buy on the open market, and he could proceed to record his own telephone conversations if he so desired.

That is so general that it is used all over the United States, both legally and illegally.

You may recall that when Winston Churchill addressed the House we made a tape recording of his speech, and he had just had some new teeth put in, and so the reporters missed some of it and asked if they could come up and hear the recording of the tape.

You may recall that he said:

I come not to ask you for money. I come to ask you for military aid. We English are putting out all we can towards this effort.

And so on and so forth.

Mr. Clark changed it around so that Mr. Churchill in very good voice and without any way of detecting it said:

I come here to ask you for money. The English do as they please. What we do with your money is our business.

So the reporters came in the room and started to take down this testimony, and continued taking it down with a straight face exactly as we had it on the tape. We stopped them after two or three minutes, because we knew they were busy. It just shows what can be done. And those people were right there in the chamber when that was said:

Now, this tape is one that was made with this induction coil and with this battery operated tape recorder. This is a common unit used by NBC, CBS, and all the radio stations. It is battery operated throughout, and it will run up to 30 minutes of continuous recording. All we did with this was simply plug it in.

This is the original altered telephone conversation. There are three separate conversations here.

(A demonstration followed of the altering of phone conversation recording.)

Wiretapping in Washington, of course, is a thriving industry. Some years ago a well-known columnist asked me to inspect his lines to see if his phone was tapped. Sure enough, down the block up on the pole there was a line running to a vacant house. We went to the real estate people, got the key, and there in the vacant house were pieces of wire, and some empty wire spools, where someone had been recording for an indefinite period. From the looks of the cigarette butts it looked like they had been there for weeks recording everything he received in his home phone telephone.

In that tape, there were no physical splices, because the tape that was edited was again recorded, so that you would have no means of determining whether that was accurate evidence, unless you had sufficient witnesses who were credible and could swear to it that they actually heard this conversation.

Senator WILEY. With all this scientific work that has been done, you mean there is no way to know that that second tape is a phony? Mr. COAR. That is right, sir.

Senator WILEY. There is no way to detect that whatever?

Mr. COAR. That is right, sir.

Senator WILEY. Then it all goes to the question of who is tapping the wire, the integrity of that fellow?

Mr. COAR. That is right.

Senator WILEY. Now, of course, you have indicated quite clearly that there are various ways of tapping, and if one were walking along the street with one of these instruments, he could pick up a conversation quite a few feet away, couldn't he?

Mr. COAR. If he had a live telephone wire adjacent to him. But where you run into a telephone cable with 600 wires involved in a lead-sheet cable, it is an impossibility to use this type of tap. There you have to go into a physical tap and find some termination point.

During the war, for example, it was common practice for the telephone company in their main frame, which is the distribution board where all of the lines in the city terminate in the various exchanges, that they would run in special lines on certain cases, involving foreign agents, where they would in turn route that line to some other destination so that it could be monitored. That was, of course, during the war. That practice is not normally used, however, in times of peace, where there is no emergency involved.

Senator WILEY. What I had in mind was that if it wasn't a question of tapping a wire, you have all these instruments which could be very well used, as I said, as we are talking here now. That would make it competent, because it isn't wiretapping. A person that is competent to read lips could testify. One could introduce a telegram. The only question here, it seems to me, is the method of making it competent. And then it goes to the question of the quality or integrity of the witness. But there is every way in the world to make a phony record.

Mr. COAR. That is correct; whether it is taken from a wire tap or from a microphone such as this. Any recorded conversation, regardless of how it is recorded, with the use of magnetic tape, as it is known today, can be altered, changed, and be entirely different than the original recorded conversation.

Senator WILEY. Well, someone has said that anyone who testifies in wiretapping should also subject themselves to one of these other tests.

Mr. COAR. A lie detector.

Senator WILEY. A lie detector. That goes again to the question of the correctness or ability of the lie detector to catch the fellow lying. But it seems that that would be a check, would it not?

Mr. COAR. I think so. I know about one of the cases that your upcoming witnesses will probably tell you about, the Frick family in New York. Under the law, they recorded that telephone conversation in evidence in the court, and a telephone was set up there to identify the man's voice. But at one end of the telephone, to tap the end of the conversation which was recorded-that was the Frick end of the case they had ample witnesses there who testified and swore to the fact that that was the voice, that it was recorded, that the records were sealed immediately upon the completion and were placed in the hands of a judge until the trial came up. So they had plenty of opportunity there to be assured of the fact that there were no changes made whatsoever in the testimony. But, of course, in normal wire tapping that is almost a physical impossibility.

Senator WILEY. Of course, in making this evidence competent, you have got this protection. You have got men who are really officers of the Government sworn to protect the Government, and so forth. That goes again to the character of the witness, and so forth.

Senator Welker, go ahead.

Senator WELKER. Mr. Coar, I am sorry. I will probably be repetitious. I know my distinguished chairman is an able cross-examiner, and he has probably covered all of these little points that I wanted to bring up.

Now, fundamentally, the wire tap or the recording that you have introduced here is no different than that of a dishonest witness who would bore a hole in this hearing room and tell a court that he heard us all say something which was a bald faced lie. Am I correct? Mr. COAR. That is correct.

Senator WELKER. It would seem to me, based upon your experience, the experience of this industry, that an innocent person would have the most complete defense in the world by having you people come in and show how a wiretap could be distorted and ruined as far as competent evidence is concerned.

Is that a fair conclusion?

Mr. COAR. I would assume so. It wouldn't seem to me that that would be probably the only defense that such a person could have.

Senator WELKER. Now, I would gather from the brief portion of the testimony that I heard here that you would favor a bill which would make it a crime for the private tapping of a wire.

Mr. COAR. Yes, I think that a normal citizen, not an espionage worker, or one who had been cited as such, certainly should have that protection. But such a law would be a most difficult thing to carry out or to enforce, because this equipment is generally available to the public.

You take some of these detective agencies, which have very little reputation and go into domestic cases and things of that sort. They are great buyers of this type of equipment.

As a matter of fact, it is a very lucrative field. There are several large organizations that make a specialty of handling nothing but this type of equipment for that purpose.

There is a court organization out in California that specializes and gets out catalogs and tells you how to tap wires.

Senator WELKER. That is very true. If it is a private conversation it is going to be rather hard to release in a court of law or release it in public without the man going to jail; isn't that right?

Mr. COAR. Under certain State laws.

Senator WELKER. We are speaking now of the proposed amendment or bill that might come out of this committee, that the chairman and all of us are thinking about. I agree with you that this would be hard to enforce. But I would like you to tell me any criminal statute that is easy to enforce if a man wants to be dishonest.

Now, I would like to ask you this question, Mr. Coar: With respect to the legalized bugs, which are perfectly competent in a court of law, is it possible to alter or change the wording of a conversation taken down by a bug which is hidden under your davenport or on the wall or any other place?

Mr. COAR. As long as it has been recorded, it can be altered.

Senator WELKER. Of course, you are very, very familiar with the famous case involving the great criminal lawyer, Clarence Darrow, whose room was bugged profoundly in the Alexandria Hotel in Los Angeles? And notwithstanding the fact that his first trial resulted in a mistrial or what is commonly known as a hung jury, the second

trial, in which Darrow defended himself with the help of the now greatest criminal attorney in the world, in my opinion, Jerry Giesler, at that time a very young man, resulted in acquittal for him. Because at that time I think the rule was, and it still is, that an honest man can take the stand before a jury, and a jury is going to sit there and weigh the testimony.

And in view of the fact that you people and people like you can come in and say that this is not positive evidence and can well be changed, altered, it would seem to me that that would be the best way in the world of winning a lawsuit.

Mr. COAR. Yes, if you could give a demonstration such as this to any jury, I would think that they would immediately question the veracity of the original evidence.

Senator WELKER. Absolutely. And then, of course, the prosecution would be required of necessity-and I believe my distinguished chairman will agree with me to bring on corroborating evidence to sustain the wiretap or the recording.

I have given some thought to this, and I am certain that you will not be an expert on this, but I am wondering what you think about this, that before this is permissible you must have something other than the recording device.

Mr. COAR. I would think that is the only fair way that such evidence should be used-with the original material impounded immediately upon its completion before anyone had a chance to do anything with it.

Senator WELKER. I have heard the chairman say, and it perhaps has been said to you, that this is dirty business, the tapping of telephone wires. But I have had a little bit of experience in prosecution and in defense work. I can't imagine anything any more dirty than boring a hole and peeking at you or looking through your window or, for instance, having Counsel Collins, who is adverse to the distinguished chairman and myself, tell a jury that he heard us say something which in fact he didn't hear us say. He was there committing perjury. In other words, in my opinion it goes to the rule of evidence. It goes to the weight of the testimony. And the jury should be the sole judge of that.

Will you agree with me on that?

Mr. COAR. Yes.

Senator WELKER. Well, I certainly thank you very much. I think this has been very valuable.

I want to make this observation: that in my experience in law, even though prosecutors have made it very hard for me to make a living, I never at any time distrusted them. I felt that they took an oath as lawyers the same as I did. I felt that they took an oath the same as the Attorney General. And I felt that they took an oath the same as a judge, who, many people say, should permit this wiretapping before it should become competent and legal.

I just can't imagine any prosecutor wanting to send an innocent person to the penitentiary. I just don't believe that is possible. It might happen, but it hasn't happened in my brief experience. I have no other questions, Mr. Chairman.

Senator WILEY. Any questions? Thank you very much.

Hon. Theodore Pearson, chairman, Committee on Federal Legislation, Association of the Bar of the City of New York.

Do you have a statement, sir, that you want to submit?

STATEMENT OF THEODORE PEARSON, CHAIRMAN, COMMITTEE ON FEDERAL LEGISLATION, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

Mr. PEARSON. Yes, Mr. Chairman.

Senator WILEY. Carry on in your own way.

Mr. PEARSON. My name is Theodore Pearson, 70 Broadway, New York City.

Mr. Chairman and Senator Welker: I wish to thank you very much for affording us this opportunity to testify before your subcommittee, on this important subject of wiretapping legislation.

I am the chairman of the Committee on Federal Legislation of the Association of the Bar of the City of New York. After extended study, our committee has prepared a "Report on Pending Wiretap Bills" dated May 3, 1954, a copy of which I now submit to you. I shall not take your time to read the report in full, with its footnotes and appended separate reports. I therefore ask permission that the report be included in the record of these hearings.

(The report referred to is as follows:)

REPORT ON PENDING WIRETAP BILLS BY THE COMMITTEE ON FEDERAL LEGISLATION, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

The House of Representatives on April 8, 1954, passed by 379 to 10 what was variously characterized as a "wiretap" or "antitraitor" bill, and a subcommittee of the Senate Judiciary Committee on April 20 began hearings on this bill and others introduced in the Senate,' starting with a recommendation for legislation by Attorney General Brownell. The subject provokes sharp differences of opinion and involves sharply conflicting considerations of policy. As President Roosevelt said, in recommending wiretapping in cases of espionage, sabotage, kidnapping, and extortion:

"The use of wiretapping to aid law-enforcement officers raises squarely the most delicate problem in democratic statesmanship. It is more than desirable, it is necessary that criminals be detected and prosecuted as diligently as possible. It is most necessary that citizens of a democracy be protected in their rights of privacy from unwarranted snooping. *** Somewhere between these two conflicting ideals we must find balance. *** We will not perceive perfection because it does not exist." 3

For the reasons discussed in this report,* our committee considers the House bill as having a basically inadequate objective though representing constructive accomplishments, and endorses the approach taken by S. 3229 introduced by Senator McCarran. On the two most important issues raised between these bills, the position of our committee is that (1) the Attorney General should be authorized to wiretap in the specified areas provided prior court approval is obtained upon a showing of reasonable grounds therefor, and (2) all other wiretapping should be prohibited in clear, enforcible terms. We favor the enactment of the McCarran bill to accomplish these two important objectives, although we believe that improvements in its lesser aspects are desirable.

For other individual views see footnote 27.

1 S. 3229 (McCarran), discussed in this report; S. 832 (Wiley), which is along the lines of H. R. 477 discussed in note 15 below; S. 2753 (Potter), which amends section 605 of the Communications Act of 1934 to make it inapplicable to past or future interceptions for the purpose of prosecution for national-security crimes.

2 The material and literature are extensive. See annotations to Alan F. Westin, The Wiretapping Problem: An Analysis and a Legislative Proposal, 52 Col. L. Rev, 165 (1952); comment, 52 Mich. L. Rev. 430 (1954): Margaret Lybolt Rosenzweig. The Law of Wiretapping (study prepared for the New York State Bar Association), 32 Corn. L. Q. 514, 33 id. 73 (1947).

Letter to Representative Elliot, February 21, 1945.

Our committee rendered a report dated May 31, 1951, on various wiretap bills then pending in the House. Following the House Judiciary Subcommittee hearings last year (see note 15 below) our committee undertook a fresh study of the subject, in which it has had the benefit of a preliminary study made prior to the hearings by the association's committee on law reform.