dropping aspect were dropped. "Listening to or recording faceto-face conversations rarely involves interference with an interstate federally regulated facility. Since eavesdropping has not been held to be an unconstitutional invasion of privacy and because it is performed, ordinarily, on a strictly local level, there may be a valid question as to whether or not this is an area where Congress is empowered to regulate State police activity," he commented.137 Others supported his view, including Mr. Gasperini, who voiced the belief of his committee that eavesdropping "should be dealt with and considered by the legislatures and the Governors of the 50 States. "'138 The practical aspects of treating the two practices separately were brought out by other witnesses who felt that the problems posed by wiretapping and other eavesdropping are different, because wiretapping is often capable of providing a greater dragnet and is subject to greater concealment than "bugging." 139 Among those who favored a comprehensive wiretapping and eavesdropping bill at the Federal level was Professor Westin, who felt that unless the law covers all means of overhearing all types of conversations, it may become obsolete in "breathtaking swiftness, and it would be an invitation to law enforcement officers to sidestep the law by employing new listening techniques." According to the Westin survey, States which had started off dealing with the problem of telephone tapping soon found it essential to move on to the area of microphoning as well because they couldn't cope with the problem of eavesdropping if they restricted their statutes to telephones alone. The police would simply shift over to the use of miniphone devices and other types of microphoning and recording equipment. Until they brought eavesdropping by microphones on room conversations, autos, and street conversations within their court order provisions, they faced a leakage in their control of eavesdropping.140 Describing New York experience with eavesdropping and wiretapping legislation, Anthony Savarese also urged that the two subjects be treated together, telling the subcommittee that failure to legislate on eavesdropping is "failure to recognize that this is even a more dangerous area than wiretapping." He endorsed the approach and standards of S. 1221, as well as the provisions of S. 1086. 141 Generally, law enforcement officials endorsed those provisions of S. 1221 which permitted wiretapping and eavesdropping in a wide range of crimes. Illinois State's Attorney Ward, however, was of the opinion that S. 1221 would be undesirable at this time. "Some of the objections which validly might be interposed to the proposed legislation would be that there appears to be no place of restriction concerning the eavesdropping which could be authorized by the act," he said.142 Many witnesses also registered specific objections to those provisions which would permit eavesdropping for 24 hours without court order and which would permit the use, in criminal and administrative proceedings, of evidence obtained illegally. In Id., p. 436. 133 Id., p. 176. 13 Id., p. 102. 140 Id., p. 198. 141 Id., p. 460. 10 Id., p. 399. The Department of Justice discouraged any immediate consideration of eavesdropping legislation. Commenting on S. 1221, Mr. Miller said: It is the considered opinion of the Department of Justice that this problem, although properly of concern to this subcommittee and to the Department as well, should not be allowed to dilute the concentration of effort upon the problem of wiretapping. We in the Department are studying the problem of eavesdropping and would suggest that until this area with all its ramifications is carefully explored, legislation should not be enacted. A few years' experience under a statute limited to wiretapping might furnish useful lessons. SUMMARY Since this report is designed primarily to acquaint Congress and the public with the basic facts and issues concerning wiretapping and eavesdropping, we have not attempted here to prescribe specific remedies for the solution of the practical and legal problems raised by these practices. Rather, we have outlined those areas which the subcommittee has found most troublesome and controversial, and have summarized expert and responsible opinion in each major area. In the course of hearings on the pending bills, the subcommittee has been told that some legislation appears necessary to clarify the present confusion in the law. The following alternatives have been suggested to amend the present law: (1) That some law enforcement interception be permitted under court order at both the State and Federal level, and all other interception prohibited; (2) That State law enforcement interception be permitted under court order if State statute so provides; and that State statutes regulate wire interception generally; (3) That all interception or divulgence of wire communications be expressly prohibited by statute; (4) That some Federal and State law enforcement interception be permitted under court order, and eavesdropping at the Federal level by other electronic devices be regulated under court order. At the other end of the spectrum, one body of opinion opposing wiretapping in any form maintains that there is no need for any legislation in this area. According to this view, the wording of the present law is sufficiently explicit to prohibit all wiretapping, and what is needed is more effective enforcement of the law by the Department of Justice. The subcommittee believes that it has been amply demonstrated that the importance of the telephone in every phase of national life has made the question of privacy of telephonic communications one of overriding national concern. Equally clear on the record are the broad discrepancies between the actual practice of wiretapping and the present wording of the Federal Communications Act and Federal and State court decisions construing the act. It is hoped that, through the foregoing summary of testimony, those concerned with preserving the integrity of our interstate wire communications system and assuring the individual's right to privacy and due process of law, may gain a better understanding of the legislative problems posed by wiretapping and eavesdropping. о 71 JUL 24 1962 MAIN READING ROOM PROBLEMS RAISED BY THE SOVIET OIL OFFENSIVE STUDY PREPARED FOR THE SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY LAWS OF THE COMMITTEE ON THE JUDICIARY 85430 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1962 PURCHASED THROUGH |