What is the current state of the law on wiretapping under Section 2518 of the Terrorism Act?

5 We note that the federal courts are divided on this question. See United States v. Roberts, 477 F.2d 57 (7th Cir. 1973); United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194 (1973).

6 The court below held, and the Government argues here, that the statutory provision requiring that interceptions of communications be minimized (18 U.S.C. 2518(5)) was intended to limit only the hearing and not the recordation of conversations. Authority for this view is said to be found in the words of the statute itself. The statute defines "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. 2510(4). The statute also draws a distinction between interception and recordation in 2518(8)(a), which requires that the "contents of any ... communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device." Any recording made under this subsection is to be "done in such a way as will protect the recording from editing or other alterations." See United States v. Huss, 482 F.2d 38 (2d Cir. 1973).

Appellants respond that the statute was never intended to permit recordation of all conversations. Such a construction would, in their view, allow the Government or anyone else to legally create a tape library of the conversations of any citizen. If such reasoning were applied to the situation of a warrant covering tangible items, seizure of the contents of a whole house would be permissible, in their view, on the ground that to do so would prevent any destruction or disappearance of exculpatory evidence. Appellants contend that this question has been resolved in their favor by earlier cases (United States v. King, 335 F.Supp. 523 (S.D. Cal. 1971), rev'd on other grounds, 478 F.2d 494 (9th Cir. 1973); United States v. Leta, 332 F.Supp. 1357, 1360 n.4 (M.D.Pa. 1971)).

Appellants respond that the statute was never intended to permit recordation of all conversations. Such a construction would, in their view, allow the Government or anyone else to legally create a tape library of the conversations of any citizen. If such reasoning were applied to the situation of a warrant covering tangible items, seizure of the contents of a whole house would be permissible, in their view, on the ground that to do so would prevent any destruction or disappearance of exculpatory evidence. Appellants contend that this question has been resolved in their favor by earlier cases (United States v. King, 335 F.Supp. 523 (S.D. Cal. 1971), rev'd on other grounds, 478 F.2d 494 (9th Cir. 1973); United States v. Leta, 332 F.Supp. 1357, 1360 n.4 (M.D.Pa. 1971)).