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42.7 Information to be included in a request for approval of proposed wiretapping or eavesdropping.

42.8 Information to be included in wiretapping and eavesdropping reports. AUTHORITY: The provisions of this Part 42 issued under 5 U.S.C. 801.

SOURCE: The provisions of this Part 42 appear at 32 F.R. 13380, Sept. 22, 1967, unless otherwise noted.

§ 42.1 Purpose and scope.

This part implements section 605 of the Communications Act of 1934, as amended (47 U.S.C. 605), Presidential Memorandum for the Heads of Executive Departments and Agencies, June 30, 1965, and Memorandum to the Heads of Executive Departments and Agencies From the Attorney General, June 16, 1967, and sets forth the policies and restrictions governing telephone interception and eavesdropping by DoD personnel engaged in the conduct of investigations for law enforcement purposes in the United States. It also establishes certain worldwide reporting requirements re garding storage, inventory, and use of interception and eavesdropping devices by DoD Components in the conduct of such activities.

§ 42.2 Applicability.

This part is applicable to all DoD Components. It does not apply to activities which are related directly to the protection of the national security.

For the purpose of this part, the following definitions apply:

(a) "Wiretapping" means the act of Histening to or recording of any telephonic conversation by the use of any electronic, mechanical, or other device without the advance consent of all of the parties to the conversation; sometimes referred to in this part as interception.

(b) "Eavesdropping" means the act of listening to or recording of any conversation other than telephonic by the use of any electronic, mechanical, or other device without the advance consent of all the parties to the conversation.

(c) "Heads of DoD Components" means the Secretaries of the Military Departments (or if they so designate, the Under Secretary, Assistant Secretary, the principal staff officer responsible for the investigative activity concerned, or the head of the investigative agency concerned), the Directors of the Defense

Agencies, the Chairman of the Joint Chiefs of Staff, and the Assistant Secretary of Defense (Administration) for the Office of the Secretary of Defense and other activities assigned for administrative support.

§ 42.4 Wiretapping.

(a) To insure the privacy of telephone conversations to the maximum practical extent, the interception of telephone conversations is prohibited unless there are reasonable grounds to believe that: (1) A criminal offense concerning the national security is involved; or,

(2) A felony has been or is about to be committed; or,

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(3) Telephone calls involving scenity, harassment, extortion, bribery, or threat of bodily harm have been made to a subscriber-user on a military base under the jurisdiction of the Department of Defense.

(b) National security investigations: The following requirements must be met:

(1) One of the parties has freely and voluntarily consented in advance to the interception. If none of the parties has consented in advance, the interception must be approved by the Attorney General in advance, see paragraph (f) (3) of this section; and

(2) The interception has been approved in advance by the Secretary of the Military Department concerned (or his specific designee), or the Assistant Secretary of Defense (Administration) for all other DoD Components.

(c) Felony investigations: The following requirements must be met:

(1) One of the parties has freely and voluntarily consented in advance to the interception; and,

(2) The interception has been approved in advance by the Secretary of the Military Department concerned (or his specific designee), or the Assistant Secretary of Defense (Administration) for all other DoD Components.

(d) Investigations involving on-base telephone: The following requirements must be met:

(1) The subscriber-user of the telephone has requested the investigation of telephone calls involving obscenity, harassment, extortion, bribery, or threat of bodily harm and, in writing, freely and voluntarily consents in advance to the wiretap; and,

(2) The telephone and wiretap are located on an installation under the jurisdiction of the Department of Defense;

and

(3) The head of the investigative unit has approved the interception in advance in accordance with the rules prescribed by the Head of the DoD Component concerned.

(e) The prohibitions and restrictions of this § 42.4 apply whether or not the information which may be acquired through interception is intended to be used in any way or to be subsequently divulged outside the Department of Defense. Any question as to whether the use of a particular device can be said to involve a prohibited interception of a telephone conversation shall be submitted to the General Counsel of the Department of Defense for consideration.

(f) A request for approval under paragraphs (b) and (c) of this section shall include the information outlined in § 42.7.

(1) Approval will not be granted for more than 30 days, and the wiretap will be terminated as soon as the desired information is obtained.

(2) Renewal requests for specified periods of not more than 30 days may be submitted to the appropriate approval authority for consideration.

(3) If the approval of the Attorney General is required, the request shall be sent to the Assistant Secretary of Defense (Administration) who, if he considers it justified, will forward it, and subsequent renewals thereof, to the Attorney General.

§ 42.5 Eavesdropping.

(a) To protect the rights of privacy, eavesdropping is prohibited if the listening to or recording of a conversation involves a violation of the Constitution or a statute. This prohibition includes eavesdropping in any form which is accomplished by means of physical trespass or entry. It also may include eavesdropping practices which intrude upon the conversations between persons whose relationship is traditionally considered privileged (such as lawyer-client and doctor-patient). Further, even though it may be accomplished without physical trespass or entry, it may also be unlawful if it invades the sanctity of a man's home, private office, hotel room, automobile, or other physical areas deserving protection of the right of privacy.

(b) In order to lmit eavesdropping not otherwise prohibited by paragraph (a) of this section, eavesdropping is authorized without the consent of all the parties only under the following conditions:

(1) There are reasonable grounds to believe that a criminal offense concerning the national security is involved, or that a felony has been or is about to be committed; and,

(2) Advance written approval has been obtained from the Attorney General, see subparagraph (3) of this paragraph. A request for approval under this paragraph must include the information outlined in § 42.7. Approval will not be granted for more than 30 days, and the eavesdrop will be terminated as soon as the desired information is obtained; and, (3) The request shall be sent to the Assistant Secretary of Defense (Administration) who, if he considers it justifiled, will forward it, and subsequent renewals thereof for not more than 30 days, to the Attorney General.

(c) If, in the judgment of the Head of the DoD Component concerned, or his specific designee, the emergency needs of an investigation preclude obtaining the advance approval of the Attorney General as required by paragraph (b) (2) of this section, he may, without that approval authorize the eavesdropping required by the investigation. He shall, within 24 hours after authorizing the eavesdropping, provide the Attorney General with a copy to the Assistant Secretary of Defense (Administration), with the information outlined in 8 42.7. He shall include an explanation of the circumstances upon which he based his judgment that the emergency needs of the investigation precluded the obtaining of the advance approval of the Attorney General.

8 42.6 Procedures and reports.

(a) The Head of each DoD Component concerned shall require, under the administrative controls provided by this part, the following:

(1) That when wiretapping or eavesdropping is authorized, the investigative agent shall:

(1) If technically feasible, permanently record the conversations concerned on tape or other recording medium;

(ii) Preserve the recording, together with any logs, transcripts, summaries, or memoranda that are made concerning the conversations; and,

(iii) Report in writing to the Head of the DoD Component describing the uses made of each device for wiretapping or eavesdropping.

(2) As to information obtained by wiretapping or eavesdropping, that:

(i) Information is stored in an appropriate investigative file at a central location;

(ii) Information so stored is always identified, when used for any purpose, as information obtained by wiretapping or eavesdropping;

(iii) Access to information so stored is strictly controlled and recorded; and,

(iv) Information so stored shall not be disclosed outside the Department of Defense unless the Head of the DoD Component concerned determines that disclosure is essential to governmental operations.

(3) As to records and devices used for wiretapping and eavesdropping; that:

(1) Devices are obtained only to the extent necessary for use in conformance with this part;

(ii) Units be designated to maintain and control devices;

(iii) Centralized records be maintained of the inventory and use of devices. (A record must include the date a device was assigned to an agent, the date he returned it, and his report under paragraph (a) (1) (ii) of this section, on its use);

(iv) The need for devices be reevaluated once a year; and

(v) All records are maintained for a period of 6 years.

(b) The Head of each DoD Component shall report to the Assistant Secretary of Defense (Administration) as follows:

(1) Before the 10th day of each month stating whether there was any wiretapping or eavesdropping during the preceding month by personnel of the DoD Component concerned (1) in the United States or (11) elsewhere, if any party to the conversation was a citizen of the United States. The report must include all information in § 42.8.

(2) Before July 10, annually, giving a complete inventory of all devices in the DoD Component concerned that are primarily designed for wiretapping or eavesdropping. The report shall include a statement that the inventory is being maintained at the lowest level that is consistent with operational requirements.

(c) The Assistant Secretary of Defense (Administration) shall report by July 31, annually, to the Attorney General on all uses of devices for wiretapping and eavesdropping in the Department of Defense during the previous fiscal year, to include, in each case, the information

in 42.8. The report shall contain the Department of Defense inventory of devices.

§ 42.7

Information to be included in a request for approval of proposed wiretapping or eavesdropping.

(a) Indicate whether the request is for a wiretap or an eavesdrop.

(b) The purpose. To the extent possible, describe the conversation expected to be intercepted.

(c) Identity of all persons under investigation, or affected.

(d) Statement if any party has consented, and if so, his identity.

(e) With respect to the particular operation:

(1) Identity of the operating unit; (2) Types of equipment to be used, if any, to include method of transmission and recording device;

(3) Manner or method of installation; (4) Physical location, to include the address, telephone number, room number, whether inside or outside a building, public or private property, and the means of access;

(5) The expected period of time for the operation. (The period should be as short as possible compatible with operational necessity.)

SOURCE: The provisions of this Part 43 appear at 34 FR. 12580, Aug. 1, 1969, unless otherwise noted.

§ 43.1

Purpose.

(a) This Part 43 incorporates certain provisions of Public Law 90-321; restates policies for private commercial solicitation on military installations; sets forth procedures for withdrawal or suspension of privileges; extends counseling capability through credit unions and nonprofit organization educational programs; and restates policies and procedures on investigative and enforcement actions.

(b) The purpose of this Part 43 is to safeguard and promote the welfare and interests of military personnel as consumers by outlining the general Department of Defense policies governing the conduct of personal commercial solicitations, including the sale of goods, services and commodities on military installations (world-wide) by dealers, tradesmen and their agents (hereinafter referred to collectively as "companies"). § 43.2 Applicability and scope.

(a) The provisions of this Part 43 apply to all DOD components and to those companies desiring the privilege of conducting commercial transactions (including the specialized commercial enterprises listed below) with military personnel on DoD installations and in DoDcontrolled housing areas.

(1) Life insurance companies and their agents (see Part 276 of Subchapter N). (2) Automobile insurance companies and their agents (see Part 278 of Subchapter N).

(3) Credit unions (see Part 230 of Subchapter M).

(4) Commercial facilities authorized by the Army/Air Force or Navy/Marine Corps exchanges (see DoD Directive 1330.9 1).

(b) Its provisions do not encompass military installation services (such as deliveries of milk, laundry and related residence services) furnished by commercial companies when such services are authorized by the installation commander. § 43.3 Policy guidance.

The Secretaries of the Military Departments will issue implementing instructions, consistent with the provisions of this Part 43, governing the conduct of all commercial transactions outlined in § 43.2(a).

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(a) Personal commercial solicitation activities conducted on DoD installations. (1) No person has authority to enter upon a military installation and transact personal commercial solicitation as a matter of right.

(2) Personal commercial solicitation will be permitted only if the following requirements are met:

(i) The solicitor is duly licensed under applicable Federal, State, or municipal laws and has complied with installation regulations (see § 43.3(b) below) regarding registration and pass control procedures.

(ii) Personal commercial solicitation is permitted by the local installation commander.

(iii) A specific appointment has been made with the individual concerned and conducted in his family quarters or in other areas designated by the installation commander.

(3) Those seeking to transact personal commercial solicitation on overseas installations will be required to observe, in addition to the above requirements, the applicable laws of the host country and, upon demand, present documentary evidence to the installation commander, or his designee, that the company and its agents meet the licensing requirements of the host country.

(4) Personal commercial solicitation in Armed Services Exchange Facilities will be approved as authorized by DoD Directive 1330.9. As such contracts are developed or renewed, copies thereof will be submitted to the office of the Assistant Secretary of Defense (Manpower and Reserve Affairs) to insure that establishment of on-base solicitation requirements are incorporated

therein.

(b) Supervision of on-base commercial activities. A conspicuous notice of pertinent installation implementing regulations shall be posted in such form and in such place as to give notice to all those conducting personal commercial solicitation activities of their provisions. In addition, insofar as is practicable as determined by the installation commander, a copy of the applicable installation regulations will be given to those con'ducting on-base commercial activities and they will be advised that any dis

1 Filed as part of original. Copies available from U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa. 19120.

regard of the regulations will result in the withdrawal of solicitation privileges.

(1) The solicitation of military personnel and their dependents will be conducted on an individual basis by appointment and in such locations and at such hours as the military commander may designate.

(2) The following solicitation practices are prohibited:

(i) Solicitation of recruits, trainees and transient personnel in a "mass" or "captive" audience.

(ii) Making appointments with or soliciting military personnel who are in an "on-duty" status.

(iii) Soliciting without appointment in areas utilized for the housing or processing of transient personnel, or the solicitation in barracks areas used as quarters.

(iv) The use of official identification cards by retired or reserve members of the armed forces to gain access to military installations for the purpose of soliciting.

(v) Procuring, or attempting to procure, and/or supplying roster listings of DoD personnel.

(vi) The offering of unfair, improper and deceptive inducements to purchase or trade.

(vii) Practices involving rebates to facilitate transactions or to eliminate competition. (Credit union interest refunds to borrowers are not considered a prohibited rebate.)

(viii) The use of any manipulative, deceptive or fraudulent device, scheme or artifice, including misleading advertising and sales literature.

(ix) Any oral or written representations which suggest or give rise to the appearance that the Department of Defense sponsors or endorses the company, its agents, or the goods, services and commodities it sells.

(x) Commercial solicitation by active duty members of the armed forces when in violation of Part 40 of this subchapter. (xi) The entry into any unauthorized or restricted area.

(c) Denial and revocation of on-base solicitation. The installation commander shall be required to deny or revoke permission to a company and its agents to conduct commercial activities on the military base if such action would not further the best interests of the command.

(1) The grounds for taking this action shall include, but not be limited to the following:

(i) Failure to meet the licensing and other regulatory requirements prescribed in § 43.3(a) (2) and (3). (i) Commission of any of the practices prohibited in § 43.3(b) (2) .

(ii) Substantiated adverse complaints or reports regarding the quality of the goods, services and commodities and the manner in which they are offered for sale.

(iv) Knowing and willful violations of the Truth-in-Lending Act (Public Law 90-321) 82 Stat. 146; 15 U.S.C. 1601.

(v) Personal misconduct by a company's agent or representative while on the military installation.

(vi) The possession of or any attempt to obtain supplies of allotment forms prescribed by the Military Departments.

(vii) Failure to incorporate and abide by the Standards of Fairness policies (Part 43a of this subchapter).

(2) In withdrawing solicitation privileges, the commander shall determine whether to limit it to the agent alone or extend it to the company he represents. This decision shall be based on the circumstances of the particular case, including among others, the nature of the violations, their frequency, the extent to which other agents of the company have engaged in such practices, and any other matters tending to show the company's culpability.

(i) Upon withdrawing solicitation privileges, the commander will promptly inform the individual orally or in writing.

(ii) If the grounds for the action bear significantly on the eligibility of the agent or company to hold a state license or to meet other regulatory requirements, the appropriate authorities will be notified.

(iii) The military commander will afford the individual or company an opportunity to show cause why the action should not be taken. By "show cause" is meant an opportunity for the grieved party to present facts on his behalf on an informal basis for the consideration of the installation commander.

(iv) If warranted, the commander will make a recommendation to the military department concerned that the action be extended to additional military installations. If so approved, and when appropriate, the order may be extended to other military departments by the