2236 carry a maximum penalty of $1,000 fine; subsequent violations a maximum of $1,000 fine and 1 year's imprisonment.

The first thing that would be done under the proposal would be to recodify 18 U.S.C. 2236, changing only the penalty provisions. Under the proposal a first offense would be punishable as would any subsequent offense, by a maximum $10,000 fine and 1 year's imprisonment. The second thing that would be done under the proposal would be to enlarge 18 U.S.Č. 2236 to reach, with the penalties I just mentioned, any Federal official who "procures or inspects the records of telephone calls, bank, credit, medical, or other business or private transactions of any individual without a search warrant or the consent of the individual."

A third provision would enlarge 18 U.S.C. 2236 to punish any Federal agent who opens any foreign or domestic mail directed to him, without a search warrant or the consent of the sender or addressee in violation of 39 U.S.C. 3623 (d). This statute applies now only to mail of domestic origin, not foreign mail, and has been limited by judicial construction to first-class mail. United States v. Van Leeuwen, 397 U.S. 249 (1970).

Finally, the proposal would enlarge 18 U.S.C. 2236 to punish any Federal official who intercepts, endeavors to intercept, or procures any other person to intercept any wire or oral communication except as authorized under chapter 119. This same activity is now punishable under 18 U.S.C. 2511 by a maximum $10,000 fine and 5 years' imprisonment. Thus, the proposal would reduce the maximum penalty available to a $10,000 fine and 1 year's imprisonment. Skipping ahead for the moment, however, section 4 of this bill would amend 18 U.S.C. 2511 so that its criminal provisions would apply only to persons other than Federal agents.

Insofar as the proposal would retain the existing scope of 18 U.S.C. 2236 and 18 U.S.C. 2511, while elevating only the penalty provisions, the Department has no objection to the proposal.

The Department's position on the proposal with regard to the opening of the mails can be stated very briefly. Enlarging upon the present statute (39 U.S.C. 3623) by creating a protection for foreign mail and for packages other than first-class mail would likely interfere with the customs inspections of such mail entering from abroad, and would be objectionable for that reason. See Cotzhausen v. Nazro, 107 U.S. 214 (1882). The Postal Service and the Bureau of Customs may wish to make further commentary on the provision, and the Department would defer to their views.

From the standpoint of the Department of Justice, there is a very basic objection to be made to the provision that would criminalize the inspection of records of telephone calls and of bank, medical, credit, or other business or private transactions, without a search warrant or consent of the individual. The approach being taken is fundamentally wrong. The proposal, if adopted, would have the most detrimental effect upon law enforcement.

An essential ingredient in obtaining a search warrant under rule 41 of the Federal Rules of Criminal Procedure is a showing of probable cause. Another instance where a showing of probable cause is required is for the arrest of an individual. Probable cause, then, con

cerns very basic individual rights. A fundamental fault with this proposal is to require a showing of probable cause to justify investigative efforts that must be undertaken before facts can ripen into probable cause and that concern third parties.

A criminal investigation must begin somewhere. Many, if not most, criminal investigations are instituted upon the basis of allegations and suspicions. Federal agents do not usually start out with probable cause to believe that a certain person committed a certain offense, and that certain items of real evidence, or the fruits of crime, or contraband can likely be found at a certain location. Investigations ordinarily proceed by inquiring of a large number of people in the hope of developing evidence amounting to probable cause. When investigators go to written records, they are not doing anything essentially different from when they ask questions of the persons who made or were involved in making the record, except that the records preserve memories that may be lost.

The proposal would lump together, as necessarily private, records of telephone calls, bank, credit, medical, and "other business records." Investigators could not look into such records without probable cause. It is not clear whether, without probable cause, the investigators could ask questions of the persons who would have made such records. It would seem plain, in any event, that the proposal threatens to hamstring criminal investigations.

An analogy may be drawn to the matter of testimonial privileges. These privileges prevent the disclosure of confidential communications, but taking the doctor-patient and lawyer-client privileges for example, they do not generally prevent testimony about the fact of the relationship of nonconfidential matters. McCormick on Evidence, 2d Ed. 1972, pp. 185–186, 215–216.

If one were investigating a criminal assault and had reason to believe that the perpetrator had received a serious gash on his arm, the investigator might canvass doctors and medical clinics to try to locate a person who treated the criminal and who might be able to describe him or identify him. Surely there would be nothing wrong in this; nor should it be wrong for records to be examined as a help perhaps in finding the doctor in a clinic who treated the offender. In other words, investigations have to be carried on in very general ways. It would be the exceptional case to start with probable cause to believe that a certain person possesses a particular record of pertinence to an investigation. I would emphasize to the subcommittee, in sum, that the proposal would interfere with quite ordinary investigative techniques.

The fourth amendment protection to which a person is entitled ought not to be extended solely because the person wishes something to be private. As the Supreme Court said in Katz v. United States, 389 U.S. 347, 351-52 (1967), the fourth amendment: "protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not subject of fourth amendment protection. [Citations omitted.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." The Katz case then raised the matter of the person's reasonable expectation of privacy. Many of the kinds of transactions that would be covered under the proposal are indeed "private" transactions, in

that they are not displayed for general public consumption. But they are hardly "private" transactions in any other sense. Records kept of these transactions, especially when owned and maintained and used by the other parties to the transactions, are records that are commonly inspected by or at least exposed to a number of people. For instance, one expects that when a check is written, records of its progress through the clearinghouses and eventually on the books of the drawee bank will be seen by many people. No expectation of privacy in such records, at least as the phrase is used in Katz, would appear to exist. Indeed, courts have been unwilling to recognize a fourth amendment right enforceable by an individual in records of that individual's transactions with others, when those records are the property of the other party to the transaction. For example, United States v. Baxter, 492 F.2d 150, 165 (9th Cir. 1973) (telephone toll records); United States v. Fithian, 452 F.2d 505 (9th Cir. 1971) (telephone toll records); Harris v. United States, 413 F. 2d 316 (9th Cir. 1969) (bank records); Disek v. United States, 405 F. 2d 405 (8th Cir. 1968) (bank records). See Gotkin v. Miller, 379 F. Supp. 859, 863 (E.D. N.Y. 1974) (medical records). Thus, it would seem that the proposal would make records sacrosanct far beyond what is now the law.

It is our view that a warrantless search is not unreasonable unless the Government, without probable cause or exigent circumstances, intrudes into an area in which the "proprietor" has a reasonable expectation of privacy. See Katz v. United States, 398 U.S. 347 (1967). Those things which an individual exposes to public scrutiny, things which he does not himself safeguard from third parties. are not protected by the fourth amendment. It follows that records of transactions of an individual which, in the normal course of events, can be viewed or obtained by persons whom that individual evidences no desire to select or restrict are not iems in which the individual has an expectation of privacy. Records of credit transactions present a cogent example.

Before a business will extend credit or a bank will loan money to an individual, an extensive inquiry into that individual's credit history is usually undertaken. An individual's credit history is often reviewed even without his knowledge or consent. This credit history consists of records of many transactions which would fall within the language of the proposed amendment of 18 U.S.C. 2236. If H.R. 214 were enacted, private individuals and businesses would still have free access to records of these transactions but investigative agents of the Government would subject themselves to criminal liability if they inspected the same records without a warrant. Such a situation does violence to the concept of "expectation of privacy" as an underpinning of the fourth amendment.

As noted before, often the initial stages of an investigation consist of a check of records such as telephone calls, business transactions, et cetera. In many cases, certainly quite frequently in organized crime investigations, probable cause that a crime has been committed or that a certain individual is linked with the commission of a crime cannot be made without the results of an informal check of these records.

H.R. 214 would require a warrant supported by probable cause for obtaining information which is itself frequently the basis for a show

ing of probable cause. The job of a Federal law enforcement officer would be made measurably more difficult and time consuming under such a regimen. He would be forced to wait a matter of days, sometimes weeks, to enable him to obtain each piece of evidence, each new lead. Hotel guest lists, airline passenger lists, records of purchases of poisons, firearms, explosives, and drugs would be out of reach without obtaining legal process.

H.R. 214 would make the job of the Federal agent more hazardous as well. It would prohibit him from inspecting or procuring records of "other private transactions." Such language places the burden on the agent to determine what is a private transaction upon pain of rather severe penalties if he errs. The statute's inhibitory effect would be considerable. Under these circumstances, the provision is arguably unconstitutional because it fails to sufficiently inform those who are subject to it what conduct on their part renders them liable to penalties. Connally v. General Construction Company, 269 U.S. 385 (1926). The criminal penalty aspect, however, is not the cause of our major concern; the proposal is fundamentally objectionable for being an unnecessary hindrance to criminal investigations.

Interceptions of wire or oral communications-section 4. The primary thrust of section 4 of H.R. 214 is to repeal certain provisions in chapter 119 of title 18 that allow for or pertain to emergency interceptions of wire or oral communications made without first obtaining court orders. The proposal is to repeal (1) the provisions of 18 U.S.C. 2511(3) concerning presidentially authorized electronic surveillance directed at "foreign intelligence" and domestic insurrection; (2) the provisions of 18 U.S.C. 2518(7) permitting interception without a court order when an official specially designated by the Attorney General reasonably determines that an emergency situation exists, with respect to conspiratorial activities threatening the national security or characteristic of organized crime, demanding that interception be made without waiting for a court order, and where grounds do exist upon which a court would enter an order authorizing the interception, and (3) the provisions of section 2518(a) (d) requiring simply that an inventory be served upon persons who are intercepted under section 2518(7).

Regarding the proposed repeal of 18 U.S.C. 2511(3), I want to emphasize that the statute says simply that nothing in the provisions on interception of wire or oral communications shall limit the constitutional powers of the President to conduct certain national and domestic security surveillances. It is clear that the present statute does not confer any authority upon the President that he may or may not otherwise have. That was so held in United States v. United States District Court, 407 U.S. 297 (1972).

A repeal of the provision would not take away any authority of the President under the Constitution. While it is hard to complain then of any real damage that would be done by the proposed repeal, I would simply submit that the present provision is an appropriate one, in recognizing a potential power in the President, the precise dimensions of which have yet to be developed in the courts.

Regarding the proposed repeal of the provisions for emergency interceptions, the effect of the proposal would be to make all such inter

ceptions, no matter how threatening the circumstances and no matter how urgent the need for quick law enforcement action, per se, unreasonable without a court order. To consider such interceptions per se unreasonable would be anomalous, since it is constitutionally permissible to conduct searches and seizures without warrants in emergency situations-see, for example, Warden v. Hayden, 387 U.S. 294 (1967) — and intercepting communications can have no higher standing in the law than the matter specifically dealt with in the fourth amendment. Besides, the present statute specifically requires the emergency interceptions to be based upon grounds that would pass muster if there were time enough to obtain the court order; and the statute requires the Government to go into court within 48 hours to seek an order approving the interception. This Department does not want provisions abolished that can serve to avert grave dangers, and certainly the existing provisions have been drawn properly to protect individual rights.

I can hardly improve upon the argument that was made in support of the emergency provisions when they were enacted in 1968. In support of the provisions allowing emergency interceptions when the conspiratorial activities involved are characteristic of organized crime, the legislative history of the present statute shows the following:

"Often in criminal investigations, a meeting will be set up and the place finally chosen almost simultaneously. Requiring a court order in these situations would be tantamount to failing to authorize the surveillance. The provision [section 2518 (7)] reflects existing search warrant law in which the principle of emergency search is well established (Carroll v. United States, 267 U.S. 132 (1925); Schmerber v. California, 384 U.S. 757 (1966))" Senate Report 1097, 90th Congress, 2d session 104 (1968).

I would also mention that the American Bar Association has supported emergency electronic surveillances, when safeguarded by provisions for subsequent judicial review and approval or disapprovalprovisions that, I mentioned, do exist in the present law. See "A.B.A. Standards, Electronic Surveillance," section 5.2 (1971).

So far as I am aware, the emergency interception provisions have not been used, but this hardly undermines the provision. It shows instead that the provisions have only a very limited applicability and yet a very obvious importance for law enforcement. It would seem inherently unwise to repeal provisions which add flexibility to the Government's response to espionage, sabotage, and organized criminal activity, especially since there has been no abuse of these provisions.

The third item addressed in this portion of the statement deals with the making of the reports to Congress and the present requirements would be changed and added to by this legislation. In the interest of brevity, unless someone has a question on it, I will defer reading those three pages relating to the reporting requirements.

Mr. KASTEN MEIER. Without objection, your statement in its entirety will appear in the record so that your omission will not be reflected. [The prepared statement of Mr. Maroney follows:]

STATEMENT OF KEVIN T. MARONEY, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

Mr. Chairman and members of the committee, I appreciate this opportunity to present for your consideration the views of the Department of Justice on R. 214 and H.R. 141.