FLORIDA HOUSE OF REPRESENTATIVES
DONALD L. TUCKER, Speaker/JOHN L. RYALS, Speaker Pro Tempore
COMMITTEE ON CRIMINAL JUSTICE
Ralph H. Haben, Jr.
Chairman
Barry Richard
Vice Chairman
March 8, 1978
MEMORANDUM
TO:
Members, committee on Criminal Justice
FROM:
Staff, Committee on Criminal Justice
SUBJECT:
Proposed Committee Substitute for House Bill 320 by
Melvin, Relating to Security of Communications
Florida's Security of Corrununication Act (Chapter 934, Florida
Statutes), adopted in 1969, was modeled closely on the Federal Crime
Control Act of 1968. In 1970, Congress amended the Federal Act to
provide for the issuance of court orders directing telephone companies and certain persons to render assistance in intercepting of
wire and oral communications. Florida has not yet added any provisions of this type.
The proposed committee substitute would bring Florida's Act in line
with the Federal Act by making the following changes:
1.
Paragraph (a) of, subsection (2) of section 934.03,
Florida Statutes, would be amended to allow communication common carriers to provide information or
technical assistance to law enforcement officials
who are authorized to intercept wire or oral
communications.
2.
Subsection (4) of section 934.09, Florida Statutes,
would be amended to allow issuance of court orders
directing telephone companies, landlords, and other
persons to render assistance in interception of wire
or oral communications. Persons furnishing such
assistance would be compensated at prevailing rates.
R. Ed Blackburn, Jr. Fred BurraH Robert B. Crawford A. M. Fontana
Joseph M. Gersten Curtis S. Kiser David J. Lehman C. William Nelson
Van B. Poole Eric Smith
Karl R. Adams, Staff Director
20 HOWie Office Building. Tallahassee, Florida 32304 (904) 488-9685
CS/HB 320 by Melvin
3.
/nrd
2.
March 8, 1978
Section 934.10, Florida Statutes, would be amended
to provide that a good faith reliance on legislative
authorization would be a complete defense to any
civil or criminal action against a person who intercepts or discloses a wire or oral communication.
HB 320 by Melvin
Providing for issuance of court
orders directing telephone
companies and others to render
assistance in interception of a
wire or oral communication.
January 6, 1977
Other Committees of Reference
I.
Statement of the Problem
Florida's Security of Communication Act (Chapter 934, Florida
Statutes), adopted in 1969, was modeled closely on the Federal
Crime Control Act of 1968. In 1970, Congress amended the
Federal Act to provide for the issuance of court orders directing telephone companies and certain persons to render assistance in intercepting of wire or oral communications. Florida
has not yet added any provision of this type.
The introducer of this bill believes that Chapter 934, Florida
Statutes, should be brought in line with the Federal Act by
addition of the instant section. The bill would set up a
specific procedure whereby telephone companies could be directed
by court order to cooperate with law enforcement officials,
and would remove the threat of potential liability on the part
of the telephone company, under Section 934.10, Florida Statutes
(authorizing recovery of civil damages for interception of
communications in violation of Chapter 934, Florida Statutes).
II.
Facts Bearing on the Problem
A.
Statutes Affected
Subsections (4)-(9) of Section 934.09, Florida Statutes,
would be renumbered as subsections (5)-(10), respectively,
and a new subsection (4) would be added.
B.
Legislative Intent
Although the language of this bill tracks that of the 1970
Amendment to the Federal Act, it appears to authorize a
broader application than intended. The intent of the bill
is to provide for court orders specifically directing the
cooperation of telephone companies and landlords in the
installation of an intercepting device. Telephone companies
generally provide assistance by installing the device and
running telephone lines outside the premises. A landlord's
assistance may be necessary in providing authorities with a
HB 320 by Melvin
2.
January 6, 1977
listening room close to the premises being "intercepted."
These types of assistance are necessary and clearly within
the intent of the bill.
The language of the bill, however, appears to authorize
other types of assistance. The bill refers to the interception of oral as well as wire communications, and
authorizes landlords and "other persons" to provide
assistance (lines 19-22, page 1). This language suggests
that a court order might be obtained to compel a landlord
to admit police officers to a tenant's apartment for the
purpose of installing a listening device.
Once within the
apartment, there would be nothing to prevent the officer
from making a "plain view" search of the premises, and to
then use any evidence obtained as the basis for a full
search warrant. Although such evidence might be seen as
"tainted" and therefore inadmissible under the principles
of Wong Sun v. U.S., 371 U.S. 471 (1963), it also seems
possible that an entry made through a landlord could
produce useable evidence. The Fourth Amendment protects
from unreasonable searches and seizures.
C.
III.
Other
Discussion
See section II. B. above
VI.
Constitutionality
The bill on its face is constitutional, an:1 the Federal Act on
which it is patterned has not to date been constitutionally
challenged.
V.
Probable Consequences of the Bill
See Sections I and II.
VI.
Fiscal Impact
The bill provides that persons rendering assistance shall be
. compensated at prevailing rates. According to local telephone
company officials, such compensation is already provided to
them, thus the bill would probably entail little additional cost.
VII.
Economic Impact
None apparent.
/nrd
Y of General Legislation, 1978 ••• Florida Legislature
Preliminary Draft
Subject to Final Actions
LAW ENFORCEMENT AND CRIMINAL JUSTICE*
Activity
of
the
1978
Legislature
in the area of law
enforcement and criminal justice resulted in enactments dealing
with crimes against minors, creation of the advisory Council on
Criminal Justice,
substances
in
revisions
general
treatment
Justice Act."
the
schedule
of
controlled
Florida Comprehensive Drug Abuse Prevention and
Control Act and a
judicial
of
of
reworking
minors
of
statutes
designated
as
concerning
the
"Juvenile
The definitions of several offenses are
refined
and new crimes are established.
Criminal Justice Planning and Administration
COMMIT'l'EE SUBSTITUTE FOR HOUSE BILL
420)
creates
2004
(CHAPTER
78-
the "Florida Criminal Justice Council Act" which
provides for the Florida Council on Criminal Justice within the
Executive
Branch
of
government.
The Council shall act in an
advisory capacity to the Governor, Legislature, Florida Supreme
Court
and
the Bureau of Criminal Justice Assistance (formerly
the Bureau of Criminal Justice Planning and Assistance) of
the
Department of Administration in the performance of the Bureau's
responsibilities among which are:
(1) To serve
as
the
state
*Prepared by the staff of the House Committee on Criminal Justice
1
Finally,
contract
for
the
Commission,
training
programs
is
or
granted
authority
facilities
with
to
state
community colleges or universities and to approve the selection
of law enforcement officers to receive this free training.
Under the provisions of SENATE BILL 614 (CHAPTER 78-116)
parole and
officers
probation
supervisors
and
parole
and
probation
employed by the Department of Offender Rehabilitation
are included among law enforcement officers it is
resist with or without
Investi ation and A
unlawful
to
violence~
rehension Procedures
COMMITTEE SUBSTITUTE FOR HOUSE BILL 320 (CHAPTER 78-376)
permits an officer, employee or agent of a communication common
carrier
to
assistance
has
supply
to
information,
facilities
or
technical
an investigative or law enforcement officer who
statutory
authority
communications.
The
law
to
intercept
further
permits
wire
an
or
oral
employee of a
licensed ambulance service, a fire station, a public utility or
other
entity
with
published
intercept and
record
numbers.
applicant
An
emergency
incoming
may
wire
request
telephone numbers to
communications
on
such
that an intercept order
direct a communication common carrier, landlord,
custodian
or
other person to provide assistance for which compensation is to
be made at the prevailing rates.
Legislative.authorization for
intercept is added as a defense to civil or criminal action.
Two
laws
each
provide
additional
grounds
issuance of a warrant to search a private dwelling.
13
for
the
HOUSE BILL
624
(CHAPTER 78-126) permits issuance if the dwelling is being
used for the unlawful sale, possession or purchase of
or
wildlife
if freshwater fish are being illegally kept in it.
If laws
concerning cruelty to animals are being or have been
HOUSE
BILL
during
the
otherwise,
violated,
583 (CHAPTER 78-345) allows search of the dwelling
daylight
and
hours
property
only
related
unless
the
bench
permits
to the offense may be taken
from the dwelling or from persons using or owning the
property~
SENATE BILL 193 (CHAPTER 78-246) defines "fresh pursuit"
in the context of
coun.ty
arrest
outside
or municipal officer.
to have the same authority
jurisdiction
followed
by
circumstances
liable
for
is
the
the
a
state,
Officers making such arrests are
to
arrest
and
hold
making other than an arrest in fresh pursuit.
be
by
arresting
officer
in
as
officers
The procedure to
fresh
pursuit
established and the employing agency is made
officer's
acts.
P~nsion,
retirement
and
workmen's compensation benefits of the officer are protected.
Under the provisions of SENATE BILL 414 (CHAPTER 78-29) ,
a law enforcement agency is required to furnish the
of
Insurance
information
Department
on any criminal charge made against
applicant seeking license or renewal as bail bondsman or runner
and the final disposition of such charge.
Crimes Against Minors
SENATE BILL 250
degree
felony
offense
(CHAPTER
78-326)
creates
the
second
of knowingly bringing or causing to be
brought into the state or sending or causing to be sent out
14
of
BEN F. OVERTON
JOHN F. HARKNESS. JR.
CHIEF JUSTICE
ADMINISTRATOR
STATE COURTS ADMINISTRATOR
FLORI DA STATE COU RTS SYSTEM
SHEVIN V. S.UNBEAI~ TELEVISION CORPORATION,
CASE NO. 50,938,
OPINION FILED OCTOBER 28, 1977
5>"'/ 5~i2d '123
THE SUPREME COURT UPHELD THE CONSTITUTIO~ALITY OF SECTION .
934.03(2)(D), FLORIDA STATUTES, WHICH MAKES IT UNLAWFUL TO INTERCEPT
.
A WIRE OR ORAL COMMUNICATION UNLESS . ALL PARTIES HAVE GIVEN PRIOR
CONSENT, AGAINST A CHALLENGE BASED ON FREEDOM OF THE PRESS. THE
..
~
~~,.-
COURT HELD THAT THIS STATUTORY PROVISION IS NOT A RESTRAINT OR
RESTRICTION ON WHAT THE PRESS MAY PUBLISH, BUT RATHER A POLICY
DECISION BY THE LEGISLATURE TO ALLOW EACH PARTY TO A CONVERSATION
TO HAVE AN EXPECTATION OF PRIVACY.
THE FIRST AMENDMENT DOES NOT
GIVE THE PRESS THE UNBRIDLED RIGHT TO CORROBORATE NEWS GATHERING
ACTIVITIES AT THE EXPENSE OF THE PRIVATE RIGHTS OF INDIVIDUALS.
SUPREME COURT BUILDING, TALLAHASSEE, FLORIDA 32304
904-488·8621
;1
11
- Ross, Ha.rdies, O'Keefe, Babcock & Parsons
TO:
________~M~a~r~c~h~=2=2~,________ 19~
MR. LAMM
proposed Amendment to Florida
ec~ecy
of Communications Act
The question has been presented by the Office of
States Attorney for Leo·n County, Florida, as to the
power of Florida .courts to require telephone companies to
provide assistance to law enforcement agencies in carrying
out interceptions of telephone communications under court
orders issued pursuant to Chapter 934i Florida Statutes (the
Florida
Sec~ecy
of Communications .. Act) • __ That Act empovlers _ a_
court of competent jurisdiction to issue an order authorizing
designated law enforcement agencies to conduct interceptions
of telephone communications provided certain procedural
safeguards are met and the interception is carefully limited
in its scope and duration.
The Act does not by express
terms authorize a court to direct a telephone company to
assist .in effecting an interception,
nor does
it provide for
.
.
compensation to companies which do assist nor explicit
protection from civil or criminal liabilities if a company
does assist law enforcement agencies.
The Florida Act, adopted in 1969, is almost a
copy of the Federal Omnibus Crime Control and Safe
Central Tel,:pho:1~ Co. of Flcrfd!
RECEIVED
,,
•
MAR 241977
• j
i
- n f"J!'r
-2-
streets Act of 1968.
.
The Federal Ornnipus Act, which did not
by its terms authorize a federal court to direct telephone
companies to assist in interceptions, was interpreted by the
united States District Court for the District of Nevada and
by the United States Court of Appeals for the Ninth .Circuit .
as not authorizing a federal court to direct a telephone
company to assist law enforcement agencies.
See In re
Application of United States, 427 F.2d 639 (9th Cir. 1970).
'As a result of that decision, the United States Congress
amended the Federal Omnibus Act by adding to 18
u.s.c.
§2518(4} the following language:·
-;
r-~An
order.authorizing the. interception of.a wire or:!
oral communication shall, upop r~quest_of the
applicant,direct that a communication common
carrier, landlord, custodian or other person shall
furnish the applicant ... forthwith all information,
facilities, and technical assistance necessary to
accomplish the interception unobstrusively. and
with a minimum of interference with the services
that such carrier, landlord, custodian, or person
is according to the person whose communications _.
are to-be intercepted. Any communication common
carrier, landlord, custodian or other person
furnishing such facilities or technical assistance
shall be compensated therefor by the applicant at .
\.___~he prevailing rates.
.--1
A number of states have adopted laws similar to
the Federal Omnibus Act including language such as that
quoted above concerning the provision by telephone companies
of information, facilities and technical assistance.
In
contrast, Florida has not enacted the quoted language of the
-3-
Federal Omnibus Act.
Rather, the Florida Act remains sub-
stantially identical to the Federal Omnibus Act as it existed
prior to the above amendment.
Since the only case interpreting
a statute similar to the Florida Act
~nd
the original form
of the Federal omnibus Act has,held that a federal court
does not have authority under the statute to direct a telephone
company to assist law enforcement agencies, there is a
serious question as to whether such authority exists on the
part of a Florida court.
Some,Florida trial level courts
have J;teld such authority is .implicit under'the Florida
cornmon law and o:ther Florida statutes.
However, the Florida
Secrecy of Communications Act is a very explicit and detailed
crimi~al
statute which ordinarily would be strictly construed
by appellate courts since it contemplates, in part, the
invasion of rights of persons which the United States ,Supreme
Court has held are entitled to constitutional protections.
If a Florida appellate court were to hold, as did
the United States Court of Appeals for the Ninth Circuit in
In re Application of the United States, that, in light of
the explicit and detailed language of the Florida Act, no
authority to direct telephone companies to assist in interceptions
exists, there is a possibility a party whose conversations.
-4-
are intercepted with'the help of a telephone company might
sue the company for invasion of privacy.
Although the
Florida Secrecy of Communications 'Act contains a provision
stating that "A good faith reliance on a court order shall
constitute a complete defense to any civil or criminal
aption under the laws of this state" (Fla. Stat. §934.10),
it is possible this section might not provide a telephone
company protection where there is a genuine doubt as to the
authority of a court to require or authorize telephone
company ass;istance.
It can be argued that the only person
who can act in good faith is one named in an order appropriately
.:!-.8sued by a court.
Where-there isa. question' as to the·
authority of a court to order a party other than a law
enforcement agency to assist in an interception, it may not
be possible' for a telephone company to act
i~
good fai ~~ii:J'
.
The National Commission For the Review of Federal
and State Laws Relating to Wiretapping and Electronic Surveillance
(the "National Commission") issued its report and recommenda'tions in 1976 after an extensive study of experience under
federal and state wiretapping laws.
It recognized that
where the. conditions and responsibilities imposed by provisions
of wiretapping statutes such as the Federal Omnibus Act are
violated, "There is also a vulnerability to drastic penalties,
both civil and criminal.
...
Hence the [National] Commission
-5-
commends the larger part, by far, of telephone companies who
performed no more or less than required by statute.
1I
Electronic
Surveillance, Report of the National Commission For the
Review of Florida and State Laws relating to
Electronic,Surveillance (Washington,
Wiretapp~ng
(1976) p. 9)
and
Recognizing
the drastic penalties which could befall telephone companies
not complying strictly with the provisions of wiretapping
laws and regulations, the National Commission in its findings
and recommendations stated:
State wiretapping legislation should include a
provision directing telephone companies to cooperate
with law enforcement in furnishing all necessary
assistance to the accomplishment of a courtordered wiretap, including " but not' liini tedf6;
prompt cable and pair information, leased lines,
pen register or touch-tone decoder aid, and inprogress traces. The telephone companies, in the
public interest, should lend full cooPeration to
law enforcement, but should be given an opportunity
to be heard on the subject of the validity of a
court order directing telephone company cooperation
in installing a wiretap.
(Id. at p. 10)
The question concerning Florida court authority to,
direct telephone companies to cooperate with law enforcement
agencies in court-ordered wiretaps can be most expeditiously
and clearly resolved if the Florida legislature would adopt
this 'National Commission recommendation.
While it might be
possible to get some clarification of this question by
appealing an order directing a telephone company to assist
in an interception,' such an appeal could be costly and would
not necessarily provide the cle~r and permanent resolution
-6-
which an amendment to the statute would prov.ide.
Further-
more, such an appeal might disrupt an investigation which
would be held in abeyance pending 'disposition of the appeal.
The threat of possible civil or criminal liability
hangi~g
over the head of a telephone company cooperating in
affecting a wiretap is not an imaginary one.
One of the
companies in the Centel System was sued for assisting the
Federal Bureau of Investigation in a wiretap prior to the
enactment of the Federal Omnibus Act and the defense and
settlement of the
lit~gation
was very costly.
Therefore, we
recommend that an effort be made to persuade the Florida
i~gislature to amend Section" 934 ~-o9 (4) ·of -the Florida..... ~. -." \, i .•: r~"":
.
".
t'
s:~...recy of Communications Act to add the "following language:
An order authorizing the intercept'i(:>Il'\:>f'
u::)
,,
/),:. r<, r!
'a
wire or
oral communication shall, upon request of the
applicant, direct that a communication common.
carrier, landlord, custodian or other person shall
furnish the applicant forthwith all information,"
facilities, and technical assistance necessary to
accomplish the interception unob!trusively and
with a minimum of interference with the services
that such carrier, landlord, custodian, or person
is according to the person whose communications
are to be intercepted. Any communication common
carrier, ,landlord, custodian or other person
furnishing such facilities or technical assistance
shall be compensated therefor by the applicant at
the prevailing rates.
Such an amendment would resolve all doubts as to the intent
of the legislature to confer authority on Florida courts to
t
'_
~
-7-
order telephone companies to provide a.ssistance in affecting
.
interception.
Furthermore, it would make clear that appropriate
compensation is required, and it would assure that telephone
companies would be acting under a court order which could be
relied on to
provid~
protection against civil or criminal
liability.
Duane A. Feurer
DAP/dc
For Rele_8se Feb 16 1978
My name is David Unterberg.I thank the Chairman for inviting
me to appear before this Committee and express my views on proposed
SB 156 specifically and Chapter 934 generally.
Past experience before legislative Committees has impressed
upon me the fact that the spoken word is powerful but the printed word
is pointed. Unlike the spoken word,the printed word can be referred to
and mulled over. Accordingly, I have taken the liberty of printing and
circulating my remarks.
To consider my remarks in the light which they are made this
Committee must understand !!!i:philosophy which has evolved over a period
of 43 years of serving the-raw for and with the public.
Simply stated I have never been afraid of what I say,I fear
what you say I said.
In the interest of time 'I have supplied,on a seperate page,
a resume of my legal background.
When Chapter 934 was enacted. into the law, this so called
Security 'of Communication Act left me aghast and amazed. Whose
security was being secured I wondered.
Ostensibly the legislature might have been thinking of safeguarding the privacy of innocent persons and to prevent the obstruction of intrastate commerce. By what measure did the Legislature determine
the innocence of a person.
The question that arose in my mind-was the Legislature aware
of the provisions of the United States Constitution, the federal laws
and decisions promulgated thereunder and if the Legislature was fully
informed,in effect passage of the Florida Safety of Communications
Act was-.:..----..;----an act of secession from the union.
.•
I am well aware that the Florida Supreme Court in the case
of Shevin v.Sunbeam Television held Chapter 934 constitutional but I
have found that no court is infallible,including the Florida Supreme
Court. The only difference between that Court and other higher Courts
is that the Florida Supreme Court,like Rip Van Winkle takes over 40
years to wake up to the realization that during all that time it had
been wrong. I give you the example of the case of Avila South v.Kappa
Corporation decided on March 31,1977 in effect overturning a decision
rendered in 1930 in the case of Mabel Development v. Bird(99 Fla.253).
Mr.Justice Ervin,in words better than I can muster stated
in his opinion in the Avila South decision:
"I would ,not waste words to explain the continued vitality
of this Court's decision in the Point East Case(relying on
the Mable Development case in 1930--insert mine).I would
simply concede that it has been overruled. Aside from the
results of the Point East case,the decision provides a vivid
exam le of the mischief which can result rr~m an i~p,gIiaig~
exerc so 0 con 1C
~urisdictio
where no~c1s10
---t;r'\ ............ "'~ ....... _..i""+A
l1n.Y"
David Unterberg
Consulting Attorney:Admitted to New York Bar,1935:United
States District Court, Southern New York,
1940:United States Circuit Court of
Appeals 2nd Circuit,1961.Former senior
partner Unterberg and Unterberg,specializing in corporate and securities law.
Author~Former Senior Enforcement attorney
with US Securities and Exchange Commissio=
A Senior Editor with Prentice Hall
(Securities Compliance Publication):
Consultant and associate counsel(Federal
Courts} on Condominium Law and litigation.
Consulted by National Television Net
work on Condominium National Net work
documentary:Consultant and investigator
for National magazines on condominium
matters. Participated with Special Task
Force of Federal Trade Commission
investigating Condominium sales practices.
Legislative consultant(State and Federal)
condominium legislation. General consultant
Condo Coop Executive Council of Florida.
Spe cial Assistant to Attorney General of
Florida concentrating on condominium
and consumer problems and investigation.
Assisted Dade County States attorney's
office investigating matters related to
condominiums. Panelist American Arbitration
Association(active).Invited to author
article on Condominium by American Bar
Association for publication in Law Notes.
Practicioner before Federal Regulatory
Agencies.
Having stated my personal philosophy:charged that the Florida
Security of Communication Acts postul~te. secession:the fallibility of
the Florida Supreme Court and its lethargic state I can no~ treat with
subJect of this qearing SB 156.and it's target Chapter 934.
From the day Ch;'::pter 934 was enacted into law I was of the
opinion that it was completely unconstitutional.
t~en Circuit Court Judge Stone in the 11th Judicial Circuit
decided that the Act was unconstitutional I applauded.No such applause
was aroused by the Supreme Court decision that Chapter 934 was
constitut~ional.
Unfortunately.for reasonsnot fathomable to me,counsel for
the defendA.nts in Shevin v. Sunbeam Television weighed the constitutional
right of privacy against the freede~ of speech and press.'
The thinking of the Florida Supreme r.ourt is epitomized by
Justice Adkins, when during the course of the"\appeal he was reported to
have said:
"How is(the new la~) hurting the r~porter?I can see that
taping does make(the story) more accurate which boils down
to the proposition the newsp~per is less likely to be sued".
Without faulting counsel involved in the appeal to the Supreme
Court,all seemed to have missed the tree for the forest.
Every school boy~girl) is taught? and certainly the legal
profession is aware of the Supremacy Clause of the United States
Constitution ie:
Article VI Clause 2
"This constitution and the Laws of the United States which
shall be made in pursuance thereof--shall be the supreme Law
of the Land;and Judges in every State shall be bound thereby,
anything in the Constitution or laws of any State to the
contrary not'lii thstanding".
Direct your attention to Federal Law knoi<ln as Ch&pter 1$ US
Pa r.2511(2){d) which provides:
"It shall not be unlawful under this Chapter for a person
not acting under color of law to intercept a wire or oral
com~unication wher~~h person is a Earty to the conversatIon".
Compare the above Federal Law "lith Flor'ida
StHtut~e
934.03 (2) (d):
~It is lawful for a person to intercept a wire or oral
communication when all the Eartil'!s to the communication have
given Erior consent tQ such interceetion".
Florida denies that which the Federal Government and the
US Constitution permits.
Section 934.02 (J )Fla. defines "intercept" as the "Aurbl
acouisition of the contents of any wire or oral communication through
the use of any electronic,mechanical or other device" (.02(4a)"Any
telephone or telegraphic instrument--".
-2-
It is quite evident Flqri~a not oply flaunt~ the Federal
but unmistakeable words s~ys it is a nono to r~cord one's
own conversation withQu~ permiSsion of the other party.
.
governm~nt
.
Unfortunately for Florida the Federal Courts have long
wrestled with the problem wh~¢hFlorid~ attempts to sweep under the
carpet.
First t~he Federal Courts hav~ long held that.. the use of the
telephone in making an ~ntr~ stat~ te~eph~ne call is the u?e of an
instrumentality of inter~ta t~ «pmmerqe and subject to the Federal
Laws and decisions~Spilker v.Sh,ayneU$CC 9th Cir. 7/10/75 citing Leyen
v.Marder USDC )lD Pa 34J f.Supp.IO.?O:\1[eis~ v. US g (i!ir~1939,30g US 321 J
60 S.Ct.Z69~My~el v.F~elds $~~r, 1967 lBq F2 718:l3rdedhoeft v.Cornell
D.Qr.1966 260 F.Supp p~7:W~in~tz v.C~qny ND 196) 221 F.Supp.473 •
'.
More recent. Ha\"r~SQfl
'.
~~g.g.1977.
v.~qui 1fab;I.e
;Life USDC J¥f:l,.ch 075-437 CA •
.
The decisions t~tre Federal Courts upholding the right of
a person to record his own conversationwitho~t permission o~ the
other party is legend.sino~ Congress pas the power under the Commerce
Clause of the Federal Cons~itution to regulate local telephone
conversations.A few citations fpllow:pmith v.Winkler DC Ohio 1972,
354 F.Supp 217:US v.Ral1sqm CA Ga 1975 515 F2 gg5:Smith v.Cincinatti'
Post & Times Star DC Ohio 1972,353 F.8upp 1126 aff.475 F2 740:Irigraffie
v.Belle Mead ije.:pital,Inc. 319 F.Supp.537:Weiss v.US 1939 30g US 321,
60 S.Ct.269.
The Committee should be infqrmed that the Federal Courts have
held that there is nO"iI\terception ft 'of1 ftevesdroppingtJ when a. party
to a conversation or third p~rty acting with the consent of one of
the parties to the co~v~r~a~ion reGords the conversation. Smith v.Winkler
DC Ohio 354 F.Supp 217:Us v.R~psom supra.
The concept of a'party recording his conve-rsation with anoti'ter
WITHOUT consent is crysta1ized in the Smithv.Cincinnatti, Post Times Star
decision supra and Rathb~rn v.US 355 US 107,7S S.Ct ~6l to wit:
Each party ~o a convers;-itif.)n~ t~lephonic or otherwise takes
the risk th~~ ~he qther party may div41ge the contents of
that c?nversatio~ and ~hou~d .h~~, haEEen ,the~e has been no
viola~J.Qn._o!_~.hr-. r.1g!'tt! ~:{f\ I ptf~V:,aic! ~
.
.
Th~se FedeXTalCOUl"t;;Qeclsipns are a far cry from Justicl'.'!
I\dkin's calculations ~h~t a tape recording; by a perSion Or' a reporter
merely lessens the p~sdl~i~ity of ~h~ pewspaper b~ing sued and--~o what? out with thepeeording!
.
The State of' Florida ~n adopting Gh,:~pt.e.r .9JI.J.,flying in the
of th(oi! Federal Constitution and Court.decisions based upon
Federal Law has gone beyond its pow~rs.
fae~
Further, not 0 nly is Cheipter 934 uncons ti tuional from a
viewpoint it is vo~d because it is vague, impos~>i ble of
enforcement and an infring~ment of private rights.
Fe~eral
How would you
~Tlforce
Chapter 934 under these circu.rnstance:j?:
I
'1-
I desire to record my conv~rs~tion only.
A recording is made by a resident of a foreign state.
I am sure thert'! ;n'~ mdrlY ;:3:. t.aations wh ich the Committe!'!
; Lself could sUgSt!;·3t t.h;lt l!'l()\~ld strain the law enforcement capacities
of t~e State of Florida.
How are you going to punish millions of
busin~ss p~ople
"rho ':i3 a part of their business operati.ons r.m3t n:a.ke a r.-cording of
cC"':'~7;e:'r3ations
?
Let me present to you a situation w here a States Attorneys
office 0:.' t.he Stat!!'! of Florida has violAted Chapter' 934 in the
prosecution of a criminal case.
I am sure lIB ny of you have read about two former policemen,
Chandler aI\d Gt',;jn~~r who were accused of teaming up to stage a predawn $3000 burglary on May 23,1977.
.
In the course of their operation they used a "walkie ta.lki~rt
and the conversation was monitored(Evesdropped?) by an amateur "ham
radio operatorn.The "ham operator" recorded the conversation and
this tape recording was permitted in eridence'l resulti ng in convictions.
.
Application of Chapter 934.02 (2) and (.4-) should have prevented the~ introduction of the tape in evidence(Fla .Stat.934.06)
The nham operator should hR.ve been eh,cu'ged with a felony
th:i.rd d('!g:r'ee(Fla.Stat.934.03(2)(c},puni~habl~ as provided by Fla.Stat.
775.082: 083 : 084.
The Assistant States Attorney should have been charged ""ith
to commit a felony.
C(Hlsp:i.rtne
Thf"
should hc~.v~; l)l'2'en hf!ld 1"'~GPonsible in
cc!Urictecl j("fel~d~1nl·,t>. (Fla. Stat. 934.10)
"hH.!!1 {l'per~'lr"orll
t.·o:'h~
So what say you all?
It might be rather saluatory at this point to call the
Commi ttee 's attention to F.lor:j da Statute 501 t commonly kno'IHn as the
Little FTC Act.
I am sure that the Committee is aware that th~ Florida Supreme
Court in a reasoned decision held that statute valid as-~-~ being
"constitutional not -vague and inderinte and --not an unconstitutional
delegation of legislative authority(Department of Leg~l Affairs v.Rogers
No.47502 decided February 25,1976.
.
Interestingly,the little FTC Act(Fla.Stat 501.212 provides:
"~plication-This
part does not apply to:
(1) An act or practice required or specifically
permitted by r~_d.eral or' state law.
It is well to criticize but another matter to offer constructive solutions.
-4-
Before making my suggestions I would like to bring to the
attention important information which has just been supplied
me by my former associate ~udge Eugene E.Lora of the Appellate Division,
Superior Court of New Jersey.
Co~~ittees
~t would appear that the State of New Jersey has struggled with
wiretap and security of communications laws. The Legislature of that
State resolved the problem by enacting a wiretap law on June 30,1975:
New Jersey Statute 2A:156 A-4.
Amending its prior wiretap law,among other amendments
w~re;
(a) provision that a switchboard operator in the normal course
of employment could "intercept,disclose and use the communication".
(b) provision that a person not acting under color of law may
intercept(record} a wire or oral cow~unication where such person is a
party to the communication or one of the parties has given prior consent
to such interception.
A test case(State of New Jersey v.Anepete 145 N.J.Su~er.22)
was brought to the Appellate Division of New Jersey's Superior Court.
Judge Lora,Judge Craine Judge Michels rendered their decision
on October 10,1976
0
The def~ndant raised the question whether or no~ the defendant's
Fourth Amendment right to privacy was violated and whether his Civil rights
and liberties under the Fourth,Fifth and Sixth amendments of the Federal
Constitution were circumvented by the New Jersey Statute.
The Court considered each of the issues and found them clearly
<'i thoutmerit, relying in the main on decisions of the United States Supreme
Court.
In a more recent case(State of New Jersey v.Sanchez 149 NJ,Super~
Ct.38l)decided March 22,1977,the Court stated that the New Jersey wire
tap statute was closely molded after the Federal Statute.
The New Jersey Legislature recognized the superiority and
limi ting effect on the States of Title 11 J 0:" the Omnibus Crime Control
and Safe Streets Act of 1968{GPL 90-351~
Accordingly the New Jersey Legislature generally patterned its
wire tap statute on Federal standards and safeguands incorporated in
IS ill CA 2518(1) et.seq.
The Court held that there was no intent that the New Jersey
Statute be applied more stringently than its Federal Counterpart.
Can it be said that the Legislature of New Jersey is more
enlightened than the Legislature of Florida?
In the spirit of cooperation I would suggest: .
(1) a close study of the New Jersey wire tap statutes
(2) The adoption ofSB 156 proposed amendment to Chapter 9J4(2)d
with the addition of the following statement:
-
-5-
6
"It is the intent of the legislature that in construing
Chapter 934 as amended,due consideration be given to the Federal Court
decisions and interpretations relating to lS US 2511,251S et.seq as
from tim~ to time amended".
(3) I would further urge the adoption of a concluding section
to an amendment to SB 156 amending Chapter 934 to wit:
"Application: This act does not apply to :an act,practice
required or specifically permitted by Federal Law and any·
decisions thereunder rendered by the Federal Courts".
I would at this time like to note for the record that I do
not appear here in an official capacity.I represent no private interest,
I am not being compensated and I have borne my own expenses to attend
and present my oral and printed statement.If I represent any interest,
it is the Public. Interest.
In closing,IwQuld call to the Committee's attention a report
in the media that while Attorney General Shevin,by virtue of his office,
had to defend the constitutionality of Chapter 934,Mr.Shevin believed
that the 1974 amendment of Chapter 934 may be unconstitutional and as
the General's aides said,Mr.Shevin will ask the Legislature to change
it.
.
I must confess that on January 30,1978,without Editorial TV
commentator Richard Whitcomb's(NBC TV Ch.7) permission,! recorded his
statement questioning whose security Chapter 934 was protecting, the
public or the criminal.
Quoting a 17th Century "legal authority",the bard,Shakespere
"The world is still deceived with ornamentIn Law,what plea so tainted and corrupt
But being seasoned with Gracious Voice
Obscure the show of evil?"
Thank you for your courtesy and attention o
-6 ..
r
DATE:
February 17, 1978 (Updated)
~
COMMITTEE ACTION:
STAFF DI RECTOR
1. Moore
Moore
2-16-78
1. Favorable w/CS
2.
SENATE
STAFF ANALYSIS AND ECONOMIC STATEMENT
3.
AMEND. OR
CS
ATTACHED _ _~
JUDI ClARy-CRIMINAL COMMITTEE
BILL
No.
AND SPONSOR:
CS/SB 156
REFERENCES:
SUBJECT:
Senator Dunn
Security of Communications
Judiciary-Criminal; Judiciary-Civil
I.· .BILL SUMMARY:
The bill updates and includes several acts of criminal
conduct for which law enforcement officers may legally wiretap
to gather information for criminal prosecution. Evasion of
cigarette taxes, arson, obscenity, illegal possession or use
of a destructive device, forgery, counterfeiting, obstruction
of justice, and tampering with jurors, evidence or witnesses,
bookmaking, and violation of the Florida RICO Act and
violations of the Florida Anti-Fencing Act are included. The
bill permits legal wiretapping when one of the parties to the
communication previously gives permission for the interception.
The bill provides that the common carrier shall furnish
facilities and technical assistance. The contents of any
intercepted communication may be disclosed in any grand jury
proceeding without giving 10 days notice prior to disclosure
to the grand jury.
Provides for severability of provisions.
II. PURPOSE:
A.
Present Situation:
The present statute requires that both parties to an
intended interception give permission for the interception
of the communication. The prohibited conduct for which wire
or oral interceptions are permitted does not include certain
crimes. The law requires that a person be given ten days
notice prior to disclosure of the contents of an intercepted
communication before a grand jury proceeding, and that only
the interception of the enumerated crimes in the statute may
.be used by a grand jury.
B.
Effect on Present Situation:
The bill would include the interception of wire or
oral communication for the crimes of: evasion of payment of
cigarette ,taxes, arson, obscenity, illegal possession or use
of a destructive device, forgerYi counterfeiting, obstruction
of justice, tampering with jurors, witnesses; or evidence.
The bill would permit the interception of wire or oral
communications when one of the parties to the communication
gives permission for the interception. The bill requires
that the common carriers furnish facilities and technical
assistance whenever requested. The bill would authorize the
disclosure of an intercepted wire or oral communication to a
grand jury without giving the 10 days notice required in the
section for other legal disclosures.
This bill would permit a grand jury to receive
evidence of a crime not specified in the order authorizing
the interception of wire or oral communication. This is to
change the result reached in:
In re Grand Jury Investigations;
In re Frank Cobo, 287 So.2d 43, (Florida, 1973), and to
conform Florida law to the provisions of the Federal Statutes.
t
eeit
Staff Analysis
CS/SB 156
February 17, 1978.(Updated)
Page Two
III. ECONOMIC CONSIDERATIONS:
Yes
A.
Economic Impact on Public:
B.
Economic Impact on State or Local Government: Yes
No
X
X
If enacted, this bill would result in some minimal
savings to the. state. Savings would result from the decreased
incidence of court ordered'interception since the consent of
only one or more parties would be required.
IV.
COMMENTS:
1.
This bill is similar tocS~ 8650f 1977, which
. favorably passed the Commi tteeson Judic-iary-Criminal and
Governmental Operations, but died on the calendar.
2.
This bill would make 934.03(2) (d) consistent with
the law prior to 1974. During the 1974 legislative session
this statute was amended by SB459, Chapter 74-249, Laws of
Florida, to provide that prior consent of all parties was
required for the interception of a wire or oral communication.
3.
The Florida Supreme Court has recently ruled in the
case of Shevin v. Sunbeam Television that the 1974 amendment
to 934.03(2) (d), Florida Statutes, is constitutional.
No