1995 Congressional HearingsIntelligence and Security
1995 Congressional Hearings
TESTIMONY OF JAMES P. FLEISSNER
ASSISTANT PROFESSOR OF LAW
MERCER UNIVERSITY SCHOOL OF LAW
ON
THE COMPREHENSIVE ANTITERRORISM ACT OF 1995
BEFORE
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
JUNE 12, 1995
Statement of James P. Fleissner, Assistant
Professor of Law, Mercer University School
of Law, concerning certain provisions of
H.R. 1710, the Comprehensive Antiterrorism
Act of 1995
Submitted to the Committee on the Judiciary
of the House of Representatives
June 12, 1995
I appreciate the invitation of the Committee to
provide testimony concerning the portions of H.R. 1710
amending Title 18, United States Code, Sections 2510-
2521. This part of the United States Code, which
commonly is referred to as "Title III" because of its
origin in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, is the principal federal
statutory scheme governing the use of electronic
surveillance law enforcement agencies. My testimony
will focus on the provisions of H.R.1710 setting forth
amendments to Title III, namely sections 301 and 306
through 309.
I joined the faculty of Mercer Law School last
fall, after prosecuting criminal cases for almost eight
years as an Assistant United States attorney for the
Northern district oœ Illinois, During about half of my time
with the U.S. Attorney's Office, I worked as a supervisor,
last serving as chief of the General Crimes Section. I had
the opportunity to work on many investigations and
prosecutions utilizing court ordered electronic surveillance
under Title III. I hope my perspective as a former
prosecutor with hands-on experience with Title III
investigations and prosecutions will be of some help to the
Committee.
My testimony to the committee has two parts. First, I
will provide some background information regarding Title III
and its use by federal prosecutors. This is to put the
proposed amendments contained in H.R, 1710 into perspective.
Second, I will provide my assessment oœ the amendments to
Title III proposed in H.R. 1710, including a discussion of
each of the specific changes to Title III called for in the
bill. My conclusion, after reviewing the amendments,is that
H.R. 1710 would make significant improvements in Title
III, improvements that have the potential of assisting law
enforcement in combatting crime, especially cries of
terrorism, without infringing on the rights of citizens . I
believe that the adjustments made to Title III by H.R. 1710
are prudent and sensible changes that are in conformity with
the requirements of the Constitution .
Background Concerning Title III
The members of this Committee understand the need to
enact legislation that strikes a balance protecting the
Constitutional rights of Americans while providing law
enforcement the tools needed to investigate and prosecute
crimes, including crimes of terrorism. The Congress faced
the same issue when first enacting Title III in 1968: How
can legislation be crafted to ensure that fourth amendment
rights are preserved while permitting law enforcement to
conduct useful electronic surveillance
I believe there is substantial agreement that Congress
struck the proper balance in enacting Title
III. The Congress intended to codify in Title III rules
meeting or exceeding the protection required by the fourth
amendment, which prohibits unreasonable searches and
seizures and requires, except for emergency circumstances,
that searches be done pursuant to a warrant issued by a
judge. As amended over time, Title III regulates the
interceptions of several categories of communications:
private face-to-face conversations ("oral communications")
communications over the telephone network ("wire
communications") and certain data transmissions (electronic
communications" ) . Title III established detailed,
comprehensive procedures governing electronic surveillance,
including the following:
O The attorney General (or her designate) must approve
every application for a court ordered intercept.
O Applications may only be made to investigate certain
offenses set forth in Title III.
O The application must provide sufficient facts for the
court to make a three-tiered finding of
probable cause regarding the commission of crimes by certain
persons, the use of facilities or premises to be monitored
by those persons, and the use of those facilities or
premises by the persons in connection with the crimes under
investigation.
ù The application must state that other investigative
procedures have been tried and failed, or are impractical or
dangerous.
O The agents executing the Title III warrant must
minimize the interception of communications no pertinent to
the investigation and privileged communications.
ù Court orders for electronic surveillance are to be
only for the time needed to achieve the objective for the
search, and in no event longer than 30 days. Extensions
beyond 30 days can be granted upon submission of a new
application meeting all of the requirements of the initial
application
ø Records and recordings from the surveillance must be
properly sealed and stored.
O Evidence seized in violation of Title III
may be challenged and suppressed.
These procedures were meant to codify the protection of
the fourth amendment as it had been interpreted by the
Supreme Court. Since the adoption of Title III, the Supreme
court has decided a number of cases involving Title III and
has not expressed any doubt as to its constitutionality
Furthermore, every United States Court of Appeals addressing
the issue has affirmed the constitutionality of Title III.
While Title III serves to protect fourth amendment
rights, it allows for electronic surveillance consistent
with the Constitution. The federal government has utilized
Title III in any investigations with great success. The
statute has been of significant value, especially during
investigations of concerted activity by groups of
Sec. a.g., Scott v. United States, 436 U.S. 128 (1978);
United States v. Donovan, 429 U.S. 413 (1977); United States
v. Giordano, 416 U.S. 505 (1974); United States v. Chavez,
416 U.S. 562 (1974); United States v. Kahn, 415 U.S. 143
(1974).
Sec, United States v. Petto, 973 F.3d 1441, 1443 (9th
Cir. 1992); United States v. Turner, (528 F.2d 143, 158-59
(9th Cir. 1975) (collecting cases). offenders, such as organized crime syndicates and narcotics
distribution rings. I worked on the investigation and
prosecution of cases that are testament to the value of
Title III to law enforcement.
Although the use of Title III in federal criminal
investigations has had a major impact, the government's
use of the statute has been marked by discretion and
caution. In 1992 there were 340 court orders for
interception obtained by the federal government under
Title III (3). Of those, 226 were issued in narcotics
cases and 38 were issued in racketeering cases. These
figures are put in perspective when one considers that
in 1992 over 51, 000 defendants were convicted in
federal courts.
Not only has the federal government's use of Title III
been limited in scope, it has also been deliberate and
careful. Deliberation and care regarding staining and
executing Title III orders are institutionalized ln the
department of Justice. Applications are
3. The statistics in this paragraph are derived from
Soucrebook of Criminal Justice Statistics 1991, U.S.
Department of Justice, Bureau of Justice Statistics, Tables
5.2 and 5.3 at 475 and table 5.18 at 490.
exhaustively reviewed by local U.S. Attorney's, Main
Justice, and the investigative agencies. The
Department's internal guidelines often exceed the
requirements oœ Title III. My experience is that
government attorneys and law enforcement agents work
diligently ln Title III Investigations to do everything
properly. Certainly mistakes are made, but my
experience tells me the quality of work by those
responsible for obtaining and executing Title III
orders is done in a professional manner.
The background information I have provided was
summarized by a leading commentator on Title III, Professor
Michael Goldsmith: "[E]lectronic surveillance is not a
routine investigative technique. Even so, Title III has been
enormously valuable in complex criminal cases, particularly
organized crime and narcotics investigations. Moreover, the
statute increased privacy protection and won uniform
constitutional approval. Thus as originally enacted, Title
III effected an appropriate balance between law
enforcement and privacy interests." (4)
Assessment of the Proposed Amendments to Title III
The critical question concerning the amendments to
Title Ill contained ln H.R. 1710 is whether those amendments
will disrupt the balance between Constitutional rights and
the interest in effective law enforcement that Title III
currently achieves. My assessment is that the amendments to
Title III contained in H.R. 1710 are prudent adjustments,
which, by and large, have the potential to help combat
crime, including crimes of terrorism, without creating new
risks that the fourth amendment rights of Americans will be
infringed. H.R 1710 contains several specific amendments to
Title III. Each will be addressed in turn.
Section 301 (a)
This provision of H.R. 1710 would amend the part of
4. Michael Goldsmith, Eavesdropping Reform: The Legality
of Roving Surveillance, 1987 U. Ill. L. Rev. 401, 408-409
(1987) (footnotes omitted).
Title lll listing the specific offenses which may be
investigated using Title III interceptions. 18 U.S.C. S
2516. Section 301 (a) of H.R. 1710 would add several types
of criminal violations to the list of those in the statute.
This amendment would allow Title III interception orders to
be obtained Ln the investigation of several offenses for
which orders could not now be obtained .
Each of the offenses to be added under H.R. 1710 is the
sort of offense that could be committed as part of terrorist
activity. Each of the offenses, if committed "to achieve
political or social ends," could, depending on the facts of
the case, fit squarely within the definition of "terrorism"
in Section 315 of H.R. 1710. The offenses added by the bill
include certain offenses involving explosives (18 U.S.C. S
842) actions against foreign nations from within U.S.
jurisdiction (18 U.S.C. SS 956 and 960), attacks against
U.S. officials and employees and foreign officials (18
U.S.C. SS 11114, 1116, and 1751), several sorts of
terrorist activity defined in recently enacted statutes
(18 U.S.C. SS 2332, 2332a, and 2339a), and violence
involving air transportation (18 U.S.C. S 37 and 49 U.S.C. S
46502) (5).
Adding these crimes to the list of crimes that can be
investigated under Title III is a good idea. While other
crimes currently on the list may cover terrorist activities
under Investigation, H.R. 1710 would ensure that conduct
constituting these serious offenses could be investigated
under Title III. Of course, any such
investigation would have to comply with all of the
procedures of Title III .
Section 301 (b)
This provision would make an amendment to the procedure
in Title III concerning when the prosecutor must file
progress reports on an authorized interception to the court
which ordered the interception.
Under current law, whether to require reports during
5. My research indicated that two of the crimes set forth in
H.R. 1710 to be added to the list in 18 U.S.C. S 2516 were
added be prior legislation. It appears that 18 U.S.C. S
1751 (relating to presidential assassination) and 49 U.S.C.
S 46502 (relating to air privacy) already are listed in
Section 2516. See 18 U.S.C.A. SS 2516 (c) and 2516 (j)
(West 1995).
the period of interception is left up to the judge issuing
the court order. 18 U.S.C. S 2518 (6). H,R, 1710 would
require a single report 15 days after the interception has
begun, This amendment would require a report and standardize
the number of reports. I am unaware of data on the number of
reports required, but it was the practice in my former
office to include 2 ten day reports in the draft orders
submitted to the court . The single report after 15 days
would, in my judgement, be sufficient. It is important to
note that the court may limit surveillance to any period
less than the 30 day maximum and that surveillance is always
limited to the period "necessary to achieve the objective of
the authorization." l8 U.S.C. S 2518 (5). H.R. 1710 would
not make any change in these provisions in Title III.
Section 30
Title III prohibits the use of evidence seized by
electronic surveillance if the disclosure of the evidence
would be in violation of the provisions of Title III. l8 U.
S.C. S 2515. This is the statutory
"exclusionary rule" of Title III. The Supreme Court has
interpreted this exclusionary rule to require exclusion of
evidence only where the provision of Title III violated
during the seizure "was intended to play a central role in
the statutory scheme" (6). This interpretation of the rule
is, in my view, sound because it limits the remedy of
suppression of evidence to serious breaches of the
procedures of Title III. For example, suppose a prosecutor,
through oversight, fails to have the court seal the original
tapes from wiretap in a timely manner as refund by 18 U.S.C.
2518 (8)(a). In circumstances indicating that the evidence
was not tampered with, suppression of the evidence would be
an extreme sanction for a breach of a provision that is not
central to the statutory scheme (7). The Supreme Court
appropriately has taken a flexible approach to the statutory
exclusionary rule of Title III.
6. United States v. Giordano, 416 U.S. 505, 528 (1974),
See also United States v. Chavez, 416 U.S. 562 (1974).
7. See e.g., United States v. Acon, 513 F.3d 513, 518,
(3d Cir. 1975). H.R. 1710 would amend the exclusionary rule in Section
2515 to exclude evidence seized in violation of Title III
only where the violation "involved bad faith by law
enforcement." Section 306. This amendment would bring the
exclusionary rule for violations of the various procedures
in Title III into conformity with the exclusionary rule
articulated by the Supreme Court for violations of the
fourth amendment. The supreme Court has held that the
fourth amendment exclusionary rule does not require the
suppression of evidence seized by police who relied in good
faith on a search warrant subsequently found not to be
supported by probable cause (8). This "good faith exception"
to the fourth amendment exclusionary rule makes sense: The
central idea behind an exlusionary rule is to deter
intentional breaches of the law. Suppressing evidence seized
in good faith is an inappropriate sanction that keeps
important evidence from the trier of fact while contributing
little to deterring misconduct.
8. United States v. Leon, 468 U.S. 897 (1984). See
also Massachusetts v. Shepard, 469 U.S. 981 (1984)
H.R. 1710 would codify the good faith exception in the
exclusionary rule of Title III. This would make the
exclusionary rule of Title III coterminous with the
exclusionary rule of the fourth amendment (9).
This amendment would also make the standard for
exclusion the same for all the categories of communications
regulated by Title lII. In 1986, through an amendment to
Section 2518 (10) (c), the Congress limited exclusions of
improperly seized "electronic communications" to those
seized in bad faith (10). The amendment in H.R. 1710 would
put "oral communications" and "wire communications" under
the same standard as "electronic communications, " namely,
the standard required by the fourth amendment (11).
9. At least one court has held that the good faith
exception in Leon applies to exclusions under Title III,
even without the proposed amendment. United States v.
Gambino, 741 F.Supp. 412, 415 (S.D.N.Y. 1990).
l0. See House Report No . 99-647 at 48.
11. One related issue that would be settled by the
amendment is whether communications seized by private
individuals in violation of Title III could be introduced by
the government in a criminal prosecution. Since such an
illegal seizure would not involve bad faith by law
enforcement, the amendment would appear to allow admission
of the evidence. I support this result. Of course, the
illegal seizure could still be punished by criminal or civil
sanctions. See generally, Cillford S. Fishman, Wiretapping
and Eavesdropping 42 (1978).
H.R. 1710 would not alter the potential criminal and
civil sanctions available for persons violating Title III's
Procedures.
Section 3 0 7
This provision makes two technical amendments to
operating definitions in Title III. Section 307 (a) amends
the definition of "electronic communication" to exclude
"information stored in a communications system used for the
electronic storage and transfer of funds." Section 307 (b)
amends the definition of radio communications "readily
accessible to the general public" in Section 2510 (16) by
striking subsection (F), which excluded all "electronic
communications" from the definition. My research did no
lose the impetus behind these two technical amendments.
Section 308
H.R. 1710 amends a little utilized portion of Title
III: the emergency surveillance provision (12). 18 U.S.C.
12. I was unable to find statistics concerning the use
of the emergency surveillance sanction. The evidence
available suggests that the provision is rarely invoked and
that the department of Justice limits use the of provision
to life threatening situations. See Clifford S. Fishman,
Interception of Communications in Exigent Circumstances; The
Fourth Amendment. 2518 (7). As it exists, that provision allows electronic
surveillance without a court order for a 48 hour period in
certain emergency circumstances, such as immediate danger of
death or serious bodily physical injury to persons. The
provision requires involvement by the highest ranking
members of the Department of Justice. It also requires that
a warrant fulfilling all of Title III's requirements be
presented to a court with in 48 hours, and that surveillance
cease if the warrant is found insufficient. The emergency
surveillance provision is a codification of a well
established doctrine of fourth amendment jurisprudence:
Exigent circumstances may render the obtaining of a warrant
before a search impractical (13).
H.R. 1710 would add to the short list of circumstances
in which the emergency wiretap provision could be invoked.
Under the amendment, a reasonable determination that ongoing
conspiratorial activities
Federal Legislation, and the United States Department of
Justice, 22 Ga. L. Rev. 1, 9, n.20 (1987).
13. See eg, Schmarber v. California, 384 U.S. 757
(1966); United States v. Karo, 468 U.S. 705 (1984). involving domestic terrorism or international terrorism were
afoot, in circumstances where a warrant could not be
obtained with due diligence, would allow surveillance under
the emergency provision. Sections 308 (b) and 315 of H.R.
1710, which incorporate the definition of terrorism, make
clear that the new provision contemplates the use of force
or violence. I do not view the amendment as problematic.
Section 308 merely makes clear that imminent acts of
terrorism may give rise to exigent circumstances allowing
the seizure of evidence before a warrant is obtained, a
result that the current emergency provision and, I believe,
the fourth amendment allow.
Section 309
H.R. 1710 would amend the part of Title III often
referred to as the "roving surveillance provision. " 18
U.S.C. S 2518 (11). This provision allows, in certain
circumstances, for a warrant to issue allowing electronic
surveillance without the applicant specifying the facilities
from which, or the place where, the communication is to be
intercepted. The
provision requires that the application for a roving
surveillance of "oral communications" name the person to be
intercepted and explain why the mobility of the suspect
makes specification of the facility or place of interception
impractical. In order for the warrant to issue, a judge must
make the finding that specification is not practical. 18
U.S.C. 2518~ (11) (a).
For "wire communications" and electronic
communications," the test is slightly different. 18 U.S.C.
S 2518(11) (B). For these categories of communication, the
applicant for an order must show that the person to be
intercepted has a purpose "to thwart interception by
changing facilities." H.R. 1710 would eliminate this
different standard for wire and electronic communications
and bring all categories of communications under the same
standard. Under Section 309, all applications for roving
surveillance would have to name the person to be intercepted
and establish that specification of the facility or place is
impractical, the current requirements for interceptions of
oral communications.
I favor this amendment. Requiring proof that the person
to be intercepted has an intent to thwart interception is
unwise. It may be that a subject moves from phone to phone
because he is attempting to avoid capture or because of
constant movement to distribute narcotics. It makes no sense
that under such circumstances a roving surveillance order
may be obtained for the subjects oral communications but not
for the subjects telephone calls.
It should be noted that the roving surveillance
provision, as currently constituted and with the amendment
proposed in H.R. 1710, comports with the requirements of the
fourth amendment. The current provision has been held to be
constitutional (14). Some have expressed concern that the
concept of the roving wiretap is inconsistent with the
fourth amendment's requirement that warrants state with
particularity the place to be searched. However, the courts
have not
14. United States v. Bianco, 998 F.2d 1112 (2d Cir.
1993); United States v. Silberman, 732 F.Supp. 1057 (S.D.
Cal. 1990), aff'd sub nom. United States v. Petti, 973 F.2d
1441 (9th Cir. 1992), United States v. Ferrara, 771 F. Supp.
1266 (D.C. Mass. 1991).
interpreted the fourth amendment literally in the context of
the modern issue of the seizure of intangible
communications. One court put it this way: "In essence, the
roving intercept provision replaces the usual practice that
the place to be searched be identified in a warrant by an
address with a description of that place as the location at
which an identified person is engaging in identified
criminal conversation (15). Professor Goldsmith concluded
that in light of the interpretation of the fourth amendment
by the Supreme Court and the other procedural safeguards
in Title III, "roving surveillance is clearly
constitutional (16).
H.R. 1710's change in the showing required to obtain a
roaring surveillance warrant for wire and electronic
communications would not change the constitutional validity
of Section 2518 (11). The fourth amendment's particularity
requirement would be met by the specification of the person
to be
15. Farrara, 771 F. Supp. at 1271.
16. Goldsmith, supra, at 425. intercepted and the showing that specification of the
facility or place is impractical, the very showing now
required for intercepting an oral communication.
I thank the Committee for this opportunity to share my
views on the proposed amendments to Title III contained tn
H.R. 1710.