Technical Surveillance Threat Levels, Title III

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Technical Surveillance Threat Levels, Title III

The threat posed by technical surveillance devices may be broken into ten basic levels. As each threat level increases the difficulty of detecting the device increases by an order of magnitude (for levels 1-9).

These threats are clustered into three major groupings, with a fourth major group for emerging technologies or threats based on misunderstandings of technology or (in some cases) pure fantasy.

Each level correlates to specific types of eavesdropper, and equipment being used. In turn each level also correlates to a specific type of TSCM inspection, methods, and procedures. As each level of threat increase the time and efforts required to find the bug also increases.

Level 1 - Common Consumer Products and Toys

This level of threat includes only generally available consumer devices sold at major department stores (Walmart), home improvement stores (Home Depot), national electronics chains (Best Buy), Radio Shack and similar stores. The products are NOT primarily designed for eavesdropping, and operate on a fairly narrow band of RF frequencies.

All products operate at very low power levels and most are considered "Part 15" devices (within the US). To qualify as a level one threat the product must also have an FCC ID number (or foreign equiv.), and be specified (by the FCC) as a consumer product. These products generally do not require any type of special authorization or licensing of the operator of facility.

This includes low power wireless microphones, wireless intercom systems, Wavecom transmitters, baby monitors, and similar products.

TSCM specialists who attend a typical two week civilian TSCM training program will be able to detect and locate about 50% of the threats that exists on this level, but will be weak on dealing with conducted signal threats, and very weak on RF threats.
The equipment is not designed for use as a surveillance device, and will operate on specific consumer band frequencies. Heavy usage of 49 MHz, 88-108, 143, 171, 470, 900-925 MHz bands.

Generally limited to frequencies below 1 GHz. Limited usage of the 2.4 GHz band, involving mostly Wavecom video transmitters which are very simple to detect.

Equipment used for taping phone lines typically contain parasitic power draw, and are very simple to detect with a simple volt-ohm meter test.

Since the equipment and training required to perform a TSCM inspection at this level is minimal, the cost for this type of service is very low. Firms offering TSCM services this level typically charge between $150 to $750 for an entire sweep (but remember you get what you pay for). This level of TSCM service usually takes between four and six hours, with a legitimate firm charging around $250 per hour.

* Wireless Microphones
* Intercom Systems
* Baby Monitors
* Tape Recorders
* Recorder Starter Relays
* Inexpensive Microphones
* Video Cameras
* Camcorders
* Related electronic devices which are really nothing more than consumer toys and gadgets.
* Commonly used by spouses spying on each other

Technical Profile

* Frequencies typically between 150 kHz and 2.5 GHz (but most below 1 GHz)
* Power levels typically below 50 mW
* Narrow Band Spread Spectrum ISM bands may be used (but it is limited)
* Wide band spread spectrum, burst or frequency hopping is rarely used
* Infrared devices clustered around 900 nm
* AM, NFM, WFM Modulation
* Little or no usage of encryption or inversion scrambling (typically Barker PN codes, and related well known and easily decoded methods)
* Very high harmonic components
* Inefficient circuitry, but very low cost

Counter Measures

* Digital Multimeter
* Handheld/Pocket RF Field Detectors
* Near Field Detectors
* Feedback Detectors
* Requires less then $1500 in TSCM equipment to detect

Credentials

* Involves 5 days of TSCM training (typically only 1 or 2 weeks)
* Over 50,000 people worldwide working at this level
* Over 4,500 private firms in the U.S. offer TSCM at this level
* Half of the firms offering service at this level are mostly private investigators
* One fourth of the remaining firms are "security" consulting firms
* The remaining fourth are con artists, felons, spy shops, and crooks who will say or do anything to separate you from your cash (usually thousands of dollars).
* Every major U.S. city has at least 50 firms who operate at this level (but most are not legitimate)

Level 2 - Amateur and Consumer Communications Products

Products only qualify for a level two threat level if it is a quasi-consumer product such as a ham radio, aeronautic, or maritime type of product.

These products are available to consumers, but they really have to "hunt around" to buy them. At this point the products typically are involved in some type of hobby or recreational activity.

A user or facility using this kind of equipment will often require some type of authorization, or special licensing in order to operate this type of equipment. This includes commercial radio, mobile radio, and related equipment.
Products with a threat level of 2 include products not normally available to the public, and may or may not include FCC approved devices. The products are typically not sold retail, but are offered into very specialized vertical markets (such as the broadcast or recording industry.

The most popular products are UHF and VHF wireless microphones used (or misused) by the broadcast industry. Also popular are industrial wireless video systems, and spread spectrum products clustered around the 2.4 GHz ISM band.

These products include those used by Private Investigators, security people, and related professional with heavy concentration on video based products (operating on consumer frequencies).

The products are quasi-legal (provided no audio path is involved) and are readily available to professionals via mail order or retail channels (such as spy shops).

Poorly trained law enforcement officers will occasionally (out of ignorance) use products such as these for surveillance, often with terminal results.
The equipment is not designed for use as a surveillance device, and will operate on specific consumer band frequencies. Heavy usage of 49 MHz, 88-108, 143, 171, 470, 900-925 MHz bands.

Generally limited to frequencies below 1 GHz. Limited usage of the 2.4 GHz band, involving mostly Wavecom video transmitters which are very simple to detect.

Equipment used for taping phone lines typically contain parasitic power draw, and are very simple to detect with a simple volt-ohm meter test.

Technical Profile

Counter Measures

* Digital Multimeter
* Handheld/Pocket RF Field Detectors
* Near Field Detectors
* Feedback Detectors
* Requires less then $1500 in TSCM equipment to detect

Credentials

Level 3 - Amateur Eavesdropping Products

At this level of threat some of the products become borderline illegal. This includes many of the transmitter kits, telephone bug kits, and similar devices sold out of the back of electronics magazines and at a few electronics stores. While possession or usage of these products is quite illegal (as per federal law) the manufactures operate in a legal gray area which results in periodic raids by law enforcement.

Within the US these products are typically low power products which operated inside the parameters detailed in 47 CFR, Part 15 for low power non-licensed devices.

There is quite a bit of "Nudge-Nudge, Wink-Wink" that goes on with these products, and it is "understood" that most of the products are actually being used for illegal surveillance.
The equipment will usually operate on specific consumer band frequencies. Heavy usage of 49 MHz, 88-108, 143, 171, 470, 900-925 MHz bands.

Generally limited to frequencies below 1 GHz. Limited usage of the 2.4 GHz band, involving mostly Wavecom or Trango video transmitters which are very simple to detect.

Equipment used for taping phone lines typically contain parasitic power draw, and are very simple to detect with a simple volt-ohm meter test. Eavesdropping equipment is typically applied to the telephone service access point inside the target, or at the service box at the side of the building. Actual penetration of the distribution cable is rare.

Technical Profile

* Frequencies typically between 150 kHz and 2.5 GHz (but most below 1 GHz)
* Power levels typically below 250 mW
* Narrow Band Spread Spectrum ISM bands may be used (but it is limited)
* Wide band spread spectrum, burst or frequency hopping is rarely used
* Infrared devices clustered around 900 nm
* AM, NFM, WFM Modulation
* Little or no usage of encryption or inversion scrambling (typically Barker PN codes, and related well known and easily decoded methods)
* Very high harmonic components
* Inefficient circuitry, but very low cost

Counter Measures

* Digital Multimeter
* Handheld/Pocket RF Field Detectors
* Near Field Detectors
* Feedback Detectors
* Requires less then $1500 in TSCM equipment to detect

Credentials

Level 4 - Restricted Professional Products
Products with a threat level of 4 include products not normally available to the public, and may or may not include FCC approved devices. The products are typically not sold retail, but are offered into very specialized vertical markets (such as the broadcast or recording industry.

These products include those used by Private Investigators, Security People, and related professional with heavy concentration on video based products.

The products are quasi-legal (provided it is video only, and no audio path is involved) and are readily available to professionals via mail order, the Internet, or retail channels (such as spy shops).

Poorly trained law enforcement officers will occasionally (out of ignorance) use products such as these for surveillance, often with undesirable results.
This level of threat is typically equipment and devices used by the industrial, scientific, broadcast, and the law enforcement community. The equipment is generally not available to the public and is often too expensive for "spy shops", PI's, and amateur spies.

Roughly 60% of these products is higher end equipment used by the broadcast industry (video transmitters, body wires, and wireless audio products). This equipment is commonly re-labeled and sold to law enforcement agencies at highly inflated prices. This type of equipment is quasi-legal for the public to possess, buy, sell, or attempt to buy (but it's a major and dangerous gray area).

Only about 40% of the equipment is purpose built for law enforcement (AID, HDS, etc..) and is really nothing more then copies of broadcast products in a concealment device. This type of equipment is highly illegal for the public to possess, buy, sell, or attempt to buy.

Equipment will typically operate on broadcast support, or law enforcement frequencies which will not be around any of the "consumer bands".

The eavesdropper generally assumes the target is "soft" and not expecting eavesdropping. Target typically will not be performing any type of TSCM inspection, or will be using "spy shop bug detectors" which will provide a serous false sense of security.

Equipment used for taping phone lines will normally contain a sophisticated isolation circuit, and will be very difficult to detect electronically. Such a device is often called a "Slave Device" and is typically only found via a careful physical inspection.

The primary indicator of this level of threat is that it was initially designed, marketed, and sold to a "non-public" customer (such as a TV studio, medical facility, industrial firm, or law enforcement agency).

The equipment and training required to perform a TSCM inspection at this level starts becoming complex. The cost for this type of service starts to increase. Firms offering TSCM services at this level typically charge between $1500 to $3000 for a limited sweep. This type of TSCM service usually takes less than a day (and often less then 2 hours).

* Body Wires
* Bumper Beepers
* Tracking Devices and Beacons
* Wireless Microphones
* Tape Recorders
* Covert Video Cameras
* Night Vision

Technical Profile

* Frequencies typically between 3 kHz and 3 GHz
* Power levels typically between 2.5 mW and 10+ Watts
* Spread Spectrum ISM bands commonly used
* Wide/Narrow band spread spectrum, burst or frequency hopping used
* Infrared devices between 850 nm to 1050 nm
* AM, NFM, WFM, FM-SubCarrier, SSB, QAM and over 32 other types of modulation
* Limited use of encryption using simple algorithms
* Limited usage of digital modulation
* Expensive, but very high performance
* Designed for short term, low risk technical surveillance

Counter Measures

* Digital Multimeter
* Handheld/Pocket RF Field Detector
* Near Field Detector
* Feedback Detector
* Ultrasonic Stethoscope
* Omni Spectral Correlator (i.e.: OSC-5000)
* Spectrum Monitoring Systems (i.e.: MSS, ACES, Omniscan)
* Spectrum Analyser. - 9 kHz to 40 GHz
* Vector Signal Analyzer - Low Bandwidth
* Oscilloscope
* Non Linear Junction Detector
* Search/Intercept Receivers
* Telephone Analyzer
* Time Domain Reflectometer
* Portable X-ray Equipment
* Requires at least $350,000 in TSCM equipment to detect

Credentials

* Involves 30-40 days of TSCM training
* Over 2000 people worldwide formally certified at this level
* Roughly 100 private firms in the U.S. offer TSCM at this level (Mostly PI's)

Typical Suppliers

* Audio Intelligence Devices
* Telex
* Sony
* Household Data Systems - HDS

Level 5 - Professional Spy Shop Products

Level five threats are mostly the products sold by spy shops and involve mostly simple audio transmitters, and low quality video transmitters. These products are fairly low quality, but incredibly expensive. The products are quasi-legal in some countries (German, Japan, England, Canada, etc.) but quite illegal in the United States.

This level of threat is commonly found with law enforcement surveillance "groupies and newbies" but a professional spy will avoid using such products as they are very easy to a TSCM'er find during a sweep.
This level of threat is usually equipment and devices specifically modified for use in covert surveillance.

Generally nothing more than low cost modified consumer electronic devices such as Wavecom video transmitters, or consumer band wireless microphones.

Often level 5 devices are actually level 1, 2, or 3 devices which have been re-tuned, modified, and/or placed into a concealment device (i.e.: fanny pack, eyeglasses case, lamp or clock radio).

The primary indicator of a level 5 device is the smaller size and the method of concealment (usually inside another electronic device).

Equipment will typically operate on well known "spy shop" or "ham" bands of frequencies, and often on consumer band frequencies.

Equipment used for taping phone lines will usually use parasitic power draw, and are very simple to detect. If the line is isolated the isolation circuit will be fairly crude and easily detected.

The equipment and training required to perform a TSCM inspection at this level is minimal, and the cost for this type of service is moderate. Firms offering TSCM services at this level typically charge between $1000 to $1500 for a limited sweep. This type of TSCM service usually takes less than six hours.

* Telephone Bugs
* Body Wires
* Wireless Microphones
* Intercom Systems
* Baby Monitors
* Tape Recorders
* Recorder Starter Relays
* Inexpensive Microphones
* Video Cameras
* Camcorders
* Related electronic devices which are really nothing more than consumer toys and gadgets.

Technical Profile

* Frequencies typically between 30 kHz and 3 GHz
* Heavy usage of 399, 434, 900 MHz, and 2.4 GHz
* Power levels typically between 2.5 mW and 500 mW
* Narrow Band Spread Spectrum ISM bands may be used
* Wide band spread spectrum, burst or frequency hopping is rarely used
* Infrared devices clustered around 900 nm
* AM, NFM, WFM, FM-SubCarrier Modulation
* Little or no usage of encryption
* Detectable harmonic components
* Fairly low cost
* Designed as toys for amateurs

Counter Measures

* Digital Multimeter
* Handheld/Pocket RF Field Detector
* Near Field Detector
* Feedback Detector
* Ultrasonic Stethoscope
* Low Cost Spectrum Analyzers - i.e.: Avcom PSA-65C
* Omni Spectral Correlator (i.e.: OSC-5000)
* Requires around $15,000 in TSCM equipment to detect

Credentials

* Involves 10-20 days of TSCM training (2-4 weeks total)
* Over 10000 people worldwide working at this level
* Over 2500 private firms in the U.S. offer TSCM at this level (Mostly PI's)
* Every major U.S. city has at least a half dozen firms who operate at this level

Typical Suppliers

* Micro Electronics
* PK Electronics
* Lorraine
* Xandi
* DECO
* Ramsey
* SuperCircuits

Level 6 - Professional "Title 3" Products

These products are strictly taboo for the public to buy, sell, possess, or attempt to possess. It is actually more illegal to sell a real bug (in the United States) than it is to possess a kilo of cocaine.

This level of threat involves eavesdropping products strictly available only to law enforcement agencies, and then only when acting under an ACTIVE court order.

Most of the products operate on bands allocated for law enforcement activities, or bands specifically allocated for surveillance (and are fairly easy for the TSCM professional to detect).

This type of product (within the United States) is referred to a "T3" or "Tile III" device, and has a very narrow, and specific purpose for which they are used.

Most beeper and cellular intercept or eavesdropping systems fall into this level of threat due to the highly restricted nature of such products.

Threats above this level are strictly those which involve national defense or intelligence interests. In other words, members of law enforcement are not allowed to "play with toys" above this threat level (in almost any country).
The primary indicator of a level 6 device is that it is designed, marketed, and sold as a covert eavesdropping product.

The product is designed not to be detected during a typical TSCM sweep and will require a great deal of time to locate and identify. This type of threat always assumes that TSCM activities will be performed at the subject location.

This type of device is usually monitored by full time staff at a fixed command post. The eavesdroppers will typically have the target under intense physical surveillance and will be monitoring "guard-bands" to detect TSCM teams.

This type of threat is that commonly used when businessmen "bug" each other, and when "big dollars" are involved.

The equipment and training required to perform a TSCM inspection at this level is considerable. Firms offering TSCM services at this level typically charge between $3000 to $7500 for a limited sweep. This type of TSCM service typically requires at least a full day (often 2-3 days).

* Wireless Microphones
* Digital VLF Devices
* Covert Video Cameras
* LAN/WAN Eavesdropping Devices
* Bugged Copy Machines
* Bugged Fax Machines
* Bugged Computers and Monitors
* Modified Telephone, PBX, and Voice Mail Systems
* Cellular Interception Systems (Generally not detectable)
* Beeper/Pager Intercept Systems (Generally not detectable)

Technical Profile

* Frequencies typically between 3 kHz and 40 GHz
* Power levels typically between 250 nW and 100 mW
* Wide/Narrow band spread spectrum, burst and frequency hopping
* Infrared devices between 300nm to 1710nm
* Over 156 types of modulation used
* May use burst or packet transmission
* Commonly uses a duplex link for remote control of device
* Heavy use of encryption using complex algorithms
* Heavy usage of digital modulation
* Very difficult to find
* Expensive and very high performance
* Designed for long term, high risk technical surveillance

Counter Measures

* Spectrum Analyser - DC to 40 GHz
* Vector Signal Analyzer - Very High Bandwidth
* Non Linear Junction Detector
* Search/Intercept Receivers
* Measuring Receivers
* Telephone Analyser
* Time Domain Reflectometer
* Portable X-Ray Equipment
* LAN/WAN Analysis Instruments
* Requires at least $750,000 in TSCM equipment to detect

Credentials

* Involves 40-60 days of highly specialized TSCM training
* Only about 500 people worldwide formally certified at this level
* Typical Interagency Training Center/Counter Intelligence Technician
* Roughly 12 private firms in the U.S. offer TSCM at this level

Level 7 - Signals Intelligence Products

Level 7 threats include those products used by the Signals Intelligence community, and may include radar analysis systems and communications intercept systems.

This equipment is typically used only by major defense or intelligence agencies and generally is not available to law enforcement.

While it is possible for the public to obtain "bits and pieces" of these products it will be impossible for them to assemble a fully operation system.

The "bits and pieces" of these are not normally classified, by instead the capabilities of the entire system is classified, or instead everything except a few specific "black boxes" are classified.

A good example are the thousands of Lockheed, Watkins-Johnson, TRW, and CSF "black boxes" sucked up by the Department of Defense each year.

The equipment may include special classified or unclassified battlefield communications systems, SATCOM systems, GPS systems, Avionics Systems, and so on. In the event that the minimal level of security around these products was compromised only minor damage or embarrassment could result.

In the rare event that this type of threat is classified it is only a lower level type of classification such as FOUO, Confidential, or perhaps borderline Secret.
The product is designed not to be detected during a typical TSCM sweep and will require a great deal of time to locate and identify. This type of threat always assumes that TSCM activities will be performed at the subject location.

* Frequencies typically between 3 kHz and 110 GHz
* Power levels typically between 250 nW and 100 mW
* Wide/Narrow band spread spectrum, burst and frequency hopping
* Infrared devices between 300nm to 1710nm
* Hundreds of modulation types and formats used
* Often uses burst transmission
* Commonly uses a duplex link for remote control of device
* Heavy use of encryption using classified and complex algorithms
* Heavy usage of digital modulation
* Very difficult to find during a TSCM Sweep
* Expensive and very high performance
* Designed for long term, high risk technical surveillance

Counter Measures

* Spectrum Analyser - DC to 110 GHz
* Vector Signal Analyzer - Very High Bandwidth
* Non Linear Junction Detector
* Search/Intercept Receivers
* Measuring Receivers
* Telephone Analyser
* Time Domain Reflectometer
* Portable X-Ray Equipment
* LAN/WAN Analysis Instruments
* Requires at least $750,000 in TSCM equipment to detect

Credentials

* Involves 40-60 days of highly specialized TSCM training
* Only about 500 people worldwide formally certified at this level
* Typical Interagency Training Center/Counter Intelligence Technician
* Roughly 6 private firms in the U.S. offer TSCM at this level

Level 8 - Intelligence Agency Eavesdropping Threats

An example of this level of threat is the eavesdropping devices and methods actively being used by an intelligence agency, State Department, and so on.

This includes both radiated, and conducted signals threats along with various types of intercept systems, alarm bypass systems, covert entry devices, and so on.

Virtually all equipment involved in this level of threat is classified at least Secret. Compromise of this type of information at this level of threat would cause serious injury (but not grave damage) to either national defense or intelligence.

TSCM specialists training by the U.S. Government at Fort Washington or Richland are generally trained to this level, but no higher.
The product is designed not to be detected during a typical TSCM sweep and will require a great deal of time to locate and identify. This type of threat always assumes that TSCM activities will be performed at the subject location.

Counter Measures

Credentials

* Involves 40-60 days of highly specialized TSCM training
* Only about 500 people worldwide formally certified at this level
* Less than 200 US government employees formally certified at this level
* Typical Interagency Training Center/Counter Intelligence Technician
* Roughly 3 private firms in the U.S. offer TSCM at this level

Level 9 - National Security Eavesdropping Threats

This is the highest level of threat which is available to government agencies, and includes emerging technologies, and equipment or devices on the cutting edge of science.

Access to even the slightest piece of information regarding this type of system is highly restricted and requires a high level security clearance. Often people (even with a Top Secret security clearance) are only allowed to work on a small part of the system to minimize the risk of any one person crippling national defense.

All information concerning this type of threat is classified as Top Secret, and often involves codeword access such as TK, SCI, Gamma, Byeman, and so on.

The equipment, methods, and activities are all centered around large scale national surveillance, reconnaissance, eavesdropping, and intelligence programs and related activities. A prime example of this is the NRO and their program or overhead imagery, or the NSA/Navy undersea fiber optic tapping ships.

Level X - Hypothetical, Misunderstood, or Delusional Threats

Above level 9 exists a level of threat that is called "X-Level". This include seven (or more) sub-levels of threat.

The only time that a TSCM specialist will encounter this type of threat is from a client who has a limited understanding of technology, has watched too many X-File re-runs, is delusional, or paranoid.

In many cases the client is simply misinformed or has been the victim of an elaborate technology based hoax. In other cases there may be some type of borderline eavesdropping products that was in the media which works well in the lab but is virtually worthless in the field.

Xa) The first of the Level X threats is based on technology which is emerging, but has not quite made it out of the laboratory. Often this technology is snatched up by a government agency and never becomes widely available to the public. In other cases the technology makes it out of the lab, but is virtually impossible to provide to the public. While this technology, threat, or product is possible, it is quite expensive, or not practical for actual use as a surveillance method or device.

Xb) The second level involves simple misunderstanding or misrepresentation of modern technology. This occurs when the public is misinformed or misled by the media, or when too much science fiction gets mixed with modern science. In most cases it is simply a case of a non-technical person reading a technical article and drawing an inappropriate conclusion.

A prime example of this what is commonly called a "TEMPEST or Van Eck Intercept System". While it is possible to obtain a small amount of information via such methods the area of technology is grossly misrepresented by a host of con artists and snake oil salesman in an attempt to deceive the public (and make a quick buck).

Xc) The third type of threat involves technologies that are on the verge of discovery, or technologies that will be generally be available within the next five year period.

For example in 1990 the IRIDIUM satellite system (which can be used for an uplink for an eavesdropping device) would have been considered a level X threat with a subcategory of C. Once the system was partially function it became a level 2 threat. As the system was marketed to the public in later years it became a level one threat.

The next few levels of threat become a bit of a problem as no rational threat exists, but the client has convinced themselves that such a threat has been applied to them by a real or imaginary entity.

Often this delusion (or misunderstanding) has been caused by a victim actually being actively tormented by an eavesdropper using or abusing technology. In an attempt to rationalize how the attack is taking place the victim will often try to research how such a thing is done.

Often the victim turns to various media sources, articles, television shows, and movies and gain only a sensationalized, over hyped, unscientific view of surveillance technologies and methods. (It's amazing how much bad information is out there).

Sadly, due to the inability of the victim to obtain legitimate information regarding surveillance or counter-surveillance their well intentioned research leads to convincing themselves that some type of irrational or improbable surveillance method or technology is being used against them.

Victims of technical surveillance (or technical harassment) usually believe a threat exists at a level quite a bit above the actual level found present. For example a subject who has been the victim of a $20 phone bug, or who has been covertly video taped becomes so terrorized that they start believing the CIA placed an classified eavesdropping or tracking beacon in a molar during their last root canal. In fact the CIA is not involved, but instead it is only a PI who installed a $20 phone bug at the request of an ex-boyfriend or girlfriend (for the purpose of harassment and terrorism).

A subject who claims a threat at this level should be considered very legitimate. The perceived threat should be discussed with them prior to offering a TSCM service to determine if it is simply a case of conducted audio signals, or of them carelessly using a cordless telephone phone. In other cases the victim is suffering from an actual physical ailment which mmics a technical attack (such as an ear infection causing ringing in the ears).

Xd-1) The first type of the X threats involves what is commonly referred to as "Pseudo-technology" and includes Microwave, RF, and Ultrasonic harassment products, anti-gravity products, HERF weapons, TEMPEST, space aliens at Area 51, red headed leprechauns, and other such fanciful tales of technology.

While the threat is technically possible the actual usage is limited to "academic curiosities only". Cute articles are often written about these topics, but for some reason the "demonstrations" never stand up to controlled scientific examination (such as the levitating car hoaxes, HERF guns, pocket sized laser weapons, or the palladium based super conducting reactor).

A subject who claims a threat at this level should be considered legitimate, but the perceived threat should be discussed with them prior to offering a TSCM service. This is done to dispel any myths or misconceptions they may have about technology. It is common for a legitimate threat to exist, but for the subject not to be able to articulate details of the except though media provided examples.

Xd-2) It is not uncommon for a subject to claim to be the victim of some type of government eavesdropping or of some type of technical harassment, but is unable to articulate why it is being done, or is unable (or unwilling) to articulate who is doing it.

The most common complaint is that the subject feels they are being harassed due to some secret knowledge they posses, or because some member of their family possess such knowledge. It is not uncommon for the subject to complain of being implanted during a smallpox vaccination or during some type of medical or dental procedure.

Generally the governments in the free world do not sneak around attempting to covertly "Lo-Jack" people (except in the movies and in spy novels).

While "off-the-books" covert eavesdropping is occasionally done by government agencies such instances are quite rare, and usually involve the subject having (or getting) an active security clearance.

Legitimate court authorized surveillance is another story, but despite what you may read in the newspapers or pulp magazine the U.S. government does not implant tracking devices or eavesdropping devices into people.

A subject who claims a threat at this level should be considered borderline legitimate, as their fears are often based in reality, and on an actual (but exaggerated) threat. Often the offending piece of technology is found to be a cordless telephone, wireless intercom system, or in some cases a covert video camera.

In many cases the victim is actually (but covertly) being actively stalked or is the victim of "video-voyeurism", and is subtlety picking up on warning signs (which they then incorrectly attribute to some covert government agency).

Xd-3) The third type of X level threat is similar to the previous level, but involves (non-existent) civilian based implant systems, or sophisticated methods of technical harassment (such as microwave energy guns).

Usage of such equipment or methods would leave evidence of bodily injury such as bleeding from the ears, damage to the sinus cavities, ultrasonic cell disruption, radiation burns, thermal RF burns, and so on. In reality a physician would be easily able to locate such a device on (or in) a patient during a routine physical. Subjects who claim to have a civilian or government based implant should first be examined by an appropriate medical professional.

Voo-Doo dolls, Gri-Gri's, gypsy curses, evil eyes, black magic, and other supernatural methods not withstanding there is very little one person can do using technology to another to actually cause then harm, pain, or sleeplessness to another without leaving considerable medical evidence of the mischief.

A subject who claims a threat at this level should first be evaluated for injury by a medical professional prior to any TSCM service being offered. It is possible that a leaky microwave oven is the culprit, or that some type of acoustical or ultrasonic harassment device is behind the problem.

Xd-4) Occasionally a subject will become convinced that they are the victim of tracking or eavesdropping by some type of alien implant which was given to them during an alien abduction. The evaluation of such implants (and subjects) should be restricted to appropriate medical professionals.

Xe) The final level of X threat includes hypothetical threats, or threats which could be possible, but no scientific evidence is yet available to confirm or deny that it actually exists.

At this level of threat the subject could be considered (and usually is) quite rational, but the TSCM specialist is unable to find a specific device. This is common in cases where and eavesdropping device has been turned off or has been removed prior to the sweep, but the client has firm (and legitimate) evidence concerning its usage.

This level of threat should be very carefully evaluated, as there may or may not be some type of eavesdropping device or method being used.

Title III

SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY

Under Title III of the Omnibus Crime Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.

Law enforcement may also share with the intelligence community information obtained through surveillance authorized by the court pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.

October 17, 2000

MEMORANDUM FOR THE COUNSEL
OFFICE OF INTELLIGENCE POLICY AND REVIEW

You have requested our opinion on the extent to which law enforcement officials may share with the intelligence community information obtained through court-authorized electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act. We believe that such information may be shared in limited situations, namely, (1) where law enforcement shares the information with the intelligence community to obtain assistance in preventing, investigating, or prosecuting a crime; and (2) where the information is of overriding importance to national security or foreign relations and where disclosure is necessary for the President to discharge his constitutional responsibilities over these matters. As we have noted in a similar context, "this constitutional authority should not be exercised as a matter of course, but rather only in extraordinary circumstances and with great care." Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Grand Jury Material and the Intelligence Community at 2 (Aug. 14, 1997). Given the extraordinary nature of this authority, we recommend that proper officials (e.g., the Attorney General or the Deputy Attorney General) be consulted before any such constitutionally-based disclosure is made.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 (1994 & Supp. II 1996), requires the government, unless otherwise permitted, to obtain an order of a court before conducting electronic surveillance. The government is permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in § 2516 of title 18. (1) Any interception not permitted by Title III is prohibited and subject to criminal and civil sanctions. (2)

Title III also governs the subsequent use and disclosure of information obtained as a result of court-authorized electronic surveillance. (3) Section 2517 of title 18 provides in pertinent part:

(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties. (4)

18 U.S.C. § 2517 (1994). Section 2517(1) thus permits disclosure of court-authorized Title III information from one "investigative or law enforcement officer" to another, while § 2517(2) permits an "investigative or law enforcement officer" lawfully in possession of Title III information to "use" the information. The disclosure or use of information under these two sections must be "appropriate to the proper performance of the official duties" of the investigative or law enforcement officers involved. A number of courts have stated that, under Title III, any electronic surveillance or subsequent disclosure of Title III information is prohibited unless expressly permitted. See In re Grand Jury, 111 F.3d 1066, 1078 (3d Cir. 1997); In re Motion to Unseal Elec. Surveillance Evidence (Smith v. Lipton), 990 F.2d 1015, 1018 (8th Cir. 1993); United States v. Underhill, 813 F.2d 105, 107 (6th Cir.), cert. denied, 482 U.S. 906 (1987); United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982).

II.

Section 2517(1) permits disclosure of Title III information from one "investigative or law enforcement officer" to another, "to the extent that such disclosure is appropriate to the proper performance of the official duties" of the officer making or receiving the disclosure. Section 2510(7) of title 18 defines "investigative or law enforcement officer" as follows:

"Investigative or law enforcement officer" means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

18 U.S.C. § 2510(7) (1994). Courts have taken a reasonably broad view of the scope of this definition, holding, for example, that § 2510(7) covers an Assistant United States Attorney working on a civil forfeiture case, United States v. All Right, Title and Interest in Five Parcels of Real Property and Appurtenances Thereto Known as 64 Lovers Lane, 830 F. Supp. 750, 760 (S.D.N.Y. 1993), the committee of the House of Representatives considering the impeachment of a federal judge, In re Grand Jury Proceedings (Appeal of Judge Alcee L. Hastings), 841 F.2d 1048 (11th Cir. 1988), as well as a state attorney grievance commission empowered by law to investigate the offenses enumerated in 18 U.S.C. § 2516, In re Elec. Surveillance (Berg v. Michigan Attorney Grievance Comm'n), 49 F.3d 1188 (6th Cir. 1995). Several courts have held that prison officials are also within the definition of § 2510(7). See, e.g., United States v. Sababu, 891 F.2d 1308, 1328-29 (7th Cir. 1989). See also Memorandum for John C. Keeney, Acting Assistant Attorney General, Criminal Division, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Disclosure of Recorded Inmate Telephone Conversations by the Bureau of Prisons at 4 n.10 (Jan. 14, 1997). An "investigative or law enforcement officer," however, must have the power to investigate or make arrests for offenses enumerated in § 2516. (5) Absent some specific authority to investigate or make arrests for such offenses, a member of the intelligence community is not an investigative or law enforcement officer for purposes of Title III. We are aware of no such authority. (6) As a result, § 2517(1), which permits disclosure of Title III information to other investigative or law enforcement officers, does not apply to disclosures to the intelligence community. (7) Accordingly, if an investigative or law enforcement officer is permitted to disclose Title III information to a member of the intelligence community, that disclosure must constitute a "use" that is "appropriate to the proper performance of the official duties" of the disclosing officer.

We must therefore consider the circumstances under which sharing information with the intelligence community would be "appropriate to the proper performance of [the] official duties" of a law enforcement officer. For the reasons that follow, we conclude that the text, legislative history, and purpose of Title III suggest that disclosure to the intelligence community would be permissible when an investigative or law enforcement officer seeks to obtain assistance in the prevention, investigation, or prosecution of a criminal offense.

The structure of § 2517 suggests that Congress intended the phrase "appropriate to the proper performance of . . . official duties" to be construed narrowly. Congress included the limiting phrase both in § 2517(1), governing one law enforcement officer's disclosure of intercepted communications to another, and in § 2517(2), governing a law enforcement officer's use of intercepted communications. In support of an expansive reading of the phrase in § 2517(2), it could be argued that a government employee in one agency has a general duty to share with another government entity information that would be relevant to the latter's mission, and that it would therefore be "appropriate to the proper performance" of a law enforcement officer's duties to share Title III information with another government agency for purposes entirely unrelated to the law enforcement officer's own investigative activities. This broad construction of the phrase "appropriate to the proper performance of . . . official duties" in § 2517(2), however, cannot be squared with the existence of the virtually identical phrase in § 2517(1). First, under basic canons of statutory construction, the phrases must be interpreted consistently. See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484-85 (1990); United Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988). If § 2517(2) broadly permits the disclosure of Title III information to individuals who are not law enforcement officers for purposes unrelated to law enforcement, then § 2517(1) would permit disclosure among law enforcement also for purposes unrelated to law enforcement. If so, the phrase "appropriate to the proper performance of . . . official duties" would constitute only a highly elastic limitation on disclosure among law enforcement officers--a result that seems unlikely in light of Congress's effort in Title III to protect privacy to the maximum extent possible, consistent with permitting electronic surveillance for law enforcement purposes, see infra pp. 7-8. The most natural reading of the language is, to the contrary, that the disclosure must be appropriate to the proper performance of law enforcement duties. Second, had Congress intended to permit broad sharing of Title III information among government entities with varying missions, it could more easily have done so in § 2517(1), by authorizing law enforcement officers to disclose Title III information to government employees generally rather than solely to other law enforcement officers.

The legislative history of Title III and the case law support an interpretation confining the phrase "appropriate to the proper performance of . . . official duties" in § 2517(1) and (2) to the law enforcement functions of the officer. The only nontestimonial use of Title III information discussed in the legislative history of Title III is the "use of the contents of intercepted communications, for example, to establish probable cause for arrest, to establish probable cause to search, or to develop witnesses." S. Rep. No. 90-1097, 90th Cong., 2d Sess. 99 (1968), reprinted in 1968 U.S. Code Cong. & Admin. News ("USCCAN") 2112, 2188 (citations omitted). Relying on this passage, the U.S. Court of Appeals for the District of Columbia Circuit has stated that Congress sought in § 2517 to serve "criminal law investigation and enforcement objectives." American Friends Serv. Comm. v. Webster, 720 F.2d 29, 73 (D.C. Cir. 1983) (invalidating order authorizing National Archives and Records Service to inspect Title III materials held by the FBI in part because disclosure to the Archives would not serve law enforcement objectives and therefore would not be authorized by § 2517(1) or (2)); see In re Disciplinary Proceedings Against Spinelli, 515 A.2d 825, 830-31 (N.J. Super. 1986) (holding that disclosure provisions of state statute similar to § 2517 did not authorize release of wiretap material to police chief for disciplinary proceedings against officer because this was an employment, not a law enforcement, use); see also Lam Lek Chong v. DEA, 929 F.2d 729, 734 (D.C. Cir. 1991) (following Webster). Consistent with this legislative purpose, the uses of Title III information permitted by courts have all related to law enforcement. See, e.g., Certain Interested Individuals v. Pulitzer Pub'g Co., 895 F.2d 460, 465 (8th Cir.) (use of Title III information to obtain search warrant), cert. denied, 498 U.S. 880 (1990); United States v. Gerena, 869 F.2d 82, 84-86 (2d Cir. 1989) (use of Title III information in legal briefs and memoranda filed under seal with court); United States v. O'Connell, 841 F.2d 1408, 1417-18 (8th Cir.) (disclosure of Title III information to a secretary and to an intelligence analyst who were assisting the law enforcement officer in the investigation was "probably" permissible under § 2517(2)), cert. denied, 487 U.S. 1210 (1988); United States v. Ricco, 566 F.2d 433, 435 (2d Cir. 1977) (use of suppressed Title III wiretaps to refresh a witness's recollection for trial), cert. denied, 436 U.S. 926 (1978); United States v. Rabstein, 554 F.2d 190, 193 (5th Cir. 1977) (use of duplicate tapes during investigation to obtain voice identifications); United States v. Hall, 543 F.2d 1229, 1233 (9th Cir. 1976) (use of Title III information to make an arrest and conduct subsequent search), cert. denied, 429 U.S. 1075 (1977); United States v. Vento, 533 F.2d 838, 855 (3d Cir. 1976) (use of Title III information to obtain an additional wiretap authorization); United States v. Canon, 404 F. Supp. 841, 848-49 (N.D. Ala. 1975) (use of duplicate tapes during investigation to obtain voice identifications); see also United States v. Martinez, 101 F.3d 684 (Table), 1996 WL 281570 (2d Cir. 1996) (unpublished opinion) (allowing informant to listen to Title III tapes during the investigation is permitted under § 2517(2)), cert. denied, 117 S. Ct. 2444 (1997); Birdseye v. Driscoll, 534 A.2d 548, 552 (Pa. Commw. 1987) (use by prosecutors of electronic surveillance information in appeal from trial court order permissible under state statute modeled after Title III).

The principal cases suggesting a possible exception to the "law enforcement only" rule are several involving the disclosure of Title III information to the IRS for civil tax purposes. In these cases, courts permitted use of the Title III information in the civil tax proceeding. See Spatafore v. United States, 752 F.2d 415, 417-18 (9th Cir. 1985); Griffin v. United States, 588 F.2d 521, 525-26 (5th Cir. 1979); Fleming v. United States, 547 F.2d 872, 873-74 (5th Cir.), cert. denied, 434 U.S. 831 (1977); Estate of Robert W. Best v. Commissioner, 76 T.C. 122, 140-42 (1981). Each court relied, however, on the fact that the information had already been publicly disclosed in court in a criminal prosecution. None of the courts addressed whether disclosure would have been permissible under § 2517(2) in the absence of prior disclosure in the criminal action. The legislative history of Title III explicitly states that the statute was not intended to restrict disclosure of information already publicly known. See S. Rep. No. 1097, at 93, 1968 USCCAN at 2181 ("The disclosure of the contents of an intercepted communication that had already become 'public information' or 'common knowledge' would not be prohibited."). Accordingly, we do not believe that this line of cases speaks directly to the circumstances under which § 2517(2) permits law enforcement officers to disclose Title III information. Similarly, although the Sixth Circuit in Resha v. United States, 767 F.2d 285 (6th Cir. 1985), permitted introduction in a civil tax proceeding of Title III information provided to the IRS by law enforcement officers, the court declined to address whether § 2517(2) authorized the disclosure. No criminal prosecution had resulted from the wiretaps, and, accordingly, the Title III information had not been disclosed in court. In the civil tax proceeding, the trial court excluded the Title III information. The appellate court reversed, holding that Title III's prohibition on the use of intercepted wire or oral communications in court, 18 U.S.C. § 2515, requires exclusion when the original wiretap is illegal, but not when lawfully obtained information is illegally disclosed. Because the court concluded that § 2515 did not bar introduction of the Title III information whether or not § 2517(2) permitted the FBI to disclose the information to the IRS, the court declined to address whether the disclosure was proper. (8)

The conclusion that § 2517(2) authorizes disclosure of Title III material only for purposes related to law enforcement is buttressed by the purpose of Title III: to maximize privacy, consistent with permitting electronic surveillance for law enforcement purposes. Title III was passed in response to the Supreme Court's decisions in Katz v. United States, 389 U.S. 347 (1967), which held that electronic surveillance was a search under the Fourth Amendment and thus required a court-approved search warrant, and Berger v. New York, 388 U.S. 41 (1967), which set forth stringent particularity requirements for electronic surveillance warrants. Title III represented a compromise between those who would have prohibited electronic surveillance altogether and those who wanted broadly to permit its use for law enforcement. See Certain Interested Individuals, 895 F.2d at 467; Gerena, 869 F.2d at 84; In re Application of Nat'l Broad. Co., 735 F.2d 51, 53 (2d Cir. 1984). The Supreme Court, in an oft-quoted passage, has said that "although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern." Gelbard v. United States, 408 U.S. 41, 48 (1972) (footnote omitted); see also Forsyth v. Barr, 19 F.3d 1527, 1534 (5th Cir. 1994) (quoting Gelbard); Lam Lek Chong, 929 F.2d at 732 (same); In re Motion to Unseal Elec. Surveillance Evidence, 990 F.2d at 1018 (same); In re Application of Nat'l Broad. Co., 735 F.2d at 53 (same); In re New York Times (United States v. Biaggi), 828 F.2d 110, 115 (2d Cir. 1987) ("It is obvious that although Title III authorizes invasions of individual privacy upon compliance with certain stringent conditions, the protection of privacy was an overriding congressional concern."); United States v. Cianfrani, 573 F.2d 835, 856 (3d Cir. 1978) ("Congress's overriding interest in protecting privacy to the maximum extent possible is evident in Title III. The legislative history of the statute emphasizes the concern of its drafters that the Act preserve as much as could be preserved of the privacy of communications, consistent with the legitimate law enforcement needs that the statute also sought to effectuate.").

Reflecting this concern for privacy, the First and Third Circuits have held that the government may not introduce in a criminal prosecution wire or oral communications obtained in violation of Title III, or evidence derived therefrom, even when private parties having no connection to the government unlawfully intercepted the communications. See 18 U.S.C. § 2515; (9) In re Grand Jury, 111 F.3d 1066, 1077 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). Contra United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995), cert. denied, 517 U.S. 1187 (1996). Similarly, the D.C. and Ninth Circuits have held that § 2511(1)(c) and (d) prohibit a law enforcement officer from disclosing or using communications if the officer has reason to know that a private party intercepted such communications unlawfully, and that § 2517(1) and (2) do not establish an exception to this prohibition. Berry v. Funk, 146 F.3d 1003, 1012-13 (D.C. Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1301-02 (9th Cir. 1997). But see Forsyth, 19 F.3d at 1545 (holding that, where government was unaware for the bulk of its investigation that communications were illegally intercepted, use and disclosure of illegally intercepted communications was permissible; suggesting in dicta that government could use and disclose communications even if it knew that the private party who provided the communications had intercepted them unlawfully). Additionally, several courts have found that the privacy interests protected by Title III outweigh the public's and the press's qualified right of access to materials filed in connection with pretrial proceedings, where such access would reveal communications intercepted by law enforcement and the parties to the intercepted communications have not yet had the opportunity to challenge the legality of law enforcement's action. (10)

For all of these reasons, we conclude that the phrase "use . . . appropriate to the proper performance of . . . official duties" under § 2517(2) comprehends use by the law enforcement officer in his or her law enforcement work. It does not follow, however, that Title III information can never be shared with persons who are not law enforcement officers. Courts have recognized that a "use . . . appropriate to the proper performance of [the law enforcement officer's] official duties" under § 2517(2) may involve the disclosure of Title III information to persons who are not law enforcement officers for the purpose of obtaining assistance in enforcing the law. For example, in obtaining a voice identification, a law enforcement officer may disclose electronic surveillance information to a potential witness without violating Title III. See, e.g., Canon, 404 F. Supp. at 848-49. Similarly, we believe that a law enforcement officer may disclose information obtained through a Title III intercept to an officer within the intelligence community in order to acquire intelligence information relevant to preventing, investigating, or prosecuting a crime. As we concluded with respect to grand jury materials, see Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Grand Jury Material and the Intelligence Community at 3 (Aug. 14, 1997), despite statutory restrictions on the CIA's role in exercising domestic or law enforcement functions, the CIA may engage in activities, such as collecting and providing information in response to specific requests from law enforcement or general law enforcement requirements, that do not constitute the exercise of law enforcement powers. Cf. 50 U.S.C. § 403-5a (Supp. II 1996) (authorizing elements of the intelligence community, "upon the request of a United States law enforcement agency," to "collect information outside the United States about individuals who are not United States persons. Such elements may collect such information notwithstanding that the law enforcement agency intends to use the information collected for purposes of a law enforcement investigation or counterintelligence investigation.").

Thus, for example, a law enforcement officer may share electronic surveillance information arising in connection with a terrorism investigation with the intelligence community for the purpose of obtaining intelligence information concerning the structure of the terrorist organization or specific individuals who are under investigation. (11) Law enforcement officials are charged with investigating numerous crimes related to national security, and the assistance of the intelligence community may be essential to preventing, investigating, or prosecuting such crimes. See, e.g., 28 U.S.C. § 533 note (1994) ("Subject to the authority of the Attorney General, the FBI shall supervise the conduct of all investigations of violations of the espionage laws of the United States by persons employed by or assigned to United States diplomatic missions abroad. All departments and agencies shall report immediately to the FBI any information concerning such a violation."); 50 U.S.C. § 402a(c)(i)(A) (1994) (requiring agency heads to ensure that the FBI "is advised immediately of any information, regardless of its origin, which indicates that classified information is being, or may have been, disclosed in an unauthorized manner to a foreign power or an agent of a foreign power"). Foreign intelligence information may also assist law enforcement in preventing, investigating, or prosecuting crimes with an extraterritorial component, such as various narcotics offenses or financial crimes.

In sum, we conclude that § 2517(2) permits a law enforcement officer to share information obtained through court-authorized electronic surveillance with members of the intelligence community where the officer seeks to obtain assistance in preventing, investigating, or prosecuting a crime. A disclosure in these circumstances would constitute a "use . . . appropriate to the proper performance of [the law enforcement officer's] official duties." Disclosure of Title III information by law enforcement officers to members of the intelligence community, other than to obtain assistance in law enforcement activities, is not permitted by this section. (12)

In 1980, this Office opined that Title III permitted the Department "to disclose tapes of court-authorized interceptions of wire communications in response to a proper request or demand by a congressional committee unless, in the Department's judgment, such disclosure would be improper because of [the Department's] duty faithfully to execute the criminal laws." See Disclosure of Court-Authorized Interceptions of Wire Communications to Congressional Committees, 4B Op. O.L.C. 627, 627 (1980). This Office reached this conclusion by reasoning that the proper performance of the official duties of Department personnel includes responding to requests for information from congressional committees, and that such disclosure would constitute a "use" of Title III information "appropriate to the proper performance of [the law enforcement officer's] official duties" under § 2517(2). The analysis underlying the conclusion of our 1980 opinion is in some tension with cases decided since the opinion was issued, see, e.g., Webster, 720 F.2d at 73; In re Disciplinary Proceedings Against Spinelli, 515 A.2d at 830-31; see also Lam Lek Chong, 929 F.2d at 734, and with the analysis of the text, legislative history, and purpose of Title III set forth above, see supra pp. 4-8. To the extent that the analysis reflected in the 1980 opinion suggests that the phrase "appropriate performance of [the law enforcement officer's] official duties" includes all actions that law enforcement officers might take in their official capacities, regardless of whether they relate to law enforcement, the analysis is inconsistent with that set forth above and we therefore disavow it. (13)

III.

We next consider the possible effect of § 104(a) of the National Security Act ("NSA"), which provides:

To the extent recommended by the National Security Council and approved by the President, the Director of Central Intelligence shall have access to all intelligence related to the national security which is collected by any department, agency, or other entity of the United States. (14)

Section 1.6(a) of Executive Order No. 12333 implements the NSA and provides:

The heads of all Executive Branch departments and agencies shall, in accordance with law and relevant procedures approved by the Attorney General under this Order, give the Director of Central Intelligence access to all information relevant to the national intelligence needs of the United States, and shall give due consideration to the requests from the Director of Central Intelligence for appropriate support for Intelligence Community activities.

46 Fed. Reg. 59,941, 59,944 (1981). We have analyzed these provisions in a related memorandum (15) and will not repeat the analysis here. For purposes of this memorandum we will assume that, at least on some occasions, Title III electronic surveillance will yield information that would otherwise be disclosable under § 104(a) and the Executive Order. We conclude, however, for the same reasons that the NSA does not supersede or override restrictions on the use of grand jury information, that it also does not supersede or override the restrictions of Title III.

Title III prohibits every disclosure that it does not explicitly authorize. Nothing in the language of § 104(a)--a provision added to the National Security Act in 1992--refers to Title III information, there is nothing in the legislative history of that section that suggests that Congress considered Title III information, and the implementing executive order is qualified by the phrase "in accordance with law," which at least suggests that existing law was not modified. Moreover, as we noted in our recent memorandum concerning grand jury disclosure, see supra note 15, the legislative history of § 104(a) suggests that Congress itself intended no change in existing law.

The Supreme Court held in Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 573 (1983), that the Court would not construe a statute as overriding pre-existing rules of grand jury secrecy unless Congress affirmatively expressed its intent to do so. Title III does not have the historical roots of the grand jury secrecy rules. Nonetheless, a similar approach is appropriate. In In re Application of National Broadcasting Co., 735 F.2d at 51, the Second Circuit considered a 1970 amendment to 18 U.S.C. § 2517(3). Section 2517(3) permits persons lawfully in possession of Title III information to disclose that information under oath in any proceeding held under the authority of the United States. Prior to 1970, such disclosure could be made only in criminal proceedings. Read literally, the 1970 amendment would permit civil litigants to compel the production of Title III information at trial. The Second Circuit found no evidence that Congress intended this result. Because of the privacy interests involved, the history of Title III as a compromise between those who wanted to ban wiretaps altogether and those who wanted broadly to permit electronic surveillance for law enforcement, the fact that Title III provided very limited exceptions to an otherwise complete ban on electronic surveillance, and the constitutional concerns that would be raised by a contrary conclusion, the Second Circuit refused to construe § 2517(3) to extend to civil litigants in the absence of evidence that Congress intended this result. 735 F.2d at 53-54.

In light of the privacy interests underlying Title III, and in the absence of at least some evidence that Congress intended to create a new exception to Title III's limits on disclosure, we believe it unlikely that a court would interpret § 104(a) to permit otherwise prohibited disclosure of Title III information to members of the intelligence community.

IV.

Finally, we believe that in extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President's constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. The legal basis for this conclusion is set forth at pages 14-17 of our memorandum on grand jury disclosures. See supra note 15; see also Memorandum for the Attorney General, from Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, Re: Disclosure of Grand Jury Matters to the President and Other Officials (Sept. 21, 1993). As we stated there, the Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. (16) Because "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.

Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. (17) Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.

Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See >Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a "suicide pact"); >American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States. (18)

1. 18 U.S.C. § 2516 (1994 & Supp. II 1996). With respect to the authority to intercept communications in connection with federal investigations, § 2516 distinguishes between wire and oral communications, on the one hand, and electronic communications, on the other. Section 2516(1) empowers certain senior officials in the Department of Justice to authorize an application for a court order approving interception of wire and oral communications where the interception may provide evidence of certain serious federal offenses, such as bribery, unlawful use of explosives, witness tampering, assassination, racketeering, gambling, embezzlement, bank fraud, sexual exploitation of children, mail fraud, counterfeiting, sale and transportation of obscene matter, and firearms violations. Section 2516(3), in contrast, permits an application for interception of electronic communications where the interception may provide evidence of any federal felony.

With respect to the authority to intercept communications in connection with state investigations, § 2516(2) does not distinguish among wire, oral, and electronic communications. Section 2516(2) empowers the principal prosecuting attorney of a state or subdivision thereof to apply to a state court for an intercept order in conformity with Title III, if state law also authorizes such an application and if the interception would provide evidence of certain serious offenses, including murder, kidnapping, gambling, and extortion.

2. In this memorandum, we do not address and express no opinion regarding use and disclosure of electronic surveillance information obtained in conformity with Title III but without a court order, such as one-party consent recordings. In addition, we do not consider electronic surveillance information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811 (1994).

3. For purposes of this memorandum, we assume that the information to be shared was obtained pursuant to and maintained in conformity with all of the requirements of Title III.

4. Section 2517(3) further permits the lawful recipient of Title III information to disclose that information while testifying under oath in court or similar proceedings. Section 2517(5) authorizes use and disclosure as permitted in § 2517(1) and (2) of Title III information relating to offenses other than those specified in the electronic surveillance application.

5. Such offenses would include all federal felonies, see 18 U.S.C. § 2516(1), (3), and state offenses designated in § 2516(2). See supra note 1.

6. We note that the Central Intelligence Agency ("CIA") is specifically denied by statute "police, subpoena, or law enforcement powers or internal security functions." 50 U.S.C. § 403-3(d)(1) (1994). As discussed below, however, we do not believe that statutory restrictions on the domestic or law enforcement activities of the CIA (or other agencies within the intelligence community) would prevent officers within the intelligence community from providing certain assistance to law enforcement officers upon request. See infra pp. 9-10.

7. When we refer to the intelligence community in this context, we do mean to include those members, such as FBI agents, who meet the statutory definition of an "investigative or law enforcement officer." We recognize that officers empowered to investigate violations of the offenses enumerated in § 2516 could also have duties related to counterintelligence that do not involve prevention, investigation, or prosecution of criminal conduct. In such circumstances, disclosure of Title III information is permissible under § 2517(1) if the disclosure is "appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." As discussed infra section II.B, Congress appears to have intended the phrase "appropriate to the proper performance of the official duties" to encompass duties related to the prevention, investigation, or prosecution of criminal conduct. Accordingly, we do not believe that Title III would authorize the disclosure of electronic surveillance information solely for intelligence purposes, even if the disclosing or receiving officer is also authorized to perform law enforcement functions. See also infra note 12.

8. In Boettger v. Miklich, 633 A.2d 1146 (Pa. 1993), the Pennsylvania Supreme Court held that a state provision virtually identical to § 2517(2) prohibited a law enforcement officer from disclosing wiretap information to federal and state tax authorities. In addition, although the Sixth Circuit in Resha held that § 2515 does not prohibit the introduction in civil proceedings of lawfully intercepted but illegally disclosed information and declined to address whether § 2517(2) authorized the disclosure, the court below had directly considered the issue and had held that § 2517(2) did not authorize the disclosure. See Scott v. United States, 573 F. Supp. 622, 625 (M.D. Tenn. 1983), rev'd on other grounds sub nom. Resha v. United States, 767 F.2d 285 (6th Cir. 1985), cert. denied, 475 U.S. 1081 (1986). Accordingly, the only two cases directly addressing whether § 2517(2) authorizes law enforcement officers to provide Title III material to tax authorities--Scott and Boettger--held that such disclosure violated the statute.

One other case might arguably be interpreted to suggest an exception to the "law enforcement only" rule. In United States v. All Right, Title and Interest in Five Parcels of Real Property and Appurtenances Thereto Known as 64 Lovers Lane, 830 F. Supp. 750, 760 (S.D.N.Y. 1993), the court upheld the disclosure of wiretap evidence by state law enforcement officers to an Assistant United States Attorney ("AUSA") prosecuting a civil forfeiture action arising out of the state criminal investigation. The court's analysis in that case was principally, if not exclusively, focused on the applicability of the statutory definition of an "investigative or law enforcement officer," as this appears to have been the only issue raised. Id. Regarding "appropriate use," the opinion simply states: "Since receipt and use of wiretap evidence is plainly appropriate for Assistant United States Attorneys prosecuting a civil forfeiture proceeding, disclosure of wiretap evidence to them would seem covered by § 2517(1)." Id. The opinion contains no further analysis or discussion of the issue. We note, however, that the decision is not necessarily inconsistent with the "law enforcement only" rule. In addition to criminal prosecutions, the rule also arguably might extend, at least in certain circumstances, to other types of judicial or trial proceedings that grow out of a criminal investigation. Cf. In re Grand Jury Proceedings (Appeal of Judge Alcee L. Hastings), 841 F.2d 1048, 1054 (11th Cir. 1988) (congressional committee is an "investigative officer" for purposes of 18 U.S.C. § 2517(1) when conducting impeachment proceeding).

9. Section 2515 provides that no wire or oral communication or evidence derived therefrom may be introduced in any judicial, administrative, or legislative proceeding if "the disclosure of that information would be in violation of this chapter." Section 2515 does not cover electronic communications.

10. See, e.g., Certain Interested Individuals, 895 F.2d at 466-67 (recognizing qualified First Amendment right of access to affidavits filed in support of search warrant and containing Title III material, but upholding order redacting Title III materials where individuals had not been indicted); In re Globe Newspaper Co., 729 F.2d 47, 53-54 (1st Cir. 1984) (upholding order closing bail hearing that would reveal Title III material, where defendants had not yet had an opportunity to test whether law enforcement legally obtained the Title III material); Dorfman, 690 F.2d at 1234-35, 1233 (holding that First Amendment does not require unsealing of Title III evidence submitted in a suppression hearing; noting that "the strict prohibition in Title III against disclosure of unlawfully obtained wiretap evidence would be undermined by public disclosure of wiretap evidence at a suppression hearing before the judge ruled on the lawfulness of the wiretaps"); Cianfrani, 573 F.2d at 856-57 & n.10 (acknowledging right of access to pretrial court proceedings, but concluding that limitations on disclosure are permissible where court has not yet determined the legality of the interception) ; United States v. Shenberg, 791 F. Supp. 292, 293-94 (S.D. Fla. 1991) (holding that, until admissibility of intercepted material has been determined, "the privacy interests of the defendants . . . and the goal of Title III outweigh the public's interest in present access to the Title III intercepted conversations"); In re Sealed Search Warrant for Cubic Corp., No. 88-2945M, 1989 WL 16075, at *2-4 (S.D. Cal. Feb. 22, 1989) (denying press access to portions of search warrant and affidavit reflecting intercepted communications, where parties to intercepted communications had not been charged with a crime); see also Gerena, 869 F.2d at 85-86 (acknowledging qualified First Amendment right of access to pretrial motion papers containing Title III materials; remanding for consideration of whether redaction or sealing of such materials was required to protect defendants' privacy and fair trial interests).

11. We discuss informational assistance by the intelligence community for illustrative purposes only. We do not intend to suggest that the intelligence community's role in assisting law enforcement is limited to providing informational support.

12. We further conclude that Title III information lawfully disclosed by a law enforcement officer to a member of the intelligence community in order to obtain law enforcement assistance, or disclosed by one member of the intelligence community to another in order to carry out the request for assistance, may not thereafter be disclosed by the member of the intelligence community for intelligence purposes, unless the information has previously been publically disclosed. Cf. infra note 17 (distinguishing between disclosure in order to obtain law enforcement assistance and disclosure based on President's constitutional authority over national security or foreign relations). To be sure, Title III's explicit prohibitions on disclosure and use of intercepted communications extend only to illegally intercepted communications, 18 U.S.C. § 2511(1)(c), (d) (criminalizing disclosure or use where an individual has reason to know that "the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection"), and legally intercepted communications where the disclosure is made "with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation," id. § 2511(1)(e). Nevertheless, § 2517 authorizes disclosure of lawfully obtained wire evidence by individuals who are not law enforcement officers only in the specific circumstance of testimony under oath, § 2517(3), thereby implying "that what is not permitted is forbidden, though not necessarily under pain of criminal punishment." Dorfman, 690 F.2d at 1232; see also In re Motion to Unseal Electronic Surveillance Evidence, 990 F.2d at 1018 ("Congress provided for very limited disclosure of any wiretap evidence that is obtained. . . . . When addressing disclosure of the contents of a wiretap, the question is whether Title III specifically authorizes such disclosure, not whether Title III specifically prohibits the disclosure, for Title III prohibits all disclosures not authorized therein."). If Congress intended to permit any person who lawfully receives Title III information to disclose it freely prior to its public disclosure in court, then § 2517(3), which authorizes a witness who has received such information to disclose it while giving testimony under oath, would be entirely superfluous.

We recognize that, as a practical matter, Title III material may be reflected in the thinking of a member of the intelligence community (or a law enforcement officer who also has duties related to counterintelligence, see supra note 7), even if he or she does not disseminate the information. The fact that a particular individual cannot purge a thought, however, does not mean that the dissemination of Title III information should be unrestricted.

13. As noted above, however, the Court of Appeals for the Eleventh Circuit has held that when Congress is effectively acting in a law enforcement capacity, such as when it considers impeachment, it may receive Title III information as an "investigative or law enforcement officer" under § 2517(1). See In re Grand Jury Proceedings (Appeal of Judge Alcee L. Hastings), 841 F.2d at 1054. In dissent, Judge Jones took issue with this conclusion. Id. at 1057 ("I hold the view that to allow the House Committee to fall within this definition is to interpret the statute in a way in which Congress never intended and in a way in which it should not be construed.").

We note that the analysis of the 1980 opinion of this Office is at least implicitly inconsistent with the majority opinion in Hastings. If law enforcement officers have a general duty to make Title III information available to other government entities that may benefit from it, then § 2517(2) would have authorized disclosure of the Title III information in question in Hastings, and the court never would have had to address whether Congress may receive information under § 2517(1) as an "investigative or law enforcement officer" when it considers impeachment.

14. 50 U.S.C. § 403-4(a) (1994). Section 104 of the National Security Act was added in 1992, as part of the Intelligence Authorization Act for Fiscal Year 1993. Pub. L. 102-496, § 705(a)(3), 106 Stat. 3188, 3192 (1992).

15. Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Grand Jury Material and the Intelligence Community at 4-9 (Aug. 14, 1997).

16. Cf. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) ("The President, after all, is the 'Commander in Chief of the Army and Navy of the United States.' U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief."); Statement of Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, Before the House Permanent Select Committee on Intelligence, Re: Whistleblower Protections for Classified Disclosures at 11 (May 20, 1998).

17. As previously noted, when law enforcement shares Title III information with the intelligence community to obtain assistance in law enforcement, that information may not subsequently be disclosed or used solely for intelligence purposes. See supra note 12. In contrast, when the President's constitutional authority over national security or foreign relations is the source of the authority to disclose Title III information to intelligence community officials, and when further disclosure within the community is necessary to the discharge of the President's constitutional responsibilities, Title III cannot constitutionally be applied to preclude such disclosure.

18. Indeed, courts have found a foreign intelligence exception to the warrant requirement of the Fourth Amendment. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980) (foreign intelligence exception to the Fourth Amendment warrant requirement, in view of "the need of the executive branch for flexibility, its practical experience, and its constitutional competence" for foreign affairs), cert. denied, 454 U.S. 1144 (1982); see also United States v. United States District Court, 407 U.S. 297, 321-22 (1972) (warrant required for domestic security electronic surveillance, but Court explicitly disclaims any intent to decide whether warrant clause applies to surveillance of foreign powers or their agents). The Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811, permits foreign intelligence surveillance on a showing of probable cause that differs from that applicable in criminal cases, and if the surveillance discloses criminal activity, the information obtained through the surveillance may be admissible in a subsequent criminal prosecution. See United States v. Isa, 923 F.2d 1300 (8th Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert. denied, 486 U.S. 1010 (1988). Consistent with these cases, we believe that, to the extent that the Fourth Amendment might otherwise limit disclosure of Title III information, disclosure of information vital to national security or foreign affairs similarly is not limited by the Fourth Amendment.