cure or inspect such individual's medical record. The Association supports such a requirement, but would suggest two modifications in it. First, because a patient may not be competent by reason of age or condition to give his consent to the disclosure of his medical record, we would suggest that a person authorized to act in his behalf be permitted to give consent for procurement or inspection of the patient's medical records by government officers, agents, or employees. Otherwise, the bill would require in every such case that a search warrant be obtained and this would be unnecessarily burdensome. This modification could be provided by insertion of the phrase "or his legally qualified representative" following the word “individual" and preceding the semicolon in line 16 on page 4 of the bill. Secondly, we would suggest that access to the patient's medical record be modified to recognize the rights and obligations of medical care institutions in the ownership and control of medical records in providing and advancing health care services. It is the responsibility of medical care institutions (acute, ambulatory, and long-term care facilities) to administer and control the input, use, storage and abstracting of medical record information in matters pertaining to the medical care of patients, review and evaluation of patient care, review of work performance, bona fide study and research programs, continuing programs of professional education, and performance of appropriate administrative tasks within the institution. Requiring a search warrant or the patient's consent under the above circumstances, where the patient's treatment itself is not part of the research, could unreasonably impede the provision of care and treatment to the patient and the conduct of study and research for advancement of medical care. This modification could be provided by renumbering subparagraph b(2) in line 12. on page 5 of the bill to subparagraph b(3) and inserting a new subparagraph b (2) to read as follows: "The provision of section (a) (2) shall not apply to those members or employees of medical care institutions who have been granted access to medical records commensurate with their authority and responsibility for the medical care of patients, the conduct of the institution, or the conduct of bona fide research and educational programs. Nor shall the provision of section (a)(2) apply to approval, regulatory, and licensing bodies dedicated to the fulfillment of standards or regulations for institutional-based patient care and who review medical records in the performance of their duties to ascertain compliance or noncompliance with stated requirements for record maintenance and for standards of institutional care." Finally, we would suggest a modification to the bill to reflect our understanding of the intent of H.R. 214, that is, to prohibit only legally unauthorized incursions into the medical and other records of individuals, and not all incursions. This modification could be provided by insertion of the word "unauthorized" between the words "the" and "inspection" in line 20 on page 2 and in line 18 on page 3 of the bill. We might also say that it is possible that the bill may sometimes affect the access of an agency to which the patient makes claim for benefits for payment of the cost of his medical care to information necessary to determine the rights of the patient to such payment. It is our understanding that generally the filing of such a claim constitutes the patient consent required by the bill. If our understanding is correct, you may wish to record your acceptance of this fact in the legislative history surrounding the bill and if it is not, notice should be given to health benefit paying organizations of the government to modify their processes and obtain the explicit consent of possible beneficiaries for access to their medical records in connection with their claim for government benefits. Again, we very much appreciate the opportunity to provide these comments and if we can be of further assistance, we will be glad to do so. Sincerely, Hon. ROBERT W. KASTEN MEIER, LEO J. GEHRIG, M.D., Senior Vice President. BANK OF AMERICA, Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: H.R. 214, the "Bill of Rights Procedures Act of 1975" is pending for markup in your Subcommittee. Bank of America supports the basic principles of this legislation and urges that action be taken in the remainder of this session to insure passage of H.R. 214, possibly with the amendment suggested below. Section 3 of the bill would generally prohibit federal officers from taking or inspecting an individual's bank records without first obtaining either a search warrant or the consent of the affected individual. The legitimate information needs of the government is a subject on which widely differing opinions are held, and we are aware that certain investigatory agencies have objected to the restrictions in Section 3. Nevertheless, Congress, having eroded the ability of banks to maintain the privacy of their customers' records by placing banks in the role of government informant under the Bank Secrecy Act, should promptly redress the situation with clear search and seizure rules. Fortunately, with regard to the records of banks and other financial institutions, an alternative to the bank-related provisions of Section 3 is readily at hand. I refer to the legislation introduced by Congressman Stark, H.R. 2752, the "Right to Financial Privacy Act of 1975", which is cosponsored by several Representatives. Substitution of the provisions of that bill for the relevant parts of Section 3 would eliminate major objections to Section 3 by, among other things, permitting continued recourse to customers' records through administrative summonses, where authorized by law. At the same time, many of the difficulties banks encounter with this practice would be removed since the government would be required to notify a bank customer prior to obtaining the records, and the customer would have standing to quash the summons or otherwise seek judicallyordered relief: While H.R. 214 would apply to officers of the United States Government, it may be of interest to you to know of recent California action on this issue. On December 27, 1974, in Burrows v. Superior Court the California Supreme Court held that a bank customer has a reasonable expectation of privacy regarding matters he reveals to his bank and that the obtaining of bank statements by the police, without legal process, violates the unreasonable search and seizure provision of the California Constitution. Thus, essentially the same result sought by H.R. 214 and H.R. 2752 has been reached by judicial decision in California, thereby insuring the customer's right of privacy at least wth respect to the actions of State and local officials. It would seem perverse if officers of the federal government were able to conduct their business in this State with less regard for personal liberties than is required of California officials. The bi-partisan Congressional effort to curb abuses of the right of privacy is to be strongly commended as is the willingness of Congressman Mosher, you, and your Subcommittee to prepare a bill to this end that will receive broad acceptance. Your efforts are appreciated, and we are prepared to offer any further assistance that may be desired in the area of financial privacy. Sincerely, IRWIN L. GUBMAN, Counsel. CONGRESS OF THE UNITED STATES, Hon. ROBERT KASTEN MEIER, HOUSE OF REPRESENTATIVES, Washington, D.C., February 27, 1975. Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Rayburn House Office Building. DEAR BOB: I am pleased to inform you that William D. Ruckelshaus recently notified me of his support in principle for the Bill of Rights Procedures Act, which bill is currently pending before your subcommittee. Mr. Ruckelshaus' opinion may be of special interest to you and to the other members of your committee because, among the several public offices he has occupied with distinction, he has served in the recent past as Deputy Attorney General of the United States and as Acting Director of the F.B.I. Commenting on H.R. 214, Mr. Ruckelshaus wrote to me on February 21, “I support the purposes of your legislation . . . Congress ought to act rapidly in the area of wiretapping." For purposes of information, Mr. Ruckelshaus enclosed with his letter to me a copy of the statement he presented last year before a special Senate panel on "Warrantless Wiretaps and Electronic Surveillance." The key point of that testimony is the former FBI director's statement, "I see no reason why all wiretaps should not be subject to court warrant." He also advocates "vigorous oversight procedures" by the Congress and tighter internal controls within the executive departments concerning wiretaps. I think it is important to note that when the Senate panel issued its report earlier this month, their very first recommendation called for "statutory guidelines for all electronic surveillance activities carried out in the United States for military security, national defense or foreign intelligence gathering purposes." The effect of this, of course, would be to close the "national security" loophole now present in the United States Code. Of course, the Bill of Rights Procedures Act would go beyond electronic surveillance and warrantless wiretapping-the specific subjects of the Senate hearings and the focus of Mr. Ruckelshaus' testimony-and apply the basic principles embodied in Title 18, United States Code, to other forms of surveillance as well. But the basic issues are the same, and I thus seek to bring Mr. Ruckelshaus' opinion to the committee's attention, both for your information and for the record. For your further information, I am enlcosing here a copy of the abovementioned letter of February 21 and a copy of Mr. Ruckelshaus' prepared remarks of May 8, 1974. Sincerely, Hon. CHARLES A. MOSHER, CHARLES A. MOSHER, Representative to Congress. RUCKELSHAUS, BEVERIDGE & FAIRBANKS, DEAR CONGRESSMAN MOSHER: Enclosed please find testimony which I gave before the Subcommittee on Surveillance of the Foreign Relations Committee and the Judiciary Subcommittees on Administrative Practice and Procedure and on Constitutional Rights last spring. The testimony covers much of the matter addressed in H.R. 214, your bill presently pending before the House of Representatives. I support the purposes of your legislation and hope that this testimony can be of some assistance to you. My own strong feeling is that the Congress ought to act rapidly in the area of wiretapping so as to reassure the American people that their justifiable concerns about invasion of privacy are being given attention by our Government. Thank you for your courtesy. Sincerely yours, WILLIAM D. RUCKELSHAUS. STATEMENT OF WILLIAM D. RUCKELSHAUS, MAY 8, 1974 Warrantless Wiretapping and Electronic Surveillance Mr. Chairman, I am delighted to be able to appear before this Committee to share with you my thoughts and experience on the all important question of wiretaps. In my opening statement I will not dwell on the need to review the Federal Government's policies on wiretapping. Past practice and more recent revelations of those practices make the necessity for thorough Congressional review selfevident. Nor will I attempt to cover the historical ground that previous witnesses have so well described. In wiretapping, as in so many areas of law enforcement, the public interest is best served by seeking a balance between protection of individual rights and serving the common good. For the government to intrude on the conversation of two people invades the privacies of both. This is a given. It impinges on a precious liberty and thus should only be undertaken on a strong showing of a clear and overriding benefit to the common good. That the benefit should be clear and overriding is strengthened in wiretapping where the invasion of liberty is by its nature odious to a free people and where revealed abuses of the power by the government, coupled with advancements in technology, have convinced so many Americans that curtailment is necessary. For a free society to properly function, the people of that society must have a modicum of trust in the manner in which order is maintained. This trust has been badly eroded in America in recent years and we must do what we can to restore it. One step toward that restoration is for the Congress to pass legislation carefully restricting the government's power to wiretap for whatever reason and then to institute vigorous oversight procedures to assess the fruits of the use of this limited power and to see that it is not abused. I see no reason why all wiretaps should not be subject to court warrant. The argument that the Courts do not have expertise in the field of foreign affairs has some validity but the purpose of a court warrant is to avoid abuse of the power by causing its exercise to be shared. Courts almost never turn down legitimate requests for wiretaps in criminal cases and would be even less likely to do so in the area of national security. The problem of uneven treatment in different court jurisdictions could be solved by restricting the warrant procedure to the District of Columbia. After all, we are dealing with "national" security and this logically could be dealt with in the nation's capital. Obviously, adequate security would have to be provided in the Court to avoid any compromises of legitimate national security purposes. Secondly, the legislation should provide that the Justice Department and the FBI must promulgate public guidelines and criteria spelling out the procedures and conditions of their wiretapping authority. These guidelines and criteria should emphasize the procedural safeguards adopted against abuse of the power and lay out the broad principles that will condition wiretapping in general. The legislation should provide for these guidelines and criteria to be published as proposed and that public hearings should be held on them at selected places in the country before they are finally adopted. The public hearings will have the dual benefit of educating the public as to the complexity of the problem and sensitizing the law enforcement agencies to the public's concerns about electronic surveillance. By the nature of things, the criteria relating to the conditions of the use of the wiretap authority will have to be general. Too much specificity might make the use of the power so predictable as to destroy its effectiveness. There will thus be continued room for subjective judgment by fallible men and women. That is why I believe the most important safeguard against abuse of this extraordinary power is strong Congressional oversight. This oversight must include periodic and regular reporting procedures from the FBI to the Congress through a carefully structured and secured Committee. The Committee must be vigorous and thorough in its determination to protect the American people against abuse of this power. I have not seen much evidence of this determination in Congress to date. Mr. Chairman, I believe these reforms are necessary to strike the proper balance in exercising the wiretapping authority in America in 1974. Hon. ROBERT W. KASTEN MEIER, COMMUNICATIONS WORKERS OF AMERICA, Washington, D.C., September 23, 1975. Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. MY DEAR MR. CHAIRMAN: On behalf of the Communications Workers of America, I wish to convey our support of the "Bill of Rights Procedures Act of 1975" (H.R. 214 et al.), sponsored by the Honorable Charles A. Mosher and a large number of Members of both parties. It is encouraging that your Subcommittee has undertaken the effort to shore up by statute a key guarantee of our Bill of Rights, that is, the right of individual privacy. In our country, any interception of communications or mail, or search or seizure, or securing of records must be done in strict accordance with law. The altenative is the abuse of the nearly unlimited power of Government, as has occurred in fascist, communist and other totalitarian nations. We believe that the onrush of technology has led to many new devices and techniques, which render obsolete many old concepts of privacy protection. Any invasion of privacy is contrary to our beliefs; when a citizen's privacy is breached, the act must be done for grave and overriding reasons. The "Bill of Rights Procedures Act of 1975" would establish a set of strict procedures with full documentation to ensure legality of process. We hope your Subcommittee and Committee will report the strongest possible bill for House action. This Union has proposed a resolution stating full support of the legislation for the Eleventh Constitutional Convention of the AFL-CIO, to be held beginning October 2. A copy of the draft resolution submitted for Convention consideration is enclosed. This office has secured a copy of the analysis and recommendations on the bill, prepared by David L. Watters. This material provides a very detailed and useful account of the "loopholes" in present law, together with specific definitions and other guidance to tighten the statutes. We hope the 94th Congress has learned enough of Government abuse of power to provide the impetus to enact the "Bill of Rights Procedures Act of 1975." Sincerely yours, Enclosure. GLENN E. WATTS, President. PROTECTION OF THE BILL OF RIGHTS The 1968 Omnibus Crime Control and Safe Streets Act contained new provisions to set rules for wiretapping, electronic eavesdropping and other invasions of privacy. Recent exposures in the Watergate scandal and the investigations of intelligence agencies of the Federal Government have demonstrated that the 1968 Act is more loophole than law. In recent years, Americans have been bombarded with countless revelations of threats to their privacy because of government surveillance activities conducted without warrants, in contemptuous conflict with the Bill of Rights of the United States Constitution. Under the guise of "national security," The Federal Government routinely conducts warrantless wiretaps, unsupervised by the courts. Some wiretaps of domestic organizations which are not connected with the Communist Party, were kept in place for nearly 25 years. Local and State police have taken "just a little more leeway" in tapping telephone lines, again without warrants. Illegal private political wiretapping has been conducted by "consultants" working for fees, in such a way as to endanger the free election process. Telephone companies have recorded and analyzed millions of telephone calls, under a questionable justification in the 1968 crime legislation. The telephone company loophole allows greater freedom than enjoyed by law enforcement agencies. Sealed letters, which every citizen has a right to expect to receive unopened by third parties, have routinely been opened for over 20 years by agencies directly violating United States law. Bank account records have been too easily made available to government agents who did not possess clear legal rights to possess the records. The list of massive invasions of privacy is by now almost endless. It illustrates that the most grave threat to the democratic form of government in the United States comes not from the U.S.S.R. nor the People's Republic of China, nor from any oher Communist-bloc source, but from within this Nation, from those who allege that they swear allegiance to the Stars and Stripes. The threat is simply the trammeling of civil rights and personal liberties, all done in the lofty name of "national security." That threat has grown from an overreaction to peaceful protest, a paranoid reaction to the exercise of the right of dissent, an undefined fear of a "Communist takeover." President Ford has indicated he will support far-reaching reforms. In Congress, numerous bills have been introduced to bring about protections of the privacy rights of citizens. A key bill is the "Bill of Rights Procedures Act of 1975," which has more than 60 co-sponsors of both Parties, from the most liberal to most conservative in philosophy. The essential aim of the "Bill of Rights Procedures Act of 1975" is to provide that warrants shall be secured in all invasions of privacy, to include securing of bank, credit, and other personal records, opening of mail, interception of telephone calls, and searches and seizures. This legislation also includes a tightened procedure for the issuance of warrants covering those activities. Penalties for violations by Federal agents would be up to 1 year in prison and $10,000 fine. The "Bill of Rights Procedures Act of 1975" is due further action in the 94th Congress. It deserves our strong support. Resolved: That this Convention of the AFL-CIO endorse enactment of the "Bill of Rights Procedures Act of 1975," to make protection of individual rights a paramount aspect of national policy. [H.R. 214 was endorsed by the National Convention of the AFLCIO in October. The text of the resolution follows:] Referred to Committee on Resolutions. |