PART II

WIRETAPPING AND EAVESDROPPING LEGISLATION, 1961 INTRODUCTION

Four Senate bills designed to deal with some of the legal issues and practical problems presented by wiretapping and eavesdropping were introduced in the first session of the 87th Congress, and referred to the Subcommittee on Constitutional Rights. Two of the bills, S. 1086 and S. 1822, would permit State wiretapping under court order. Two of them, S. 1221 and S. 1495, would regulate Federal and State wiretapping under court order; and one, S. 1221, would control wiretapping as well as eavesdropping by other electronic devices under court order. Public hearings were conducted by the subcommittee on May 9, 10, 11, and 12, 1961, to consider this legislation and 19 witnesses appeared before the subcommittee. These included State law enforcement officers, attorneys at law, professors of law and government, as well as representatives of telephone companies, the Department of Justice, and various study groups. Eight other interested persons filed statements for the record of the hearings. Witnesses were:

TUESDAY, MAY 9, 1961

1. Samuel Dash, attorney, Philadelphia, Pa., former director of the Pennsylvania Bar Association's nationwide study on wiretapping and eavesdropping practices. Coauthor of the book, "Eavesdroppers.'

2. Edwin L. Gasperini, chairman, Committee on Federal Legislation, Association of the Bar of the City of New York, N.Y.

3. Daniel Gutman, dean, New York Law School, New York, N.Y.

4. John E. North, professor of law, Creighton University Law School, Omaha, Nebr.

5. Charles Reich, professor of law, Yale University Law School, New Haven, Conn.

6. Edward S. Silver, district attorney, Kings County, Brooklyn, NY.

WEDNESDAY, MAY 10, 1961

1. Robinson O. Everett, professor of law, Duke University, Durham, N.C.

2. W. Coles Hudgins, vice president, Mountain States Telephone & Telegraph Co., Denver, Colo.

3. Frank O'Connor, district attorney of Queens County, New York, N. Y.

4. Goodman A. Sarachan, chairman, Commission of Investigation, New York,

N.Y.

5. Alan F. Westin, professor of government, Columbia University, New York, N.Y.

THURSDAY, MAY 11, 1961

1. Frank S. Hogan, district attorney, New York County, New York, N.Y.

2. Mark Lane, assemblyman from New York, representing the Americans for Democratic Action.

3. Herbert J. Miller, Jr., Assistant Attorney General in charge of the Criminal Division, Department of Justice.

4. Herman Schwartz, attorney, New York City, representing the American Civil Liberties Union.

5. Daniel P. Ward, State's attorney, Cook County, Chicago, Ill.

6. Edward Bennett Williams, attorney, Washington, D.C.

FRIDAY, MAY 12, 1961

1. John B. Layton, inspector, Police Department, District of Columbia. 2. Anthony P. Savarese, Jr., chairman, New York State Joint Legislative Commit tee on Privacy of Communications and Licensure of Private Investigators, New York, N.Y.

Witnesses considering the pending bills were faced ultimately with the questions of whether wiretapping and eavesdropping, as a matter of policy, should be permitted or prohibited; whether, if permitted, State or Federal officers, or both, should be allowed to use these techniques, and under what controls; and whether and to what extent Federal law should set the standards for State action. The testimony heard by the subcommittee reflected many divergent and often conflicting views on the control of wiretapping and eavesdropping within a Federal system.

Not all witnesses who testified or filed statements were concerned with the same problems, and not all of them commented on every bill in detail. However, this report, attempts to present a cross section of the testimony received on each bill, and to highlight those areas in which particular interest was demonstrated.

SURVEY OF RECENT LAWS AND CASES INVOLVING WIRETAPPING AND EAVESDROPPING

STATE LEGISLATION

The results of an extensive nationwide survey of wiretapping and eavesdropping in the States were presented by Columbia University Professor of Government Alan Westin,' who brought up to date similar information which he supplied to the subcommittee in his 1958 testimony. This survey highlighted the following facts.

Between 1958 and 1961, 18 States have had wiretapping measures before their legislatures, and 5 States have enacted new laws, as follows:

1. Massachusetts authorized wiretapping and eavesdropping under court order system (1959).

2. Florida raised the penalty under its existing antiwiretapping statute (1959).

3. Oregon (1) extended its court order system to cover eavesdropping by electronic devices; (2) made disclosure of information obtained from wiretapping and eavesdropping a crime unless obtained by court order and used in State trials; and (3) made evidence obtained in violation of the statute inadmissible in State courts.

4. Maryland in 1958 struck out of its court order statute the authorization for wiretapping by police officials, leaving the power solely in the hands of the State's attorneys and the State attorney general. In addition, the State in 1959, placed eavesdropping under court order controls.

5. New York placed eavesdropping under court order, and also forbade the use of recorded conversations between persons held in custody and their attorneys, and excluded illegally obtained electronic eavesdropping from State civil proceedings.

In addition to these enactments, legislation was then being considered by legislatures in a number of States:

1 Hearings on Wiretapping and Eavesdropping Legislation, 1961, p. 195.

Part 2, Wiretapping, Eavesdropping and the Bill of Rights, p. 194. See, also, pt. I of this report.

1. In Michigan, one house of the State legislature passed a bill to ban the use in evidence of any recordings unless all participants to the conversation knew of the recording in advance and had consented.

2. In Wisconsin, the State senate had passed a bill excluding all evidence obtained by wiretapping.*

3. In Oregon, the house passed a bill relaxing eavesdropping provisions in narcotics investigations.

4. Bills to outlaw all wiretapping have been considered in Minnesota, Florida, and urged by a legislative committee in New Jersey.

5. Bills authorizing wiretapping under court order have been debated in Texas, Pennsylvania, Washington, and Connecticut. California and Illinois considered making an exception in narcotics investigations.

6. Massachusetts and New York have considered bills to exclude illegally obtained eavesdropping evidence from State criminal trials. Municipalities have wiretapping ordinances also. In Baltimore, the Baltimore County Council has enacted legislation requiring court order to use recording devices, and in Miami, wiretapping has been banned.

Legislative committees, like the Savarese committee in New York, the Regan committee in California, the Forbes committee in New Jersey, the Mandel committee in Maryland, have probed deeply into the way in which law enforcement officials are living up to the court order provisions or the ban provisions in the States, as well as the manner in which private persons who wiretap or eavesdrop are being pursued and prosecuted.3

FEDERAL CASES

At the Federal level, reported Professor Westin, U.S. attorneys have prosecuted private wiretappers quite vigorously in the late 1950's, but he could not report a case where they have prosecuted a law-enforcement officer. He cited a memorandum 5 sent to the subcommittee by the Department of Justice on August 8, 1960, describing 14 prosecutions for violation of section 605 of the Federal Communications Act, and he noted that there have been 4 more cases since that time. Three of these dealt with interception of police and fire department radio communications, but the third, United States v. Newton, involved the conviction of a Long Beach, Calif., private detective for wiretapping in a divorce case.

As an example of nonprosecution of law-enforcement officers, he cited the case of a Philadelphia, Pa., district attorney who tapped the

Hearings, 1961, p. 198.

• Id, p. 199.

Pt. 5, "Wiretapping, Eavesdropping, and the Bill of Rights," pp. 1675-1681. The cases described are: United States v. Gruber, 123 F. 2d 307, 1941; United States v. Casper J. Rotondo, Sr., et al., 1951 (S.D. Calif.); United States v. John A. Mounger, et al., 1954 (W.D. Texas); United States v. John Samuel Nuckolls and James Conrad Nuckolls, 1956 (D.C. Md.); United States v. Jack C. Massengale, 240 F. 2d 781 (C.A. 6), cert. den. 354 U.S. 909, 1956; United States v. Charles V. Gris, 247 F. 2d 860 (C.A. 2), 1956; United States v. Sidney J. Massicot, Robert Raymond Lirette and James F. Donnelly, 254 F. 2d 58 (C.A. 5) cert. den. 358 U.S. 816, 1956; United States v. J. Leslie Atkins, Jr., Harroll Stallings and Hubert E. Pennington, M.D.N. C. 1957; United States v. James Butler Elkins and Raymond Frederick Clark, 266 F. 2d 588 (C.A. 9), reversed October term 1959, Sup. Ct., June 27, 1960; United States v. Richard Lipinski (D. New Mexico), affirmed 251 F. 2d 53 (C.A. 10) 1958; United States v. Henry Buescher (S.D. Texas), 1958; United States v. Herschel Lee Songer (E.D. Arkansas) 1956; United States v. James R. Hoffa, Bernard Brennan and Bernard Spindel, 1958: United States v. Perry Bonner and Edward D. Spedden, Jr. (D. Md.) 1956.

In January 1962, the Department supplemented this list with summaries of 6 other cases involving interception of wire or radio communications in violation of sec. 605: These were U.S. v. Newton, (S.D. Cal.); U.S. v. Clark (N.D. Ga.); U.S. v. Hertz (D.E. Mich.); U.S. v. Hall, et al. (E.D. La.); U.S. v. Fuller (N.D. Cal.); U.S. v. Barnard, et al. (D.C. Ore.). 3 of these involved wiretapping of telephone and 3 of radio communications.

*Enacted, July 1961.

hotel telephone of labor organizers whom he had characterized as labor racketeers and hoodlums who were said to be in the city for the alleged purpose of taking over a restaurant union. The district attorney gave the tapes to Philadelphia newspapers, one of which published the transcripts. As a result, the city council, the Philadelphia Bar Association, and others demanded an investigation by the U.S. attorney, who found no grounds for prosecution under section 605. Professor Westin commented that this would have been "an ideal case for the Department of Justice to say 'Now, at least in this kind of situation, we are willing to move against police violators of section 605 as well.' "' 6

STATE CASES

There have been concrete prosecutions by the States in the enforcement of their laws, according to Professor Westin's survey. In addition, public opinion has influenced the outcome in some instances where there was no prosecution. He cited details of court cases and other reported instances involving wiretapping and eavesdropping by private individuals, law enforcement officers, and private detectives in California, Connecticut, the District of Columbia, Iowa, 10 Maryland," Minnesota,12 New Hampshire,13 New York,14 Oklahoma,15 Pennsylvania, and West Virginia.17

One case involved two policemen from Kings County, N.Y., who engaged in illegal wiretapping and were convicted in New York courts of conspiracy to wiretap, and given a year's suspended sentence.18 In California, a businessman filed a $10 million damage suit against the Pacific Telephone & Telegraph Co. for permitting Los Angeles Police to place what he called an illegal wiretap on his line.19 In an eavesdropping case in West Virginia, the State supreme court found that a tenant whose landlord put eavesdropping devices in her apartment had a right to privacy which could be protected by a civil suit for damages. Such a holding marks a new climate, the Professor indicated, different from that of previous years when courts refused to find a basis for a right of privacy in such suits.20

Another group of incidents reported in newspapers involved bugging of jails, and of places of custody at police headquarters, as well as the overhearing of conversations between lawyers and prisoners in custody in New Hampshire, California, New York, Connecticut, and Oklahoma, said Professor Westin.

All of the cases he cited illustrated Professor Westin's conclusions. that the States are now applying sanctions against police who engage in illegal wiretapping, that courts are beginning to use new wiretap control laws, and that the main incidents of official abuse which arose