Legality of Warrantless Foreign Intelligence Surveillance Using Concealed Television Cameras and Beepers

January 25, 1978 78-3 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Warrantless Foreign Intelligence Surveillance— Use of Television— Beepers This responds to your request for our opinion on the legality of warrantless foreign intelligence surveillance using certain specific techniques: (1) television surveillance; and (2) location detection using “ beepers.” We conclude that the President may, in a proper case, invoke his constitutional powers to regulate foreign affairs and thereby authorize such surveillance. He may delegate that power to the Attorney General for case-by-case approval of such surveillance. I. The Techniques Involved The techniques discussed in this memorandum differ in technical term s, but they share a feature that gives rise to the legal issue and constitutes a means whereby the Government can surreptitiously obtain information without the knowledge or consent o f the person being surveilled. The first technique in­ volves the use o f concealed television cameras to observe and/or record what occurs in a particular place. In some instances the use o f such a camera without the subject’s consent may be entirely lawful without the necessity of a warrant. For exam ple, a concealed cam era might not require a warrant where it is in­ stalled to record only what a person who is present at the surveilled site and has consented to the surveillance can see. W hen there has been no consent, or when the cam era records sights not visible to a human eye, its use amounts to an intrusion; the technique may not be utilized without a warrant or its constitu­ tional equivalent— invocation o f Presidential powers in a proper case. Cf., United States v. K IM , 415 F. Supp. 1252 (D. Ha. 1976) (warrant required for observation using binoculars where unaided vision is impossible). The second technique, use o f “ beepers,” involves installation o f an electronic device on the chassis o f an automobile. The device emits a signal that can be received within a half-m ile radius. By tracking the source of the signal, the beeper’s location can be monitored. Installation o f the beeper can, in some cases, be performed by affixation without intrusion into the car itself. In other cases, “ technical trespass,” such as opening a hood or trunk, may be 14 necessary. The use of beepers has been the subject o f much litigation. The law is somewhat unsettled, but courts are in agreement that if installation o f the device requires that the car be seized temporarily or a compartment opened, a warrant is required. See, United States v. Holmes, 521 F. (2d) 859 (5th Cir. 1975); a f f d by an equally divided court, 537 F. (2d) 227 (5th Cir. 1976); United States v. Pretzinger, 542 F. (2d) 517 (9th Cir. 1976); United States v. Hufford, 539 F. (2d) 32 (9th Cir. 1976); and the cases discussed in Tracking Katz: Beepers, Privacy, and the Fourth Amendment, 86 Yale L. J. 1461 (1977). A panel decision in the Fifth Circuit held that use o f the device, regardless of the method of installation, required a warrant (H olm es, supra). II. Applicable Legal Considerations Use of these techniques can raise Fourth Amendment issues, either because of the surveillance itself or the method o f installation. While the issue is not settled, the President can authorize warrantless electronic surveillance o f an agent of a foreign power, pursuant to his constitutional power to gather foreign intelligence. This Office has taken the position that the same constitutional power authorizes limited physical entries and seizures incident to installation of such devices. Office of Legal Counsel Memorandum for the Attorney General, “ Physical Intrusion for Foreign Intelligence Purposes,” August 19, 1975. The rationale o f that memorandum covers these surveillance techniques as well. It is our opinion that the President has the power to authorize the warrantless installation and use of these devices for the purpose o f gathering foreign intelligence (or counterintelligence) in a proper case, and that he can also authorize minimal trespasses or seizures incident to installation of the devices; however, invocation of that power must be explicit. III. Conclusion The President can constitutionally authorize use o f television surveillance and “ beepers” in certain narrow circumstances. He can also authorize those minimal “ technical trespasses” and seizures incident to installation of these devices. Jo h n M . H arm on Assistant Attorney General Office o f Legal Counsel 15