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Proponents of the use of electronic eavesdropping contend that while there are valid objections concerning the individual's rights, countervailing societal interests must be taken into account. Initially the inadequacies of more orthodox police techniques to satisfy the needs of efficient administration of justice with respect to highly secretive, conspiratorial crimes and espionage 17 must be considered. It is argued that electronic eavesdropping is warranted in at least some cases to give the police an adequate tool to combat sophisticated organized crime. These crimes are generally conspiratorial with a hierarchy of participants; the leaders never actually participate in the crimes committed, and it is difficult to gather incriminating evidence without electronic eavesdropping.18 Further justification is based upon the oft cited contention that without wiretapping New York would never have convicted James "Jimmy" Hines, John Paul Carbo, Charles “Lucky” Luciano, and Anthony Carfano, all important members of organized crime. 19

Another argument with respect to the inadequacy of orthodox police methods is based upon the fact that the conspirators often communicate without meeting together. Robert Kennedy, when Attorney General, testified before the Senate Judiciary Committee that the Cosa Nostra, for example, uses the telephone extensively and that the Apalachin (New York) type of meeting is a rare occurrence.20 Moreover, informers courageous enough to testify in open court are extemely rare.21 To these factors are attributed the Cosa Nostra's success in avoiding prosecution, and these same factors are used as supportive evidence by proponents of legalized eavesdropping when referring to the need of the police to use electronic devices. 22

The authors believe that, in light of the serious constitutional objections which have been raised and the competing social needs, the use of electronic eavesdropping can be condoned only where ordinary police techniques have failed.23 In the areas of organized crime and espionage directed by a foreign government the threat is serious enough and ordinary police methods inadequate enough to countenance the use of electronic eavesdropping. Only in these two areas is a balance between individual rights and investigatory leeway reached and a statute shou be passed to codify this balance, providing for limited electronic, surveillance.

II

THE HISTORICAL DEVELOPMENT OF WIRETAP POLICY

In spite of historically separate treatment by the Court, wiretapping and electronic eavesdropping are basically similar in nature. This is demonstrated by the Court's recent failure to distinguish between the two in Berger v. New York 24 and Katz v. United States.25 Wiretapping, subject to the same constitutional limitations as other forms of electronic eavesdropping, is, in addition,

17 Brown, The Great Wiretapping Debate and the Crisis in_ Law Enforcement, at N.Y.L.F. 265, 273 (1960); Brown & Peer, The Wiretapping Entanglement: How to Strengthen Law Enforcement and Preserve Privacy, 44 Cornell L.Q. 175

(1959); Lumbard. The Lawyers' Responsibility for Due Process and Law Enforcement, 12

Syracuse L. Rev. 431, 441 (1961); Lumbard, Wiretapping and Senate Bill 675, 5 Am. Crim. L.Q. 130 (1967), Silver, The Wiretapping-Eavesdropping Problem: A Prosecutor's View, 44 Minn. L. Rev. 835, 848-49 (1960) ; Comment, A Federal Wiretap Law-Needed Weapon Against Organized Crime, 13 DePaul L. Rev. 98, 109-10 (1963); Note, Electronic Surveillance and the Right of Privacy, 27 Mont. L. Rev. 173, 175-76' (1966).

18 President's Commission on Law Enforcement and Administration of Justice, supra note 12, at 92.

19 Hearings on S. 1086 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 1st Sess. 432 (1961); see Berger v. New York, 388 U.S. 41, 61-62 ,(1967); Aspen, Court-Ordered Wiretapping: An Experiment in Illinois, 15 DePaul L. Rev. 15, 18-19 (1965); Comment, A Federal Wiretap LawNeeded' Weapon Against Organized Crime, 13 DePaul L. Rev. 98, 101 n.6 (1963).

20 Hearings on S. 2813 & S. 1495 Before the Senate Comm. on the Judiciary 87th Cong., 2d Sess. 12 (1962).

A Hearings pursuant to S. Res. 39 on Invasions of Privacy (Government Agencies) Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess., pt. 3, at 1158 (1965).

22 See Brown, supra note 17, at 281-82; Lumbard, The Lawyers' Responsibility for Due Process and Law Enforcement, 12 Syracuse L. Rev. 431, 436 (1961) ; Comment, supra note 19, at 98.

23 See Comment, Eavesdropping, Informers and the Right of Privacy: A Judicial Tightrope, 52 Cornell L.Q. 975, 976-80 (1967).

24 388 U.S. 41 (1967). 25 389 U.S. 347 (1967).

33

limited by statute. Section 605 of the Federal Communications Act of 1934 26 prohibits the interception and public divulgence of the contents of any wire communication or its interception for personal benefit. The Department of Justice has contended that this section requires both interception and divulgence to invoke the statute, therefore, taps for investigative purposes, not used as evidence, are legal.27 The Court, however, has not accepted this interpretation.28

Other forms of electronic eavesdropping are not prohibited by statute and are subject only to the constitutional limitations imposed by judicial decisions. Until 1967 an exclusionary rule was applied only to electronic surveilliance accomplished by means of trespass of a constitutionally protected area.29 Consent of one of the parties obviated the problem, 30 and interception without a trespass was permissible.31 The Supreme Court's decisions in Berger and Katz changed the basic tenor of the law in this area. In Berger, the Court held unconstitutional a New York statute providing for the issuance of eavesdropping warrants and an investigation held thereunder, outlining the standards a “constitutional" state or federal eavesdropping statute must meet.32 The Court held that authorization to eavesdrop be issued only upon probable cause to believe that a specific crime has been or is being committed; that the conversations to be seized be particularly described ; that the authorization be of short duration; that the authorization terminate once the conversation sought is seized ; that there be a "showing of exigency in order to avoid notice"; and that there be a mandatory return on the warrant.

In Katz, the Court finally discarded the formalistic test based on a technical trespass of a constitutionally protected area and analyzed the problem as a general invasion of privacy question, although they were careful to disclaim any use of the fourth amendment to establish a more general constitutional right to privacy. The search in this case was held unconstitutional because the government agents :

were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled during the conduct of the search itself to observe precise limits established in advance by a specific court order nor were they directed after the search had been completed to notify the authorizing

magistrate in detail of all that had been seized.34 The Court, in holding that no eavesdrop could conceivably come within any of the exceptions to the rule requiring a search warrant, has defeated any argument that legal eavesdropping might be necessary without prior judicial authorization because of some last minute tip, at least in those cases to which the Court was addressing itself.35

The present state of federal administrative policy on electronic eavesdropping is definitive. Congressional hearings of the early 1960's disclosed widespread government agency use of electronic eavesdropping. Following this, President Johnson issued a directive ordering all federal agencies to cease wiretapping.36 Finally, in 1967 Attorney General Ramsey Clark issued a memorandum essentially ordering the cessation of wiretapping and electronic eavesdropping without his authority. Clark's memorandum provided that:

26 47 U.S.C. 8 605 (1964).

27 See Katzenbach, An Approach to the Problems of Wiretapping, 32 F.R.D. 107 (1963). See also Swire, Eavesdropping and Electronic Surveillance: An Approach for a State Legislature, 4 Harve. J. Legis. 23 24-27 (1966).

28 Orfield, Wiretapping in Federal Criminal Cases, 42 Texas L. Rev. 983, 992 (1964). 29 E.g., Berger v. New York, 388 U.S. 41 (1967) ; Lopez v. United States, 373 U.S. 427 (1963) ; Silverman v. United States, 365 U.S. 505 (1961). See generally Gasque Wiretapping a History of Federal Legislation and Supreme Court Decisions, 15 S.C.L. Rev. 593 (1963).

30 Osborn v. United States, 385 U.S. 323 (1966); Lopez v. United States, 373 U.S. 427 (1967) ; On Lee v. United States, 343 U.S. 747 (1952).

31 E.g., Goldman v. United States, 316 U.S. 129 (1942) ; Olmstead v. United States, 277 U.S. 438 (1928).

33 Berger v. New York, 388 U.S. 41 (1967). This article does not deal with the related problem of secret agents which differs with respect to overt deception, encouragement, and solicitation. For an excellent discussion of this problem see Note, Judicial Control of Secret Agents, 76 Yale L.J. 994 (1967).

33 Berger v. New York, 388 U.S. 31 (1967).
84 Katz v. United States, 389 U.S. 347, 356 (1967).
85 Id. at 358 n.23.

38 See Hearings on s. 928 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 33 (1967).

It is essential that all agencies having any responsibility for law enforcement take steps to make certain that electronic and related devices designed to intercept, overhear, or record private verbal communications be subject to tight administrative control to assure that they will not be used in the manner in which it is illegal and that even legal use of such devices will be strictly controlled ..

Section 605 of the Communications Act .. prohibits the interception and divulgence or use of telephone communications and is applicable to federal law enforcement agents ..

Interception by federal personnel of telephone conversations by any mechanical or electronic devices unless with the consent of one of the parties to the conversation is prohibited by presidential directive and this prohibition applies whether or not information which may be acquired through interception is intended to be used in any way or to be subsequently divulged outside the agency involved ..

Any use of mechanical or electronic devices by federal personnel to overhear or record nontelephone conversations involving a violation of the Constitution or a statute is prohibited.

Agencies shall, except as provided . . . below obtain advance written approval from the Attorney General for any use of mechanical or electronic devices to overhear, record nontelephone conversations without the

consent of all the parties to such conversations.37 The only exception to this thorough-going federal policy, which regularly goes unquestioned, is for "national security" cases. With respect to this exception the memorandum states : [T]he foregoing rules have been formulated with respect to all agency in

vestigations other than investigations directly related to the protection of the national security. Special problems arising with respect to the use of devices of the type referred to herein in national security investigations shall continue to be taken up directly with the Attorney General in the

light of existing stringent restrictions.38 To fully understand the consequences of this "national security” justification —which derives no basis from the language of section 605—and to understand the statute proposed herein, an intensive review of the congressional history and administrative practice concerning electronic eavesdropping during the past thirty years is necessary. Throughout this period the law remained unchanged; all wiretapping violated the absolute ban of section 605 of the Federal Communications Act of 1934, and all other electronic eavesdropping which resulted in a trespass of a constitutionally protected area was prohibited.

Prior to the 1940's the justification for wiretapping was based primarily upon domestic issues—the need to detect kidnappers, extortionists, and to curb the illegal activities of organized crime. After 1940 the rationale shifted, emphasizing international issues—the justification was the need to protect the "national security.” This new rationale, advanced both within the executive branch and before Congress, presumably sought well-defined and limited grants of authority to protect the nation against foreign subversion.39 In fact, as opposed to this rhetoric, the procedures were vaguely defined and the actual resort to illegal wiretapping was extensive. The role of the Department of Justice in this sphere was one of serious abuse; perhaps since the Department's concern was primarily with effective prosecution rather the protection of individual rights. The situation became complicated as section 605 was ignored and presidential directives were issued removing effective restraints on federal power and authority ostensibly for “national security” and hence political rea

sons.

The most important events which contributed to this changed rationale, derived from the political context, were World War II and the Cold War. World War II provided an event of specific and limited duration that was

37 N.Y. Times, July 7, 1967, at col. 2-3. 38 Id. col. 6.

39 See, e.g., Letter from Attorney General Clark_to President Truman, 'July 17, 1946, on_file in Truman Library, Stephen Speingarn Papers (executive branch ràtionale); N.Y. Times, Jan. 15, 1949, at 1, col. 8 (Justice Dep't rationale to Congress).

used to justify extensive wiretapping by federal agencies.40 Far more significant with respect to more recent unauthorized wiretapping, however, was the nature and scope of the Cold War. The deterioration of United States-Soviet relations and the resultant concern over domestic subversive activites allegedly legitimized drastic new procedures. In 1947, a permanent loyalty program was instituted.41 The formerly temporary wartime restrictions became an endemic part of American politics, redefining priorities and increasing concern over measures that presumed to protect the national security.

This changed political atmosphere is reflected most dramatically in the position adopted by the Department of Justice.42 Prior to 1950, the Department sought to conceal its wiretapping activities, to deny in specific circumstances allegations that agents of the Federal Bureau of Investigation (FBI) had resorted to illegal wiretapping, or to deny that wiretapping was in violation of existing laws. After 1950, Department spokesmen openly admitted that wiretapping was an established practice and demanded that this action be legailized.43 The sense of embarrassment and apology that characterized earlier reluctant admissions that FBI agents had wiretapped was not characteristic of the post-1950 period.44

A formal shift in rationale occurred in 1940 with a joint effort by the Justice Department and Congress to legalize wiretapping in "national defense" cases. Congressman Emanuel Celler (Democrat, New York) introduced a bill in 1940 which would have amended section 605 to permit the FBI to wiretap, subject to approval of the Attorney General. This law would have made the information so obtained admissible as evidence in cases involving interference or attempts to interfere with the national defense by sabotage, espionage, conspiracy, violation of the neutrality laws or "in any other manner." 45 The formal shift in Department rationale was expressed in a letter by Attorney General Jackson, dated May 31, 1940, to Congressman Celler affirming the need for legislation legalizing wiretapping.46 Jackson wrote: In a statement made by me to press on March 15, 1940, the following observations are found on this general subject :

"In a limited class of cases, such as kidnapping, extortion, and racketeering, where the telephone is the usual means of conveying threats and information, it is the opinion of the present Attorney General as it was of Attorney General Mitchell that wiretapping should be authorized under some appropriate safeguard. Under the existing state of the law and decisions, this cannot be done unless the Congress sees fit to modify the exist

ing statutes." 47 The philosophy underlying the foregoing remarks, which were directed to the activities of the underworld, would seem applicable with even greater force to the activities of persons engaged in espionage, sabatotage, and other activities interfering with the national defense. This broad request to weaken section 605's absolute ban on wiretapping encountered studied opposition in 1940 from liberals concerned with the possible ramifications for civil liberties, the labor movement and political activism.48 Because the United States was not then formally involved in World War II, and indeed the general public mood was one of opposition to formal involvement, the national defense argument carried less weight.

40 The outbreak of the wår, even before U.S. involvement, had caused administration and congressional concern over subversion. The anti-national role of fascist and communist parties in Czechoslovakia, Austria, and France contributed to this sense of urgency; the war provided a specific time limit for effective action. For a discussion of the wartime loyalty program see E. Bontecou, The Federal Loyalty-Security Program 6-21 (1953). Congressional antipathy to wiretapping was reflected in the tone of the Hearings pursuant to S. Res. 224 on Investigation of Alleged Wiretapping Before a Subcomm. of the Senate Comm. on Interstate Commerce, 76th Cong., 3d Sess. (1940).

41 The Federal Employees Loyalty Program was instituted by President Truman in March, 1947. See Exec. Order No. 9835, 3 C.F.R. 129 (Supp. 1947).

42 N.Y. Times, April 1, 1949, at 48, col. 7; id., Dec. 1, 1949, at 28, col. 3; id., Feb. 2, 1950, at 14, col. 3; id., April 16, 1950, S 6 (Magazine), at 9; Justice Dep't Press Release, Jan. 8, 1950, on file in Justice Dep't Library.

43 N.Y. Times, Nov. 18, 1953, at 20, col. 2; id., April 3, 1954, at 7, col. 1 ; id., April 7, 1954, at 20, col. 3; id., April 24, 1954, at 1, col. 7; id. at '12, col. 7; id., Feb. 25, 1955, at 1, coí. 3; id. at 13, col. 4 ; id., March 24, 1955, at 22, col. 3; id., May 19, 1958, at 22, col. 3.

44 N.Y. Times, Feb. 25, 1955, at 1, col. 3; id. at 13, col. 4; id., April 21, 1954, at 18, col. 1. 45 H.R. Rep. No. 2574, 76th Cong., 3d Sess. (1940). 46 Id, at 3.

47 Id.

93-045—73-11

Simultaneously with this House effort, the Subcommittee of the Senate Committee on Interstate Commerce held formal hearings, from May 21, 1940 through February 15, 1941, to investigate previous wiretapping practices and to determine whether further legislative safeguards were needed.49 These hearings reflected concern that despite the prohibitions of section 605 of the Federal Communications Act of 1934, government agencies had used wiretapping to investigate the political activities and beliefs of public employees and private citizens. The Senate Report expressed the Committee's concern that these abuses would be repeated and a fear that police agencies were unlikely to abide by prohibitions on wiretapping. 50

These differing priorities and fears precluded congressional enactment of permissive wiretapping legislation. Resort to wiretapping was thereby stymied. Nonetheless, President Roosevelt did issue an executive directive permittpng wiretapping in limited cases involving the “national defense." 51 The effect of this directive was to establish presidential responsibility for the use of illegal wiretapping. Surveillance was permitted based upon the premise that section 605 and Supreme Court decisions in Nardone v. United States,52 and Weiss o United States,53 only prohibited divulgence but not the actual interception. President Roosevelt, principally concerned with developments in Europe, however, sought to allow restricted use of illegal wiretapping. His directive of May 21, 1940 stipulated that:

I have agreed with the broad purpose of the Supreme Court decision relat-
ing to wire-tapping in investigations. The Court is undoubtedly sound both
in regard to the use of evidence secured over tapped wires in the prosecu-
tion of citizens in criminal cases; and it is also right in its opinion that
under ordinary and normal circumstances wire-tapping by Government
agents should not be carried out for the excellent reason that it is almost
bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any
dictum in the particular case which it decided to apply to grave matters
involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged
in the organization of propaganda of so-called "fifth columns" in other
countries and in preparation for sabotage, as well as in active sabotage.
It is too late to do anything about it after sabotage, assassinations and
“fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may
approve, after investigations of the need in each case, to authorize the
necessary investigating agents that they are at liberty to secure informa-
tion by listening devices direct to the conversation or other communica-
tions of persons suspected of subversive activities against the Government
of the United States, including suspected spies. You are requested further-
more to limit these investigations so conducted to a minimum and to limit
them insofar as possible to alien 8.54

concern

48 For a general sense of this

see Hearings pusruant to Res. 224 on Investigation of Alleged Wiretapping Before a Subcomm. of the Senate Comm. on Inter. state. Commerce, 76th Cong., 3d Sess. (1940). Of major concern was whether resort to wiretapping 'by federal, state, and local authorities had partisan or anti-union objectives. These concerns were directly expressed in the Committee Report in justifying the resolution that the 1940 hearings be held. S. Rep. No. 1304, 76th Cong., 3d Sess. (1940).

49 See note 48 supra.
50 S. Rep. No. 1304, 76th Cong., 3d Sess. (1940).

51 Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940, on file in Truman Library, Stephen Speingarn Papers.

62 308 U.S. 338 (1939).
53 308 U.S. 321 (1939).

54 Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940, on file in Truman Library, Stephen Speingarn Papers (emphasis added). The final sentence was subsequently deleted by Attorney General Clark when citing Roosevelt's directive as basic rationale for his suggested new directive.

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