likely to have their civil rights chilled by the fact that the Government may be watching their financial dealings.

But I think Mr. Anderson's point in reply to that suggestion bears reinforcement, Mr. Chairman. There are millions of people who agree to greater or lesser degree with one or more of the positions espoused by these public spokesmen on various causes. I think it is reasonable to assume that many of them, when told that their checks are being microfilmed and that there are no limitations on who might have access to them might be somewhat inhibited in writing a check to one of the causes they believe should be supported. This conclusion follows from the finding of Senator Ervin's subcommittee that there is a chilling effect on average citizens in terms of being photographed at a public rally or knowing that military intelligence people had infiltrated various organizations and where participating in various public assemblies.

Now, Senator, in a democratic society, these are serious consequences. We are not simply talking about a man's right to be private in maintaining a mistress or drinking, or supporting an illegitimate child. We are talking about the potentiality of people being inhibited in their exercise of basic constitutional rights-speech, assembly, petition, dissent simply because they fear the possibility of having their existence and participation called to the attention of the National Government or State and local law enforcement agencies.

Keep in mind, Mr. Chairman, that no law enforcement agency to my knowledge publishes its standards for putting a citizen under surveillance. The American public does not know who the law enforcement organizations believe is a fit subject for surveillance. They simply know what they read in the newspapers and the picture is not a pretty one. They read about the media papers and FBI harassment, they read of military surveillance; they read of Public Law 91-508; they read of wiretapping and eavesdropping and they draw conclusions which in many instances I am afraid might chill their enthusiasm for exercising their rights.

There is a crying need for legislative activity in this field. The notion of executive branch discretion, the placebo that the executive branch will exercise restraint, which is what I gather the representatives of the Treasury and Justice Departments offered last Friday, simply is insufficient given the documented record of abuse of that restraint in the area of military surveillance and the way the Treasury Department has chosen to use the authority delegated to it by Public Law 91-508.

Keep in mind, Mr. Chairman, that in connection with the hearings on the Fair Credit Reporting Act before this subcommittee, a bill that ironically is title VI of the same Public Law 91-508 we are discussing this morning, there was an admission by the FBI that they obtained on the average of 25,000 credit bureau files a year without subpena, again confirming some of the things Mr. Anderson recited this morning.

Thus it seems to me that S. 3814 and S. 3828 represent beginning steps toward establishing some equilibrium between the Government's legitimate interests in investigating the financial activities of those thought to be involved in illegal conduct and the individual's right of privacy.

Neither bill appears to me to hamper legitimate law enforcement in any significant way. The Tunney bill, S. 3814, it should be added, Senator, really does not represent a substantial departure with existing practices regarding administrative subpenas. All S. 3814 does is provide notice and an opportunity to challenge the legitimacy of financial surveillance to the person most affected by an administrative subpena issued to gain access to bank records; namely, the bank account holder himself. This is a right that should exist, but simply is not currently available because of some technical notions of justiciability.

Since my prepared statement contains a detailed analysis of the two bills before the subcommittee, I am prepared at this point, Senator, to answer any questions.

Senator PROXMIRE. You say that Public Law 91-508 has additional provisions for looking into the private lives of Americans, and in their testimony last Friday Treasury officials denied this was true. They denied that 91-508 or the regulations thereunder constituted any threat to privacy. They argue that records required to be kept by banks were kept before the act, but not as long as the act now requires, these records have been always available to law enforcement officials, and that nothing in the act gives law enforcement officials greater access to records than they had before the act.

I want to refer to what Mr. Rossides said. He said before this was passed there was an alarming trend to maintain such records for only a brief period of time, and some larger banks were ceasing to copy checks entirely, and that the regulations are designed merely to maintain the status quo.

Mr. MILLER. I have two responses to that, Mr. Chairman.

Senator PROXMIRE. First, let me add one additional point. I know, and I highly respect the efforts of the civil liberties people. They are a great institution. Their dedication is admirable. But I know you don't want to take any kind of an action that would impede effective law enforcement and impede the prosecution, investigation and prosecution, of those who violate our laws, and violate them in a way that, of course, offends all of us.

Mr. MILLER. Of course not, Mr. Chairman. I agree with that completely, and I would simply add on that point that I do not believe that the proposals before this subcommittee really would do that, particularly S. 3814, which in no way limits the Treasury Department's ability to mandate that banks maintain records or to gain access to those records for legitimate law enforcement purposes. The only thing that would be accomplished by S. 3814 is to provide some level of participation of the individual bank customers whose records are to be subpenaed. Of course, it also would have the desirable effect of prohibiting the release of bank records to private investigators, newspaper people, credit bureaus, and others who want access but shouldn't have it. That is all S. 3814 does.

The effect would be to provide some restraint on fishing expeditions, not simply by the FBI, an organization for which I have the highest regard, but fishing expeditions by many, many other organizations who can gain access to the records required to be maintained by the banks because there are no access limitations in the Treasury Department's regulations.

Senator PROXMIRE. The Chief of the Organized Crime Division of the Department of Justice strongly argued that it is frequently necessary to gain access to bank records during initial stages of an investigation, and that they often cannot make a showing of probable cause at that point, at least until the investigation is more complete.

He further argued that if the individual being investigated were notified, knew that his bank records were being subpenaed, that he would be alerted to the investigation and would be in a position to conceal other evidence.

I also do not wish to impede the ability of our law enforcement officials to track down and prosecute tax chiselers, drug traffickers, embezzlers, and other white-collar criminals.

Suppose the FBI had information that a bank official was embezzling funds? If the official knew he was being investigated, he might be able to conceal other evidence, or flee the country. Don't you think in this case the FBI should have the right to look into this?

Mr. MILLER. Senator, it is my understanding that the existing statutes and regulations are sufficiently broad to enable the appropriate law enforcement agencies or the Federal banking agencies to investigate the situation you describe. In any event, Mr. Chairman, there comes a point when we have to face the fact that we are engaged in a balancing operation between the rights of individual citizens and the police powers of the state. I am reminded of a line in The United States v. Robel, a decision by the U.S. Supreme Court, in which the court

wrote:

It would be ironic if, in the name of national defense, or law and order, we would sanction the subversion of those liberties which make the defense of the nation worthwhile.

It seems to me that the statements of the Department of Justice or the Department of the Treasury are voicing the same, almost hysterical cry that everything done by the Government in the name of law and order is justified.

Senator PROXMIRE. I don't feel hysterical, and I espouse that view. I state it as mine.

Mr. MILLER. Then this may be an area of disagreement between us, Senator. I personally do not find anything in the legislative history of Public Law 91-508 that establishes the need for the unprotected, massive recordkeeping called for in the regulations and I don't feel that the bills before this subcommittee would impair legitimate law enforcement. The arguments by the Treasury and Justice Departments raise exactly the same type of fears that were expressed before and after the Supreme Court decided the great case of Miranda v. Arizona. The claim was that if the accused were told that he did not have to respond to police interrogation, if the accused were told that he had a constitutional right to counsel, the foundations of law enforcement, and perhaps of the Republic, would crumble.

Senator PROXMIRE. No, no, this is entirely different than Miranda. What I am talking about-and I gave you a specific example—the FBI has information that a bank official is embezzling money from the bank. They don't have sufficient evidence to show probable cause, and they want to investigate without alerting him, so that he takes off and covers his tracks and disappears.

The charge has been brought, he is not in court. The Miranda case. as I understand it, applies to a person who is arrested by the police, he has to be warned, and is about to be taken and incarcerated; under those circumstances, he had to be made aware of what the charges are, and aware of his right to have a lawyer present to defend him.

Mr. MILLER. Senator, I am only using the Miranda case by analogy to indicate that not every assertion concerning the needs of law enforcement agencies is based in fact. The basic point is this: Any time you engage in the process of making realistic the rights guaranteed to the people vis-a-vis their government it is perfectly clear there is going to be the claim that the protection of these rights will encroach upon law enforcement. But these assertions should be weighed against the significance of the rights in our society and the possibility of abuse. Now, in the situation you pose, where you don't have enough for probable cause, it seems to me that the law enforcement agency has other means of investigation at its disposal to get enough for probable cause, to get the search warrant, or it has enough information at its disposal through other means of investigation before it goes into the bank files without any notice to the individual. Moreover, as indicated earlier, other Federal regulatory bodies have jurisdiction to investigate.

Senator PROXMIRE. Maybe they do, and don't, and we have to go for a rollcall in a minute, but what I am getting at is where you have the investigation of a crime, or at least of an alleged crime, whether it is embezzlement, whether it is kidnaping, whatever it is, you have one case. On the other hand, you have an investigation of a person because he has expressed unpopular ideas-then I will agree with you, there is no basis. There is no basis, no matter what they said about the policies of our Government. You and I might disagree completely with them, and think it was a bad statement in every way, but under those circumstances I would say there are no grounds for pursuing them, but that is something else.

Mr. MILLER. But the existing regulations in no way draw lines between the situations you describe. Rather than pursue what may be a philosophical disagreement between us, however, let me make two points. First, the Congress, in the Omnibus Safe Streets and Crime Control Act on a question very similar to the one before this subcommittee-namely, wiretapping and eavesdropping-the surveillance of communication-took the position that, before a law enforcement agency could tap, it would have to show probable cause and obtain a warrant. I ask you, why should there be less protection against governmental misconduct in the field of financial surveillance? Second, Senator, if your basic concern is legitimate

Senator PROXMIRE. Let me answer the first question first.

I think there ought to be a lot less stringency in the case of financial records. I think that is entirely different. That is a much more serious invasion of a person's actual privacy. What one says on the telephone is one thing. What one says in his financial transactions, it seems to me, is in quite a different area.

Mr. MILLER. Senator, a modern bank record is like a roadmap of a man's life. It tells where he has been, who he has seen and done any kind of business with, who are the objects of his affection, what orga

nizations and charities he supports, what his hobbies are, almost what kind of and how much beer he likes to drink. I think it really would be a mistake to distinguish between face-to-face communication such as we are having here, and bank communication, given the incredible detail of credit cards, checks, loan transactions, all organized under the social security number, all computerized in the fullness of time and made available under the Treasury Department's regulations without any legal controls.

I can well understand your feeling about wire and oral communication being more private and more human than sheets of paper, but I think in this computerized world of ours, in which we are more and more surrounded by data banks and dossiers, I think it is a mistake to draw the conclusion that oral communication needs more protections than written information. In any event, I just draw the analogy between what Congress did in the Crime Control Act and what I think it should do under Public Law 91-508.

The second point I wanted to make was that you could insert in S. 3814 an appropriate safety valve to make sure that legitimate law enforcement activities were exempted from the notice, or the probable cause warrant showing. The main thing, Senator, is to provide the basic principle protection.

Senator PROXMIRE. Could you work language to that effect?

Mr. MILLER. I could try.

Senator PROXMIRE. I have to run. I apologize. I will be back in about 10 minutes or so.

I want to thank you very much, Mr. Miller. When we return, I have a couple of questions for the record I would like to ask you. When we return, our next witness will be Rev. Christopher Raible, Unitarian Universalist Association.

(The full prepared statement of Mr. Miller and additional information follow :)