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More Bugs Under Reagan WHILE POLICE wiretapping has been gaining acceptance in Texas, federal agents have been making more and more use of their wiretapping authority under the Reagan administration. Wiretapping had declined under the Carter administration so that by 1980 there were only 81 court orders given out to authorize a federal wiretap. But under the Reagan years the number of court orders has increased to 106 in 1981, 130 in 1982, 208 in 1983, and 289 in 1984, according to the administrative office of the U.S. Courts. A court order is given to authorize use of the devices in connection with an investigation, and it may result in thousands of conversations and hundreds of people being monitored under each order. Congress permitted the use of court-authorized police wiretaps and bugs with the Omnibus Crime Control and Safe Streets Act in 1968. The Act also gave states the right to enact their own wiretap laws as long as they were not more lax than the federal standard. Texas approved police wiretapping in 1981 for narcotics investigations only. Twenty-seven states have given their police some form of wiretapping authority. Congress also permitted the use of wiretaps for national security under the Foreign Intelligence Surveillance Act of 1978. The number of these taps has also been increasing under the Reagan administration, jumping from 433 in 1981, to 475 in 1982, to 549 in 1983. These orders allow the CIA, the FBI, and the. Defense Department to spy on “agents of foreign powers” within the United States. -S Although wiretap orders are going up, they are resu in fewer criminal convictions, proportionally, than before. In 1984, the national conviction rate dropped ba .4.,,,… 30 percent for the first time. In four ye4rs in Texas t’ have been 57 convictions out of 175 arrests a 33 pe conviction rate. One reason conviction rates are going down, acco to Alexander Stifle in the April 22, 1985 National Journal, is that defense lawyers have been deve, strategies that have been overcoming the evidence electronic surveillance. Stifle reports that “sole practitioner Emphraim Margo of San Francisco has become something of a folk hero among his peers for moving to dismiss a case because of what he believed was an unmanageable amount of evidence.” Margolin was presented by the government with 7,500 hours of tape, which by his calculations would have required 13 years to prepare his case. The government later reduced the amount of tapes to 1,300 hours, but a U.S. District Judge ordered the government to provide complete transcripts. Another problem, according to. Stille, is that -because of the rapid advances made in the computerized processing of sound, it is becoming much easier to doctor tapes. . It is much easier to falsify a tape than to detect it,’ says Professor [Mark] Weiss [of the City University of New York], adding that the possibility of doctoring tapes ‘is certainly increasing with the advent of digital technology, to the point where you can do editing that is intrinsically undetectable.’ “As the sophistication of the technology goes up, the level of certainty goes down,” another source told Stille. D. D. After several more huddles, the senators, with the urging of Lt. Gov. Bill Hobby, agreed on compromise language restricting covert entry. Shortly before midnight, Hobby gaveled a swift end to the day’s business, with Washington’s new amendment still pending. WASHINGTON’S twelve-hour filibuster did not eliminate DPS covert entry authority from the law, but it added some legal restrictions. Under the amendment DPS must now show a court that other investigative techniques have been used first and that covert entry is a last resort. It also prohibits covert entry into a residence “solely for the purpose of intercepting a wire communication” in other words it is to be used for “bugs” but not phone taps. The amendment passed on May 16, the day after the filibuster, as did Sen. Bob Glasgow’s amendment designed to add safeguards to the wiretap law by restricting pen registers. Pen registers are the tricky little devices that are often portrayed by DPS as innocuous gadgets that, merely record what numbers a suspect’s phone is contacting. Glasgow has maintained since the 1981 debate that a pen register is a serious invasion of privacy and should be covered under similar provisions as wiretaps. Glasgow and others were under the impression that pen registers were covered in the 1981 act, and were miffed when DPS informed them after the law passed that they did not consider this to be the case. In the 1983 session of the legislature the Senate passed a pen register bill, but it died in the House. THE FOURTH AMENDMENT to the U.S. Constitution The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The pen register debate is no technocratic quibble. Many of the pen registers that DPS uses can be converted to wiretaps with the turn of a key \(although the keys are said to be restricted a makeshift wiretap by clipping the wires to a headset and listening in. In this instance there is no way to know whether an unauthorized eavesdropping has taken place. Glasgow’s amendment, of course, had no way of dealing with such contingencies, short of banning the use of pen registers altogether. The tack that was taken, instead, was to require court approval for the use of pen registers. This is similar to the restrictions placed on wiretapping but, in several important respects, less stringent. For one thing, there are only nine state judges authorized to approve wiretaps, –but the pen register applications can go to any state district judge in the jurisdiction where the investigation is being conducted. This was Sen. Glasgow’s intent, but both Sen. Washington, and Sen. Mauzy as well as Sen. Howard told the Observer the day after the bill passed that they had understood that pen registers would have to be approved by the same nine district judges that approve wiretaps. As the amendment reads, the pen register can also be used to obtain “information [that is] material to the investigation of a criminal offense.” This means that a judge only needs 4 MAY 31, 1985 47,