DRAFT CIA AND JUSTICE REPORTS ON H.R. 4826 A BILL CONCERNING NONCONSENSUAL RECORDINGS OF TELEPHONE CONVERSATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200330009-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 21, 2016
• Document Release Date: September 15, 2008
• Sequence Number: 9
• Publication Date: May 30, 1984
• Content Type: MEMO

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EXECV f1VE OFFICE OF THE PRESIDEI' f
OFFICE OF MANAGEMENT AND BUDGET
May 30, 1984
LEGISLATIVE REFERRAL MEMORANDUM I
Lt61S1AIIYE LIAISON
TO: LEGISLATIVE LIAISON OFFICER
De~tfnent of Defense -tb
rt only) a
uepartment or justice (CIA report only)
National Security Council rq' ~~ T{
General Services Administration
Department of the'Treasury
ll
Draft CIA and Justice reports on H.R. 4826, a bill
concerning nonconsensual recordings of telephone
conversations
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
Wednesday, June 6, 1984
Direct your questions to Branden Blum (395-38,02), the legislative
Jam -C.'MUr'rIfo
Assistant Director for
Legislative Reference
cc: A. Curtis M.A. Chaffee M. Uhlmann C. Wirtz
F. Reeder A. Donahue F. Fielding
SPEOAL
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Office of Legislative and Intergovernmelal Affairs
Office of the Assistant Attorney General Washington, D.C. 20530
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in reference to the scheduled May 23 mark-up of
H.R. 4826, a bill to forbid the recording of telephone conversa-
tions by federal public officials and employees without the
consent of all parties to such conversations. For the reasons
set out below, we vigorously oppose this legislation.
First, we believe that the conduct covered by H.R. 4826 --
recording by federal employees of telephone communications to
which they are a party -- is totally inappropriate for treatment
in federal criminal law. It seems a very poor use of limited
federal law enforcement resources to have busy FBI agents inves-
tigating allegations that a federal employee has recorded a
telephone conversation to which he or she was a party when
identical conduct by any other citizen would be lawful. The
fact that federal employees are subject to disciplinary action
makes treatment of such conduct as a criminal offense all the
more inappropriate and wasteful of limited law enforcement re-
sources. In short, we believe H.R. 4826. is an over-reaction
to the understandable public outcry which followed disclosure
that a high government official had secretly recorded telephone
conversations in situations having nothing to do with law en-
forcement. It would, in our view, be highly unfortunate if this
episode resulted in unwarranted legislation that would needlessly
burden federal law enforcement agencies.
Second, while H.R. 4826 contains an exception for government
personnel "empowered by law to conduct investigations of or make
arrests for criminal offenses while such officer is engaging in
such an investigation or arrest," this law enforcement exception
is inadequate. The bill would still inhibit the performance of
legitimate and totally nonintrusive investigative and prosecutive
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activities. For example, to avail himself of the exception, a
federal law enforcement officer would have to show that he was
engaged in an actual investigation when he made the recording.
This factor may not be clear in a situation where a person calls
the FBI or some other federal law enforcement agency to report a
crime. Making a recording of such a preliminary call could be of
invaluable assistance in a number of situations, such as if the
caller begins to speak in a foreign language with which the agent
is unfamiliar, or with a heavy foreign accent.
Moreover, even if the concept of an "investigation" were
stretched to include a recording of such a preliminary call by
law enforcement officers, it still would not allow other federal
employees, acting on their own or as an informant for law enforce-
ment officers, to record conversations concerning criminal activity.
Thus, a federal employee who records a threat, a bribe offer, or an
obscene or harassing telephone call would violate the statute. As
if this were not enough, because such a recording would have been
made in violation of the statute, it might be ruled inadmissible
in the federal trial of the person who offered the bribe or made
the threat. Thus, the criminal might go free while the employee,
acting only for the best of motives, could be cited as a criminal
facing a potential term in prison and a $100,000 fine. Again, it
would be unfortunate if one well-publicized incident of secret
telephone recording by a high government official -- which did not
involve law enforcement -- were to result in enactment of legisla-
tion impeding law enforcement.
Third, the bill as reported contains no scienter requirement
such as that the defendant acted willfully or knowingly. Neither
does it require that any publication, disclosure or other use of
the recording be proved, only that a telephone conversation was
recorded on magnetic tape. Thus, it would apply to a federal
employee who inadvertently recorded a call and then immediately
erased the tape or who, as a party to a four-person conference
call, forgot to get the permission of one of the other three per-
sons before making a recording. While such persons are unlikely
to be prosecuted, there is no justification for a statute that
makes such conduct criminal.
While we do not condone the conduct of one who secretly records
his own telephone conversations, there is a considerable difference
between the harm caused by this type of activity and by a secret
interception of a telephone conversation without the consent of
either party. A criminal penalty is, in our view, not appropriate
for the former type of conduct, which can be handled adequately by
administrative sanctions. Such an administrative approach would
provide proper punishment for the occasional federal employee who
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secretly records his own conversations.
with this position and feels that legisla
necessary, we would request that
address our concerns with
of federal law enf
serious con
legis
es
consider the' need to oH4
ll as drafted from the standpoint jdt'on
t. The intelligence agencies also have
over the bill's impact on their operations, and
on in this area should take into account these problems
For the foregoing reasons, the Department of Justice strongly
opposes H.R. 4826 and respectfully urges the Committee to approach
s issue with the prudence and caution which it
thi .
deseVves.
Sincerely,
I Robert A.-McConnell
Assistant Attorney General
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