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MONITORING CONVERSATIONS

DAO 207-9: MONITORING CONVERSATIONS
Number: DAO 207-9
Effective Date: 2008-03-10

SECTION 1. PURPOSE.

The purpose of this Order is to update the policy of the Department of Commerce (the Department) prohibiting the use of electronic or mechanical devices to secretly monitor conversations. This revision updates the Order with current guidance issued by the Attorney General, incorporates a previous amendment, and permits Department law enforcement officers to participate in monitoring conversations during the course of their law enforcement activities.

SECTION 2. POLICY.

Except as provided in Section 4 of this Order, under no circumstances shall a Department officer or employee in the course of his official duties use electronic or mechanical devices secretly to overhear, transmit or record telephonic and oral non-telephonic communications. In keeping with this policy, the Department shall not own, lease, or otherwise have possession of, and it is further forbidden for any officer or employee of this Department to have in his possession or under his control at any time in connection with his official duties, any device or equipment designed or commonly utilized for secret monitoring, transmission or recording of conversations, except as provided in Section 4 of this Order.

SECTION 3. MONITORING BY ANOTHER AGENCY.

.01 Permission for consensual monitoring (as defined in the Attorney General's memorandum of January 20, 1998, as updated and modified by the Attorney General’s memorandum of May 30, 2002) of conversations on premises occupied by the Department or any component thereof will be granted to personnel of another department or agency only in connection with investigations for the purpose of gathering evidence of violations of federal law or cases involving national security.

.02 If, in connection with any investigation involving the gathering of evidence of violations of federal law or a case involving national security, an agency conducting such investigations wishes to engage in consensual monitoring of conversations on premises occupied by the Department or any component thereof, such requests shall promptly be referred to the Secretary or, in his absence, to the Deputy Secretary.

.03 Permission for consensual monitoring pursuant to this section will be granted only by the Secretary (or the Deputy Secretary), in consultation with the Chief Financial Officer and Assistant Secretary for Administration and the General Counsel, and without substitution or delegation of this authority, only if (a) authority for such activity is provided in the Attorney General's memorandum of January 20, 1998, as updated and modified by the Attorney General’s memorandum of May 30, 2002, and (b) such permission is essential to the effective conduct of the relevant investigation.

.04 Liaison in such matters shall be performed by the Director of the Department's Office of Security. A copy of the Attorney General's most current guidelines on consensual monitoring shall be available for reference in that Office.

SECTION 4. EXCEPTIONS TO POLICY FOR DEPARTMENTAL UNITS.

.01 In lieu of a reporter or secretary taking verbatim transcriptions or notes of conferences or meetings, conventional conference recording equipment may be utilized, provided that advance notice is given to and approval obtained from the participants in the conference or meeting.

.02 The prohibitions of this Order shall be inapplicable to bona fide scientific or technical research and radio frequency management activities authorized by the head of the operating unit involved, conducted pursuant to and in accordance with applicable federal laws and regulations, but only to the extent that monitoring of conversations is merely incidental to the primary purpose of the activity.

.03 The prohibitions of this Order shall be inapplicable to monitoring conducted in the course of bona fide law enforcement activities of the Department’s various law enforcement offices, to wit: the Office of Security; Office of Export Enforcement, Bureau of Industry and Security; the Office of Law Enforcement, National Marine Fisheries Service, National Oceanic and Atmospheric Administration; and the Office of Inspector General, as long as the activities that would otherwise be prohibited by this Order are specifically authorized by the head of the operating unit (as defined in DOO 1-1, “Mission and Organization of the Department of Commerce”) for the office engaged in such activities, with the concurrence of the appropriate legal counsel, and are conducted pursuant to and in accordance with all applicable federal laws, regulations, and Attorney General Guidelines.

SECTION 5. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 207-9, dated November 2, 1973, as amended.

Signed by: Secretary of Commerce

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Office of Privacy and Open Government
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U.S. Department of Commerce

 

Page last updated:February 4, 2010