual surveillance, and the circum­ is legitimate. Electronic visual surveillance of stances under which its use is appropriate. private places is not presently addressed by Electronic visual surveillance, more than any Federal laws. The Department of Justice has other form of electronic surveillance, reminds developed policy guidelines on the use of elec­ people of the specter of Big Brother watching tronic visual surveillance in private places. at all times and in all places. These guidelines are regarded as requirements There is presently a great deal of electronic for Department of Justice bureaus (FBI, INS, visual surveillance of public places. Banks and DEA) and advisory for other Federal in­ have cameras running continuously to moni­ vestigatory agencies (Bureau of Alcohol, To­ tor both the interior teller counters and also bacco and Firearms and Customs). Electronic the outside automatic teller machine areas. visual surveillance of private places where one Airports use electronic visual surveillance in party has consented to the surveillance, even a number of places to ensure the security of if that party is an undercover agent or in­ the passengers and equipment. Many large de­ former, is assumed to be legitimate. The Su­ partment stores, as well as all-night conven­ preme Court has not ruled on the many ques­ ience stores, use electronic visual surveillance tions that are raised by using electronic visual to deter and detect shoplifting and to compile surveillance. For example, if Government a visual record of activity. Many cities use agents wish to observe private behavior with closed circuit television to survey street corners the assistance of video cameras or closed- in high crime areas, subway platforms, and en­ circuit TV, must they get a court order as they trances to public buildings. The Federal Gov­ would for the use of electronic eavesdropping ernment uses electronic visual surveillance at equipment? Can a court, without specific stat­ various Federal buildings to monitor people utory authority, give authorization for new coming and going. Some employers, especially types of searches or does this overstep the factory owners and those who maintain large legitimate boundaries of judicial policymaking? clerical pools, use electronic visual surveillance to monitor the activities of workers. No one has accurate data on the extent of the use of visual surveillance, but there is gen­ The motivation for this electronic visual sur­ eral agreement inside and outside the inves­ veillance is a heightened concern for security; tigative community that it is increasing. The the result is that people are becoming more Department of Justice has indicated that it and more accustomed to being watched as has used electronic visual surveillance 18 they carry out their public life. As cameras times in the past year for investigative pur­ become smaller, and easier to install and to poses. Other Federal agencies, such as Treas­ monitor, their attractiveness as a means of ury and Defense, use video surveillance rou­ monitoring activities in private places be­ tinely to monitor the traffic at ports of entry comes greater. Previously, one could take ac­ or at buildings containing sensitive materials. 63

The ease with which video surveillance of lance purposes. A number of developments private places can be used is in dispute. Some have eliminated such problems.14 argue that the installation and changing of Miniature television cameras equipped with film make its use prohibitive unless there is a "charge-coupled device" rather than the easy access to the building or room on a regu­ traditional bulky television tubes are widely lar basis. For example, video surveillance was available at reasonable prices. Closed-circuit used successfully in monitoring the activities 12 cameras also make use of this technology and of the FALN group in Chicago, but the group thus can be easily installed. Technological ad­ met in a "safe house" and thus it was easy for vances have refined the sensor in the charge- law enforcement agents to gain access. Others coupled device and have made it even smaller argue that the miniaturization of cameras and and more powerful. It is predicted that min­ the use of film that is triggered by activity iature cameras will soon be on the market. make it easy to install and maintain video These cameras could be concealed in anything equipment. In support, they cite numerous from a briefcase, to a lamp, to a plant. It would technological developments and an R&D trend thus be easy for an agent who has even brief that indicates cameras and film will become access to an area under surveillance to install more attractive for investigative purposes. a miniature camera, leave, and return later to Electronic visual surveillance of private retrieve the film. places is most often used when one party con­ sents to the surveillance and can either install Fiber optics also permits the concealment and monitor the camera or make it possible of small cameras with the lens located at the for others to do so. Under this circumstance, surveillance site and the camera located at a no Title III warrant or judicial intervention distance. This is possible because of a "light is necessary. However, such enhancement of pipe," a bundle of thin, transparent fibers, what an undercover agent or informer can wit­ which conducts light and visual images from ness and testify to may be significantly more a lens to a camera. With these devices, an intrusive than an agent acting alone, and on agent need only enter the premises once, to in­ that basis might be required to have some stall the lens; film changing and retrieval can form of judicial authorization. be done at a distance. Low light level television technology makes Background it possible to see in the dark. Such devices have been used in several cities to detect street Before analyzing policy issues and policy op­ crime. Infrared television cameras also make tions, a review of electronic visual surveillance it possible to see in the dark by detecting in­ developments will be presented to provide a frared radiation with a camera that is sensi­ context for the policy discussion. tive to such radiation or by detecting infrared The early literature on modern surveillance radiation and converting it to electrical im­ techniques warned of the great potential of­ ages. The systems can then produce a detailed fered by hidden television and video cameras.13 black and white picture. In the 1960s, this was viewed as a threat The major advance in the area of visual tech­ rather than a reality because the size and so­ nology in the 1980s is the development of ma­ phistication of cameras made it difficult to in­ chine vision systems. Such systems combine stall, conceal, and maintain them for surveil­ video and computer technologies to allow com­ puterized analysis of what is being captured 12 See United States v. Torres (No. 84-1077, decided Dec. 19, 1984). 14 For a review of the technologies available in the mid-1970s 13 See: Alan Westin, Privacy and Freedom (New York: Athen­ see: David P. Hodges, "Electronic Visual Surveillance and the eum, 1967) and Samuel Dash, R. F. Schwartz and Robert Knowl­ Fourth Amendment: The Arrival of Big Brother?" 3 Hastings ton, The Eavesdroppers (New York: Da Capo, 1959). Constitutional Law Quarterly 261 (1976). 64 on the camera. Both the computer hardware, The courts have upheld the use of video sur­ which allows the system to rapidly scan and veillance for law enforcement purposes in a pick up the coordinates that define the outline number of cases. In evaluating the appropri­ of images,15 and the software, which is derived ateness of video surveillance, judges have con­ from artificial intelligence research and en­ sidered the place under surveillance, the evi­ ables images to be scanned in relation to pre- dence already accumulated, and the warrant programmed patterns,16 are important to the process used. effectiveness of machine vision systems. Such In 1981, the Court of Appeals of New York, systems have been used primarily in industry in People v. Teicher, 439 N.Y.S. 2d 846, up­ to perform a number of labor-intensive inspec­ held the use of video surveillance in a case tion tasks, including: identifying shapes, meas­ where a dentist was charged with sexually uring distances, gauging sizes, determining abusing his patients. The judge ruled that the orientation, quantifying motion, and detect­ 17 warrant authorizing video surveillance was ing surface shading. valid because probable cause was clearly es­ Although the major market for machine vi­ tablished by the affidavit, the warrant de­ sion systems is thought to be factories, there scribed the place to be searched and things to are other areas in which labor-intensive anal­ be seized, the warrant explicitly provided that ysis of films could be done by these systems.18 surveillance be conducted in such a way as to One is in defense for verification of treaties or minimize coverage of activities not related to evaluation of reconnaissance films from sat­ specified crimes, and the warrant gave evi­ ellites.19 Another is in the investigative area dence that there were no less intrusive means where films that are captured through elec­ for obtaining needed evidence. tronic visual surveillance are then analyzed by In 1981, the Michigan Court of Appeals in machine vision systems to differentiate the People v. Dezek, 308 N.W. 2d 652, ruled that segments of the film that are relevant to an a warrant for video surveillance of a restroom investigation from those that are not. Use of in a highway rest area where homosexual machine vision systems would drastically re­ activity was suspected was invalid because it duce what is presently a very labor-intensive did not limit the search to precise and dis­ part of electronic visual surveillance, and thus criminate circumstances. might make it more attractive. In December 1984, the Seventh Circuit Court of Appeals handed down the major de­ Findings and Policy Implications cision to date on the question of video surveil­ 1. OTA found that electronic visual surveillance lance, United States v. Torres. At issue was is not currently covered by Title III of the the FBI's video surveillance of the Puerto Omnibus Crime Control and Safe Streets Act. Rican nationalist group FALN for more than The U.S. Department of Justice voluntarily 130 hours over 6 months. The Seventh Circuit, complies with some Title III provisions. Some in an opinion authored by Judge Richard Pos­ judges have asked for congressional clarifi­ ner, held that the courts could authorize elec­ cation. tronic video surveillance if they followed the requirements of the fourth amendment's war­ rant clause, i.e., "no warrants shall issue, but 15 Marsha Johnston Fisher, "Micro-Based 'Roving' Eye Sifts upon probable cause, supported by Oath or Motion," MIS Week, Nov. 14, 1984, pp. 1, 42. 16 Paul Kinnuean, "Machines That See," Technology, April affirmation, and particularly describing the 1983, pp. 30-36. place to be searched, and the persons or things 17 John Meyer, "Vision Systems: Technology of the Future to be seized." In this case, the Government at Work Today," Computerworld, May 27, 1985, p. 13. 18 See: Edith Myhers, "Machines That See," Datamation, Nov. asked for the warrants in conjunction with its 1983, pp. 90-103, and "Machine Vision Merges With Process application for Title III eavesdropping war­ Imaging," Electronic Market Trends, February 1985, pp. 17-19. rants and followed the Title III requirements. 19 David Hafemeister, "Advances In Verification Technology," The Court held that: Bulletin of the Atomic Scientists, January 1985, pp. 35-40. 65

A warrant for video surveillance that com­ the subject's justifiable expectations of pri­ plies with those provisions that Congress put vacy, he shall initiate proceedings to obtain into Title III in order to implement the fourth a judicial warrant.24 amendment ought to satisfy the fourth amend­ ment's requirement of particularity as applied In the case of electronic visual surveillance of to such surveillance.20 public places or places to which the public has unrestricted access, the head of each Depart­ The Court went on to state that it did not sug­ ment of Justice investigative division has re­ gest that compliance with Title III was nec­ sponsibility for issuing guidelines for that di­ essarily required, but said that "we would vision. think it a very good thing if Congress re­ sponded to the issues discussed in this opin­ In 1984, Representative Robert Kastenmeier ion by amending Title III to bring television introduced the Electronic Surveillance Act of surveillance within its scope."21 It is important 1984 which, in part, would bring video sur­ to note that Judge Posner did not include all veillance under the Title III warrant require­ of the Title III requirements, i.e., the exclu­ ments. In this bill, video surveillance is defined sionary rule, the limitations on which Federal as "the recording of visual images of individ­ officials could make an application, limits on uals by television, film, videotape, or other the severity of the crimes that could be in­ similar method, in a location not open to the volved, and limits on State and local use.22 general public and without the consent of that individual."25 In September 1985, Congress­ The Department of Justice policy is to re­ man Kastenmeier introduced a separate bill, quire a warrant analogous to a Title III war­ the Video Surveillance Act of 1985 that deals rant for electronic visual surveillance that is exclusively with video surveillance.26 Other not in a public place or that is conducted in electronic surveillance activities are covered a nonconsensual situation. The policy is the in the Electronic Communications Privacy Act result of a desire to have evidence as clean as of 1985, also introduced in September 1985.27 possible, and the view that it is better to get a warrant "just in case" rather than have a 2. Electronic visual surveillance appears to pose judge rule the results of electronic visual sur­ a substantial threat to civil liberties, espe­ veillance inadmissible at a later date. The De­ cially if conducted in private places and with partment of the Treasury reports that it fol­ audio (as well as video). The governmental in­ lows the Department of Justice guidelines for terest varies depending on the stage of the in­ 23 vestigation in which electronic visual surveil­ use of electronic visual surveillance. lance is to be used. Although the present Department of Justice Before examining specific policy options, it guidelines require a warrant analogous to a is useful to examine the policy implications of Title III warrant for electronic visual surveil­ electronic visual surveillance in light of the lance, the Attorney General has delegated the principles that appear to have guided surveil­ authority to authorize television surveillance lance policy to date. Based on the dimensions to a responsible official within the Criminal Di­ introduced in chapter 2, electronic visual sur­ vision who may authorize the surveillance if veillance, especially when used in conjunction he or she:

.. . concludes that the proposed surveillance 24 Department of Justice, Order No. 985-82, "Delegation of would not intrude on the subject's justifiable Authority to Authorize Television Surveillance." 25 H.R. 6343, sec. 8, 3117, c. expectation of privacy ... If such official con­ 26 cludes that the surveillance would infringe on See H.R. 3455, Video Surveillance Act of 1985 and U.S. Con­ gress, House of Representatives, Congressional Record, Exten­ sion of Remarks, Sept. 30, 1985, p. E-4269. 20 United States v. Torres, No. 84-1077, p. 17 (7th Cir., Dec. 27 See H.R. 3378 and S. 1667, Electronic Communications 19, 1984). Privacy Act of 1985; U.S. Congress, House of Representatives, 21 Id. at 19. Congressional Record, Extension of Remarks, Sept. 19, 1985, 22 Remarks made at OTA Workshop, May 17, 1985. p. E-4128; and U.S. Congress, Senate, Congressional Record, 23 Remarks made at OTA Workshop, May 17, 1985. Sept. 19, 1985, p. S-11795. 66

with audio surveillance, poses a great, if not The governmental interest in using elec­ the greatest, threat to civil liberties. tronic visual surveillance will vary. Video sur­ veillance would be useful in investigations for The nature of the information that is gained any purpose, but, given the threats to civil lib­ with electronic visual surveillance is very per­ erties involved, would probably be difficult to sonal. The information is quite complete, in­ justify for investigations to ensure the proper cluding the content of movements, facial ex­ administration of Government programs and pressions, and nonverbal communications, as investigations of minor felonies and misde­ well as conversations if audio is used. meanors. Given the difficulties of installing Video surveillance can be usefully applied and monitoring and the need to have certain to surveillance of any area. The present con­ basic information, electronic visual surveil­ troversy is focused on the surveillance of pri­ lance will most likely be used when there is a vate places. Electronic video surveillance is ca­ high level of suspicion. As it is such an intru­ pable of penetrating the most private places, sive form of surveillance, it would be very hard where curtains are drawn and doors are locked, to justify its use during the early stages of an without leaving a trail. investigation. Although electronic visual sur­ veillance is more effective and less costly than The scope of a video or closed circuit TV less technologically sophisticated techniques, camera is broad. All persons and activities the threat to civil liberties involved would that come in camera range will be filmed. De­ seem to require that other techniques be tried pending on the area under surveillance, it is first. likely that a number of people unrelated to the investigation will be covered. In this case, the The present rules on the accountability of more private the area to be monitored, the nar­ authorities using electronic visual surveillance rower the scope of the surveillance. The scope are not clear. The Department of Justice guide­ of the surveillance might be minimized by the lines appear to leave officials in the Criminal use of machine vision systems that could scan Division some discretion, in that they have to the film for the targets of the surveillance or determine if the surveillance would violate an for certain types of motions. expectation of privacy and hence require a court warrant. Also unclear is the definition Given the miniaturization of video and TV of a public place. cameras, it is very difficult for an individual to detect electronic visual surveillance. Again, 3. OTA identified five policy options for address­ one would have to suspect that he or she was ing electronic visual surveillance—ranging the target of an investigation and would have from prohibiting such surveillance as uncon­ to look carefully to locate a hidden camera. Ad­ stitutional to doing nothing. In formulating ditionally, the present policy of allowing elec­ policy, the issues of consensual v. nonconsen­ tronic visual surveillance without a warrant sual visual surveillance and surveillance of if one party has consented raises very serious public v. private places need to be given care­ questions about how the concept of assump­ ful consideration. tion of risk is applied. The five policy options are discussed below. The historical analogy would be to under­ Option A.—The first option is to legislate a cover agents, although the use of video sur­ prohibition on electronic visual surveillance be­ veillance is much more powerful in terms of cause Congress considers it an unreasonable detail and unimpeachability. While the testi­ search under the fourth amendment. The ba­ mony of an agent or informer could always be sis for choosing this policy option might be the questioned and needs corroboration, the film assumption or belief that electronic visual sur­ would probably be accepted. It is always pos­ veillance is an inherently unacceptable form sible, however, to edit a film to make it more of surveillance because: 1) the information it incriminating and some editing may not be de­ secures is so complete and specific; 2) it can tectable. pick up the most private activities in hereto­ 67

fore private places; 3) it captures the activi­ Option C—The third policy option would be ties of people not under investigation; 4) it cap­ to treat electronic visual surveillance in the tures the unrelated activities of the targets; same way as electronic audio surveillance. The 5) it is very difficult to detect, and 6) its pre­ advantages of this are that visual surveillance electronic analogy, i.e., undercover agents, is is generally conducted with audio surveillance also regarded as intrusive. so that only one warrant would be necessary, Option B.—The second policy option is to re­ and that Title III is a known and tested pro­ gard electronic visual surveillance as more in­ cedure. The disadvantage is that the use of trusive and invasive than eavesdropping, but both audio and video may pose a greater risk not unacceptable in all circumstances. The to civil liberties. legislative option then would be to subject Option D.—The fourth policy option would electronic visual surveillance to higher author­ be to apply a lower standard to electronic ization standards than exist for bugging and visual surveillance than to eavesdropping. wiretapping under Title III. This option would This would be hard to justify, given the prin­ be especially applicable in four areas. First, ciples that appear to govern the use of surveil­ new minimization standards or a new concept lance. It could only be justified if video sur­ to restrict the scope of the invasion, in terms veillance were being used alone. of both place and content, might be developed. Additionally, the list of crimes and circum­ Option E.—The fifth option would be to do stances for which electronic visual surveillance nothing. The disadvantage of this option is is considered appropriate might be developed that both Judge Posner's request to Congress independently of the list for wiretapping. to deal with the issue and the questions raised Third, the use of video surveillance might be with the existing Department of Justice guide­ restricted to only very sensitive and important lines would remain unanswered in terms of types of investigations. Lastly, documented legislated policy. exhaustion of other techniques might be re­ quired.

PART III: DATA BASE SURVEILLANCE Introduction was prohibitive. In addition, the time delay in­ herent in paper linkages would negate much A significant implication of widespread com­ of the potential surveillance value. puterized record systems and data communi­ cation linkages is the increased potential for Computer-based record systems and elec­ computer-based surveillance of the movements tronic linkages make it possible to overcome and activities of individuals. the cost and time barriers associated with pa­ per systems. In theory, the technology permits In modern society, most persons leave a trail the instantaneous linkage of a large number of transactions with various institutions— of record systems that would capture and con­ governmental, retail, financial, educational, solidate, for example, gasoline credit card professional, criminal justice, and others. Be­ transactions, telephone calls, retail credit card fore the widespread use of computer-commu­ transactions, bank card transactions, and nication systems, linking various kinds of transactions with Government agencies. Thus, transactions was very difficult, if not impos­ electronic linkages could be used to conduct sible, since transactions were paper based and surveillance of individuals who are of inves­ the cost of matching or linking paper records tigative, law enforcement, and/or intelligence 68

interest to the Government. This assumes, of have an outstanding warrant for a Federal of­ course, that the Government agencies would fense or other extraditable felony or misde­ have electronic access to transactional record meanor offense. information. The early 1970s (actually April 1971 to Feb­ ruary 1974) pilot project had not been author­ Background ized by Congress. From then until 1982, the One example of a Federal computerized rec­ FBI rejected all requests or proposals for in­ ord system that could be used for surveillance telligence use of NCIC. However, in 1982 the purposes is the FBI's National Crime Infor­ Department of Justice and FBI approved a mation Center. NCIC maintains an "electron­ U.S. Secret Service proposal to establish an ic bulletin board" of, among other things, NCIC file on persons judged to represent a po­ wanted persons, missing persons, and persons tential threat to Secret Service protectees. with criminal history records. Law enforce­ That Secret Service file is now fully opera­ ment and criminal justice agencies make elec­ tional, and includes the names of about 125 tronic inquiries to the bulletin board to ascer­ persons judged by the Secret Service to rep­ tain whether particular individuals are listed resent substantial threats. Apparently, ac­ as wanted or missing or have a prior criminal cording to FBI Director William Webster, the record.28 The process of making inquiries about file has been quite useful in helping the Secret specific persons also generates information Service to keep track of (i.e., maintain surveil­ lance on) the location and movement of a sig­ about the location and movement of these in­ 30 dividuals and, indirectly by followup with the nificant number of these persons. inquiring officials, more detailed information During the past 2 years, several other pro­ about the nature of a person's activities at a posals for intelligence use of NCIC have been given point in time. discussed, although none has been approved. NCIC is, in effect, a computer-based system For example, suggestions have been made to for locating persons who are listed as wanted add new NCIC files on white-collar crime sus­ or missing or have a prior criminal record. Un­ pects and suspected organized crime asso­ til 1982, with one exception, NCIC was not ciates. used for intelligence purposes, that is, for lo­ Beyond this, the already existing electronic cating individuals not having a formal warrant linkages between NCIC and other Federal law outstanding and/or a formal criminal record. enforcement communication systems (e.g., the The one exception was during the the early Treasury Enforcement Communication Sys­ 1970s, when the FBI made very limited use tem, or TECS) easily could be extended to of NCIC to keep track of, for example, bank other Federal criminal justice record systems robbery suspects. The objective here was "to and even to Federal noncriminal justice rec­ enable law enforcement agencies to locate, ord systems. through NCIC, individuals being sought for law enforcement purposes who did not meet TECS is a good example of the extensive the criteria for inclusion in the NCIC wanted electronic linkages already in place. TECS in­ person file."29 In other words, NCIC was be­ cludes a wide range of information on persons ing used to track individuals who had not been that are suspected of or wanted for violations formally charged with a crime and did not of U.S. Customs or related laws, including per­ sons suspected of or wanted for thefts from international commerce, and persons with out­ 28 For further discussion of NCIC, see OTA, Assessment of Alternatives for a National Computerized Criminal History Sys­ standing Federal or State warrants. TECS in­ tem, October 1982. cludes the same kind of information on sus­ 29 Letter from Harold R. Tyler, Jr., Deputy Attorney General, U.S. Department of Justice, to Senator John Tunney, Chair­ man, Subcommittee on Constitutional Rights, Committee on 30 Statement of William Webster, FBI Director, at Oct. 17, the Judiciary, U.S. Senate, Oct. 29, 1975. 1984, NCIC Advisory Policy Board Meeting. 69

pects that has proven so controversial when Table 8.—Source of Treasury Enforcement proposed for NCIC. Of course, TECS is not Communication System/Border Enforcement accessible on-line to tens of thousands of State System Records and local law enforcement and criminal justice Number of agencies, as is NCIC. Nonetheless, TECS is Source records accessible to numerous Federal agencies (plus U.S. Customs Service .... 897,963 two foreign agencies), as indicated in table 7. Immigration and Naturalization Service .. . 32,828 The so-called Border Enforcement System National Narcotics Border Interdiction System 959 is the major component of TECS. Computer­ National Crime Information Center 220,693 ized information from this system is used, U.S. Coast Guard 2 among other things, to: assist U.S. Customs Internal Revenue Service Inspection ... 6,102 Internal Revenue Service Criminal and the Immigration and Naturalization Serv­ Investigation 100,692 ice personnel screen persons and property en­ Drug Enforcement Administration .. 114,387 tering and exiting the United States; alert Bureau of Alcohol, Tobacco and Firearms ...... 712,720 Customs and INS officers to potentially dan­ Royal Canadian Mounted Police 22,022 gerous persons or situations; provide inves­ U.S. Department of State 19,721 tigative data to Customs or other agency law Interpol 49,699 Total 2,177,788 records enforcement or intelligence officers; and aid in (on 2.153.888 person) the exchange of data with other Federal, State, SOURCE: U.S. Customs, as of May 1, 1985. or local law enforcement agencies. As of May 1, 1985, the TECS Border En­ Immigration Lookout System—include infor­ forcement System included computerized rec­ mation on suspected as well as known viola­ ords on over 2 million persons. Table 8 gives tors. And one of the major purposes of these the distribution of the record sources. two systems is to monitor the movements of suspected violators. One of the TECS users and record sources is INS. INS, in turn, has its own extensive Other Federal agencies maintain similar computerized law enforcement, investigative," computerized record systems. Based on the re­ and intelligence systems, with records on, col­ sults of the Federal Agency Data Request, lectively, several tens of millions of persons. OTA identified 85 computerized record sys­ Highlights of several of the INS computerized tems operated by Federal agencies for law en­ record systems are presented in table 9. forcement, investigative, and/or intelligence purposes. Out of 142 agency components re­ Again, two of these systems—Anti-Smuggling sponding, 36 (or 25 percent) reported the use Information System and National Automated of at least one such computerized system. Col­ lectively, the 85 systems include about 288 million records on about 114 million persons. Table 7.—Treasury Enforcement Communication System/ (Note that some systems may overlap with Border Enforcement, System Users multiple records on the same persons, and • U.S. Customs Service some agencies did not know or did not provide • Bureau of Alcohol, Tobacco and Firearms the number of records and persons per system. • Immigration and Naturalization Service Nonetheless, the overall results provide the • Federal Bureau of Investigation • U.S. Marshals Service most complete accounting of such systems to • Interpol (International Police Organization) date.) The Departments of Justice and De­ • Drug Enforcement Administration fense have by far the largest number of sys­ • El Paso Intelligence Center • Internal Revenue Service tems and records. Justice reports 15 systems • U.S. Coast Guard with, collectively, about 241 million records on • U.S. Department of State 87 million persons. Defense reports 18 systems • National Narcotics Border Interdiction System with about 29 million records on 22 million • Royal Canadian Mounted Police SOURCE: U.S. Customs. persons. 70

Table 9.—Selected INS Computerized Record Systems

Number of Number of Name of record system Contents records persons Anti-Smuggling Information System (ASIS) Known or suspected alien smuggling 750,000 unknown operations Central Index System (CIS) All aliens and naturalized citizens except 152,000,000 21,000,000 temporary visitors Non-Immigrant Information System (NIIS) . All temporary visitors to U.S. 24,000,000 24,000,000 Student School System (STSC) All foreign students and schools they 750,000a 687,000 attend National Automated Immigration Lookout Known or suspected violators of INS 40,000 40,000 System (NAILS) . laws and other Federal statutes a 87,000 persons plus 18,500 schools. SOURCE: Immigration and Naturalization Service, based on June 1985 response to OTA Federal Agency Data Request.

OTA also asked agencies for any statistics or activities of listed persons. This scenario on record quality (completeness and accuracy) could be further extended to include travel and for such systems. No such statistics were pro­ credit card transactions and the like. vided by any of the 142 agency components Of course, these are hypothetical examples responding. The four specific examples noted at this point in time, but serve to demonstrate earlier illustrate the already extensive devel­ the vast technical potential for computer- opment of computerized data base systems based surveillance inherent in record linkages operated by Federal agencies for law enforce­ among computerized systems. These kinds of ment, investigative, and/or intelligence pur­ potential applications raise numerous issues, poses. Federal agencies believe that these systems are essential to carrying out their au­ ranging from whether the application would thorized responsibilities. However, the sys­ be cost effective and serve a significant, use­ tems are capable of including files on any ful, and lawful criminal justice purpose to the definable category or type of persons, and are possible implications for civil and constitu­ capable of interconnection with numerous tional rights. other computerized systems. As a result, these For example, first amendment rights could systems (and others like them) provide the be violated to the extent a national computer- technical infrastructure of a data base surveil­ based surveillance system was used to moni­ lance system. tor the lawful and peaceful activities or asso­ ciations of citizens or if it were to have the effect of discouraging such activities or asso­ Findings and Policy Implications ciations. Fourth amendment rights could be violated if the surveillance amounted to an 1. It is technically feasible to have an intercon­ unreasonable search and seizure of personal nected electronic network of Federal criminal information. And, as a final example, fifth justice, other civilian, and perhaps even mili­ tary record systems that would monitor many amendment rights to due process could be vio­ individual transactions with the Federal Gov­ lated if such surveillance was conducted with­ ernment and be the equivalent of a national out first establishing probable cause or reason­ data base surveillance system. able suspicion and without serving advance notice on the subject individual; For example, the current Secret Service file on NCIC could be extended so that the list of The possible civil liberties implications dangerous persons would be checked against would need to be balanced against the Gov­ not only NCIC wanted person and criminal ernment's interest in, for example, enforcing history inquiries, but also social security, food public laws, maintaining social order, and pro­ stamp, and other kinds of inquiries or record tecting the national security. Thus, the trade­ transactions that would indicate the location offs could, indeed, be difficult to balance. 71

2. The legal and statutory framework for na­ resent all elements of the criminal justice com­ tional computer-based surveillance systems is munity. Comprehensive legislative proposals unclear. developed in 1974 included an independent The systems would appear to be subject to Federal Information Systems Board that was the Privacy Act and perhaps other statutes, to be responsible for the operation and regu­ depending on the purpose. Law enforcement lation of a national CCH system. On a broader investigative record systems are exempt from level, several European countries have estab­ key elements of the Privacy Act, but other rec­ lished independent data protection boards or ord systems would have to establish that sur­ authorities that have some oversight author­ veillance use is a routine use under the Privacy ity over law enforcement and intelligence sys­ Act, and all such systems would have to pub­ tems, as well as a wide range of privacy-related lish notices in the Federal Register and with­ systems (e.g., social services, health, and edu­ stand the inevitable congressional scrutiny. cation). This would appear to be quite difficult to do, The institutional placement of such a board although computer matching was defined as or authority would be important. If it were to a routine use, apparently with relatively lit­ be a new board within an existing department, tle difficulty. On the other hand, if the surveil­ its power might be too dependent on that of lance was directed at, say, foreign terrorist the department and its character shaped by activity, the system might fall under Foreign that department. Additionally, the depart­ Intelligence Surveillance Act and be subject ment might well have interests that might to little or no public scrutiny. Data base sur­ conflict or interfere with the responsibilities veillance does not appear to fall under Title of the board. If it were to be a board report­ III of the Omnibus Crime Control and Safe ing to the President, it would have added stat­ Streets Act since there would be no "aural" ure and potential influence, but it might eas­ acquisition. ily be politicized, and its visibility and stature 3. A central policy issue with respect to comput­ might well change with changes in adminis­ er-based surveillance systems is designing and trations. If the board were to report to Con­ implementing a mechanism to simultane­ gress, either directly or through a special joint ously: 1) identify and authorize those applica­ committee, it would be independent of the ex­ tions that have a substantial law enforcement ecutive agencies that have stakes in personal or intelligence value; 2) minimize any adverse information collection and use. It might be less impacts on individual rights from authorized open to partisan uses, but the board might be­ and/or expanded use of the systems and the come too removed from the realities of agency substantial impacts on constitutional rights operations. that might result. Establishment of a data protection board is one option that warrants consideration. The responsibilities of such a board or au­ thority are also important. Should the board's One policy option that has been proposed jurisdiction be limited to some surveillance ap­ from time to time in the United States and has plications, all surveillance applications, all law been implemented in other countries is a data enforcement/intelligence uses, privacy-related protection board. Such a board was proposed applications, and so forth? The broader the in the 1970s with respect to NCIC, and in par­ responsibilities, the larger the necessary size ticular the computerized criminal history and budget of the board, or, in the absence of (CCH) program. As early as September 1970, adequate resources, the greater the work over­ OMB recommended the establishment of a load. On the other hand, a broad mandate may strong "policy control board" that would re­ be necessary to gain the necessary political port directly to the U.S. Attorney General. support, thus contributing to a better overall The board was to include officials from the understanding of agency technologies and FBI, the Law Enforcement Assistance Ad­ practices and resulting in more effective over­ ministration (LEAA), and the States, and rep­ sight and better decisions. 72

Other questions include the size and com­ tions must be approved by Congress. The position of the board, process of appointments, strongest (and most difficult) form of approval scope of authority, and extent of decisionmak­ would be to require an act of Congress in the ing v. advisory, research, and/or information form of a further amendment to the enabling clearinghouse responsibilities. statute. Short of that, formal approval of the 4. Other available options, not necessarily mutu­ relevant House and Senate authorizing com­ ally exclusive with establishing a data protec­ mittees could be required. Alternatively, agen­ tion board, include: placing data base surveil­ cies could be required to give the authorizing lance applications under Title III of the committees 60 to 90 or 120 days' formal ad­ Omnibus Crime Control Act; requiring con­ vance notice, so that an investigation could be gressional approval of specific data base sur­ conducted and oversight hearings held, if veillance systems (e.g., by statutory amendment desired. or approval of House and Senate authorizing committees); establishing general statutory As an alternative or complement to such standards for surveillance applications; main­ congressional notice and/or approval options, taining the status quo; and strengthening OMB's role could be strengthened by setting OMB and/or agency roles with respect to data up a separate, statutory office within OMB base surveillance. and mandating a minimum staff. However, One congressional option would be to amend some of OMB's other responsibilities may con­ Title III, making data base surveillance sub­ flict, and it is unclear that such an office lo­ ject to the Title III procedural and balancing cated in OMB would or could provide effec­ requirements. Another legislative option would tive oversight. There is also the option of be to amend the enabling statutes of the vari­ establishing agency staff in the data protec­ ous individual computerized systems that are tion area and/or assigning new responsibilities or could be used for surveillance purposes (or to the Privacy Officers and/or Inspector Gen­ enact specific enabling statutes where none ex­ eral offices. ist) to require that new surveillance applica-

O Office of Technology Assessment

The Office of Technology Assessment (OTA) was created in 1972 as an analytical arm of Congress. OTA's basic function is to help leg­ islative policymakers anticipate and plan for the consequences of technological changes and to examine the many ways, expected and unexpected, in which technology affects people's lives. The assessment of technology calls for exploration of the physical, biological, economic, social, and political impacts that can result from applications of scien­ tific knowledge. OTA provides Congress with independent and timely information about the potential effects—both beneficial and harmful— of technological applications. Requests for studies are made by chairmen of standing committees of the House of Representatives or Senate; by the Technology Assess­ ment Board, the governing body of OTA; or by the Director of OTA in consultation with the Board. The Technology Assessment Board is composed of six members of the House, six members of the Senate, and the OTA Director, who is a nonvoting member. OTA has studies under way in nine program areas: energy and ma­ terials; industry, technology, and employment; international security and commerce; biological applications; food and renewable resources; health; communication and information technologies; oceans and en­ vironment; and science, transportation, and innovation.