where our members have been discharged for abusing this "privilege" granted to the telephone industry. These people are good solid citizens, not the kind of persons you would expect to find listening in on your line. I don't think they should have this temptation put before them! I would like to outline several of the more flagrant cases so that you may more fully understand the problem of how this privilege is abused, and whether in light of these facts, you feel that you should allow this practice to continue.

The first case was instituted when a telephone subscriber complained that his telephone was being monitored, and that his conversations were being interrupted. Accordingly, the Federal Bureau of Investigation investigated the matter and found good evidence of monitoring and disruption of communications by two employees of the Southern Bell Telephone Company. The company instituted dismissal action against two employees upon finding that they "went in on a line of a telephone subscriber and interrupted conversations by simulating crosstalk." They would “interrupt the negro conversations by talking to each other as if they were negroes." They were seen to "harass negroes who were having a conversation"; they would "go in on the line like the calls were crossed and would carry on a conversation of their own"; they were observed to "telephone a negro preacher's home and harass the answering party," and they engaged in other improper acts of monitoring subscriber's telephone calls. Both of the discharged parties had excellent service records, and long terms of service.

Another case involved an employee with eighteen years in the Bell System. Again, a good solid citizen, who, without this temptation, would still have a clean record. While in the "normal course" of his duty (which apparently included monitoring), he discovered that one of the parties to the conversation was a prostitute. For approximately three months he continued to cut-in on the calls of this party while on his midnight shift. The incident was brought to light when he was arrested when he attempted to bring this prostitute into the telephone company building on the graveyard shift for immoral purposes.

It is common knowledge that prior to the summer of 1966 the telephone companies maintained the practice of random service observing, sometimes to the extent of monitoring entire conversations between subscribers. In view of the pending congressional investigations into this flagrant abuse of their prerogatives, the telephone industry as a whole changed their policy and stopped the practice of monitoring entire conversations. I believe that this is certainly clear evidence of the disregard which exists in this industry for one's right-to-privacy.

The Federal Register for Friday, February 3, 1967, listed a notice by the FCC of a proposed rule (Docket 17152). To save time, I will only allude to the rule and note that the FCC has taken notice of the fact that the telephone industry has in many cases violated their public charge, and accordingly is recommending that no common carrier in the future may use any recording device in connection with conversation between subscribers, or between subscribers and common carriers, except that the parties to the conversation shall be notified adequately that their conversation is being recorded. To implement this recommendation, the FCC is asking that notice be given in the form of the standard "beep tone."

I am sure that the FCC would not take up their valuable time with frivolous projects. And, I am also sure that they would not have undertaken this recommendation had there not been adequate cause for them to do so.

Just as an aside, I think that you gentlemen would be interested in knowing the posture of the telephone companies in regard to this docket. They of course have registered serious doubt about the need for the rule and put forth the position that to prohibit service observing, or recording that accompanies the service observing, would severely inhibit the efforts of the company to maintain and improve service quality. Especially noteworthy is the comment of General Telephone and Electronics Corporation, in which they have said that "It would be untimely for this Commission now to adopt any new rules in this area, since the statutory amendments would quite likely require a subsequent overhaul of all rules in this area."

What this amounts to is the companies "stalling" the Commission, hoping that nothing will transpire, and that this committee will not force them to change their practices. Since you are a lawmaking body and have been given the charge to protect the public interest in this area, I believe that this is the time and the place to settle this once and for all, and to require that the telephone industry put a stop to service observing and monitoring abuses.

As further evidence of the breadth and seriousness of this problem, I would like to call to your attention the recent investigations of the Connecticut and Massachusetts Departments of Public Utilities. The Connecticut Public Utilities Commission (Docket 10500) instituted an investigation in response to subscriber complaints that the practices of the Southern New England Telephone Company were impairing the privacy of communications. The Public Utilities Department of Massachusetts (D.P.U. 15298), on their own volition, undertook to fathom the maze of service observing and monitoring.

Both of these state regulatory bodies suggested substantial changes in the service observing and monitoring practices of the companies involved.

I would especially like to call your attention to the expressions of Massachusetts Commissioner Andrew L. Benson who felt that the commission had not gone far enough in restricting the practices in question. Commissioner Benson pointed out:

"All of the testimony and evidence offered by the Company was directed toward showing that service observing, including the listening in on conversations, is necessary to maintain a high quality of service. . . . The evidence and testimony offered by the Company does not persuade me that it is necessary to listen in on private conversations in order to maintain a sufficiently high quality of service. I think part of that high quality of service should be absolute privacy. No evidence was presented that the Company would lose any business by discontinuance of that part of service observing which includes listening to conversations. It seems to me that sufficient technological and mechanical equip ment and know-how is available to plan, program and carry out such tests and checks as are necessary to insure high standards of service without the necessity of listening in on conversations. . . . I have no doubt that some benefit is derived by the Company from service observing; but what is good for the Company is not necessarily good for the public. (Emphasis ours.) ... I am of the opinion that at least in the matters before us, the individual's right to privacy should not be subordinated to possible maintenance standards. I am not persuaded by the opinions of Company officials that the public does not care if their conversations are listened in on by unknown persons without its knowledge or consent . . . This practice, I submit, is repugnant to our concepts of freedom and privacy and should be discouraged and prohibited. . . I am of the opinion that the telephone company should be held to the same standard of conduct as any other individual with regard to listening in on telephone conversations."

Mr. Chairman and members of the committee, I know that by taking you to task for the exclusion written into the bill for the telephone industry, that I have perhaps placed you on the defensive. I would like to extract you from that position by bringing to light a system fostered by the Bell System which I think is at least a partial answer to the service observing and monitoring dilemma. In the Management Information Bulletin from the Southern Bell Company, dated January 27, 1967, that company outlines the successful "SAM” story. Now, "SAM" stands for Service Attitude Measuring-they call it SAM for short. They indicate in the Bulletin that this system will be spread throughout Southern Bell during 1967. In their way of explaining it, they call at a customer survey procedure "designed to provide timely and accurate information on the customer's view of the services he received." This system was first introduced into the Southern Bell Company about two and a half years ago and has been a rousing success since that time. It is indicated that SAM will “replace” some of the present service measurements.

This system measures customer attitudes by the use of questionnaires mailed to four separate groups of customers within the district each month. They break down like this: 1) installation service-measured by responses from a sample of customers who have recently had installation or alteration of service; 2) repair service-measured by responses from a sample of customers who have recently called to report trouble with their telephone service; 3) business office servicemeasured by responses from a sample of customers who have been recently in contact with the business office; 4) general service-measured by responses from a sample of all the customers in the district. The general service questionnaire covers local and long distance service information, billing directly, coin telephone, and the general areas of cost of service, and the company's relations with the public.

Experience of Southern Bell has indicated that from 65 to 70 percent of the questionnaires which are sent out will be returned. On this basis, some 150 replies each will be obtained monthly in each district office from the business office repair service, and installation service questionnaires, and about 200 will be received from the general service questionnaires mailing. The results are then tabulated and reported monthly on a moving averaged basis which provides reliable information for use at the district level. Action comments or customer criticisms which may be remedied by some followup action are relayed daily by the accounting department to the department affected. Inter-departmental committee in each division of the Southern Bell Company are coordinating SAM's introduction. Along with that, the employees are being informed in group discussions, slide films, and local bulletins as to the implementation and progress of this system.

Michigan Bell has also recently reported on the significance of the SAM System within their company. In their March 2, 1967 bulletin they report:

"For nearly two decades, the Bell System customer attitude trend study has been telling the companies what their customers think about telephone service, the cost of service, and the telephone company itself. Now, like other attitude surveys used over the years, the trend study is giving way to a new Service Attitude Measurement plan.

"The 1966 customer attitude trend study, results of which have just been released, is the final study that will be taken on a System-wide basis. Customer attitude toward specific service items is covered more completely by the Service Attitude Measurement (SAM) plan which is being introduced throughout the Bell System. (Michigan adopted SAM for all districts in January of 1966.) Whether there is a need for overall indicators of attitude toward cost and company is now being studied.

“In making its final appearance, the 1966 trend study revealed a mixture of favorable and unfavorable customer attitudes. On the plus side is the fact that the cost index has risen sharply in the last two years to reach an all time high. Favorable responses to the companies' participation in community affairs also reached a new high.

"On the other hand, attitude toward the company as a place to work dropped sharply and reached a new low. Customer opinion of the company as a business in which to invest worsened significantly while Plant service difficulties continued its upward trend reaching a new high."

Mr. Chairman, it is apparent to us in the industry that the Bell System is quietly working towards doing away with the antiquated systems of service and monitoring observing. We would like to ask you to cooperate in this "phasing out process" by disallowing the industry the exception which exists in S. 928 and H.R. 5386. We know that the state-of-the-art in the telephone industry is capable of supplying the industry with an automated means of checking their equipment. We in the industry know of this progress and I'm sure that the representatives of the Bell System would like to inform you more about this equipment which is available. We think that by permitting the exclusion to the telephone industry in the bills, that you are only prolonging the day of reckoning when the telephone companies are going to have to stop their flagrant and blatant abuse of service observing and service monitoring which constitutes, in my way of thinking, a real example of invasion of one's privacy.

Gentlemen, we are dealing here with the right of privacy, a matter so important that it was granted extensive protection in the Bill of Rights. As we have become an urbanized society, the rights of privacy have correspondingly become limited. The areas that remain, and the use of the telephone is among them, must be protected. Like Shakespeare's proverbial rose, third party listening which makes possible eavesdropping, no matter how called, is still eavesdropping.

Gentlemen, we are confronted with a clash between a practice, long excused in the name of efficiency, and the historically recognized right to privacy which is announced in our Bill of Rights. In our way of thinking, privacy is a fundamental human right which will yield only when it is in conflict with a definitely higher right that cannot otherwise be assured. And we do not consider that telephonic efficiency, pertaining to business and commercial transactions, is a

higher right to which we should sacrifice this privacy. The equipment and prac tices in question are justified in the name of that vague and illusive business ideal "efficiency." What sins are committed in the name of efficiency! We are dealing here with people, and in my mind the presumption is that they use the telephone upon the expectation that that communication is private. The telephone instrument itself is designed for the use of a single person, and no more other than the party at the opposite end. It does not have attached to it a load speaker, and for good reasons. The parties intend the conversations to be private. And this privacy of communication obtains no less as to employees, and is not to be disregarded simply because employees are involved. Because these people work for and about the telephone company does not mean that they have any less right to privacy than anyone else on the street. If the employees who utilize business telephones and who work the telephones are that inefficient. I suspect the public will make its dissatisfaction known to the companies t volved, and it can do so in generous proportions through the use of the SAM System (or a likeness) which I mentioned just previously.

In any event, if the choice is between the ideal employee, destined to operate the telephone with unfailing efficiency, under unexpected surveillance, by virtue of eavesdropping, and avoiding unmonitored telephones, but retaining human dignity, I then would sacrifice the perfect world of electronics and efficiency for human dignity.

As Justice William O. Douglas said: "The free state offers what a police state denies the privacy of the home, the dignity and peace of mind of the individual. A degree of inefficiency is a price we necessarily pay for a civilized. decent society."

Thank you, gentlemen, for the opportunity of presenting CWA's position before your distinguished body. I would be delighted to answer any questions you may have regarding my testimony,

ANTI-CRIME PROGRAM

THURSDAY, APRIL 20, 1967

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 5,
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met at 10 a.m., pursuant to call, in room 2141, Rayburn Building, the Honorable Emanuel Celler (chairman of the subcommittee) presiding.

Present: Messrs. Celler (chairman), Rodino, Rogers, Corman, McCulloch, Mathias, MacGregor, McClory, Railsback, and Biester.

Staff present: Kenneth R. Harkins, counsel; Donald E. Santarelli, and John W. Dean III, associate counsel.

The CHAIRMAN. The committee will come to order.

Our first witness this morning is Prof. G. Robert Blakey, professor of law at Notre Dame Law School.

Professor, we will be glad to hear from you.

STATEMENT OF G. ROBERT BLAKEY, PROFESSOR OF LAW, NOTRE DAME LAW SCHOOL, NOTRE DAME, IND.

Professor BLAKEY. Thank you, Mr. Chairman.

I deeply appreciate this opportunity to appear and testify on the Right of Privacy Act of 1967.

My name is G. Robert Blakey. I am a professor of law at the Notre Dame Law School. My subjects include criminal law and criminal procedure and a special seminar on organized crime. This past year I' was also a special consultant to the President's Commission on Law. Enforcement and the Administration of Justice in the area of Organized Crime.

I am also a member of the American Civil Liberties Union.

Mr. Chairman, I prepared a rather long statement and rather than burden the committee with the reading of it, I would like at this time simply to insert it in the record and for the committee's benefit summarize it.

The CHAIRMAN. We will be glad to have you do that. In other words, put the entire statement in the record, and then you may summarize it.

Professor BLAKEY. Yes. I might add there is an appendix. (Professor Blakey's prepared statement and appendix follow:)