1995 Congressional Hearings
Intelligence and Security



                    TESTIMONY OF JAMES P. FLEISSNER

                      ASSISTANT PROFESSOR OF LAW

                    MERCER UNIVERSITY SCHOOL OF LAW

                                  ON

              THE COMPREHENSIVE ANTITERRORISM ACT OF 1995

                                BEFORE

                    THE COMMITTEE ON THE JUDICIARY

                       HOUSE OF REPRESENTATIVES



                             JUNE 12, 1995

              Statement of James P. Fleissner, Assistant

              Professor of Law, Mercer University School

               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.