JUSTICE AND CIA DRAFT REPORTS ON H.R. 424 THE FEDERAL PRIVACY AND TELEPHONE RECORDS ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01370R001101480008-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 21, 2016
• Document Release Date: December 30, 2008
• Sequence Number: 8
• Publication Date: January 27, 1984
• Content Type: MEMO

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Office of Legislative Liaison
Routing Slip
STAT
Date
STAT
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 TO:
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
January 27, 1984
LEGISLATIVE REFERRAL MEMORANDUM
LEGISLATIVE LIAISON OFFICER
partment of Justice (CIA draft report only)
entral Intelligence Agency (Justice draft report only)
Department of the Treasury
Federal Communications Commission
General Services Administration
Department of Defense
Department of Commerce
SUBJECT: Justice and CIA draft reports on H.R. 424, the "Federal
Privacy and Telephone Records Act"
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 Friday, February 10, 1984.
NOTE: Similar reports on H.R. 933 (97th Congress) were circulated for comment on
4/3-0/81 and later cleared. GSA's report on H.R. 424 as cleared last year is also
attached FYI.
.Direct your questions to Branden Blum (395-302), the legislative
attorney in this office.
Jame`f C. Mdrt for
Assistant Director for
Legislative Reference
Enclosure
cc: R. Veeder K. Wilson F. Fielding
C. Wirtz A. Donahue
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Office of Legislative Affairs
Honorable Jack Brooks
Chairman, Committee on
Government Operations
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for the views of the
Department of Justice regarding a bill, H.R.'424, "to amend the
Privacy Act of 1974 and-the Communications Act of 1934 to provide
for the protection of telephone records, and for other purposes."
SUMMARY OF BILL
The bill, which is identical to H.R. 933 in the 97th
Congress, would restrict access of federal, State and local law
enforcement officers to "telephone record information", a term
broadly defined to encompass virtually every item of information
pertaining to telephone communications except the content of the
communications themselves. More specifically, the bill would
restrict (1) access to telephone toll records, (2) use of pen
registers which record numbers dialed from a particular tele-
phone, (3) use of electronic means to trap and/or trace incoming
calls to determine their origin, (4) access to unlisted telephone
numbers, (5) cross-referencing of a telephone. number to the name
and address of the subscriber assigned that particular number,
and (6) any other information needed to determine or verify the
"existence, date, time, location or parties involved in any
telephone call."
Following a statement of findings and purpose, the bill
proposes. to amend the Privacy Act of 1974 to establish special
procedures for handling of "telephone record information" in the
possession of federal departments and agencies. The measure then
proposes to amend the Communications Act of 1934 to establish a
new section 225 governing access to telephone record information
in the possession of telephone companies. Subsection (a) of the
new section sets out definitions; subsection (b) restricts
disclosure of telephone record information to those forms of
legal process authorized by subsection (c) or made pursuant to
subscriber consent.
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Subsection (c) authorizes disclosures pursuant to court
orders issued under the Foreign Intelligence Surveillance Act of
1978, court ordered responses to summonses or subpoenas described
in subsection (d), or court orders entered under subsections (e)
and M. Subsection (d) requires advance notice to the
subscriber of any subpoena or summons for "telephone record
information" as well as an opportunity for the subscriber to
challenge access in court. It is important to note that even if
the subscriber chooses not to challenge a summons or subpoena,
the court must affirmatively order a response to the legal
process before disclosure can be made by the service provider.
Furthermore, if a challenge is filed, paragraph (d)(2)(D) permits
the subscriber to oppose the summons or subpoena "on any grounds
which would-otherwise be available if the customer were in
possession of the information"; this implies that a criminal
suspect could block law enforcement access to his telephone
records on the Fifth Amendment ground that the records would tend
to incriminate him. Subsections (e) and (f) set out procedures
and requirements for court-ordered disclosures that are essen-
tially identical to the existing requirements for a court order
authorizing the interception of the contents of a telecommunica-
tion, 18 U.S.C. 5.2510 et se q.
The bill also provides special procedures for Secret Service
access to "telephone record information", authorizes civil damage
actions for any violation (with liquidated damages of $10,000
provided for any improper disclosure), requires suppression of
improperly obtained information in any trial or proceeding and
establishes criminal penalties of a fine of up to $100,000 and/or
imprisonment of up to five years for any intentional violation of
the procedures of the bill.
EFFECT OF PROPOSAL UPON LAW ENFORCEMENT AND FOREIGN INTELLIGENCE
Our comments will focus mainly on those provisions of the
bill restricting law enforcement access to telephone record
information. In this regard, the bill would have a substantial
adverse effect upon criminal law enforcement at the federal
level, not to mention the equally significant impact-on State and
local prosecutions. The bill reflects a serious lack of appreci-
ation as to the purposes served by and importance of telephone
record information in criminal investigations.
First, telephone record information is frequently vital in
connection with the investigation and prosecution of such
priority federal offenses as narcotics trafficking, organized
crime and racketeering, wire fraud and conspiracy as well as in
the location and apprehension of fugitives. In a great percent-
age of such cases, perhaps a majority, only through access to
telephone information is it possible to link drug traffickers to
their suppliers and vendors, to establish connections between the
members of organized crime syndicates, to prove federal jurisdic-
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tion over fraud and other criminal schemes, to ascertain the
scope and composition of large-scale conspiracies, and to
determine the whereabouts of fugitives. In short, any substan-
tial curtailment of law enforcement access to telephone record
information would seriously impede law enforcement efforts
throughout the nation.
Second, the bill overlooks the fact that telephone record
information is usually needed in the early stages of criminal
investigations when any notice to the subject of the investi-
gation could jeopardize the lives and safety of potential
witnesses or result in flight from prosecution, tampering with
evidence, subornation of perjury, fabrication of fraudulent
"evidence" and cover stories and other illegal activities
calculated to frustrate investigative efforts. Yet despite the
serious threat that premature notice poses to criminal investi-
gations,'the bill affords no mechanism for delaying notice of a
summons or subpoena.
The practical impact of this omission is to render admini-
strative subpoenas and summonses as well as grand jury subpoenas
(a constitutionally contemplated form of legal process) null and
void in terms of access to telephone record information. As a
consequence, the only procedure for obtaining telephone record
information without notice is the cumbersome court-order mecha-
nism. In this regard, the bill would impose upon access to
telephone record information essentially the same highly restric-
tive procedures now required for interception of the contents of
.telecommunications. Yet the necessity of conducting an intercep-
tion in a criminal investigation occurs very rarely whereas it is
frequently necessary to seek some form of telephone record
information. For example, only 258 interception orders (includ-
ing extensions) were sought in connection with federal criminal
investigations during calendar year 1982; during the same period,
we estimate that the number of occasions upon which Department
officials sought some form of telephone record information (toll
records, unlisted telephone numbers, cross-referencing of
telephone numbers to subscribers, and other information) was in
excess of 100,000. Obviously, the proposed requirement of a
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court order for each such instance of access would tie up
investigators and prosecutors in paperwork, flood the courts,
significantly delay investigations and jeopardize prosecutions ./
Furthermore, because telephone record information is
normally needed in the early stages of an investigation, the
demanding evidentiary standard required by the bill -- "reason-
able cause" -- will bar access to telephone record information in
most cases. In this regard, it should be borne in mind that the
distinction between "reasonable cause" and "probable cause" is
vague, at best, and that the "probable cause" standard is the
same one required to support a criminal indictment, an event
which occurs at the end of the investigative process. Obviously,
such a standard can seldom be met at the early stages of an
investigation. Without the leads obtained through telephone
record information, many investigations would never progress to
the point where an indictment or conviction could-be secured.
H.R. 424 poses special problems for foreign intelligence.
The bill provides an exception to its restrictions on government
access to "telephone record information" for the disclosure or
interception of telephone record information pursuant to the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 61801 et
se q.). However, while the exception is generally sufficient to
1/
The various types of "telephone record information" are presently
obtained by the Department of Justice in different ways: subscriber
information (names and addresses of subscribers assigned particular numbers
and unlisted numbers) is normally obtained pursuant to request; telephone
toll records are normally sought pursuant to administrative or grand jury
subpoena; and pen registers, traps and traces are normally effected through
court orders issued pursuant to Rule 57(b) of the Federal Rules of Criminal
Procedure. See Reporters Committee v. American Telephone and Telegraph,
593 F.2d 1030, 1038 D.C. Cir.'197 ), cert. denied, 440 U.S. 9 9 (1979),
for telephone company policy regarding toll records. With respect to pen
registers, the proposed Federal Criminal Code Revision (56543 of H.R. 1647,
97th Congress) would have authorized entry of a court order for instal-
lation of a pen register upon a determination of "reason for the belief
that the information likely to be obtained by the pen register is relevant
to a legitimate criminal or civil investigation." A similar provision
concerning the use of "call registers" is set forth in section 3113 of the
Senate version of the proposed Criminal Code Reform bill (S. 1630, 97th
Congress). Such a showing would seem to more nearly achieve a balance
between the competing interests involved than the rigorous and cumbersome
procedures set out at pages 10-16 of H.R. 424.
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protect activities conducted under that Act, it is too narrowly
drawn to prevent serious damage to the'government's ability to
conduct foreign intelligence and foreign counterintelligence
investigations.
For example, section 3 of the bill is not subject to the
above exception; it requires telephone record information in the
possession of a government agency to be returned "to the person
who produced the record" either at the conclusion of the inves-
tigation or proceeding for which the information was collected or
upon written demand when no proceeding is instituted within a
reasonable time after the information has been collected. If
"the person who produced the record" is interpreted to mean the
telephone user, mandatory release of such information would
jeopardize the methods and sources involved in foreign intelli-
gence investigations.
In addition, the Foreign Intelligence Surveillance Act
(FISA) does not apply to all types of telephone information
described in the bill's definition of "telephone record informa-
tion." Agencies with foreign intelligence investigatory
authority would thus be required to follow the bill's procedures
in order to obtain, for example, telephone toll records. Under
these procedures, the individual whose records are being sub-
poenaed may challenge the subpoena. Again, disclosing to the
subject of a subpoena that access to his or her telephone toll
records has been requested by a government agency would effec-
tively terminate any foreign intelligence or counterintelligence
investigation of that person. Moreover, obtaining a court order
requiring the disclosure of telephone record information pursuant
to a summons or subpoena under proposed new section 225(d) of the
Communications Act after.a challenge by the customer would
generally be impossible in the foreign intelligence area. Such a
court order must be based on a finding that there are reasonable
grounds to believe that the information will be, relevant to a
felony enumerated in section 225(e). A similar finding is
required under the court-order procedures outlined in subsections
(e) and (f) of new section 225. Because of the nature of foreign
intelligence activities, this requirement that the information
sought be relevant to the investigation of a felony would make it
impossible for agencies which conduct foreign intelligence
activities to use the bill's procedures to obtain telephone
record information not subject to FISA. Thus, the bill's FISA
exception is simply not broad enough to be meaningful for many
foreign intelligence activities.
NEED FOR LEGISLATION QUESTIONABLE
The justification for such a severe restraint upon'law
enforcement has not been demonstrated. Despite the frequent use
of telephone record information in criminal investigations, we
are unaware of any instance of abuse of such information by law
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enforcement officials for political or other improper purposes.2/
Indeed, the mere fact that telecommunications have occurred would
seldom be subject to such abuse. By comparison, financial
information, for example, often gives a clear view of the
totality of a person's affairs including his income and assets,
political and charitable contributions, organizational affilia-
tions and many other aspects of his private life. Similarly, tax
records provide a comprehensive view of a person's lifestyle;
moreover, tax information is submitted pursuant to laws compel-
ling the reporting of income. However, the mere fact of a
telephone communication reveals very little about an individual's
private life. Yet the subject bill proposes restrictions upon
access to telephone record information more severe than those
enacted to protect financial records (12 U.S.C. ??3401-31422) or
tax records (26 U.S.C. ?6103).
In fact, this bill seems to be based on a patently falla-
cious proposition: that the level of privacy interest in
information establishing the fact of, date, time, and duration of
a telecommunication can be equated with the level of privacy
interest in the content of a communication. In this regard, we
would note that "telephone record information" usually shows, at
most, only that a call was placed from one telephone instrument
to another -- not even the identities of the persons placing and
receiving the call. Pen registers do not even record whether the
call was completed, only that a given number was dialed. More-
over, the largest number of requests for "telephone record
information" is for subscriber information reflecting only the
name and address of the individual or business assigned a
particular telephone number. However, even if telephone record
information did disclose the identity of the originator and the
recipient of the telecommunication, the level of privacy intru-
siveness involved in disclosure of the fact of a communication
between a person and his or her spouse, attorney, physician,
clergyman or friend is hardly comparable to that involved in the
content of the conversation.
Of course, the Department of Justice recognizes the obvious
need for stringent protection of the contents of telecommunica-
tions; indeed, such communications have been held to be protected
by-the Fourth Amendment, Katz v. United States, 389 U.S. 317
(1967), and can only be intercepted upon entry of a court order
satisfying. the constitutional requirement of probable cause. The
2/ The Department of Justice recognizes the sensitivity of telephone
toll records pertaining to members of the news media, as indicated in
regulations governing access to such records, Order No. 916-80, 28 CFR,
Part 50.
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difference in reasonable expectation of privacy between the
content of a telecommunication and telephone record information
is as great as the difference between the privacy of a conversa-
tion occurring in a private home as compared with information,
perhaps obtained from a neighbor, that a particular individual
visited that residence at a specific date and time for a specific
duration. There is, therefore, no comparable expectation of
privacy in the fact of, date, time and duration of a telephone
conversation -- information which is routinely recorded by
telephone companies for billing purposes -- and such.information
is not, therefore, protected by the Fourth Amendment, Smith v.
Maryland, 442 U.S. 735 (1979). Moreover, such individual privacy
interests as do exist in telephone record information are clearly
outweighed when there is a demonstrable reason to believe that
access to telephone record information is necessary in connection
with a legitimate criminal investigation or prosecution.
Finally, although the requirement of a court order to obtain
telephone record information may not appear to the layman to be
burdensome or disruptive,,. the conscientious preparation, submis-
sion and defense of an application for a court order, even an ex
parte order, is an awkward process in the best of circumstances.
This is especially true in the early stages of a criminal
investigation when finesse and timing are of the greatest
importance. Even ex parte applications increase the.workload of
investigators,'prosecutors and courts and result in delays which
can jeopardize important cases. Because prosecutorial and
judicial resources are scarce, enactment of new laws imposing
additional paperwork and litigation burdens upon the criminal
justice system can only reduce the ability of that system to
control crime. This bill, therefore, would have a harmful and
unjustified impact upon law enforcement.
CONCLUSION
For the reasons set out above, the Department of Justice
believes.that H.R. 424 is unduly restrictive of law enforcement
access to information and that laws governing interception of
telecommunications are an inappropriate model for telephone
record privacy legislation. Privacy legislation represents an
area where individual privacy interests must be carefully
balanced . against. the public interest in the proper administration
of justice. In our view, the subject bill does not achieve a
proper balance and would, in fact, deprive law enforcement
officials of the information necessary to ascertain the facts
that will enable the courts to see that justice is done.
The Department of Justice, therefore, recommends strenuously
against enactment of H.R. 424.
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The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
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