1995年美国国会听证会
情报和安全

前司法委员会众议院法全面反恐怖主义法1995年的法律MERCER大学医学院詹姆斯·福来司拿助理教授证词6月12日，詹姆斯·福来司拿，法学助理教授，美世大学医学院1995年声明of Law, concerning certain provisions of H.R. 1710, the Comprehensive Antiterrorism Act of 1995 Submitted to the Committee on the Judiciary of the House of Representatives June 12, 1995 I appreciate the invitation of the Committee to provide testimony concerning the portions of H.R. 1710 amending Title 18, United States Code, Sections 2510- 2521. This part of the United States Code, which commonly is referred to as "Title III" because of its origin in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, is the principal federal statutory scheme governing the use of electronic surveillance law enforcement agencies. My testimony will focus on the provisions of H.R.1710 setting forth amendments to Title III, namely sections 301 and 306 through 309. I joined the faculty of Mercer Law School last fall, after prosecuting criminal cases for almost eight years as an Assistant United States attorney for the Northern district o� Illinois, During about half of my time with the U.S. Attorney's Office, I worked as a supervisor, last serving as chief of the General Crimes Section. I had the opportunity to work on many investigations and prosecutions utilizing court ordered electronic surveillance under Title III. I hope my perspective as a former prosecutor with hands-on experience with Title III investigations and prosecutions will be of some help to the Committee. My testimony to the committee has two parts. First, I will provide some background information regarding Title III and its use by federal prosecutors. This is to put the proposed amendments contained in H.R, 1710 into perspective. Second, I will provide my assessment o� the amendments to Title III proposed in H.R. 1710, including a discussion of each of the specific changes to Title III called for in the bill. My conclusion, after reviewing the amendments,is that H.R. 1710 would make significant improvements in Title III, improvements that have the potential of assisting law enforcement in combatting crime, especially cries of terrorism, without infringing on the rights of citizens . I believe that the adjustments made to Title III by H.R. 1710 are prudent and sensible changes that are in conformity with the requirements of the Constitution . Background Concerning Title III The members of this Committee understand the need to enact legislation that strikes a balance protecting the Constitutional rights of Americans while providing law enforcement the tools needed to investigate and prosecute crimes, including crimes of terrorism. The Congress faced the same issue when first enacting Title III in 1968: How can legislation be crafted to ensure that fourth amendment rights are preserved while permitting law enforcement to conduct useful electronic surveillance I believe there is substantial agreement that Congress struck the proper balance in enacting Title III. The Congress intended to codify in Title III rules meeting or exceeding the protection required by the fourth amendment, which prohibits unreasonable searches and seizures and requires, except for emergency circumstances, that searches be done pursuant to a warrant issued by a judge. As amended over time, Title III regulates the interceptions of several categories of communications: private face-to-face conversations ("oral communications") communications over the telephone network ("wire communications") and certain data transmissions (electronic communications" ) . Title III established detailed, comprehensive procedures governing electronic surveillance, including the following: O The attorney General (or her designate) must approve every application for a court ordered intercept. O Applications may only be made to investigate certain offenses set forth in Title III. O The application must provide sufficient facts for the court to make a three-tiered finding of probable cause regarding the commission of crimes by certain persons, the use of facilities or premises to be monitored by those persons, and the use of those facilities or premises by the persons in connection with the crimes under investigation. � The application must state that other investigative procedures have been tried and failed, or are impractical or dangerous. O The agents executing the Title III warrant must minimize the interception of communications no pertinent to the investigation and privileged communications. � Court orders for electronic surveillance are to be only for the time needed to achieve the objective for the search, and in no event longer than 30 days. Extensions beyond 30 days can be granted upon submission of a new application meeting all of the requirements of the initial application � Records and recordings from the surveillance must be properly sealed and stored. O Evidence seized in violation of Title III may be challenged and suppressed. These procedures were meant to codify the protection of the fourth amendment as it had been interpreted by the Supreme Court. Since the adoption of Title III, the Supreme court has decided a number of cases involving Title III and has not expressed any doubt as to its constitutionality Furthermore, every United States Court of Appeals addressing the issue has affirmed the constitutionality of Title III. While Title III serves to protect fourth amendment rights, it allows for electronic surveillance consistent with the Constitution. The federal government has utilized Title III in any investigations with great success. The statute has been of significant value, especially during investigations of concerted activity by groups of Sec. a.g., Scott v. United States, 436 U.S. 128 (1978); United States v. Donovan, 429 U.S. 413 (1977); United States v. Giordano, 416 U.S. 505 (1974); United States v. Chavez, 416 U.S. 562 (1974); United States v. Kahn, 415 U.S. 143 (1974). Sec, United States v. Petto, 973 F.3d 1441, 1443 (9th Cir. 1992); United States v. Turner, (528 F.2d 143, 158-59 (9th Cir. 1975) (collecting cases). offenders, such as organized crime syndicates and narcotics distribution rings. I worked on the investigation and prosecution of cases that are testament to the value of Title III to law enforcement. Although the use of Title III in federal criminal investigations has had a major impact, the government's use of the statute has been marked by discretion and caution. In 1992 there were 340 court orders for interception obtained by the federal government under Title III (3). Of those, 226 were issued in narcotics cases and 38 were issued in racketeering cases. These figures are put in perspective when one considers that in 1992 over 51, 000 defendants were convicted in federal courts. Not only has the federal government's use of Title III been limited in scope, it has also been deliberate and careful. Deliberation and care regarding staining and executing Title III orders are institutionalized ln the department of Justice. Applications are 3. The statistics in this paragraph are derived from Soucrebook of Criminal Justice Statistics 1991, U.S. Department of Justice, Bureau of Justice Statistics, Tables 5.2 and 5.3 at 475 and table 5.18 at 490. exhaustively reviewed by local U.S. Attorney's, Main Justice, and the investigative agencies. The Department's internal guidelines often exceed the requirements o� Title III. My experience is that government attorneys and law enforcement agents work diligently ln Title III Investigations to do everything properly. Certainly mistakes are made, but my experience tells me the quality of work by those responsible for obtaining and executing Title III orders is done in a professional manner. The background information I have provided was summarized by a leading commentator on Title III, Professor Michael Goldsmith: "[E]lectronic surveillance is not a routine investigative technique. Even so, Title III has been enormously valuable in complex criminal cases, particularly organized crime and narcotics investigations. Moreover, the statute increased privacy protection and won uniform constitutional approval. Thus as originally enacted, Title III effected an appropriate balance between law enforcement and privacy interests." (4) Assessment of the Proposed Amendments to Title III The critical question concerning the amendments to Title Ill contained ln H.R. 1710 is whether those amendments will disrupt the balance between Constitutional rights and the interest in effective law enforcement that Title III currently achieves. My assessment is that the amendments to Title III contained in H.R. 1710 are prudent adjustments, which, by and large, have the potential to help combat crime, including crimes of terrorism, without creating new risks that the fourth amendment rights of Americans will be infringed. H.R 1710 contains several specific amendments to Title III. Each will be addressed in turn. Section 301 (a) This provision of H.R. 1710 would amend the part of 4. Michael Goldsmith, Eavesdropping Reform: The Legality of Roving Surveillance, 1987 U. Ill. L. Rev. 401, 408-409 (1987) (footnotes omitted). Title lll listing the specific offenses which may be investigated using Title III interceptions. 18 U.S.C. S 2516. Section 301 (a) of H.R. 1710 would add several types of criminal violations to the list of those in the statute. This amendment would allow Title III interception orders to be obtained Ln the investigation of several offenses for which orders could not now be obtained . Each of the offenses to be added under H.R. 1710 is the sort of offense that could be committed as part of terrorist activity. Each of the offenses, if committed "to achieve political or social ends," could, depending on the facts of the case, fit squarely within the definition of "terrorism" in Section 315 of H.R. 1710. The offenses added by the bill include certain offenses involving explosives (18 U.S.C. S 842) actions against foreign nations from within U.S. jurisdiction (18 U.S.C. SS 956 and 960), attacks against U.S. officials and employees and foreign officials (18 U.S.C. SS 11114, 1116, and 1751), several sorts of terrorist activity defined in recently enacted statutes (18 U.S.C. SS 2332, 2332a, and 2339a), and violence involving air transportation (18 U.S.C. S 37 and 49 U.S.C. S 46502) (5). Adding these crimes to the list of crimes that can be investigated under Title III is a good idea. While other crimes currently on the list may cover terrorist activities under Investigation, H.R. 1710 would ensure that conduct constituting these serious offenses could be investigated under Title III. Of course, any such investigation would have to comply with all of the procedures of Title III . Section 301 (b) This provision would make an amendment to the procedure in Title III concerning when the prosecutor must file progress reports on an authorized interception to the court which ordered the interception. Under current law, whether to require reports during 5. My research indicated that two of the crimes set forth in H.R. 1710 to be added to the list in 18 U.S.C. S 2516 were added be prior legislation. It appears that 18 U.S.C. S 1751 (relating to presidential assassination) and 49 U.S.C. S 46502 (relating to air privacy) already are listed in Section 2516. See 18 U.S.C.A. SS 2516 (c) and 2516 (j) (West 1995). the period of interception is left up to the judge issuing the court order. 18 U.S.C. S 2518 (6). H,R, 1710 would require a single report 15 days after the interception has begun, This amendment would require a report and standardize the number of reports. I am unaware of data on the number of reports required, but it was the practice in my former office to include 2 ten day reports in the draft orders submitted to the court . The single report after 15 days would, in my judgement, be sufficient. It is important to note that the court may limit surveillance to any period less than the 30 day maximum and that surveillance is always limited to the period "necessary to achieve the objective of the authorization." l8 U.S.C. S 2518 (5). H.R. 1710 would not make any change in these provisions in Title III. Section 30 Title III prohibits the use of evidence seized by electronic surveillance if the disclosure of the evidence would be in violation of the provisions of Title III. l8 U. S.C. S 2515. This is the statutory "exclusionary rule" of Title III. The Supreme Court has interpreted this exclusionary rule to require exclusion of evidence only where the provision of Title III violated during the seizure "was intended to play a central role in the statutory scheme" (6). This interpretation of the rule is, in my view, sound because it limits the remedy of suppression of evidence to serious breaches of the procedures of Title III. For example, suppose a prosecutor, through oversight, fails to have the court seal the original tapes from wiretap in a timely manner as refund by 18 U.S.C. 2518 (8)(a). In circumstances indicating that the evidence was not tampered with, suppression of the evidence would be an extreme sanction for a breach of a provision that is not central to the statutory scheme (7). The Supreme Court appropriately has taken a flexible approach to the statutory exclusionary rule of Title III. 6. United States v. Giordano, 416 U.S. 505, 528 (1974), See also United States v. Chavez, 416 U.S. 562 (1974). 7. See e.g., United States v. Acon, 513 F.3d 513, 518, (3d Cir. 1975). H.R. 1710 would amend the exclusionary rule in Section 2515 to exclude evidence seized in violation of Title III only where the violation "involved bad faith by law enforcement." Section 306. This amendment would bring the exclusionary rule for violations of the various procedures in Title III into conformity with the exclusionary rule articulated by the Supreme Court for violations of the fourth amendment. The supreme Court has held that the fourth amendment exclusionary rule does not require the suppression of evidence seized by police who relied in good faith on a search warrant subsequently found not to be supported by probable cause (8). This "good faith exception" to the fourth amendment exclusionary rule makes sense: The central idea behind an exlusionary rule is to deter intentional breaches of the law. Suppressing evidence seized in good faith is an inappropriate sanction that keeps important evidence from the trier of fact while contributing little to deterring misconduct. 8. United States v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Shepard, 469 U.S. 981 (1984) H.R. 1710 would codify the good faith exception in the exclusionary rule of Title III. This would make the exclusionary rule of Title III coterminous with the exclusionary rule of the fourth amendment (9). This amendment would also make the standard for exclusion the same for all the categories of communications regulated by Title lII. In 1986, through an amendment to Section 2518 (10) (c), the Congress limited exclusions of improperly seized "electronic communications" to those seized in bad faith (10). The amendment in H.R. 1710 would put "oral communications" and "wire communications" under the same standard as "electronic communications, " namely, the standard required by the fourth amendment (11). 9. At least one court has held that the good faith exception in Leon applies to exclusions under Title III, even without the proposed amendment. United States v. Gambino, 741 F.Supp. 412, 415 (S.D.N.Y. 1990). l0. See House Report No . 99-647 at 48. 11. One related issue that would be settled by the amendment is whether communications seized by private individuals in violation of Title III could be introduced by the government in a criminal prosecution. Since such an illegal seizure would not involve bad faith by law enforcement, the amendment would appear to allow admission of the evidence. I support this result. Of course, the illegal seizure could still be punished by criminal or civil sanctions. See generally, Cillford S. Fishman, Wiretapping and Eavesdropping 42 (1978). H.R. 1710 would not alter the potential criminal and civil sanctions available for persons violating Title III's Procedures. Section 3 0 7 This provision makes two technical amendments to operating definitions in Title III. Section 307 (a) amends the definition of "electronic communication" to exclude "information stored in a communications system used for the electronic storage and transfer of funds." Section 307 (b) amends the definition of radio communications "readily accessible to the general public" in Section 2510 (16) by striking subsection (F), which excluded all "electronic communications" from the definition. My research did no lose the impetus behind these two technical amendments. Section 308 H.R. 1710 amends a little utilized portion of Title III: the emergency surveillance provision (12). 18 U.S.C. 12. I was unable to find statistics concerning the use of the emergency surveillance sanction. The evidence available suggests that the provision is rarely invoked and that the department of Justice limits use the of provision to life threatening situations. See Clifford S. Fishman, Interception of Communications in Exigent Circumstances; The Fourth Amendment. 2518 (7). As it exists, that provision allows electronic surveillance without a court order for a 48 hour period in certain emergency circumstances, such as immediate danger of death or serious bodily physical injury to persons. The provision requires involvement by the highest ranking members of the Department of Justice. It also requires that a warrant fulfilling all of Title III's requirements be presented to a court with in 48 hours, and that surveillance cease if the warrant is found insufficient. The emergency surveillance provision is a codification of a well established doctrine of fourth amendment jurisprudence: Exigent circumstances may render the obtaining of a warrant before a search impractical (13). H.R. 1710 would add to the short list of circumstances in which the emergency wiretap provision could be invoked. Under the amendment, a reasonable determination that ongoing conspiratorial activities Federal Legislation, and the United States Department of Justice, 22 Ga. L. Rev. 1, 9, n.20 (1987). 13. See eg, Schmarber v. California, 384 U.S. 757 (1966); United States v. Karo, 468 U.S. 705 (1984). involving domestic terrorism or international terrorism were afoot, in circumstances where a warrant could not be obtained with due diligence, would allow surveillance under the emergency provision. Sections 308 (b) and 315 of H.R. 1710, which incorporate the definition of terrorism, make clear that the new provision contemplates the use of force or violence. I do not view the amendment as problematic. Section 308 merely makes clear that imminent acts of terrorism may give rise to exigent circumstances allowing the seizure of evidence before a warrant is obtained, a result that the current emergency provision and, I believe, the fourth amendment allow. Section 309 H.R. 1710 would amend the part of Title III often referred to as the "roving surveillance provision. " 18 U.S.C. S 2518 (11). This provision allows, in certain circumstances, for a warrant to issue allowing electronic surveillance without the applicant specifying the facilities from which, or the place where, the communication is to be intercepted. The provision requires that the application for a roving surveillance of "oral communications" name the person to be intercepted and explain why the mobility of the suspect makes specification of the facility or place of interception impractical. In order for the warrant to issue, a judge must make the finding that specification is not practical. 18 U.S.C. 2518~ (11) (a). For "wire communications" and electronic communications," the test is slightly different. 18 U.S.C. S 2518(11) (B). For these categories of communication, the applicant for an order must show that the person to be intercepted has a purpose "to thwart interception by changing facilities." H.R. 1710 would eliminate this different standard for wire and electronic communications and bring all categories of communications under the same standard. Under Section 309, all applications for roving surveillance would have to name the person to be intercepted and establish that specification of the facility or place is impractical, the current requirements for interceptions of oral communications. I favor this amendment. Requiring proof that the person to be intercepted has an intent to thwart interception is unwise. It may be that a subject moves from phone to phone because he is attempting to avoid capture or because of constant movement to distribute narcotics. It makes no sense that under such circumstances a roving surveillance order may be obtained for the subjects oral communications but not for the subjects telephone calls. It should be noted that the roving surveillance provision, as currently constituted and with the amendment proposed in H.R. 1710, comports with the requirements of the fourth amendment. The current provision has been held to be constitutional (14). Some have expressed concern that the concept of the roving wiretap is inconsistent with the fourth amendment's requirement that warrants state with particularity the place to be searched. However, the courts have not 14. United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993); United States v. Silberman, 732 F.Supp. 1057 (S.D. Cal. 1990), aff'd sub nom. United States v. Petti, 973 F.2d 1441 (9th Cir. 1992), United States v. Ferrara, 771 F. Supp. 1266 (D.C. Mass. 1991). interpreted the fourth amendment literally in the context of the modern issue of the seizure of intangible communications. One court put it this way: "In essence, the roving intercept provision replaces the usual practice that the place to be searched be identified in a warrant by an address with a description of that place as the location at which an identified person is engaging in identified criminal conversation (15). Professor Goldsmith concluded that in light of the interpretation of the fourth amendment by the Supreme Court and the other procedural safeguards in Title III, "roving surveillance is clearly constitutional (16). H.R. 1710's change in the showing required to obtain a roaring surveillance warrant for wire and electronic communications would not change the constitutional validity of Section 2518 (11). The fourth amendment's particularity requirement would be met by the specification of the person to be 15. Farrara, 771 F. Supp. at 1271. 16. Goldsmith, supra, at 425. intercepted and the showing that specification of the facility or place is impractical, the very showing now required for intercepting an oral communication. I thank the Committee for this opportunity to share my views on the proposed amendments to Title III contained tn H.R. 1710.