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the possible permutations of human activity afterwards, but again speaking only as an individual cosponsor, I am open to any suggestion or to working with this subcommittee with respect to that.
Mr. PATTISON. My problem is if I were an executive I would want to routinely extract that just so that I did not pinpoint anybody in particular. I mean, if I all of a sudden asked a particular person for his consent, and I had not asked everybody else, I would think that that would be rather destructive to my relationship with that particular person. He might think that I was being overly suspicious of him, whereas if I extracted it uniformly from all of my employees, even though I only had one or two of them in mind
Mr. BIESTER. If you did that, I think you would be violating certainly the spirit of this legislation.
Mr. Pattison. Yes; I agree. But it would not be prohibited by this.
Mr. BIESTER. I think it should be. I think in some fashion we should clarify that it is a specific consent not a general consent, and for a specific circumstance.
Mr. PATTISON. That would solve the problem.
Mr. KASTENMEIER. Before I vield to the gentleman from California, it might be well just briefly to hear the scope of this bill, because we are talking about some activities not covered in the bill, such as mail covers, or following double agents and the use of informers, infiltration tactics used by police departments, as anyone who watches television knows, very effectively, from all of the dramas that appear every week.
In addition, this bill does not affect State or local law enforcement authorities. It is essentially a Federal bill.
Whether or not one desires to reserve certain powers for any police authority within the United States that is local in character. I think it should be made clear what the scope of this bill is, in terms of what it will or will not prevent.
Mr. BIESTER. I think that section 4 on page 5 of the bill also points in the same direction, but perhaps could be more clearly stated.
Mr. KASTEN MEIER. I yield to the gentleman from California, Mr. Wiggins.
Mr. Wiggins. Thank you, Mr. Chairman.
You have used in the bill the phrase "probable cause," and you have also used in the bill "reasonable cause." Is there a difference in meaning intended between the two usages?
Mr. BIESTER. We have also used the phrase reasonable grounds, which I think reflects a fairly standard phrase with respect to arrests or pursuit of a person who committed a felony, but not in one's presence, not a peace officer's presence, and the probable cause we mean to use as a standard for the magistorial authority in terms of the justification of either surveillance or the wiretap.
Mr. Wiggins. All right. Then are you intentionally incorporating all the case law which has flushed out the meaning of that word in recent years?
Mr. BIESTER. Yes. We cannot bind the courts to their ad hoc future interpretations of an application of the phrase. We are certainly taking that into account, though.
Mr. Wiggins. In section 2236, subsection (A) (2), commencing on line 13
Mr. BIESTER. Right.
Mr. WIGGINS [continuing]. You deal with the problem of the search and inspection of records, and you tolerate consensual searches. Normally, records are two-party records. They are records of a buyer and a seller, the record of a doctor and a patient and so forth.
Is it your intent, that the consent be obtained from all parties before a search would be permitted or from only one?
Mr. BIESTER. Well, it would be my personal view that the consent should embrace all of the persons whose individual rights would be affected by disclosure. Now, different persons have different responsibilities and rights with respect to many of those matters listed.
For example, the medical records, the doctor is not privileged to disclose medical records without permission of the patient. In this instance, it would seem to me we are calling for permission or consent of both, let us say, the patient and doctor with respect to those records.
Mr. WIGGINS. What about credit records?
Mr. BIESTER. With respect to credit records, it is again my own belief that it is a matter of both parties, the party who is the creditor and the party who is the debtor.
Mr. WIGGINS. Telephone records.
Mr. BIESTER. Telephone records would include not only the company itself and the person who may have called, but the person who was, in fact, called, because it seems to me there is an impact, potential impact upon the individual rights of at least the caller and the callee.
Mr. Wiggins. Normal business records that I will not include as credit records? Congressman Danielson made mention of, let us say, the work records with respect to repairs on an automobile. Would that require the consent of both the owner of the automobile and the person who conducted the repairs?
Mr. BIESTER. To be consistent, I think I would probably have to say yes, although I can perceive some instances in that particular case in which it might be difficult to obtain the consent of one of the parties.
Mr. Wiggins. Does your bill intend to preclude physical surveillance which does not involve an entry, and I include within entry electronic entries as well as physical?
Mr. BIESTER. You mean the instance such as the shadowing of a person, yes, it would in my opinion. It should, in my opinion.
Mr. WIGGINS. Well, if it does, where does it?
Mr. WIGGINS. I see. Your statement, as distinguished from the legislation, was pretty sweeping in its intent, and I have been trying to find in the bill itself whether or not the bill supported your statement so as to inhibit simply shadowing, physical surveillance of a suspect?
Mr. BIESTER. Right. I would say that the precise matter set forth in the bill relates to particular events, such as interception of telephone communications, the records, the mail, and the searching of private dwellings. And I do not find here just under the pages a point at which general surveillance of the kind of shadowing that you referred to
is covered, which is why I said in my initial answer that it should, it should cover that.
Mr. WIGGINS. The legislation which is now on the books, a portion of which you seek to repeal, speaks in rather sweeping language about the constitutional authority of the President of the United States in certain national security matters. Do you recognize any such constitutional authority on the part of the President of the United States?
Mr. BIESTER. I recognize-
Mr. BIESTER. I think there is an inherent constitutional authority both in the Congress and in the President of the United States. It seems to me article I, section 8 confers upon the Congress a very significant responsibility with respect to national security and it seems to me that the President's oath of office to protect and defend the Constitution implies also a certain responsibility with respect to national security.
Mr. WIGGINS. I gather from your answer you do recognize some authority in the President of the United States. To the extent that that authority exists, can the Congress modify it by legislation?
Mr. BIESTER. So long as the legislation that modifies is in the area of, let us take in this instance, the fourth amendment in an effort to apply and define the fourth amendment strictures on the constitutional authority of the President or his agents.
Mr. WIGGINS. All right. I am concerned maybe academically more than as a legislator here about two different constitutional values which are implicit in your legislation. One is the fourth amendment interest against unreasonable searches and seizures and the other is the judicially declared value of privacy, which is not expressly found in the Constitution, but which is derived from several sections of the Constitution and is not limited in its origin to the fourth amendment.
It seems to me that some of the activities that you find offensive really tend to offend a privacy consideration as distinguished from searches and seizure considerations. Do you agree?
Mr. BIESTER. I absolutely agree, Mr. Wiggins. It seems to me the first amendment protection on freedom of association, for example, creates a certain private of privacy of association which might be impinged by informants planted in a small group. That comes to mind almost immediately.
Mr. Wiggins. Yes. I am aware of that.
Now, the thing that troubles me is that, in the fourth amendment area, our ability to legislate is pretty much confined by the words of that amendment that we tolerate only reasonable searches and seizures, and the courts have done a lot to tell us what is and what is not reasonable. But, in some of these other areas we do not have the guidance of precise language of the Constitution.
In the area of the first amendment, for example, we have a clear and present danger rule, for example, as a basis to interfere with what otherwise might be protected speech, and in the privacy area we have tended to balance competing governmental interests without adhering to a rigid probable cause standard, or a reasonable cause to believe standard.
Now, maybe my question tends to describe my concern, because I believe your bill focuses only upon the protection of the fourth amendment interests, but does so in a way which also is designed to protect privacy interests, using fourth amendment techniques.
Can you just comment about my concern?
Mr. BIESTER. Sure; I think it is a valid concern and it is not simply just from an academic standpoint, either. I think it is a legislative standpoint and a constitutional standpoint. I have never subscribed to the notion of hierarchal values in the Bill of Rights, but there are some who do. I would not put the fourth amendment at any lower level, let us say, than the fifth amendment.
It seems to me that so long as the constitutional protection, the constitutional interest is of the same hierarchal value, and I find the first amendment protection to be the same as the fourth in that respect, then I do not see any obnoxious result if we use maybe perhaps only the fourth to protect rights which are at least advanced in other amendments to the Constitution or in other language of the Constitution.
Now, perhaps from a technician's standpoint, it would be more appropriate to spell out some of the first amendment bases and perhaps spell out a whole constitutional derivation of this right of privacy so that it might be more coherently balanced against the societal concerns, but that is a matter that we have not really addressed.
Mr. Wiggins. It is a lurking concern of mine, and I do not have my own thoughts clearly in order.
Mr. BIESTER. You can tell from my answer that I do not either. Mr. Wiggins. One final question, then, Mr. Biester. In some portion of the bill, reports with respect to information summaries, I believe, of wiretaps are to be furnished to the House Judiciary Committee and to the Senate Judiciary Committee.
What public interest do you see served by requiring the information obtained to be given to these public bodies, recognizing the reality that there is no real security in the Congress of the United States?
Mr. BIESTER. Well, the summaries, as I recall from the bill, are also to be provided to the administrative officers of the courts and I assume that it would be safe and secure in that repository.
Mr. WIGGINS. I do not.
Mr. BIESTER. You do not ? Well, there comes a point at which it seems to me we have to try. If you set the same standard for responsible elements to all three branches of Government, in terms of protection of the individual rights of American citizens, and policy questions with respect to those rights, and then pretend that only or claim only or find only that the executive branch or a limited number of people in the executive branch are the only persons who can be trusted with the information pursuant to which those policy judgments are made, I think one comes to a conclusion which might appeal to certain groups.
But, I find it frankly obnoxious to the whole notion of a balanced, tripartite interest on the part of each branch.
Mr. Wiggins. It is not entirely an either/or situation here where the options are to leave it entirely with the executive branch or to publish it in the newspaper. But we grant under the bill authority to a magistrate, a judge, to issue the warrant in the first place. And we are all concerned that that judge has not been hoodwinked by false, or at least misleading affidavits, and thereafter the law enforcement agency embarks upon an unconscionable fishing expedition.
But why not let the issuing judge supervise his own warrant by a review of the product of that warrant? The degree of security under those circumstances, I think, is significantly higher than if you make that information available to Congress.
Mr. BIESTER. I would say that there is another consideration here as well, and perhaps it can be met by a different mechanism than is prescribed in the bill.
One of the reasons I think there should be congressional involvement in this question, or congressional involvement in terms of oversight of what is going on is with a view to determining the extent to which new legislation may be necessary. Now, that could be a function performed, it seems to me, by this committee or the other relevant committee, so long as the material were stored somewhere which was available on some regular basis to certain members of the committee.
The objective, it seems to me, is some kind of continuing review with the object of modification of legislation rather than just simply to nose about the details of individual cases.
Mr. WIGGINS. Thank you, Mr. Chairman. Mr. Chairman, I have got a group of constituents waiting for me who want to talk to me about a different subject, so if you will excuse me, I just apologize.
Mr. KASTENMEIER. We will reluctantly excuse the second gentleman from California who has left the proceedings this morning.
Mr. BIESTER. Something must be going on in California today.
Mr. KASTENMEIER. I take it that in answer to the question from the gentleman from California, Mr. Wiggins, you feel that notwithstanding whatever risks might be entailed, that some of this secure information might be leaked, that it is necessary to involve the Congress, involve all three branches of Government in safeguarding what you regard as our constitutional freedoms?
Mr. BIESTER. I am convinced it is a constitutional responsibility on the part of each of the branches, and perhaps some cleaner and more secure way can be discovered to involve the Congress in the prescription of the bill. But, I would think that it would be a derogation of our responsibility if we did not attempt to provide some means for ourselves to make value judgments over a span of time upon the nature of the kinds of wiretaps or surveillances or other kinds of activities that may go on pursuant to the legislation we pass.
Mr. KASTENMEIER. On behalf of the committee, I want to thank the gentleman from Pennsylvania for his very useful contribution this morning
Mr. BIESTER. Thank you, Mr. Chairman. It is a pleasure to be back. [The prepared statement of Hon. Edward G. Biester, Jr., follows:]
STATEMENT OF Hon. EDWARD G. BIESTER, JR., A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF PENNSYLVANIA Mr. Chairman, and Members of the Committee, I appreciate this opportunity to appear before you today to speak on behalf of H.R. 214, the Bill of Rights Procedures Act, introduced in the House by the distinguished gentleman from Ohio, Mr. Mosher, and in the Senate by its author, the distinguished Senator from Maryland, Mr. Mathias.
The Bill of Rights Procedures Act would require any federal agent to obtain a court order before he or she could conduct any form of surveillance on a private citizen. The Government would be required to demonstrate probable cause that a crime had been or was about to be committed before a warrant for surveillance could be issued.