DRAFT JUSTICE (KEENEY) STATEMENT 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-RDP90B01370R001101530004-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 21, 2016
• Document Release Date: November 7, 2008
• Sequence Number: 4
• Publication Date: March 5, 1984
• Content Type: MEMO

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STAT
Office of Legislative Liaison
Routing Slip
SUSPENSE p
Date
STAT
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C:'' 20503
TO:
March 5, 1984
LEGISLATIVE REFERRAL MEMORANDUM
LEGISLATIVE LIAISON OFFICER
De artment of Defense
astral Intelligence Agency
National Security Council
General Services Administration
United States Information Agency
Draft Justice (Keeney) statement on H.R. 4826, a bill
SUBJECT: 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
COB TUESDAY, MARCH 6, 1984.
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office. /
J am-c~. Mti
Assistant Director for
Legislative Reference
Enclosure
cc: A. Curtis M.A. Chaffee M. Uhlmann M. Horowitz
F. Reeder A. Donahue F. Fielding
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DRAFT
STATEMENT
JOHN C. KEENEY
DEPUTY ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
BEFORE
THE
SUBCOMMITTEE ON CRIMINAL JUSTICE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
CONCERNING
NONCONSENSUAL RECORDINGS - H.R. 4826
ON
MARCH 8, 1984
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Mr. Chairman and members of the Subcommittee, I am pleased
to be here today to present the views of the.Department of
Justice on H.R. 4826, a bill which would make it a criminal
offense for a public officer or employee to record a telephone
conversation without the consent of all the.parties to the
conversation. The bill would have a substantial adverse impact
on'investigations necessary in law enforcement, would put an
additional strain on proseoutive resources, and would criminalize
a number of useful practices in other areas. For these reasons
the Department of Justice opposes its enactment. While I will be
primarily addressing these aspects of the bill, I'note that it
also raises important issues for the agencies of the federal
government which engage in intelligence operations and witnesses
from the intelligence community will be addressing these
concerns.
H.R. 4826 would amend title 18 of the United States Code by
adding a new section 1924 to prohibit persons "holding office or
employment in a nonforeign government" from making sound record-
ings of voice conversations taking place on telephones without
the consent of all parties to those conversations. There are
exceptions for government officials who conduct criminal investi-
gations or make criminal arrests, who engage in foreign
intelligence and counterintelligence work, who record telephone
search warrants, and who suffer from physical handicaps.
The bill represents a radical departure from present law.
Subsections 2511(2)(c) and (d) of title 18 operate to exempt
one-party consensual interceptions of communications f rom.the
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prohibitory portions of Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 (18 U.S.C. 2510 et. seg.) unless the
interceptor (i.e. the person who secretly records the.conversa-
tion) (1) is not acting under color of law, and (2) intercepts
for a criminal, tortious, or other injurious purpose. Otherwise,
there is no federal statute which prohibits the surreptitious,
one-party consensual interception of communications. However,
the General Services Administration, pursuant to its authority to
issue rules relating to the management and disposal of government
property,1 has promulgated regulations concerning the use of the
federal telecommunication system. They are found at 41 C.F.R.
Part 101-37. A portion of the regulations prohibits one party
consensual interceptions with exceptions very similar to those in
H.R. 4826. There appears to be only administrative sanctions for
violation of. this GSA regulation and, consequently, no federal
criminal penalty presently exists for a government employee or
officer who surreptitiously records his own telephone conversa-
tions on government telephones. H.R. 4826 would make this
conduct a misdemeanor punishable by one year's imprisonment and a
$100,000 fine.
Our primary concern with this bill is that even with its
exception for law enforcement activities, it will inhibit the
performance of legitimate investigative and prosecutive responsi-
bilities because several important activities appear to fall
outside the exemptions provided. For example, although the bill
See 41 U.S.C. 486(c).
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would permit law enforcement agents to record their own conver-
sations, it would not allow federal employees acting on their own
or as an informant for law enforcement 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 a matter
of fact, the statute would even apply in a situation where a
totally honest and dedicated employee concluded from a course of
dealing with a private citizen that he was about to be offered a
bribe to take some improper action and informed the FBI, If, even
with an.FBI agent in his office, he recorded the telephone
conversation that ensued when the offeror of the bribe called
with the proposal. Moreover, because such a recording would have
been made in violation of law by the federal official, it might
be ruled inadmissible in a federal prosecution of the person
offering the bribe. Thus, that person might go free while the
employee, who acted only to thwart a crime, would face a
potential criminal prosecution and a $100,000 fine.
Moreover, the bill would criminalize a number of common
practices employed in the area of public safety that are not
connected with criminal law enforcement. For example, since the
bill applies to persons "holding office or employment in a
nonforeign government," it would apparently apply to state and
local governments. Thus, fire departments and other emergency
organizations could no longer record emergency calls as a matter
of course.
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In fact, the phrase "holding office or employment in a
nonforeign government" is unclear but would appear to apply to a
Congressman or a member of his staff who recorded a conversation
with a constituent who called seeking help in resolving a
complicated social security matter if the staff member forgot to
obtain the constituent's consent. Since there is no intent
requirement, any such inadvertent violation would be covered.2
Another example of such an unintended violation would be failing
to obtain the consent of one party to a multi-party conference
call to make a recording.
Finally, the coverage of the bill causes a number of
inconsistencies. The most significant is its application only to
government employees acting in the course of their office or
employment. If it is felt that a one-party consensual recording
of a telephone conversation by a government official or employee
is so harmful as to be deserving of criminal punishment, it is
hard to see why businessmen and others in the private sphere who
engage in the practice should not also be penalized. We perceive
no justification for this singular focus on government recording
in the course of employment, inasmuch as the prohibitions of
Title III of the Omnibus Crime Control and Safe Streets Act
currently extend to private as well as public sector "intercep-
tions". Indeed the phrase "course of such office or employment"
would appear even to make the bill inapplicable to a government
2 We note that there is also ambiguity in the phrase "non-
foreign government" as to the coverage of such places as
Puerto Rico, Guam, the Virgin Islands, and American Samoa.
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official who secretly recorded a telephone conversation on his
office telephone concerning a matter unrelated to his work, such
as a personal business matter, since such a conversation would
apparently not be in the course of his employment.
Another inconsistency is limiting the coverage of the bill
to. telephone recordings while ignoring other very similar conduct
such as having a secretary secretly listen in on an extension
telephone and take verbatim shorthand notes. The harm or unfair
advantage derived from this practice is not appreciably different
from making a recordilig. Moreover, the bill is limited to the
"recording of a voice conversation taking place on a telephone."
It thus would not reach the equally harmful situation of a
person's secretly recording a conversation with a visitor in his
office without the visitor's consent or knowledge.
In short, Mr. Chairman, we see many problems with H.R. 4826.
As you know, the Congress has labored for years to develop a
balanced statutory scheme in the complex and highly technical
area of electronic surveillance. Three separate statutes already
come into play in this area.3 Any additional legislation must be
carefully crafted to comport with that scheme and, in our view,
should recognize that there is a considerable difference between
the harm caused by a person who secretly records his own tele-
phone conversation and a person who intercepts a conversation
In addition to Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 which I have already discussed, they
are the Foreign Intelligence Surveillance Act (50 U.S.C. 1801
et. sec.), and.47 U.S.C. 605 which protects the privacy of
radio communications.
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without the consent of either party. While we do not in any way
condone the former type of conduct, we are not convinced that a
criminal penalty is the appropriate response. For example, the
occasional government employee who engages in such conduct absent
justifying circumstances can be dealt with adequately by regula-
tion or an executive order. A regulation or executive order
could provide the appropriate sanction, including dismissal from
office, for this activity and yet offer a more flexible approach
to the problem than does a criminal statute. Also, a regulation
or executive order can,-be much more quickly altered in response
to the changing needs of law enforcement and the intelligence
community than could a statute. In fact, as you probably know,
an executive order on this subject is presently being discussed
within the Administration.
Mr. Chairman, that concludes my prepared statement, and I
would be pleased to answer any questions the Subcommittee may
have.
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