United States v. Alejandrina Torres

is to decided under one which delay stay simply The effect of

law. period of time. It does trial some rights duties not affect substantive Cudahy, Judge, Circuit concurred in and, therefore, litigants, under Erie opinion. and filed result 64, 58 Tompkins, 304 U.S. Railroad Co. v. question 82 L.Ed. 1188 Thus, the same one of federal law. up- prompted us to considerations which deny a judge’s the federal decision to

hold Johns-Manville, supra,

stay Lynch v. Accordingly, reversal here.

mandate is tak- appeal

The order from which cause is Vacated

en Remanded proceedings.

further America,

UNITED STATES

Plaintiff-Appellant, TORRES, al.,

Alejandrina et

Defendants-Appellees.

No. 84-1077. of Appeals,

United States Court

Seventh Circuit.

Argued June 1984.

Decided Dec. 1984. 25,1985. March Denied

Certiorari

See Hartzler,

Joseph H. Atty., Asst. U.S. Dan Webb, 111., K. Atty., Chicago, plain- for tiff-appellant. Thomas,

David C. Chicago College Kent Law, 111., Chicago, for defendants-appel- lees. CUMMINGS,

Before Judge, Chief and POSNER, Judges. CUDAHY and Circuit POSNER, Judge. Circuit appeal by This the United States raises important questions: two novel and wheth er government may the federal ever secret ly private building televise interior of a part of investigation a criminal and use videotapes trial, in criminal and if so whether the warrants under which tele vision surveillance was conducted this complied require case with constitutional grand A jury ments. indicted the defendants, four who are members (Fuerzas FALN Armadas de Liberación Puertorriqueña), charges Nacional of se § (18 2384) conspiracy ditious U.S.C. weapons explosives related violations. trial, judge On the eve of the district or suppression videotapes dered the part the FBI had made as of its surveil lance of two FALN safe houses. (N.D.Ill.1984). F.Supp. 99-105 The government appeals this under order 3731. The videotapes had no track; sound but at same time that the FBI was televising the interior of safe recording houses was on dif sounds equipment. judge ferent The refused to suppression tapes, order of the sound not in appeal. issue The FALN organization is a secret Puerto separatists try- Rican been has ing independence to win Puerto Rico bombing buildings tactics that include York, Chicago, Washington. New stored, bombs are assembled and mem- meet, organization bers in safe hous- es rented under false names. The bomb- ings people, injured have killed several others, many and caused millions of dollars in this safe house F.Supp. ings that the other damage. two property See defendants in this case were identified. 91; February 1975 Grand Special In re Cir.1977); (7th 409-10 F.2d Jury, 565 judge The trial held that there was .no Rosado, 728 F.2d 91- States statutory or Judge other basis Chief Archuleta, Cir.1984); 561 F.2d (2d In re authorizing order television sur- McGarr’s Cir.1977); Cueto, (2d 443 1059, In re 1060 the veillance of safe houses that there- Breasted, 857, (S.D.N.Y.1978); F.Supp. 858 the fruits the including fore of videotapes, Evi- would be inadmissible in Inquiry Together Threads 3-Year forthcoming Terrorism, Times, the defendants’ trial. N.Y. on F.A.L.N dence F.Supp. at 105. The defendants and amici 1977, 1; Donner, Age p. The April at following curiae advance the additional (1980)(the FALN “is noto- Surveillance grounds for this result: television surveil- personal unique indifference to rious for its (other investigations in criminal than lance randomly inflict- possible death injury and foreign agents) by is forbidden planted public places”); in ed bombs statute; any it is in event so intrusive —so Strategy to Domestic Motley, US Counter reminiscent of the “telescreens” (1983). Terrorism Political “Big George in Brother” Orwell’s 198k present background to the case The of the maintained visual surveillance entire Chicago in in a suburb the arrest “Oceania,” the population of miserable FALN, one of members of several country in depicted anti-utopian nov- investiga- agreed help the FBI’s whom el—that it can in no circumstances au- be organization. He identified as tion of the (least all, imagines, in thorized one in people charged of the later members two 1984) violating year without both the one, agents FBI followed who this case. Fourth Amendment and Fifth Amend- unwittingly agents apartment to an led the clause; process ment’s due even all Chicago being used as an in that was wrong, particular still the orders this Attorney The ob- FALN safe house. U.S. them) (“warrants,” as we shall call this Judge of the tained from Chief McGarr satisfy did of the case au- District of Illinois an order Northern Fourth Amendment’s warrant clause. thorizing surreptitious the FBI to make however, judge appears, The trial elec- apartment into the to install entries v. New York Tel. overlooked United States “bugs” cameras tronic and television Co., 434 98 S.Ct. U.S. every room. The FBI wanted to see 54 L.Ed.2d 376 where it had reason to be- well as hear because held that Rule 41 of the Supreme Court houses, people using that the the safe lieve Procedure, Federal Rules of Criminal they might bugged, would concerned be issuance of search which authorizes the they were play loudly the radio when warrants, “pen orders to install embraces also speaking to each other and would (devices phone registers” that record code, assembly the actual speak in and that telephone is dial- that a subscriber numbers in silence. be carried on of bombs would ing). Michigan See also Bell Tel. Co. v. the first surveillance of The television (6th States, 565 F.2d 388-89 United paid the FBI televised two apartment off: Cir.1977); Hall, 583 States v. assembling On the defendants bombs. (E.D.Va.1984). Al- F.Supp. 718-19 the FBI of these observations the basis though language of Rule 41 is that of apart- a search warrant for the obtained (see especially sub- conventional searches dynamite, blasting caps, ment and found (b)), in the New York section the Court showing guns, maps the location flexibly and Telephone case read the rule Tailing same two defendants prisons. intru- “electronic concluded that covers including bugging. led the second safe house involved sions” as well— (dictum). We appeal. Again a warrant was obtained at 371 at television, the rule electronic, on which think of basis including to conduct cannot thought sufficiently flexible surveillance; might by televising meet- and was register, bug, wiretap, Eyre, 75, 92, 98, shire pen (Meet- authorize a secretly It is true that 1961). not a camera. ings By ed. century seventeenth (or televising people taking moving still or firmly lodged justices them) they are in pictures of while what peace. Dalton, of the See Countrey The private place is an they think is a even (1972 Justice reprint at 300-06 ed. privacy secretly than greater intrusion on Lasson, [1622]); History Develop- The recording their conversations. But the fact ment of the Fourth Amendment to the eavesdropping that electronic is more intru- United States Constitution 36 n. 86 searching sive than conventional did not History Hale’s of the Pleas of the Crown prevent Supreme Court the New (1736) justices makes clear that the Telephone reading York case from Rule peace warrants, could issue search provid- very broadly language— of its view 41— ed general were not warrants. See eavesdropping. to embrace electronic White, passages quoted in Scarboro & Con- step, next to television (1977). stitutional Criminal Procedure 21 smaller than the one the took. Court justices As the peace of the were not even basis, 41, There is another besides Rule lawyers, likely judges it seems that the for the issuance of warrants television (from royal many courts features power prescribe Like the surveillance. to borrowed) of the federal courts were had regulate procedure, punish for con- power, the same if little or no occasion to court, tempts of and to issue writs in aid of A parallel exercise it. modern American jurisdiction, power the court’s to issue 41(a) Rule of the Federal Rules of Criminal historically, a search warrant was and is Procedure, only which in terms authorizes today, (by still an inherent which we mean magistrates federal judges and state-court simply nonstatutory, law) a or common (see to issue search Wright, warrants 3 power general jurisdiction. of a court of Federal Practice and Procedure: Criminal Indeed, aspect it is power an of the court’s 2d, pp. (1982)) 571-73 nn. 1-7 but has been regulate procedure. A search warrant (for uniformly example assumed in the is often used to obtain evidence for use a case) Telephone empower New York proceeding, criminal and is thus a form- of judges federal district as well to issue (or to) analogue pretrial at least an dis- search warrants. covery. Although Congress can limit the Although Carrington, Entick v. 19 How- procedural authority (C.P. 1765), ell’s else, State Trials 1029 has nothing courts—if been Congress’s power (Art. I, proposition cited for the to create lower federal au- courts 9) thority implies required England cl. was it does so with re- for the —until spect particular warrants, see, to a issuance of e.g., courts search 57(b) powers. retain their traditional Rule Finazzo, United States v. 583 F.2d (6th of the Federal Rules of Criminal Procedure Cir.1978), summarily 843 vacated on virtually so much states. And of federal grounds, other 441 U.S. 99 S.Ct. procedure, especially early criminal (1979), 60 L.Ed.2d 657 issue in courts, days judge-made. of the federal nonjudicial Entick was whether a officer Orfield, Early Federal Proce- Criminal (the secretary state, described dure, Wayne (1961), gives 7 L.Rev. 503 opinion king’s private secretary,” as “the examples, though number of none involve 1046) 19 Howell’s State Trials at had com- search warrants. See id. at 529. authority general mon law to issue a war- investigate rant to seditious libel. See id. England judicial the inherent power not, at 1063-74. The court held he did (warrants issue persons warrants to seize express power did not doubt about the things implicitly therefore them) judicial particularized officers to issue war- goes very search for per- back far — States, haps Baker, Boyd rants. Cf. v. United 116 U.S. century. twelfth See 524, 531-32, English Legal An Introduction to 29 L.Ed. History (2d 1979); 47-49; (1886); Lasson, supra, 15 ed. Crown Pleas of the 746 at cf. Wilt- id.

879 Dickerson, (1917), 34-37, 51-78; although 20 Writs As- floor at debates indi- Revolution, in Congressmen as a Cause cate that a number of sistance —and (Morris 40, 75 The Era of the Revolution Attorney General of the United 1939). ed. thought that without the new stat- States — the federal helpless ute courts would be warrant is a to issue search search authorize warrants outside of the power in America as well as common law specific by previous areas covered York, statutes 192 England, see Adams v. New U.S. 585, 598, 372, 375, authorizing search warrants. 48 L.Ed. 575 See 55 S.Ct. States, (1904); supra, Boyd v. 116 Rec. 528; 6 S.Ct. at United States U.S. When overhauled the federal Maresca, (S.D.N.Y. Fed. repealed criminal code in most of 1920) J.), (Hough, system and in the federal provisions Espio- search-warrant in the states. While “the whole as well as Act, nage Advisory see Notes of Commit- jurisdiction criminal of the courts of the 41, thereby tee on Fed.R.Crim.Proc. leaving derived from Acts of United States [is] the matter of search gov- warrants to be States, Congress,” v. United Jones erned rule of court. delega- This broad 211, 11 L.Ed. suggests tion views the is- every proce not mean that this does suance of federal search warrants as stand- jurisdiction their is statu dural incident of ing plane procedural pow- with other tory. general there was no stat Until 1917 traditionally ers that courts have exercised utory authorization for the issuance of fed legislative explicit without direction. Addi- warrants; yet it is hard to eral search tional evidence of this is found in the elec- then no warrants were believe before tronic-eavesdropping cases decided specific outside of the few areas issued Supreme Court before enactment Jones, (discussed in v. 230 United States (of shortly), 1968 of Title III which more 262, (N.D.N.Y.1916))in Fed. 265-68 which explicitly authorized warrants explicitly authorized their is had eavesdropping. Osborn v. Unit- suance, usually by United States Commis 328-31, States, 323, ed 385 U.S. 87 S.Ct. surprised sioners. So we are not to have 429, 432-34, (1966), upheld 17 L.Ed.2d 394 if it found cases which assume as were an mention of Rule 41 a federal without court proposition

uncontroversial federal authorizing police carry order officer to a courts could issue such warrants before States, device, recording concealed and. Katz v. 1917. See v. United 232 Weeks 341, 383, (1914); States, 347, 354-56, 34 58 L.Ed. 652 88 U.S. S.Ct. United 389 U.S. Jackson, (6 Otto) 727, 733, 507, 512-13, 24 In re 96 U.S. 19 L.Ed.2d 576 S.Ct. (1878); States, v. Agnello L.Ed. 877 that a federal warrant could autho- stated 671, (2d Cir.1923); but cf. 290 Fed. 677 bugging, passing and made rize Jones, supra, v. 230 Fed. at United States 41(d) (execution reference to Rule and re- only surprised not to 268. We are have 16, turn). n. 88 at See id. at 355 S.Ct. 513 found more such cases. n. authorities for the inherent 16. Other of the federal courts to issue search power part enacted as of the 1917 include v. warrants United States Wil- general Espionage Act its first and last Cir.1980) (5th liams, F.2d 1099 617 courts to issue authorization federal (en banc) (concurring opinion), and United 40 18 search warrants. See Stat. §§ (1940 ed.). Kee, Judging 281 Fed. 230-31 611-633 v. Yuck States reports, Congress (D.Minn.1922); from the committee see also United States v. (3d Cir.1973). thought granting to have it was seems not F.2d 499 Cafero, 473 power courts a new as distinct from greater cer pretend shall not We creating procedural framework for courts feel that the federal tainty than we one, H.R.Conf.Rep. an old cf. exercise of types of search without (1917); can authorize new No. 1st Sess. 20 authorization, though New York statutory H.R.Conf.Rep. Cong., 1st Sess. 880 authority.

Telephone powerful The his courts would otherwise is, evidence we have marshaled torical to issue a warrant for television sur case, incomplete commonly is the veillance. Title III authorizes enigmatic; and the floor debates on the (called judges “orders”) to issue warrants provisions search-warrant are con wiretapping bugging, and estab trary position, Congress’s quick to our as is lishes elaborate for such war passage permit of a statute searches for §§ 2516, rants. See 18 U.S.C. 2518. But it Supreme after the “mere evidence” Court does not authorize warrants for television held that the Fourth Amendment did not People Teicher, surveillance. v. 52 N.Y.2d forbid such searches. See 18 U.S.C. 638, 652, 846, 853, 439 N.Y.S.2d 422 N.E.2d § § 3103a; Wright, supra, pp. (1981); Sponick City Detroit But a conclusion 607-08. that neither Rule Dep’t. 162, 198, Mich.App. Police powers 41 nor the inherent common law (1973); Carr, N.W.2d The Law of the federal courts allow warrants for tele Electronic Surveillance 124 vision surveillance would have a most curi regulates only statute “interception implication ous that in combination with all wire or oral communications.” 18 U.S.C. persuades reject else we have said us to it. §§ 2516(1), 2518(1); see also 18 U.S.C. A search certainly without a warrant is §§ 2511-2513, 2515, 2517, A man see, permissible emergency, e.g., in an silently televised making while a bomb is — Wisconsin, -, Welsh v. engaged any communication, form of (1984); 80 L.Ed.2d 732 let alone “wire oral communication.” 294, 297-99, Hayden, Warden v. 387 U.S. Any possible doubt on this score is dis 18 L.Ed.2d 782 pelled by definition of “inter (1967); and a situation in FBI which the cept” acquisition as “the aural of the con strong organi had reason to believe that an any tents of wire or oral communication operating zation was factory a bomb through electronic, the use of mechani FBI could not obtain a warrant to con cal, 2510(4) or other device.” 18 U.S.C. only type duct the of search that would be added). (emphasis A visual observation is obtaining necessary effective in evidence of possible acquisition,” no sense an “aural this, given because no court had been au kind, acquisition, any or an of a “wire or warrant, thority to issue fairly such could oral communication.” Nor would a camera emergency. be described as an Therefore statutory “electronic, meet the definition of government the argument would have an mechanical, or other device.” See 18 search, that the fruits though of such a it § 2510(5). U.S.C. The Senate committee warrant, had been conducted without a report, repeating after statutory the defini pro would be admissible in the criminal acquisition,” tion of “aural remarks: “Oth ceeding, provided the search was otherwise er forms of surveillance are not within the (an important qualification, reasonable as proposed legislation.” S.Rep. No. see). holding we shall A that federal (1968), Cong., 90th 2d Sess. 90 U.S.Code courts have no to issue warrants Cong. 1968, 2112, & Admin.News 2178. authorizing might, television surveillance therefore, simply conducting the validate follow, however, It does not that because such surveillance without warrants. This Title III does not authorize warrants for Pyrrhic victory would be a for those who surveillance, television them. forbids protection the search view warrant as a of The motto of the Prussian state —that the values the Fourth Amendment. everything permitted which is not is forbid- helpful guide argue, however, The defendants den—is not a that Ti- interpretation. tle III of the Television surveillance Omnibus Crime Control and (with soundtrack) just Safe Streets Act of no 18 U.S.C. is not within §§ 2510-2520, legislative history as Foreign amended statute’s domain. The Intelligence it, probably Surveillance Act of 50 does not refer to because tele- §§ seq., deprives U.S.C. 1801 et bulky the federal vision cameras in 1968 were too and ____” operated surrepti- installed and communication noisy to be infer from illogical be tiously. 1801(f)(4); It would see S.Rep. No. omission to deal Congress’s quite natural Sess., Cong., pt. (1977), 2d at 35 nonproblem that it meant to tie

awith Cong. & Code Admin.News prob- hands and if the courts’ when Although procedures in the Act lem arose. application direct have no to this case— spirit of appeal The defendants agents these defendants of a for- not III, was, they say, protec- which government eign power, and the does not privacy, infer tion of from which argue that the Act authorized television meant electron- that to forbid surveillance of them —the Act also amend- not investigative techniques ic that did “procedures ed Title as follows: in [Ti- spirit But this description authorize. Foreign Intelligence tle Sur- III] incomplete. III is Enacted in the of Title veillance Act of 1978 shall the exclusive be States, supra, wake of Katz means which electronic eavesdrop- had held that Foreign Intelligence defined Surveil- [in Amend- ping was the Fourth Act], and the interception lance of domestic ment, procedures Title III established and oral may wire communications be con- bug- of wiretapping facilitate the use § 2511(2)(f). 18 U.S.C. ducted.” The de- safeguards) in ging (subject appropriate fendants read this to mean that television Protecting investigations. federal criminal surveillance, a form of electronic surveil- goal not privacy was a of the statute but interception lance that does involve the paramount goal. or even the communications, may of wire or oral report states that “Title III has Senate only in conducted accordance with the For- (1) purpose protecting privacy its dual Intelligence Act; eign Surveillance since communications, (2) of wire and oral that Act did not authorize the surveillance delineating on a uniform basis the circum- case, 2511(2)(f) in this section it. forbids in- and conditions under which the stances terception of wire and oral communications however, us, All this section means to may be authorized.” Foreign Intelligence Surveillance 2d & Sess. intended to be Act is exclusive its do- Admin.News 2153. The second for- III in powers main and Title its. The mulation seems an the law-en- allusion to gives keep Act tabs III, objectives forcement of Title elsewhere foreign agents countries are not to be report paramount. described as purely investigations, used for domestic major purpose title III is to com- “[T]he conversely the Title III limitations that crime”; organized “intercepting bat places wiretapping bugging are not and organized communications of criminals the government’s used to hobble ac- to be only learning effective is the method of foreign against agents. tivities To read Id. at activities.” about their Intelligence Foreign Surveillance Act Cong. & Code Admin.News as the defendants would have us do would designed give regularize a statute Foreign Intelligence The Surveillance powers to deal with government’s broad procedures Act establishes special posed by agents menace of for- Reflecting foreign agents. surveillance of curtailing eign powers the side effect of technology decade that changes in powers government’s in domestic law III, passed since the enactment of had Congress This is not what enforcement. surveillance the Act defines electronic making report intended in what the Senate television, enough by in- broadly cover Foreign Intelli- on the bill became the of “an cluding in the definition the use as a gence Surveillance Act described mechanical, electronic, or other surveillance conforming” and amendment “technical acquire infor- monitoring device ... supra, at 3. mation, S.Rep. No. other than from a wire or radio Title III. reports scope It is true that the committee de- of the Fourth Amendment. We 2511(2)(f) as the “exclusive unarguable scribe section think it also that television sur- congressional question on the statement exceedingly intrusive, veillance is especially the President’s from national television surveillance for the wise have under Rule 41 or common law principles to issue warrants for television by intended in section eign Intelligence Surveillance News Sess. 35 can be built an H.R.Conf.Rep. the Executive’s surveillance,” that Act. But the Article. security, Cong., 2d at outside the power II id. at of the power implicit power, argument other than as 2511(2)(f) 63; and on this Sess. Constitution, courts would other- background to order electronic see also scope 71-72 to take Act, protection of the For- & Admin. modern permitted language deriving but also to use (1978); away No. 2d The Fourth Amendment cause, supported by Warrants shall persons, searched, lance, lance Fourth Amendment to television surveil that it could be right in combination zures, against unreasonable searches and sei nate particularly describing has, therefore, personal privacy of the and shall not be Western The houses, inherently people precise application (as here) issue, grossly nations. persons papers, to be secure in their now to be considered. violated, Oath indiscriminate, with audio surveil- provides: as understood in abused—to elimi- or upon and things affirmation, place probable “[1] effects, of the ^[2] to be to be The and no way seized.” The usual in judges quoted language argu- makes this a weak interpreting the Foreign Intelligence ment. The Fourth Amendment Surveil- take account of the security; vary lance Act is about national fact that searches expressed much concern degree was to which personal invade debates constitutionality about the privacy by as well as the requiring higher degree prudence Congress’s displacing by legis- (to probable cause believe that the search lation implicit authority the President’s un- yield evidence), incriminating will protect der Article II to the nation’s securi- being more insistent that a warrant be ty against intrigues by foreign powers. feasible, obtained all more intru See, (1978) e.g., Cong.Rec. (re- See, e.g., sive the search Gooding is. Butler). Representative marks- of The de- States, 430, 464-65, 416 U.S. proposed bate resolved in favor of the (1974) 40 L.Ed.2d 250 legislation. question But the whether to (dissenting opinion); United States v. — curtail executive domestic crimi- Karo, U.S.-, 3304- investigations legislative nal was not on the OS, maybe 82 L.Ed.2d 530 But agenda and far as we can determine was dealing technique with so intrusive a not intended to be answered the brief television other methods of reports discussion in the committee of a well, control as banning such as the tech- conforming” “technical and amendment to nique outright from use the home in Title III. crimes, connection minor with will be re- quired, in proper order to strike a balance is that fact has never ad- public safety personal priva- between judicial dressed the issue of authorization cy. Preston, Cf. United States v. 468 F.2d of television surveillance in federal criminal (6th Cir.1972); investigations. 1010 Nueslein But of v. Dis- course that observa- Columbia, (D.C. trict F.2d analysis. tion cannot be the end of 115 696 our It of Cir.1940); States, day argue Brinegar is too late in the v. United 338 to that the regulates only Fourth Amendment U.S. L.Ed. the types (1949) (Jackson, J., dissenting); technically of search that were 1 La- feasi- § Israel, eighteenth 3.3, in the century. govern- ble The Fave & Procedure Criminal at quite properly p. (1984). question ment therefore does not ar- That is not before gue us, that television is outside but we mention it to make clear that in declining homes, to hold e.g., television surveillance un Inc., Marshall Barlow’s per constitutional do suggest 311-12, se we not 98 S.Ct. that the Constitution must be interpreted L.Ed.2d 305 the invasion privacy of to generally to allow it be used as less by secretly televising caused the interior of techniques intrusive can be used. first The premises business is less than that caused the Fourth guaran clause of Amendment by secretly televising the of interior right people of the American tees the to be home, the while social benefit of the inva- by free from unreasonable searches greater organization sion is when the under (and by judicial interpretation of the Four investigation runs a factory bomb than it Amendment, state) officers; teenth chop if it shop would be ran a or a numbers unreasonable, though search be con could parlor. right There is no to be alone let pursuant ducted to an war otherwise valid assembling while bombs safe houses. rant, intruding by personal privacy to an Having concluded that the court district disproportionate likely extent to the bene validly could authorize television surveil- obtaining compliance fits from fuller with case, lance in this come question we to the “[Tjhere the no ready law. can be test the whether two warrants complied with determining by reasonableness other than the requirements of the Fourth Amend- balancing against the need to search the ment’s warrant aspect clause. On this of- invasion which the search entails.” Ca the case the do argue defendants not that Court, Municipal mara v. 387 U.S. the warrants were not issued on the basis 18 L.Ed.2d 930 probable cause, of an oath and that particular not enough are satisfy But we do think can there the requirements the Fourth Amend- secretly televising never be case where (They ment. also make two highly techni- people private places is The reasonable. objections warrants, cal to the which we present argue against facts of the case up last.) shall take approach. absolute an The FALN the has plans, materials, know-how government asked for the'war kill gross. sophisticated A as well as applications rants in its for Title III war terrorism, practitioner lethal it urban applications government had to rants — plan meets operations its and assemble make because it wanted record the bombs in safe leased houses under false apartments sounds the same time Alert possibility names. its that televising that it was the interiors—and the FBI, might safe bugged houses be it got warrants it both covered methods of steps takes effective to defeat this form of imposes many surveillance. Title III re surveillance, making highly re on intercept strictions warrants. re Those sistant to conventional methods of en law requirement lated to constitutional even forcement as enhanced modern particularity judge are that the must certi techniques overhearing conversations. fy investigative “normal procedures We think do not the Fourth Amendment tried and have failed been or reason prevents coping from with ably appear unlikely to be succeed organization by menace install dangerous,” tried to be too 18 U.S.C. ing operating secret television cameras § 2518(3)(c), and must warrant organization’s safe houses. The ben particular description contain “a public of the safety great, efits to the are type sought of communication to be inter personal privacy costs to A modest. cepted, particular safe and a statement of the house not a home. No one lives relates,” 2518(4)(c), to which apartments, these and offense amidst bombs paraphernalia period interception other are must not allow the They terrorism. places exclusively necessary than “longer dedicated to illicit to achieve busi ness; authorization, though objective the Fourth nor in Amendment protects premises longer thirty days” re- (though business well as event than § 2518(5), implement requirement and must the constitutional possible), are

newals fact, interception particularity. “be conducted In require only require- that the intercep- way as to minimize such III may ment of Title that the not otherwise sub- tion of communications complied not have with its television III],” interception under id. ject to [Title requirement surveillance was the that the requirements four is a safe- Each of these application Attorney be authorized against electronic surveillance that guard Attorney or an Assistant General General up strictly information than is picks more specially designated by him. See 18 U.S.C. the Fourth necessary and so violates § 2516(1). Actually, the authorization was requirement particular de- Amendment’s obtained; just was not communicated to scription. Terry, Cf. States United judge. the district We need not decide Cir.1983); Carr, (2d supra, F.2d whether comply this was failure to with p. 5.07[1] statute, (nothing sug- the statute stating probable is); After that there was gests it is event not relevant that the cause to believe both individuals requirement to the Fourth Amendment’s using speci- named in the warrant were particularity. (the house) in premises fied safe connection A warrant for video surveillance specified federal crimes and that inter- with complies that provisions with those that cepts oral and communications at wire Congress put into Title III in order to im yield would evidence concern- this address plement ought the Fourth Amendment crimes, ing stating after that these normal satisfy the Fourth require Amendment’s investigative methods had been tried and particularity applied ment of to such failed, authorizing intercepts had and after surveillance. Congress’s address, original at the each of the war- carefully out, thought constitutionally rants in this case went on to authorize the (see, e.g., valid Ramsey, United States v. FBI install “to devices that [at address] (7th Cir.1974); 503 F.2d 530-31 visually activity will monitor and record the Tortorello, States v. 480 F.2d 772-75 taking place in furtherance of the above-de- (2d Cir.1973)), implement effort to re [illegal] purposes.” scribed Each warrant quirements of the Fourth Amendment with specified surreptitious then the number of regard necessarily unconventional entries that the FBI was authorized to type of warrant that is used to authorize install, make adjust, and remove both eavesdropping. electronic In a (a convention equipment the audio and video total of police go al search the separate authorized), through a home or entries were re- looking an quired progress reports office to be made to the contraband evi every crime, days, required they court five dence of a either find what “upon not, they looking surveillance cease the at- they for or and then objective,” tainment of the authorized By rummaging person’s leave. through a put days a deadline of 30 on both the audio possessions they in search of what came and video surveillance. One of the war- they person’s privacy, invade the times, rants was renewed a total of four may much of what examine atbe once that it days authorized a total of 150 of personal objective and irrelevant to the surveillance, and the other was renewed search, usually but search is brief. twice; all, videotape and in 130 hours of interception, being Electronic nature a were made. The renewal warrants were invasion, continuing rather than one-shot ones, essentially original identical to the discriminating physical even than a less supported by compel- were even more search, picks private up because it conver cause, ling showings probable based on (most usually sations of which will yielded by information the execution of the nothing any illegal activity) to do with over original warrants. long period of time. Whether because it short, indiscriminate, people complied the warrants all is more or because with regard private four of the of Title III their conversations as more reasons, warrant possessions, or for both to Title III. It their wants the than sounds thought pose to interception is a as well sights, get electronic as the and it can a personal privacy potential threat to greater only by warrant for the former complying searches, and physical than III; Title with the soundtrack of a video- pitched requirements for a the therefore tape, no free-standing tape less than a re- intercept higher than those warrant valid cording, III, is scope the of within Title except 41 warrant: a conventional Rule for Haimowitz, United States assumed in cause, requirements probable the in 18 for (11th 725 F.2d and n. Cir. 2518 are not found Rule U.S.C. 1984). is identical in its Television surveillance unwilling go But we are to further and indiscriminate character wiretapping to that hold warrants for surveil- television bugging. It is even more invasive of and III, lance are to Title as warrants just strip as a search is more inva- privacy, bugging wiretapping are, for and that if so search, pat-down it than a but is not sive example for a television-surveillance war- microphone more indiscriminate: the is as destroyed rant was without an order camera; de- “dumb” as television both issuing person judge, destroying pick up their elec- anything vices within punished could contempt under 18 reach, to irrelevant the in- tronic however § 2518(8)(c), provision a III of Title If vestigation. government conducts punishes unauthorized destruction of conformity television surveillance with intercept require- warrants. It is that Title particularity of (listed earlier) ments of Title imple- III that imposes eavesdropping III requirement ment the par- constitutional of course, (not conformity, of since literal ticularity setting in the novel of electronic “in- words such “communications” and give surveillance that we have to tercept” in Title III do not fit borrowed television surveillance), content to government ap- has also con- the Fourth Amendment as requirement particularity plied of to formed television course surveillance. Of Fourth in the Amendment’s warrant it is anomalous to have detailed clause. regulation bugging wiretapping of but III, of not television in Title here, government this did we Since statutory regulation tele- detailed not, decide strictly speaking, need what foreign agents vision surveillance of if happen it had not done so. But would suspects, not domestic criminal potential- is television surveillance because Act; Foreign Intelligence Surveillance menacing ly personal privacy, to we very good thing we would think it a if to make our view that a warrant want clear Congress responded issues discussed for television surveillance that did not sat- opinion amending in this Title provisions four isfy the III that bring television within its implement the Fourth Amendment’s re- scope. not judges But authorized quirement particularity would violate bring up amend statutes even them Invoking the Fourth Amendment. our True, ambiguous date. statutes are when interpret the common law Consti- judges interpret in light them of al- context, in a novel we borrow the tution conditions, very like tered the result III, procedure a warrant of Title careful judge tries to find amendment. “When very legislative attempt to solve similar government out what have in- would provides problem, hold that say, he into its puts tended which it did not government’s constitutional measure ought to things mouth which he thinks it obligation particular description using said, very to substi- and that close investigate crime. television surveillance to tuting right. Let what he himself thinks will We doubt resist however, beware, usurp the view, him or he will few cases there will be though even try anyway government, it does to conform office where way exe- application small he do so order to its for a television-surveillance must Hand, L. go proper its real commands at all.” as far is go as for us to we cute when Rendering Judge Far Is a Free in a part give meaning How use a of Title III to to Decision?, Liberty Spirit in The of 108 the requirement Fourth Amendment’s of [1935]). Judge (Dilliard 3d ed. 1960 particularity applied as to sur- television usurpation warning judicial about is Hand’s veillance. Since the Fourth Amendment Congress has indicated here. When apt long fully applicable has held to been the clearly a as it did the domain of statute as through Amendment, states the Fourteenth III, apply it enacted Title we cannot when local officers might state and who to want merely statute outside its domain be- the use television surveillance in inves- criminal we are cause confident that tigations be under will the same restraints known then what we know now it had impose today. as we federal officers language. general have used more would The complain, finally, defendants language said in that could not that the warrants this case did not ex clearer that Title III is the inter- be about plain judge’s finding the basis of the ception wire and oral communications probable identify cause and did not safe acquisi- interception that means aural houses the addresses at which the surveil way There no these tion. is which words complaint lance was to be conducted. This be read to include silent television sur- can misapprehends purpose veillance; of a search legislative history quot- warrant, is twofold: to show that a earlier indicates that from ed the exclusion judicial (cf. scope officer authorized the of the statute of methods search other States, v. United of surveillance besides those defined Johnson 333 U.S. 13-14, Statutory statute was deliberate. lan- 92 L.Ed. 436 stretchable, guage, (1948)), to be elastic. should be to indicate to the statutory language This not. To is read agents will execute who the warrant what intercept, aural, words of this (cf. the limits of the authorization are Mar statute — encompassed if they communication—as si- States, ron v. United 275 U.S. say visual be to lent surveillance would to (1927)). 72 L.Ed. 231 A war Congress that there is no form words judicial opinion, rant is not basis it can use to mark limits of that off the itself; for the warrant is not the warrant prevent aggressive, imagi- statute that will 41(c)(1) clear, as Rule makes it is judges disregarding native from those lim- application for the applica warrant. The naturally saying its. And we from shrink tion this case set forth in con full and thing.- such vincing thinking detail the reasons for where the addresses surveillance was Title III Foreign Intelligence If and houses, to be conducted were FALN safe inconsistent, Surveillance Act were then we investigative that normal methods would choice, doing have to make a and in would unavailing, and be that television surveil might unavoidably exercising we be an appropriate supplement lance was something resembling legislature’s dis- eavesdropping. The truth But inconsistency. cretion. there is no applications recitals in the two is not contro govern nonoverlapping The statutes verted, they provided adequate an fac domains. And television surveillance tual for the investigations domestic criminal is in nei- basis warrants. is,

ther statute’s domain. No doubt suppression The order reversed said, anomalous; may we seem the case remanded for trial. fairly cry out congressional atten- and Remanded. Reversed tion; ambiguity but it does not create as to legal govern- duties under which CUDAHY, Judge, concurring in Circuit conducting ment labors in sur- television the result. suspects. veillance domestic criminal only legal imposed by complete majori- I duties are am in accord with the those Fourth we ty’s right Amendment. And therefore conclusion that no “[t]here assembling job in safe imagine let alone while bombs be as best he can how the imagine legislators houses.” It is hard facts who enacted the statute justify stronger than those before us to would have applied wanted it to situa- protect tions necessary means of surveillance did not foresee. public. society may lightly pre- No Posner, Statutory Interpretation the—in sumed to have denied itself the means nec- Courtroom, Classroom and in the essary against to defend itself this kind of U.Chi.L.Rev. This court assault. recently itself recognized has judicial duty

If there no Title III of the of statutory interpreta- were Omnibus [t]he duty read; tion is not a merely Crime Control Safe Streets Act of and it is a 1968, 90-351, 197, 212, duty help legislature Pub.L. 82 codi- Stat. achieve the U.S.C., primarily chapter fied as 119 of aims that can reasonably 18 be inferred Foreign Intelligence and no from the design, Surveillance and it re- (“FISA”), 95-511, quires pay Act us to spirit of 1978 Pub.L. 92 attention to the as 1783, well as the letter primarily chapter Stat. codified of the statute. U.S.C., I great of 50 would have no difficul- 1179, v. Markgraf, States 736 F.2d ty following in this case in majority (7th Cir.1984) (Posner, J., dissenting (fortified path powers down the of inherent rehearing banc). from denial of en If by Rule 41 of the Federal Rules of Criminal injunctions require these one to be—in the Procedure). That route has considerable majority “aggressive” words of the and — where, here, appeal apparently we are “imaginative,” then so be it. responding to the threat of a war to be view, In my a careful evaluation of Title waged randomly against populace. FISA, III and interplay and of the between given scheme, existing statutory But statutes, those two shows that the video is, think, that route I necessary neither nor surveillance in this case should be

justifiable. of Title III. Neither that, I believe and party position, FISA now advocates but it together, possible construed it appears government’s and desir- po have been the in authority sought able to find them not sition it when the court orders here appropriate Judge approach to conduct video in and it surveillance McGarr’s when procedure circumstances he but a issued orders.1 of, brings responsibility and authorization my position The foundation of is that for, such surveillance under centralized and together Title III must be construed with high-level Considering poten- control. FISA, Congress and that it is clear tial of video surveillance to lend dreadful together, intended the statutes to be read substance to the Orwellian concerns noted providing comprehensive and exclusive majority, extremely we should be S.Rep. 604, system of control. No. 95th See permit activity reluctant to this sort of free 3, 6, 15, Cong., reprinted 1st Sess. in 1978 statutory safeguards provided by Cong. 3904, 3907, U.S.Code & Ad.News police for less intrusive activities. S.Rep. Comm.); (Judiciary 3916-17 see also difficult, apparently, And it is not as for me 701, 71, Cong., reprinted No. 2d Sess. application to find basis for of the safe- Cong. 3973, in 1978 U.S.Code & Ad.News guards of Title III and FISA as it is for the Comm.). (Intelligence The two stat- connection, majority. In that it is worth impose comprehensive utes are written to repeating that while regulatory scheme on the of electronic use judge’s keep job is not the a stat- in surveillance the United States whenever [i]t up making expectation priva- ute to date the sense of there is a reasonable contemporary values[,] cy. govern reflect it is his Title III was enacted to domes- McGarr, Proceedings Judge Application App. Janu- 1. See Initial Buena at Gov’t Order before 101; 18, 1983, Application App. ary App. at Initial Lunt at Gov't at Gov’t at 223-24. 232; Transcript Application- Buena Initial key activity, statutory provisions as enacted tic here are 18 § 2511(2)(f), enacted provi- its as section expressly exempted from FISA, 201(b) and 50 U.S.C. en- national se- electronic surveillance for sions acted as section 109 of FISA. Section curity purposes. Section Pub.L. 90- 2511(2)(f) 18, U.S.C., of title provides in 351, 82 Stat. as 18 U.S.C. codified part: relevant § 201(c) § 2511(3), repealed by FISA. chapter in this the For- [Procedures responded concerns Intelligence eign Surveillance Act of security the abuse of that national about be the shall exclusive means exemption by enacting FISA. which electronic as defined reprinted 1st Sess. Act, section of such the inter- 1978 & Ad.News ception domestic wire and oral commu- repealed exemption FISA declared conducted, may (emphasis nications the executive does not branch supplied) authority inherent to undertake electronic provision incorporates This defini- FISA security surveillance even national tion “electronic of surveillance” in 50 found counterintelligence 604, S.Rep. cases. No. § 1801(f). Subparagraph U.S.C. 4 of that Cong., 6, 64, reprinted 1st 95th Sess. in defines subsection “electronic surveillance” Cong. U.S.Code & Ad.News S.Rep. 3965; 701, Cong., 2d 95th Sess. No. electronic, the installation or use of an 71, reprinted in 1978 U.S.Code Cong. & mechanical, or other surveillance device 3973, Instead, 4040. FISA creat- Ad.News in monitoring States for procedures new ed a set of and substantive acquire information, other than from a subject which would such communication, wire or radio under cir- judicial surveillance to control while still person cumstances in which a has a rea- protecting security. provi- national Several expectation privacy sonable of and a war- unmistakably sions FISA make it clear required rant be would for law enforce- government (federal, local) that state and purposes. ment may not use highly forms of intrusive elec- language broad, and, obviously That tronic surveillance unless it does so in ac- literally, certainly read sur- includes video cordance with either III or Title FISA. veillance. There is no doubt that the minia- § Kg. 2511(2)$ U.S.C. (codifying turized cameras used in this case are “elec- § § 201(b) FISA); (codi- U.S.C. tronic acquire devices” used “to informa- § fying FISA). 109 of Unless those stat- tion” under circumstances which the complied with, utes law enforcement subjects had expectation a reasonable engage officers who in these forms of sur- privacy. And when we turn to the relevant may very committing veillance well be reports FISA, committee on we learn that § federal crime. 50 U.S.C. Congress did in fact quoted intend the lan- problem The basic in the case before us guage cover such video surveillance stems from the fact explicitly that FISA 604, S.Rep. equipment. Cong., 95th 1st No. problem addresses of video surveil- 35, reprinted Cong. Sess. in 1978 U.S.Code lance, while majori- Title III does not. 3904, 3936; 95th & Ad.News No. ty concluding errs that the Cong. reprinted 2d Sess. in 1978 U.S. may engage in the video surveillance in Cong. 4006. The & Code Ad.News regard this case without statutory Judiciary Report Senate Committee on regulation of In doing such surveillance. explains FISA subparagraph so, majority ignores provi- unequivocal “could also include miniaturized television FISA, sions and of III as amended sophisticated cameras other devices FISA, by disregards purpose the clear merely not aimed at communications.” S. subject of both statutes to intrusive Rep. forms Cong., 1st Sess. No. of electronic surveillance to strict Cong. reprinted in 1978 & Ad. U.S.Code control. 3936. The next sentence News “[tjhis part report says my definition is But disagreeing reasons for with the inclusive, broadly majority are not meant to be because the limited to the statutory language. By leaving including particular extraordinarily an effect of means of intrusive form of domestic electronic sur- prohibit surveillance is not to it but to statute, veillance by uncontrolled the ma- subject judicial oversight.” it to Id. The jority contrary acts purposes of both Intelligence Report Committee Senate produces statutes and highly improbable language. the bill includes the same See S. result. Rep. 2d Sess. re- printed in 1978 improbable This may most result be de- & Ad.News 3973, 4006. following way. scribed Based on the definition of “electronic surveillance” in Thus, it is clear that video surveillance § FISA, 1801(f)(4), any attempt U.S.C. falls within the FISA definition of electron- employ video foreign surveillance in a Therefore, ic surveillance. intelligence case would be § 2511(2)(f)may paraphrased say that be FISA’s restrictions. In highly these sensi- “procedures chapter in this perhaps tive cases of extraordinary impor- Foreign Intelligence Surveillance Act of nation, tance to the may video surveillance 1978 shall be the exclusive means which employed only be approval with the of offi- including video surveillance— highest cials at the levels of the federal may conducted.” surveillance— government and a spécial court estab- short, if employed the video surveillance purpose lished for 50 U.S.C. 1803. expressly this case was not authorized precise, application To be more must be FISA, either Title III or then it would be approved by Attorney Depu- General or 2511(2)(f) prohibited by law. Subsection ty Attorney States, General of the United meaning cannot be contorted into that Title § 1804(a); 50 U.S.C. and the need using governs III thing, governs one FISA anoth- such intrusive surveillance measures must er, anything governed and by one or by be certified the President’s national se- permitted, majority other is as the curity affairs adviser or a national security it. would have appointment official whose § confirmation, 1804(a)(7). Senate addition, U.S.C. In if the video surveillance here Only may government then apply to the statute, by was not then the authorized special court for a warrant. And FISA engaged may officers who in it have com imposes requirements numerous other de- 109(a) mitted a federal crime. Section signed highly to ensure that intrusive sur- § FISA, 1809(a),provides 50 U.S.C. in rele veillance only measures are used when and part: “A person guilty vant of an of necessary. to the extent See the remainder intentionally (1) engages fense he — § 1804(a). electronic surveillance under color of law ____” except as authorized statute sharp In extraordinary contrast to these Again, the FISA definition of “electronic statutory requirements for the use of video applies provision, surveillance” to this foreign cases, intelligence surveillance above, as shown that definition includes majority would leave video surveillance video surveillance such as that used in the in all domestic law enforcement cases sub- case us.2 before Section 1809 thus re only ject to a few ad hoc constraints. In quires show respect, majority this seeks to solve the authorization for its use of video surveil policy problem position by of its anomalous lance, only possible that adopting sources of in dicta some of the authority are Title and FISA. of Title III as matters of constitutional course, (b) (50 2. Of subsection of the section courts have the to issue warrants for 1809(b)) provides U.S.C. though § defense for officers even video not authorized order, statute, with a search warrant or court so the majority effectively eviscerates presumably officers in the matter before us criminalizing provision. this jeopardy. By finding would not be in (individual authority Cong., 2d persuasive There is no Sess. 186-87 law.3 views (individual and, aggressive Bayh), Sen. 214-18 judicial a matter of views of Sen. Scott), (individual ness, egregious than a views Senator it seems to me more Eastland), statement), (minority 224-26 statutory interpretation. re- act of mere Cong. event, in 1968 U.S.Code requirements, printed the constitutional & Ad.News 2112, 2245-46, 2264-68, 2270, 2274-75. imposes by way here majority members of who ex- be, just easily I inter suppose, can dicta pressed opposition to Title III on the I think preted away in the next ease. grounds provisions its unduly restrict- preferable to follow the mandates of 18 § ed surveillance were several Senators who 2511(2)(f) and 50 U.S.C. argued apply that the statute should not Congress. the matter to and leave S.Rep. state officials. 90th No. Although explicit there is no mention of (individual Cong., 2d Sess. 238-39 views of techniques anywhere video Dirksen, Thurmond), Sens. Hruska and re- legislative history, III or in its it is Cong. printed in 1968 U.S.Code & Ad.News virtually inconceivable that 2112, 2288-89. have, if which enacted Title III would Further, reports the committee reviewed question directly, had ever considered the the state of the law at the time ex- unregulated by left video surveillance stat- pressed deep dissatisfaction with the con- reports ute. The relevant committee temporary protection privacy of individual comments of individual members of Con- S.Rep. Cong., interests. 2d No. gress quite clearly process reflect 67-69, (individual Sess. 162-64 views of balancing privacy individual concerns and Hart), (additional Long Sens. 166-70 against fight organized crime. Hart), reprinted views of Sen. in 1968 U.S. (state 2d Sess. 67-69 Cong. Code & Ad.News law), (balance privacy 70-76 between reports 2227-31. The discussed organized crime), reprinted and control of length Supreme at some Court’s then- in 1968 & Ad.News York, recent in Berger decisions v. New 2154-56, 2157-63. The Johnson Adminis- L.Ed.2d 1040 and numerous members of Con- tration States, Katz United 389 U.S. gress supported prohibition a total on wire- 347, 507, 19 L.Ed.2d 576 tapping bugging, believing and electronic they argued and while III that Title was techniques relatively the would add constitutional, reports pointed the also out fighting little in crime and that the threat inadequacies then-applicable the of consti- privacy, especially techniques the were protecting privacy. tutional law decisions in S.Rep. abused, great too tolerate. S.Rep. 1097, 66-76, Cong., 90th 2d Sess. No. 1097, 161-62, Cong., No. 90th 2d Sess. 172- Cong. reprinted in 1968 U.S.Code & Ad. (Johnson supported Administration ban 2112, 2153-63. But see id. at 166-70 News wiretaps bugging), and reprinted in (additional Hart), reprinted views of Sen. Cong. 2112, 1968 U.S.Code & Ad.News Cong. 2112, in 1968 U.S.Code & Ad.News proponents 2233-34. The of Title 2227-31. argued that the statute struck a correct pri- balance law enforcement and The between clearest indications of this dissatis- S.Rep. 1097, vacy statutory requirements interests. 90th faction are the No. however, order, Thus, 2516(2). majority, imposes only 3. The § four Ti- control over authoriza- (at requirements centralized, tle III least apply insofar as dicta tion is not impose requirements), and these are not some for video surveillance orders is left in the hands provisions. majori- of the most efficacious The personnel. of local law Nor does enforcement ty require only Attorney does not Gen- majority impose requirements designated Attorney eral or a Assistant General 2516(1) (2)& which limit § 2516(1), applications, or § authorize that Further, investigation specified crimes. only principal prosecuting attorney of a statutory majority impose does not the strict (or political state subdivision of a state if so 2518(10)(a). exclusionary rule of 2515 and §§ law) may apply authorized state for a state beyond anything accurately and go far divine what seem to considering Those would have done in demands. this new Constitution situation, requirements say include the and we can with some confidence limitations following restrictions: what would not have done. It would not have left video surveillance un- wiretapping per- are

(1) bugging and regulated by permitted statute if it had investigating specified only when mitted (2); light political give at all. crimes, 2516(1) and & 18 U.S.C. III, debate, take on Title the flow of the (2) bugging and wire- authorization way Congress arranged agenda, its centralized in tapping requests must be competing policy of propo- central concerns prevent as to local jurisdiction each opponents, say nents and we can with con- per- and to make an identifiable abuses Congress, §§ if it explicitly fidence that had abuses, 2516(1) & son answerable for prospect considered the of video surveil- (2), 2518(l)(a); lance, would not have left it free of the (3) statutory exclusionary there is a imposed constraints on audio and wire sur- for information obtained violation rule majority so, veillance. Yet here does III, and that rule is broader than of Title leaving the far more intrusive video tech- exclusionary rule as it the constitutional essentially subject only niques to a few §§ ad 2515, 1968, now, let existed in alone which, hoc constitutional 2518(10)(a); comparison, ropes.of are sand. must, in (4) bugging wiretapping and instances, the tar- many be disclosed to provisions legislative history concluded, gets investigation after the Act, Foreign Intelligence Surveillance § 2518(7) (8)(d); & support enacted in lend additional (5) police engaging officers warrant- this conclusion. FISA includes within its bugging are wiretapping less definition of “electronic surveillance” the § 2511(1); penalties, to criminal devices such as those used in use video § 1801(f)(4); (6) wiretapping present case. 50 U.S.C. S. targets of unlawful Rep. Cong., 1st Sess. bugging private have a cause of 95th No. § 2520; Cong. damages, reprinted action for in 1978 U.S.Code & An. 3904, 3936; S.Rep. (7) statutory requirements for min- News No. 37, reprinted Cong., 2d Sess. in 1978 U.S. imizing are much more obtrusiveness Cong. requires, specific than the Constitution & Ad.News Code § 2518(l)(b) (5);& applies investigations special, FISA (8) per- bugging wiretapping cases, extraordinary impor- some mitted when the can to the nation. tance See conventional, in- intrusive show that less reprinted 1st Sess. vestigation techniques proven or 3910. As Ad.News & unsuccessful, very likely prove to III, congres- the case with Title was § 2518(l)(c) (3)(e). & achieving sional debate was focused balance, in this instance between correct part III in Congress In 1968 enacted Title security. privacy interests and national audio surveillance was so intrusive because S.Rep. Cong., 1st 95th Sess. See subjected stringent to that its use had to be No. Cong. 7-9, reprinted in 1978 U.S.Code statutory It is self-evident that limitations. & 3904, 3908-10; S.Rep. in the the continuous video surveillance No. Ad.News Cong., reprinted 2d in 1978 by a wide 95th Sess. case us is more intrusive before 3973, 3985. In Cong. au- margin. The combination of video and & AdNews willing to authorize the Congress was government here let the dio surveillance video sur- sound, extremely intrusive every every use of these every detect word and devices, only subject to condi- but except targets’ veillance gesture everything — are, ways, even more in some may Difficult as it tions which unexpressed thoughts. For in Title III. those contained position strict than place ourselves be Attorney General or intrusive video example, virtually surveillance to any may apply for a Deputy Attorney General badge officer with a and to official § 1804(a). The court order under 50 U.S.C. fact, gavel. with a majori- robe and its relation to need for the surveillance ty leaving open runs the risk of the use of intelligence by certified foreign must be relatively video surveillance with such President’s for national securi adviser every except loose controls in ease those of by security a national official ty affairs or greatest importance. According to the ma- appointment subject to Senate whose jority, Congress powers dep- entrusted to a § 1804(a)(7).4 The statute confirmation. uty magistrate sheriff and half-time on a on Title III as its model on issues of draws gambling investigation local it ex- minimization, imposes necessity and pressly denied the director of the Federal stringent those more non-constitutional re Investigation Bureau of special and a ex- § 1805(b) (d). The quirements. & surveil pert foreign intelligence court in cases of lance must be carried out to court sensitivity the utmost importance. S.Rep. supervision, order and No. This contrary result is irrational and Cong., reprinted 1st Sess. Congressional intent. If lan- Cong. Code & Ad.News bent, guage majority must as the must special by the court is one selected language 2511(2)(f) bend the of 18 U.S.C. States, Chief Justice of the United § 1809, and 50 U.S.C. we should at least § 1803(a), develop expertise in the sub general it in the Congres- bend direction of impose ject matter and to some controls on purpose sional and method. conducting the executive branch in this type of surveillance. plausible The defendants make a argu reprinted 1st Sess. in 1978 U.S. ment, statutory language, based on the for 3917. The Code & Ad.News interpretation III, a third of FISA and Title operates court in secret it is still an prohibited under which video surveillance is authority deny Article court with except foreign intelligence cases.5 I can permission for surveillance. argument not dismiss defendants’ out of poten- was so concerned about hand; I argued consistently indeed investigative tial abuses of these tech- with it that FISA and Title III are con niques foreign intelligence cases that it provide comprehensive structed to frame imposed requirements— these numerous work for the use of electronic surveillance affecting checks and balances officials at in the United States in situations where the highest government. levels of It im- targets expectation have a reasonable posed those in cases of ut- privacy. govern Under scheme the importance sensitivity most to national ment’s use video surveillance in this case security. I unpersuaded by sugges- am illegal if it was not authorized either tion that subjected could have FISA or Title III. techniques tight these to such controls in government’s It is obvious that the video open those cases and still left the use of surveillance here was not authorized under techniques every police the same local department every “foreign” target FISA. The FALN is not a investigation. minor majority’s interpretation meaning pre- would within the of FISA and the sumably give engage attempt employ made no special provisions 4. There are Application limited for war- sional concerns. In re Order very rantless surveillance under narrow circum- Authorizing Interceptions Oral Communica- stances on orders of the President and certifica- Surveillance, Videotape F.Supp. tions and 513 by Attorney tion General. 50 421, (D.Mass.1980) (allowing 422 video surveil- 1802(a). § safeguards lance where substantive at least as III, rigorous required by as Title if not those argument, provi- 5. A similar that the absence of so, observed). more had been The effect of implies sions in Title III for video surveillance that such surveillance is FISA on Title not III was considered. forbidden, has been rejected giving weight Congres- as too little

893 Therefore, by either Title volved efforts defendants to extend Ti- procedures. FISA less intrusive surveil- relatively the video surveillance III apply must tle III pen unlawful. registers, lance devices such as which telephone by record numbers dialed a moni- III argue that Title But the defendants See New York Tele- telephone. tored surveillance because authorize video cannot phone, supra, cited cases therein 434 limited to audio and wire that statute is 9, 9; at 166 n. U.S. 98 S.Ct. at 369 n. of appears language Cassity, supra. good Courts have with §§ and 2511.6 This lan 18 U.S.C. 2510 language reason relied on both the particular the definition of “inter guage, legislative 2510(4), history statute and the to resist does cept” in 18 U.S.C. contained to reach extensions of Title III to these less intru- pose principal obstacle indeed That definition states: ing my conclusion. sive surveillance methods. The definition “ acquisition of ‘intercept’ means the aural “intercept” carefully of Title III is word- oral communi any of wire or ed, the contents sharp but its focus on the “aural” ac- electronic, use of through cation quisition designed of information was face, mechanical, or other device.” On its less intrusive surveillance including avoid Title III appears definition to restrict 1097, devices. 2d techniques, and courts audio surveillance 90, reprinted in 1968 Sess. as limited to construed the definition 2112, 2178. The use of the & Ad.News acquire through which information devices limiting word “aural” had the effect of hearing. E.g., United States the sense of highly Title III to those intrusive electronic Co., 159, 165-68, v. New York Tel. 434 U.S. measures, wiretapping such (1977) L.Ed.2d 376 98 S.Ct. 54 which could disclose the con- bugging, Cassity, v. United States (pen registers); tents of communications. Id. 611, (E.D.Mich.1981) (beep F.Supp. 546 621 here, contrast, question by we face ers), part, grounds, rev’d in on other 720 “intercept” is one the definition of which — (6th Cir.1983), vacated F.2d 451 was not framed to address. We are deal- (1984) -, 3581, 104 82 L.Ed.2d 879 ing with a far more intrusive surveillance (mem.). specifically Three courts have held technique, surely and one that has the ef- applicable III not to video surveil revealing fect of the contents of communi- Application In re Au Order lance. for together amount of cations with a vast Interception thorizing Oral Communi targets. other information about Careful Surveillance, Videotape cations and 513 wording require not us reach does irra- People (D.Mass.1980); v. F.Supp. 421 facing question tional results when Teicher, 846, N.Y.2d 439 52 N.Y.S.2d contemplated the drafters of defini- (1981); Sponick City 422 N.E.2d 506 merely other courts have tion because 162, 211 Dept., Mich.App. Detroit Police 49 in a different context. reached those results 674 N.W.2d addition, scope are, however, whatever the of Title why There several reasons blindly prior before the enactment FISA we should not adhere to those First, provides extending a sound prior constructions. court con- 1978 basis have, exceptions, encompass in- Title III to video surveillance.7 structions with certain (E.D.Mich.1981) (beepers), majority government agree, F.Supp. Both the though grounds, do part, draw a different conclusion than 720 F.2d rev'd in on other — U.S.-, Cir.1983), (6th the defendants. 104 S.Ct. vacated (1984) (mem.). Nor have 82 L.Ed.2d 879 III is 7. None of the courts which have said Title effects FISA on Title III been considered acquired through the limited to information courts which have held Title III the three hearing complicated has considered the sense Appli- inapplicable video surveillance. In re statute, quite effects of the 1978 FISA Authorizing Interception Oral cation Order E.g. clearly does cover video surveillance. Unit- Surveillance, Videotape Communications Co., Tel. 434 U.S. ed States v. New York (D.Mass.1980); F.Supp. People v. Teich- 368-70, L.Ed.2d 376 er, 422 N.E.2d N.Y.2d 439 N.Y.S.2d (1977) (pen registers); Cassity, United States v. design. to rather than “conforming was intended mesh with Because FISA FISA’s sys comprehensive statutory simply amendments” did not mesh Title III in a gears of the highly quite smoothly intrusive forms statutes as regulating tem for surveillance, Congress had intended. included of electronic “conforming amendments” to number of difficulty There is a further with the statutory anomalies or con prevent various argument. Congress defendants’ If chose might otherwise have arisen.8 flicts which surveillance, prohibit video it chose a conforming amendments ex Some of those remarkably way roundabout and subtle the FISA definition of pressly introduced it, do clearly any and it never indicated (including its “electronic surveillance” vid fact, intention to do so. neither Title III dimension) some sections of Title eo into prohibits any specific nor FISA surveil- § 201(a), amending E.g., III. FISA Instead, lance method. both statutes are § 2511(2)(a)(ii)(authorizing a com U.S.C. designed to control intrusive methods of agent mon carrier to assist an a court with by regulating electronic surveillance their authorizing interception of wire order language use. There is no indication in the or electronic or oral communications sur legislative history of either statute that FISA). veillance defined any meant to outlaw form of quite implausi- and I think it inclusion of video surveillance ble that with a situation FISA’s definition of electronic surveillance —faced prohibit- such as confronts us—would relatively explicit obscure becomes any ed surveillance in almost form. only in a few in the sentences buried com- reports. Congress’ mittee attention was Although argument the defendants’ clearly regard with elsewhere FISA. frivolous, and, indeed, certainly not tracks poten- to me And it seems evident that the statutory language closely more than problems majority position tial of either the interpretations offered in this and the position simply or the defendants’ were not majority opinions, should, we in order to recognized development of one com- results, avoid absurd construe Title III to plicated integration statute and its with apply to video surveillance for domestic law complicated another statute. Either re- investigations enforcement where the tar- exemption sult—the of video surveillance gets of the surveillance have a reasonable from statutory regulation prohi- or the expectation of privacy, as in this case. of video bition surveillance—is extreme matter, practical procedural As a enough persuade Congress, me that if it Title III substantive possibility, had noticed the would at least compatible every with video'surveillance have commented on it somewhere. In- respect, likely and video surveillance is stead, there is silence. only in be used tandem with audio surveil language In view of the of both Title III techniques already subject lance to Title FISA, statutes, purposes of both application, III. The same the same autho practical connections rization, between audio probable showing same cause, and video surveillance methods and the si- showing the same of need for such legislative history lence on the sub- apply equally intrusive measures would all ject, it is most sensible view the statuto- to both video and audio surveillance meth And, course, ry dilemma as the result of essentially inadvertence ods. that is (1981); Sponick City required Application, Detroit Police Title III. In re Dept., Mich.App. 211 N.W.2d F.Supp. at 423. majority, Several of the cases relied on including Telephone Sponick, New York possi- 8. These undesirable effects included such prior were decided to the enactment of FISA. holding agents criminally ble results as Judge Application, And in In re Keeton allowed acting ac- liable under 18 2511 for forcing govern- video surveillance after cordance with a court order under FISA. See go through application proce- ment to Title III 201(b). FISA § subjecting dures and the surveillance to substan- safeguards rigorous tive least as as those government pursued bending here in its language. course the of the Title III If my including request construction were to be applications, video chastised as “re oriented,” sult I would assert that it part as one seeks surveillance —albeit a result which is both sensible and consist applications.9 routine Title III sentence —of ent with both the statutes and legisla Thus, regulatory details of the Title III carefully tive histories read and as a whole. appear compatible every in scheme Applying Title III to video surveillance respect supple surveillance with video majority’s anomaly avoids of subjecting ment audio surveillance. dangerously the most intrusive form of Further, application of Title III to electronic surveillance to much less con video surveillance seems to me to be most addition, trol than other forms. Congress’ closely accord with intent in majority’s interpretation subjects video sur Congress Title III and FISA. was troubled veillance to much less control the investi potential for abuses of electronic gation gambling parlor of a local than in surveillance, and was dissatisfied with the foreign intelligence investigations. My adequacy contemporary constitution- improbable construction also avoids re protection privacy al doctrine for the reading sult of pro Title III and FISA as purpose interests. The of these two stat- hibiting particular one form of electronic utes not to outlaw electronic surveil- surveillance when there are no indications subject rigorous lance but to it to controls. anywhere prohibit meant to keyA element of both Title III and FISA technique in all situations. authority that each respon- centralizes Instead, my approach subjects this highly for the use sibility of intrusive means of intrusive form of surveillance to at least as surveillance. was much constraint as less intrusive forms are quite prevent concerned Title III to to, and it accords general with the possibility relatively of local or low-level congressional design closely regulat using abusing power by officials or their ing prohibiting somewhat awe —not —these employing electronic surveillance for their some forms of surveillance. purposes, own where was otherwise

unwarranted. There guar- is of course no high

antee level officials will not also power,

abuse their but Title III was de-

signed easy assign responsi- to make it

bility for provide abuses and to for rational policies and consistent in the use of these DILLON, Petitioner-Appellant, Richard

highly intrusive measures. All of these apply concerns with at as much least force DUCKWORTH, Warden, Jack Indiana to video as to audio surveillance and it Prison, Respondent-Appellee. State apply makes the utmost sense to those No. 84-2208. constraints to video surveillance as well. Appeals, United States Court course, open Of this is to criticism as an Seventh Circuit. aggressive exercise in construc tion, either of the alternatives were Argued Oct. 1984. more consistent with both statutes and Dec. 1984. Decided histories, purposes legislative their I As Corrected Jan. perhaps my interpreta would retreat from However, tion. each alternative has techni are, policy problems

cal and my

view, considerably my more severe than government, supra.

9. This course was also taken 10. See n. 3 Keeton, though by Judge prodding after some Application, supra. In re

Case Details

Case Name: United States v. Alejandrina Torres

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 25, 1985

Citation: 751 F.2d 875

Docket Number: 84-1077

Court Abbreviation: 7th Cir.