OPEN SEASON ON PRIVACY

...The going price is $6,995...

...Defenders of civil liberties insist that the imperative of a free and fearless society outweighs whatever value electronic surveillance may possess, just as the right of free speech outweighs all the sensible-sounding arguments for preventing Nazis from goosestepping through Skokie, Illinois...

...It is so difficult to infiltrate these closely knit" groups, he says, "but no matter how big an organization is, it has to communicate...

...In 1982, not one of the 578 Federal and state surveillance applications was denied...

...Margolin's client was sentenced to fifteen years' imprisonment...

...Made by a company in Michigan, the device is smaller than a postage stamp and can transmit voices to a receiver 400 feet away...

...But snooping can be "properly done," he insists, and criminal forces are "growing all the time...

...Federal wiretapping and bugging in criminal cases increased by 22 per cent in 1982, and preliminary reports show a similar jump for the first nine months of 1983...

...In addition, Neuborne favors tighter regulation over new snooping technologies...

...I haven't noticed any inroads on organized crime," says Neuborne...

...Title III, at its best, covers only a minuscule portion of the new technology," says the ACLU's Neuborne...

...And Federal judges have recently ruled that eavesdropping with a parabolic microphone does not...

...There is no Fourth Amendment any more," William Kunstler maintains...

...Those states seem to wage war on crime as effectively as the others...

...Illegal wiretapping is often done by police," Schwartz notes, especially in the twenty-three states that flatly forbid police departments from engaging in electronic surveillance...

...What kind of a country do we want...

...I've never thought electronic surveillance was necessary," counters former U.S...

...The duration of the average instance of snooping has grown as well: In 1981, the typical eavesdroppping operation lasted twenty-four days...

...And Kunstler would repeal "every bit" of Title III...

...People used to maintain that confessions were critical in solving crimes, he recalls, and they denounced the Supreme Court's Miranda decision, which required police to inform arrested individuals of their rights...

...Prosecutors disagree...

...Congress defined the word "intercept" as "aural acquisition" of information...

...Electronic surveillance—labeled a "dirty business" more than fifty years ago by Supreme Court Justice Oliver Wendell Holmes—is on the upswing...

...The home is a sacred place in this country," he stated in his ruling, which the Government is appealing...

...Does electronic surveillance work...

...According to Neuborne, "They were issuing them faster than you could Xerox them...

...From January 1983 until the defendants' arrest in June, the FBI secretly operated a battery of electronic devices—tiny cameras, taps on telephones, and hidden microphones—inside two Chicago apartments used by alleged members of the FALN, a Puerto Rican nationalist group...

...Schwartz, in fact, remembers a spy-gadget store opening within one block of the Justice Department building...

...Just as lawbreakers have kept one step ahead of the law, so has the science of snooping...

...What kind of a country are we supposed to have...

...Do the crime fighters get their money's worth...

...Defenders of snooping reply that there is no way to tell whether the use of surveillance techniques would not make the prohibition states more effective against lawbreakers...

...Critics of Title III say judicial oversight is little more than token protection...

...Nobody knows how much is going on, but everybody agrees that a lot more is going on than we know about," says George Trubow, director of the National Center for Information Technology and Privacy Law at Chicago's John Marshall Law School...

...sary" to combat organized crime, says Michael Goldsmith, an attorney with the New York State Organized Crime Task Force...

...Under the Reagan Administration, the law is beginning to realize its potential, he says...

...Furthermore, the courts can direct agents to "minimize" their interceptions to protect privacy—by, say, turning off the tape machines during clearly innocent conversations...

...Investigators will listen for hours and hours in the hope of picking up one incriminating line," he observes...

...These statistics, combined with a spate of highly publicized surveillance cases, have sparked a movement for tighter controls on the use of wiretaps, bugs, hidden cameras, and other spying devices...

...The Justice Department reports that 1,725 people were arrested on the basis of the 578 taps and bugs placed in 1982...

...The statute fails to address technology that has come into use since 1968: "bumper beepers," the electronic tracking devices placed on cars...

...They divided the number of warrants issued by the number of judges issuing them," and found that "each judge spent an average time of ninety seconds or so on a warrant...

...In the past, Title III was used to prosecute just gambling cases" and other minor crimes...

...The mechanism designed to keep wiretapping and bugging within the bounds set by the Fourth Amendment is Title III of the 1968 Omnibus Crime Control and Safe Streets Act, a Federal law that has been duplicated by more than half the states...

...He would also add to the warrant procedure a "checklist" of less intrusive investigative methods that should be used before resorting to electronic surveillance...

...But Goldsmith says the principal author of Title III, Notre Dame law professor G. Robert Blakey, has been running a "one-man show" to persuade police agencies to enlarge their use of the law...

...I opposed enactment of [Title III] and I favor its repeal...

...The statute allows agents to eavesdrop in circumstances ranging from suspected extortion to murder, provided that a judge has been persuaded to issue a warrant...

...Title III can be faulted on another count as well: It apparently does not stand in the way of warrantless, illegal snooping by Government employees or private citizens...

...Though the law sets out heavy fines for violators and generally prohibits the sale of surveillance gadgets, abuses are widespread and blatant...

...But Goldsmith has no doubt that electronic surveillance is necessary...

...since computers speak in digital languages, many experts believe Title III doesn't cover computer tapping...

...The FBI came into court with at least 1,300 hours of tape-recorded conversations featuring his client...

...When the Government overprepares a case with too many wiretaps, a person cannot be properly defended...

...I've never heard of a criminal prosecution under the law," says a Capitol Hill source familiar with the statute...

...in 1982, it lasted twenty-six days...

...The Supreme Court has similarly upheld the warrantless use of bumper beepers and pen registers...

...To obtain a surveillance warrant, police must not only demonstrate "probable cause," but must also show that other investigative means have been exhausted...

...Since eavesdropping is risky business, a New York City gadget store sells an "immobilization gun" that shoots drugged darts...

...Prosecutor Goldsmith disputes such appraisals, arguing that the historically poor results of electronic surveillance can be blamed on wooden and unimaginative use of Title III—not on the snooping technique itself...

...The police don't need these things for effective law enforcement," he says...

...All they [police] have to do is list a chamber of horrors for the judge, and he'll say, 'Oh my God,' and sign the warrant," Kunstler asserts...

...Electronic surveillance is absolutely, critically necesFrancis J. Flaherty, a contributing editor of The Progressive, is a reporter for The National Law Journal...

...Thomas answers his own question: The law, he says, "is a complete fraud and a complete bust in terms of what it was supposed to do...

...Police and Federal agents are given license to "cast a wide net even if they're just bringing in seaweed," he says...

...asks Kunstler...

...And he would strike gambling from the list of offenses for which Title III warrants can be issued...

...There's a famous study of warrants issued by Chicago judges," recalls Burt Neu-borne, legal director of the American Civil Liberties Union...

...He favors retaining Title III, but only if court warrants are issued for a shorter period, judges take their supervisory duties more seriously, and the Government helps shoulder the cost of defending persons indicted on the basis of massive snooping operations...

...Ephraim Margolin, for example, says bugs and taps may be needed to rid the country of organized crime...

...Judicial supervision is the linchpin of the law...

...A variety of shops and mailorder outfits sell bugging and wiretapping equipment, though Federal law prohibits private electronic surveillance...

...Small fish," says former Attorney General Clark...

...Trubow says Congress is considering legislation to close the loophole and, separately, examining bills to make computer "hacking" a crime...

...The district judge in the case recently prohibited the FBI from introducing its videotapes as evidence...

...by last June, 453 of the accused had been convicted...

...parabolic microphones, which pick up conversations from a great distance, and sophisticated devices used by the National Security Agency to intercept satellite transmissions...

...Keenen Peck drop," he says...

...The tab for two Federal taps in a Manhattan murder investigation was a hefty $2 million...

...The Orwellian 1984 is well behind us...

...Those in favor of a prohibition on taps and bugs point to the twenty-three states, including California and Illinois, that completely ban wiretapping...

...Attorney General Ramsey Clark...

...Still, Goldsmith is not fully satisfied with Title III...

...We have become a nation of spies...

...It depends on whom you ask...

...Six months of surveillance is "very lengthy and very intrusive," says David Thomas, the defendants' lawyer...

...But illegal wiretapping and bugging by the people charged with upholding the law is far more troublesome...

...There is an even bigger gap in Title III, however: Computer telecommunications can be intercepted without a warrant by police and private individuals...

...Neuborne, too, says Goldsmith's point is "not a frivolous argument," though maybe "it is too easy an argument to make...

...Those with more cash and a desire to see their target can purchase a pair of "nightvision goggles" from a Wisconsin-based firm...

...Margolin told the judge he needed fifteen years to prepare for trial...

...The judge disagreed...

...If all you're doing [with the technology] is what the Nixon Administration was doing in the early 1970s, then it's a waste of money...

...Goldsmith, who uses surveillance warrants issued under Title III, concedes that courts are not adequately scrutinizing the minimization requirement...

...This practice strikes me as deplorable...

...pen registers, which record the numbers dialed on telephones but do not monitor actual conversations...

...In colonial times, King George's soldiers used general warrants to harass Americans at any hour for any reason—or for no reason at all...

...What does it mean that the attempted bribery of one Senator outside a Las Vegas hotel is the most Title III has ever done...

...The weapon was "designed initially to aid in basic disease research and wildlife conservation," according to the concern's catalog, but "the equipment may be used to control unruly peole under controlled conditions...

...For about the same price, the Japanese CONY Manufacturing Company offers a fingernail-sized bug that broadcasts to a range of 1,000 feet...

...The average cost for intercepts reported during 1982 was $34,488, over 50 per cent higher than the average cost reported in 1981 and over 100 per cent higher than the average cost reported in 1980," the Justice Department reported last June...

...And there must be good reason, or "probable cause," for the search...

...It's damaging to the investigative function, and very inefficient and expensive...

...American University law professor Herman Schwartz worries about the damage done to privacy by such expeditions...

...The colonists' hatred of all-purpose warrants led to the adoption of the Fourth Amendment, which demands warrants "particularly describing the place to be searched and the persons or things to be seized...

...Because the new gadgets fall outside the scope of Title HI, the courts must decide whether their use amounts to a "search" requiring a warrant...

...Schwartz, on the other hand, endorses something "awfully close to a complete ban" on criminal electronic surveillance-except, perhaps, in "the rare, serious case...

...Such law-enforcement tools violate privacy, civil libertarians say, and judges allow police to use them for indefinite periods against freely chosen targets...

...But electronic surveillance cannot be judged only on the basis of expediency, for as Kunstler notes, "If you had a bug in every room in the country, you would probably stop all but spasmodic crime...

...Some critics of wiretapping acknowledge the need to eavesdrop in certain instances...

...The amount of abuse occurring through this loophole is unclear...

...The practice also imposes heavy burdens on defense counsel...

...In his 1980 book, Privacy: How to Protect What's Left of It, Washington lawyer Robert Ellis Smith concluded that the "most sordid" and "most widespread" surveillance was conducted by private parties—in industrial espionage, labor-management disputes, and marital conflict...

...With serious crime on the rise, he argues, this is no time to deny the Government one of its most potent law-enforcement weapons...

...The economy is being raped by narcotics crime," Goldsmith continues...

...The judge said the tapes constituted an unreasonable search and seizure, prohibited by the Fourth Amendment...

...We only get one or two convictions a year" of any significance, Schwartz says, "and when we do it's often just sheer luck...

...If we put homing devices on everybody, we'd stop crime, too...

...Furthermore, hi-tech surveillance equipment is enormously expensive and proves to be of little use to crime fighters...

...I have a duty to review the tapes," Margolin notes...

...Title III should stay because "it's better than nothing," Neuborne says...

...However, he believes most agents make "a good-faith effort" to hold down unnecessary intrusions...

...With neighbors like these, who needs the CIA...

...Look at the biggest Title III prosecution ever," urges lawyer David Thomas, referring to last spring's $1 million-plus Federal wiretap effort that led to the conviction of former Teamster President Roy Williams on charges of conspiring to bribe a U.S...

...The price of cocaine is coming down because there's so much of it...

...A simple bug that operates on a standard nine-volt battery retails for as little as $35...

...I think there is widespread misconduct," says Clark, largely because illicit snooping by high Government officials in recent years has lent a "moral imprimatur" to such activity...

...As a result, law enforcement agencies are free to employ them as often and as long as they like, for whatever purpose...

...All they need to do is a little more legwork...

...The Federal surveillance outlay—which accounts for less than one-fourth of the national total-was almost $18 million in 1982...

...Ephraim Margolin, a San Francisco lawyer who has handled a number of cases involving wiretaps and bugs, recently helped defend the owner of a Las Vegas casino accused of skimming receipts...

...But the post-Miranda solution rate for crimes didn't Reach Out and Bug Someone While the Government must visit a court before snooping, would-be Little Brothers need only go to the store first...

...The judiciary is perfectly capable of exercising control...

...The police just developed better investigative techniques...

...Why, then, should some Americans be subjected to the potential intrusion—and expense—of electronic surveillance...

...But Schwartz and others contend that most of those caught in the wiretapping web are minor offenders...

...If the Legislative Branch sent it serious signals to do so, that would be good...

...A ball-point pen transmitter is available for $69.60...

...Senator...

...There is "no real supervision," says Ramsey Clark...

...He would tighten judicial supervision, requiring investigators to make periodic progress reports to the judge who issues the warrant...

...Even if it were clearly and conclusively demonstrated that surveillance is an invaluable tool of law enforcement, the constitutional question would have to be addressed...

...And things are looking up: "New Jersey is using its wiretap law real well...

...Frankly, wiretaps are yesterday's technology," says Neuborne...

...Half the police forces in the country are sitting in dark rooms listening to tapes," adds William Kunstler, a noted constitutional and criminal defense lawyer...