on his motion to dismiss the court held that the phone company had done nothing that was not within the exception of 2511(2) (a). United States v. Shah, 371 F. Supp. 1170 (W.D. Pa. 1974). In United States v. Freeman, 373 F. Supp. 50 (S.D. Ind. 1974), the phone company, after receiving information from another phone company, installed a taperecorder on defendant's ex-wife's telephone line. The monitor recorded the use of a “blue box” on several occasions. The defendant made a motion to dismiss, but the court denied the motion. The trial judge said that the action taken by the phone company was "the type of non-random and non-service control monitoring for the protection of the utility's property which is contemplated by 18 U.S.C. § 2511(2) (a) (i), . . . .” 373 F. Supp. at 52. Obviously, none of these cases have sanctioned the widespread use of random monitoring by the phone company. Like the cases decided under Section 605, each of these recent cases involved the monitoring of a specific telephone line. The question as to whether the random monitoring as reported in the newspaper was in violation of Section 2511 remains unanswered. Section 2511(2)(a)(i) specifically states that the telephone company "shall not utilize . random monitoring except for mechanical or service quality control checks." It would seem that the random monitoring conducted by the company after the Omnibus Crime Control and Safe Streets Act took effect was within the proviso of Section 2511(2)(a)(i). The term random monitoring is not defined by the Act. Although the phone company has argued that "random monitoring" has a technical meaning, it is a general rule that a statute must be interpreted by its plain and common meaning. See, Rathburn v. United States, 355 U.S. 107, 109 (1957). As the Supreme Court has said, in speaking of Section 605, "distinctions designed to defeat the plain meaning of the statute will not be countenanced." Benanti v. United States, 355, U.S. 96, 100 (1957). Even if the random monitoring is within the proviso of Section 2511 (2) (a) (i) it would appear that no violation of that section has occurred. Section 2511 prohibits the willful interception of any wire or oral communication or the use of any device to intercept any oral communication. Section 2510 (4) of Title 18 defines intercept to mean "the aural acquisition of the contents of any wire or oral communication through the use of any . . . device." The term device is defined so as to exclude any apparatus being used by a communications carrier in the ordinary course of its business. 18 U.S.C. § 2510 (5). Only equipment being used by the carrier in the ordinary course of its business would be excluded. S. Rept. No. 1097, supra, at 90. Arguably the random monitoring by the electronic scanner was not the aural acquisition of the contents of the communication and therefore not an interception of the conversation. The words "aural acquisition" as used in 18 U.S.C. § 2510 (4) mean to come into possession through the sense of hearing. Smith v. Wunker, 356 F. Supp. 44 (S.D. Ohio 1972). The mechanical monitoring of telephone conversations to detect the use of a "blue box" a "black box" would not be an "aural acquisition" of the conversation. The tape recording of the conversations would be an interception, but such an interception would seem to be legal by the exception given the phone company in Section 2511(2) (a) (i). However, if the company recorded the entire conversation or if the company recorded more calls than were necessary to prove illegality, then the company may have exceeded the authority given to it by Section 2511. See, Bubis v. United States, supra. If the scanning and the recording is viewed as a one-stage process, then what the phone company did was the aural acquisition of the contents of a communication. This one-stage process would only be illegal if the device was not being used in the ordinary course of the company's business. One other possible argument that the phone company's monitoring was illegal is that it violated the Fourth Amendment rights of the company's subscribers. Generally there is no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure when evidence is acquired illegally by private parties. Burdeau v. McDowell, 256 U.S. 465 (1921). The argument has been made, however, that when the searcher has a strong interest in obtaining convictions and has committed searches and seizures regularly then the Fourth Amendment should apply even though the search was not done by a government official. Note, 19 Stanford L. Rev. 608, 615 (1967). Thus, there is the basis for any argument, albeit a weak one, that the phone company violated the Fourth Amendment by recording telephone conversations in order to prosecute illegal users. C. CONCLUSION It is not certain that the telephone company violated any federal laws by the random monitoring of telephone conversations during the period from 1964 to 1970. This uncertainty exists because the Congressional intent in passing Section 2511(2)(a)(i) is not clear, and case law has not clearly explained the permissible scope of monitoring by the company. Under the existing law it seems that the only way that the telephone company can violate Section 2511 is if it randomly monitors telephone conversation with a device not used in the ordinary course of its business so as to aurally acquire the conversation. One obvious remedy wou'd be for Congress to amend Section 2511 so as to make clear the extent of the monitoring to be allowed. IRWIN MANDELKERN, Legislative Attorney. Mr. CAMING. The reason we terminated the program was because the second generation, which we were attempting to develop as fast as we could, did come along and permit us to get as broad or broader coverage without the necessity of having any voice recording whatsoever, and the whole program and the concept of being closely guarded, seen by only a few very trusted employees under constant supervision, and promptly erased thereafter, was designed for this purpose. That's a long way around Mr. Kastenmeier. Mr. KASTEN MEIER. Leaving that particular question, Mr. Caming, are you aware of company practices that have involved surveillance of individual employees or union activities or conversations conducted on company property, other than on business phones, in the recent past? Mr. CAMING. There have been a number of situations where there have been allegations over the years. Each one of those is carefully and fully investigated. How, if we are talking in terms of the normal supervisory observing, whether it is visual, whether it is from a desk across the room, or at an adjacent location, there is a possibility that this may have occurred, but that would certainly in no wise be designed to overhear union conversation. For example, let us take a plant repair test room, or let us say a business office, which is very simple. A business office service representative may also be a union vice president, let us say. She is at the front desk, and she may receive a call on one of several telephones, which she handles for telephone contacts with the public, and usually they handle large volumes. One of that large volume of business calls may be a call on union business. If so, it is possible that it would be subject to observation. However, it is to be borne in mind that those particular telephones are to be used only for official business, and-and I think this is most important there are other phones immediately available, such as in the employees' lounge next door, where any and all calls can be taken in complete privacy. Now, that is a possibility. I can only conjecture when that might occur. Any specific allegation would be carefully investigated. Normally, if such a call was overheard, the supervision would drop off the call, the purposes of the observation being purely for determining the quality of service rendered by the individual, and also by the-I'm sorry-and also whether the individual employee might require further training and assistance. I might say that I appeared before the Government Operations Subcommittee of this respected House and discussed this subject at considerable length on June 11, 1974, with respect to—- Mr. KASTEN MEIER. Did you discuss with them the complaint of Local 2108 of the Communications Workers of America in a local case out here? Mr. CAMING. I do not know, without knowing the date. It does not ring a bell, but Mr. Glen Watts, president of CWA, was next to me at a very pleasant hearing which we had, and we did discuss this subject matter, and whether it is one case or another, I think the same would apply. There was an allegation, which we have been unable to run down, that somewhere in the distant past, about 15 years ago or more-no, about 12 years ago that there was a specific instance of that at one location. I might say it is wholly against company policy to engage in any such conduct. It is also to be borne in mind that these employees using official business lines for official business are aware of the fact that their calls are subject to periodic supervisory observing. Mr. KASTENMEIER. Let me recite to you the incident I have in mind. Mr. CAMING. Sure. Mr. KASTEN MEIER. It is alleged by officers of Local 2108 in the Silver Spring area, that on or about April 4, 1974, they discovered electronic. devices in a company garage wherein they had held, I gather, union. meetings from time to time, and after investigating, they discovered that a craftsman had in fact put the equipment in under the direct supervision of the foreman. Accordingly, they concluded that management was responsible. At that time they were apparently involved in grievances with the company, and they then reasonably concluded that there was a direct relationship. Mr. CAMING. May I respond? I am familiar with that, highly familiar. As you can appreciate, I was trying to give you an overview of the problem, and not recognizing the name of the particular local unionbut this was a case not at all what it appeared to be on its face at first blush. This is a case, perhaps best described as consideration at a low level of supervision, of the use of audiovisual alarms. Now, we do provide, under tariff, in a number of our places, audiovisual alarms to subscribers and others. The question was, a particular Maryland garage, the one at Silver Spring, as I understand it, was subject to a series of thefts, and various methods to protect the property of the company against losses, which ultimately our ratepayers bear, were used without success. And the question arose then, see what else is on the market in the way of burglary alarms that might assist in apprehending the perpetrators. One of the subordinates installed an instrusion alarm, which was a perimeter alarm that when anyone broke into the garage during certain hours when employees were normally not there, it would sound a nonaudible-to-the-intruder alarm, and then this would permit activation of an audiosurveillance burglar alarm to overhear unusual noises and the like to see if a burglar was breaking in or perhaps an animal or the like triggered the alarm. This was installed by a craftsman, as you mentioned. There was nothing covert about it, and at the time no notices had yet been posted, but it had been the intention to post notices because we use, for example, such audio alarms in Pacific Northwest Bell at remote loca 57-282-76-pt. 1- -16 tions high in the Rockies, at which there are unattended locations, and there are notices posted to that effect, that an audiovisual alarm is there, because it is some miles from the nearest human habitation. Now, this was in for only 4 to 5 days on an experimental basis. It had not been approved by management yet, and it was only at this one location on an experimental basis. The question was raised by the union. That brought the matter to the attention, you might say, of middle management there, and on learning of it, they pulled it out immediately, and it was never used, except for this very brief period. It was not permanently installed. It was determined first, that it did not appear to be a sound method for a burglary alarm system, and thus certainly would have not been approved under any circumstances. It was to operate after hours, and I believe that was all there was to it, and that was not for the purposes of overhearing, and if there were within that very short period, union officials there, that-as I understood the grievance, however, although those allegations were made, in fact it was known to the craftsman who put it in. He put it in himself. It was not put in covertly at night for some cynical purpose. Mr. KASTENMEIER. Do you know who the company official was who was responsible for the installation of this particular device? Mr. CAMING. I don't. I know he was rather low level. I know the commercial manager, I believe, Mr. Landon, was the one who removed it. Mr. KASTEN MEIER. Mr. Connor, would you know? Mr. CONNOR. No, sir; I would not know. Mr. CAMING. But I believe I had talked, and I know personally of this incident, and it did occur over a year ago because I have these notes in connection with Mr. KASTENMEIER. Almost a year ago, according to the record I have. I will read you the first line of the letter, which I will offer for the record, from the president of the union, James E. Mazzi, April 24, 1974, and one line is: "Members of Local 2108 became aware of surveillance equipment in the Tech Road Garage on or about April 9, 1974." [The letter referred to follows:] To: Chief Stewards. COMMUNICATIONS WORKERS OF AMERICA, Subject: Grievance Meetings Surveillance. This is to advise that as of today, April 11, 1974, grievance meetings should not be conducted in telephone company garages. I am aware of eavesdropping equipment in at least one Company location, the Tech Road garage. All anyone need do is dial the appropriate access code, and they are immediately connected to amplification equipment strategically mounted in the garage. Conversations in the garage are easily overheard by the calling party. The conversations could then be documented or recorded. For obvious reasons, we cannot run the risk of subjecting the problems of our members to this Big Brother surveillance system. Ed Lewinski, our CWA Representative, is aware of the situation and has taken immediate action at his end. We will be discussing the problem in greater detail in the near future. In the meantime, protect your conversations. Don't meet in telephone company garages. You should advise all employees who work in garage locations of the possibility of any conversation being monitored. Sincerely and fraternally, JAMES E. Mazzi, President. Mr. CAMING. I referred, Mr. Kastenmeier, when I said a year, I meant since I testified with respect to this on June 11. Mr. Watts was right next to me, you see. This is the second time around on this. Mr. KASTENMEIER. This particular question was not raised at Government Operations. Mr. CAMING. I said I knew about it fully at the time. That's why I had these notes. It had happened before June 11, is what I meant. Mr. KASTENMEIER. Thank you, Mr. Caming. Mr. Connor, are you supervisor for security with Chesapeake and Potomac Telephone Company? Mr. CONNOR. Yes, sir, that's right. Mr. KASTENMEIER. How long have you been employed in that capacity? Mr. CONNOR. About 10 years, Mr. Kastenmeier. Mr. KASTENMEIER. Last April, when Mr. Caming then appeared befor the committee, he stated: In cooperating in court-ordered national security cases, we endeavor to provide the very minimum assistance necessary as required by law to effectuate a particular wiretap. Under no circumstances do we do the wiretapping itself. That is the exclusive province of the appropriate law enforcement officers. Is that correct? Do you agree with Mr. Caming's statement? Mr. KASTENMEIER. So that, in fact, is the practice followed here in this area in C. & P.? Mr. CONNOR. That is yes, sir, that is correct. Mr. KASTENMEIER. Evidence obtained by the Judiciary Committee during its recent impeachment inquiry includes a May 12, 1973, memorandum written by Inspector O. T. Jacobsen of the FBI. This memorandum states that during the summer of 1969, FBI Supervisor James Gaffney received instructions to place wiretaps on certain telephones in an attempt to locate the source of unknown press leaks at the White House. The memo further states: Gaffney, when he received the oral instructions to institute these wiretaps, would in turn orally request the telephone companies to effect the requested wiretap. Now, we interpret this to mean that the phone company takes over in that case. What sort of assistance was Inspector Jacobsen referring to in terms of the company at that time? Ι Mr. CAMING. May I interrupt, Mr. Kastenmeier, respectfully? Mr. KASTENMEIER. Yes. Mr. CAMING. Mr. Connor did not-or were you involved at that time, Mr. Connor? Mr. CONNOR. No, not in 1971. Mr. CAMING. Are you referring to the Halperin case? I happen to be very familiar with it because I am one of the counsels in the Halperin case, and the 17 leaks in the House Judiciary Subcommittee Mr. KASTENMEIER. I am not necessarily referring to the Halperin case. Mr. CAMING. But what I mean is, it's the incident where 17, according to the House Judiciary Subcommittee's evidence-17 individuals, |