We gather, and I say this in tactful terms, but I think the nuance is, we gather our evidence independent of law enforcement, first. Second, we gather only enough to establish the minimal probable cause. When we have that we have enough to convict. Third, we are subject to judicial scrutiny, full judicial scrutiny on each case, because unless we can prosecute each case there is no deterrent. Fourth, with respect. to the fourth amendment, sir, I respectfully refer you to a number of cases, including Katz v. United States, where I am sure you are familiar with the case which states in part that one who encloses himself in a telephone booth, and I quote, "and pays the toll that permits him to place a call" is within the protection of the fourth amendment. This is apart from the consideration of Burdeau v. McDowell. Now, to address myself to your other question, if I may, on customer-to-customer conversations not being observed, I believe your references may have been to statements such as the following, and I read from page 179 of the hearings before the Subcommittee of the Committee on Government Operations of June 11 and 13. We were then addressing ourselves to questions, what do you do in service observing. That is all we were talking about, and I give you the question. To what Mr. DRINAN. All right, so that is an adequate explanation, but it was very broad, and frankly I was surprised doing my homework to find that broad statement, and it just goes to demonstrate the point that you have not told anybody, including the law enforcement officials, of the 12 million bugs or intercepts. I just raise the question of why did you not go to the law enforcement officials and say to the Department of Justice, we need you. It is a very complicated case. In any event, thank you, and I yield to Mr. Pattison. Mr. CAMING. May I, with the indulgence of Mr. Pattison and the Chair, may I respectfully address that question just to give you background. You said we did not go to the Department of Justice. That is not true. Mr. DRINAN. Well, you just a little while ago said you had not consulted with Justice. Mr. CAMING. I though you were asking me about the wisdom of having them work with us to gather evidence of toll fraud. If you are addressing yourself to the question of whether we informed the Department of Justice, we did. I did personally. I informed Mr.-I don't know whether you want to go into it, but in 1966 Mr. DRINAN. Well, this contradicts what you just told me. Mr. CAMING. It was just that I misunderstood your question. Mr. DRINAN. The question was crystal clear: Did you consult with the Department of Justice? And you said "No." I have it right down here, but go ahead. Mr. CAMING. It was my understanding that your question was addressed to whether I consulted with respect to your suggestion about court-ordered wiretapping, but as far as the monitoring and I respectfully want to just call it to your attention, we did in 1966 and again in 1967, in the discussions of the Hanna case, I informed the Department of Justice attorneys involved in the Criminal Division, of the scanning equipment, and on one or two occasions and again in 1967 when I met with them on a general survey, some of the leads from that equipment could possibly, we thought, have come from—I'm sorry, some of the leads in that case which involved some gamblers in Miami, could have come from either some of our computer printouts, some of our informant sources, some of our plant testing gear, or possibly this equipment at the time. There were a number of leads, and I accordingly did inform the Department of Justice. Now, that does not say they cleared it or gave me their imprimatur. We did not feel we needed it. And the law has clearly held, at that time, that there was no violation of 605, but we did inform them, and if I misstated my understanding of your question, I respectfuly apologize. Mr. DRINAN. All right. Thank you, sir. Mr. KASTEN MEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I just have a couple of questions. Suppose that the law was that it was illegal for you to engage in this kind of monitoring, and that it was very clear that it was the Federal Government's responsibility only to detect this kind of theft of telephone services. What would be the result of that in terms of the amount of recorded conversations that might be turned over to other people? In other words, in your judgment, would it be more likely that the actual conversations that are recorded, that deal perhaps incidentally with illegal activities or private matters, to get out if the Federal Government were doing it as opposed to the telephone company doing it? Mr. CAMING. I honestly think it is a question of judgment, of course, and I can only give you my opinion. Unquestionably, first, we only take the minimum amount, so that normally we cut off at the start of conversation. Second, if we find evidence of other crimes than toll fraud during our toll fraud investigations, we do not-and I repeat, we do not disclose that to the Government. The only way it could be disclosed is as part of that minimal number of calls. Mr. PATTISON. Whereas, presumably, if the Government had that information, it would be more likely to use that information in the prosecution of those crimes. Mr. CAMING. I think that is a conclusion that I respectfully would have to bow to the wisdom of this subcommittee on. I think it speaks for itself, that no one could do less recording than we could. When we get this minimal amount of recording, if we don't have this much you could not even get a search warrant. When we have this very limited amount and most of ours is not recording-we have computer tests, plant testing. We are working on further developments to attempt to eliminate more and more of the recording. We immediately go, make proper disclosure, and go before a grand jury and get a search warrant. We do not have any further recording. As I say, this one incident that I gave you where there has been lots of illegal calling known and admittedly for several years, we went in on six calls. That is all we stood on. Second, each of these cases is thoroughly examined by the court to see whether there is an abuse. And third, it is not A.T. & T., I respectfully say, but our honest ratepayers that would ultimately have to bear the losses, you and me. Mr. PATTISON. Just one other question. I take it that it is your position that the words in the proviso to section 2511 random monitoring, are unfortunate words in the sense that the random monitoring which is referred to there, is not what a layman would think of as random monitoring, but is a term of art which means service observing. Mr. CAMING. That is quite correct. I could cite you in the cases in my testimony and testimony of our prior witnesses; for example, Mr. Kertz, who appeared before the Congress prior to this Act being enacted, who constantly used the term random monitoring. We have given information to the Jackson committee, for example, and others the Government Operations Committee that uses this term continuously. You look at the answers to our questions that I adverted to, full of random monitoring. Now, it states, and I just would like to repeat, this provision was inserted to assure that service observing will not be used for any purpose other than mechanical and quality control. That is one point. The legislative history, too, that it would in effect-this is specific monitoring, not random monitoring, as Mr. Kastenmeier pointed out. Third, you must have a human ear to violate title III, aural acquisition, and so those are our positions. Mr. PATTISON. But the normal meaning of the term random monitoring, and as applied to the activity of the 30 million calls, it would seem to be the same to the Mr. CAMING. I would agree, and we would say that was random monitoring, but without human ear, and without it meaning the type of random monitoring Mr. PATTISON. But not random monitoring without the meaning of the proviso. Mr. CAMING. Exactly. Mr. PATTISON. All right. I just wanted to make it clear. I have no further questions. Mr. KASTENMEIER. I have several concluding questions. Just to return to a point so we can put it to rest, do I understand your testimony to say categorically that the listening device of which local 2108 was complaining, was not installed in the Tech Road garage for the purpose of overhearing union personnel? Mr. CAMING. Categorically, sir. It was done for only a period of 4 or 5 days until it came to light. It was done to serve as an audiovisual alarm, or an audio alarm for burglary purposes in a garage that had been subjected to a great many thefts. It was done, too, by a craftsman, which is self-evident that we are publicizing it, since he as a member of the bargaining unit, may well have been a member of the union. Mr. KASTENMEIER. Another area which we have not really discussed, which I would only refer to briefly, and that is to the extent that toll billing records are made available either to law enforcement or private parties. I refer to this because a week ago Thursday some records were introduced into the testimony before this subcommittee which indicated that toll records in Madison, Wis., and presumably elsewhere throughout the country, were made available to the Secret Service, on mere oral request. That is in 1972. Now, since February of last year, at this time, Bell System has a policy, as I understand it, that the toll billing records of a subscriber will be released only upon receipt of a valid civil or criminal subpena, or administrative summons. Is that correct? This is part of the Bell System policy, and this is about a year old; it did not exist prior to February of last year? Mr. CAMING. That is correct in this sense. Mr. KASTENMEIER. I have given a very superficial statement of what your policy is. Mr. CAMING. In March 1, 1974, we initiated a change of policy in which lawful demands of authorities in form other than administrative subpena, summons, or court order, were no longer acceptable, and that thereafter we would only disclose-and this is part of the warp and woof of our policy of not unduly cooperating and our refusal to cooperate except at arm's length with law enforcement, and of which there are many other illustrations. We now only disclose under a subpena or a summons. However, prior thereto, it was our practice in a number of our companies to disclose under subpena or summons or other demand of lawful authority. Now, in this respect the courts had held and the Federal Communications staff had so agreed that toll billing records were subject to demand by proper law enforcement authorities. That was and I believe is still the law, and there is a host of cases, and I would be glad to even furnish the committee with a memorandum I wrote on October 29 before our change in policy which addressed itself to that. So what we did before, such as with the Secret Service, was wholly lawful, was wholly consonant with our understanding. We on our own, however, felt it was advisable in the change of climate, further strengthening of privacy and expressing our concern for it, to on our own introduce a policy not only of subpena, but of automatic notification to the customer when the subpena or service is provided, absent the certification by law enforcement that it will impede a criminal investigation or by a legislative committee. Mr. KASTENMEIER. Following up on that, then, normally you state to the law enforcement authority requesting the information and armed with a valid subpena that you will notify the subscriber within 24 hours unless that law enforcement authority indicates that such disclosure would impede the investigation being conducted, in which case the existence of this disclosure of this information would be deferred for 90 days. Mr. CAMING. Mr. Kastenmeier, as you know, I always make as full a disclosure as possible. May I give it to you? First of all, we will only accept a request for nondisclosure because it would interfere with an investigation, if it is an official investigation of a suspected felony. We do not do it in cases of misdemeanors. Then we will do it for a period of 90 days, withhold notification, and such notification is subject to renewal, just so that you are not in any sense Mr. KASTENMEIER. Subject to what? Mr. CAMING. Subject to renewal, just so you are not misled. Mr. CAMING. This would require a new certification in each instance by law enforcement. It would be equivalent to the extension of a court order in the title III proceedings. Bearing in mind, too, that the whole question of notification is one that we strongly have endorsed, but we do recognize that there are the countervailing considerations when a certification is present. Mr. KASTENMEIER. The reason I ask this is, while this has been Bell System policy since last year, we must decide whether something of this sort should be imbedded in the statutes. We are considering a bill which covers disclosure of private records such as bank records and phone company records Mr. CAMING. Well, I would say first that over the long history of the Bell System, when we take a course like that we have never regressed. Anything that has furthered privacy has remained. I would submit respectfully that it is a question of national policy for the subcommittee to determine on really balancing on the one hand the individual considerations and the individual right to privacy which we think is so important, and the very important countervailing considerations from a social standpoint of law enforcement authorities acting under the strictest terms. We personally have found within the last, almost a year now, that this has been uniformly adopted and enforced throughout the Bell System. It is working very well. I see no reason that we would ever consider changing this policy, and whether it should be imbedded in a statute is something that I would respectfully defer to the committee on. Mr. KASTENMEIER. OK, fine. The last question I have is the size and cost of the security force maintained by the Bell System, and to what extent it is, regional or local. That is to say, does the Chesapeake and Potomac or Southwestern Bell have its own security force. Is it independent of the national Bell System? Mr. CAMING. Very well. To address myself to the first question, I would say that since each of our 23 operating companies and the long lines department, which would be 24, plus Bell Laboratories and Western Electric, we have 26 independent operating entities. They are truly operating independent companies with presidents, boards of directors, responsible to local, State regulatory bodies, as New York Telephone Co. and the like. They are employees of and under the direction and control of their respective companies, so these are separate forces. We consider them that we treat them-it is just like with our various presidents. When we introduced this policy on toll billing record, we sent it to the security men. We also have security counsel in each company, legal counsel, especially trained and able. Mr. Kelleher, for example, who is with me today, is the general attorney and security counsel of C. & P. Co., and in the toll billing problem, when we forged the policy at A.T. & T., and I played a principal role with others in the operating end of the business, we then submitted it to the presidents, to the security managers, and security counsel through them, and the vice presidents and general counsel for consideration. We then got their comments. We adopted the policy. When there is a policy evolved, it is a system policy, and it is enforced by the system in the sense that if it is a policy that is violated, the system is concerned as well as the individual company. |