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of evidence of the commission of particular specified crimes relating to the national security. The Attorney General may authorize application for a wiretapping order whenever he has reason to believe that evidence of the commission of any crime punishable under certain named statutes “may be obtained through the interception of any wire communication."
The Attorney General has expressed a desire to have enacted a bill which would permit the use of all evidence obtained upon his express written approval during the course of an investigation into any of the mentioned crimes affecting national security without the requirement of a court order.
II. PRESENT LAW AND DECISIONS GOVERNING WIRETAPPING
A. Under the pertinent decisions of the United States Supreme Court, wiretapping is constitutional, but the use of material so obtained is prohibited by statute. Olmstead v. United States (277 U. S. 438, 72 L. Ed. 944 (1927)) concerned a conviction for violation of the national prohibition act based on evidence obtained by transcribing tapped telephone conversations. Seven hundred and seventy-five typewritten pages of such conversations were in the record. In holding that neither the fourth (unreasonable search and seizure) nor the fifth (due process, compulsory self-incrimination) amendment was violated. Chief Justice Taft said:
“There is no room in the present case for applying the fifth amendment unless the fourth amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the fourth amendment." He distinguished Gouled v. United States (255 U: S. 298), which held inadmissible papers taken by an Army private in the course of an apparently social call, and language of Mr. Justice Field in Ex Parte Jackson (96 U. S. 727) saying that the fourth amendment protected sealed letters and packages in the mail. The second distinction was made on the grounds (1) of the constitutional provision setting up the post office and (2) that the individual pays the Government to deliver mail unopened. The court cited Hester v. United States (265 U. S. 57), admitting the testimony of Federal officers who had trespassed on the land of the defendant to watch him hand a bottle of whisky to another from 100 yards distance. Mr. Justice Holmes, referring to wiretapping as "dirty business," dissented on the ground that as wiretapping was a crime under State law, the judicial branch of the Government should not encourage the prosecuting forces of the Government to break the law. He expressly declined to state his position on the constitutional questions presented. Mr. Justice Brandeis dissented on the same ground and on the ground that the fourth amendment covered all invasions of privacy, but was phrased in words covering only those invasions common at the time the Constitution was written. He also held that the use of evidence obtained by wiretapping was a violation of the fifth amendment. Justices Butler and Stone also dissented on constitutional grounds.
Nardone v. United States (302 U. S. 379, 82 L. Ed. 314 (1937)) concerned a conviction for smuggling liquor in which essential evidence was obtained by wiretapping. This was after the enactment of the Communications Act of 1934, and the court, through Mr. Justice Roberts, held that section 605 of the Communications Act prohibited the use of such evidence. Justices Sutherland and McReynolds dissented.
The pertinent section of the Communications Act of 1934 prohibits unauthor.' ized divulgence of wire or radio messages hv the carrier and provides : "and no person not being authorized by the sender shall intercept any communi. cation and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto :"
More recent cases have held that evidence which could not have been obtained had the Government not tapped the defendant's wires was inadmissible; Nardone
v. United States (308 U. S. 338, 84 L. Ed. 307 (1939)); that intrastate communications came within the protection of the first Nardone case, Weiss v. United States (308 U. S. 321, 84 L. Ed. 298 (1939)); and that if a tap is used, defendant may examine records of material taken from the tap and cross-examine Government witnesses as to where and how they got their evidence, United States v. Coplon (185 F. (20) 629 (C. A. 2d (1950), Cert. Den. 342 U. S. 920, 96 L. Ed. 690). Evidence acquired by a detectaphone applied to the wall of the office adjacent to defendant's is admissible, even as to the defendant's end of telephone conversations, Goldman v. United States (316 U. S. 129, 86 L. Ed. 1322 (1942)); and it is up to the courts of the several States whether wiretap evidence is admissible in State court trials, Schwartz v. Texas (344 U. S. 199, 97 L. Ed. 231 (1952)).
B. On the practical level, one of the prime safeguards against wiretapping is the trouble to which the Government must go to maintain a continuous watch. According to the testimony of Mr. Miles McDonald, district attorney of Kings County, N. Y., before the subcommittee of the House Committee on the Judiciary, this operation requires the full on-duty time of six men. Technological advances, however, may eventually reduce or eliminate the need for manpower.
III. RECOMMENDATIONS REGARDING PROPOSED LEGISLATION
It should be observed first of all that a large number of bills have been introduced in previous sessions of Congress to permit wiretapping by Federal lawenforcement officers and the evidence thereby obtained to be introduced into court. None has become law. Under the present law, the various Attorneys General since the adoption of section 605 of the Communications Act have uniformly interpreted the words “intercept and divulge” to include in the prohibition of that section only the divulgence of intercepted material; so wiretapping is done, but evidence derived therefrom is not used in court.
It is the position of this committee that under standing United States Supreme Court decisions the Federal Constitution does not prohibit the use of wiretap evidence in court. It is further the position of the committee that the minimal rights guaranteed the individual by the Constitution may be implemented by act of the Congress, and that this is a suitable area for such implementation. As a matter of policy, this committee feels that wiretapping is an evil which generally ought to be prohibited by law. In general, Americans should have an enforceable right to speak freely over the telephone. Although the right to be secure from the introduction of wiretap evidence in court is directly valuable only to those whom the Government may prosecute, the right not to be spied on is valuable to all. No government, however benign, should invade the right to privacy which is one of the factors making American citizenship so valuable.
Chief among those circumstances which some allege might justify tapping wires is a threat to the national security. Since most of the evidence upon which the threat of internal subversion can be evaluated is not available, the committee is in no position to determine whether the present threat is great enough to justify departure from the normally sound policy of prohibiting wiretapping altogether.
The committee does wish to make clear, however, its belief that certain steps should be taken by the Congress in making this policy of determination. Before deciding, Congress, through the appropriate committee or subcommittee, should have before it all possible evidence as to (1) the extent of the threat to be combated; (2) the material which could be introduced in criminal proceedings under any contemplated statute and (3) the probable effectiveness of the contemplated measures. The committee feels that it is incumbent on anyone supporting the authorization of wiretapping to bear the burden of proof in all three of the above respects.
If, upon adequate showings, Congress should decide that a law is necessary to permit the use of wiretap evidence, this committee believes that at least certain safeguards should be included in any such law to minimize the infringement of our rights and to assure that wiretapping will be used only where necessary to the purpose for which authorized. This committee is opposed to both of the aforementioned bills in their present form, as neither includes the minimum safeguards deemed necessary.
The provision that such authority be granted only to Federal judges seems essential. The safeguard that "unauthorized" wiretapping be made a crime also seems necessary, though further clarification should be made with regard to the rights of State and local officials in this field under State legislation.'
1 Presently many State and local officials are engaged in wiretapping under State authorization. New York is an example of such a State.
Perhaps a provision should be inserted granting an individual right of action for punitive damages against any person, whether in the course of a government investigation or not, who illegally taps his telephone wire. A bill should include a provision clarifying its relationship to section 605 of the Communications Act, and perhaps amending the key words of, that act to read "intercept or divulge."
Although under the present rules of discovery the accused probably would have ample opportunity to examine a complete transcript of all conversations intercepted along with the right to introduce any additional relevant parts thereof into evidence that might be deemed helpful to his defense, further examination should be given to the need for spelling out such precautions. Technical information with regard to the detection of "forged” recordings does not appear to have been available to the House committee considering the legislation. Such advice might be helpful in reducing the possibilities of such evidence being distorted and might accordingly increase the reliability and weight of such evidence in court. Some provision should be made for all original recordings to be kept under seal as soon as obtained and the tampering or altering of any such recordings should be made a felony. Under no circumstances should evidence obtained before the effective date of the act be admissible, as would be authorized by H. R. 8649.
In order that Congress be assured of an opportunity to reexamine the effectiveness of this legislation and also to correct possible abuses in the light of its operation any such act should extend for a limited duration. Further, court orders authorizing wiretapping under such legislation should expire within a given length of time, as set out in S. 3229.
In view of the experience of New York officials with the importance of secrecy in the wiretapping procedure, it might be wise to incorporate a provision setting forth certain secrecy precautions. Applications to the court could be in the form of an affidavit by a designated official of the agency desiring to make such a tap and should set forth therein all facts necessitating such authorization. This application could be made in private to the judge in his chambers and could be kept under lock and key at least until the authorization had expired.
It has also been suggested for the sake of efficiency and authenticity that the wiretapping function be delegated only to the FBI. Other governmental agencies making investigations could then as they apparently do now, work in conjunction with the FBI in the wiretap phase.
These bills appear to restrict the use of information derived from wiretapping to investigations and judicial proceedings brought by executive agencies, but it might be wise further to prohibit expressly any use of wiretapping or the evidence therefrom by other governmental bodies such as congressional committees.
Several points on the general subject of wiretapping should be discussed briefly in this report. First it should be understood that the exclusion of wiretapping evidence from court proceedings is based only on the ground that as a matter of policy courts should not consider evidence acquired by the Government in violation of the law. Since section 605 of the Communications Act prohibits the divulgence of such communications, the courts have excluded such evidence. England and Canada have no such doctrines. It seems clear that the basis for any exclusion of any such evidence has not been its untrustworthiness. With certain precautions such evidence might be the most reliable evidence that could be obtained and introduced in some types of proceeding.
Second, a similarity can be shown to the search and seizure and self-incrimination prohibitions of our Constitution although their application to wiretapping was rejected in the five to four opinion of the United States Supreme Court in Olmstead v. United States, supra. For those who feel the analogy has merit it should then be pointed out that under proper judicial supervision as outlined herein wiretapping authorization would differ from the process of issuing a warrant for a search and seizure primarily in the aspect of the secrecy of wiretapping as against the element of knowledge that usually exists in such a search and seizure.
The supporters of legislation authorizing wire tapping have suggested that its enactment would effectively put everyone on notice that telephone communications were not necessarily private and therefore would be a warning against making incriminating statements in that type of communication. But notice that you are deprived of a right is a poor substitute for the right itself. It might also be pointed out that if the supporters are correct in this view,
the potential value of any wiretapping in future investigations will be correspondingly diminished.
It has been argued that we can depend on the Attorney General not to use wiretapping to excess without relying on the courts. In answer, it should be pointed out that if the practice were legal and the evidence obtained thereby admissible, it would be the Attorney General's duty to tap wires whenever he thought that to do so would be effective. He should not, therefore, have to guard those whom he should prosecute against his legal attempts to procure evidence against them.
IV. CONCLUSION The burden of proof in showing the Congress that there is a need for legislation authorizing wiretapping should be borne by those advocating it. Since such legislation would necessarily derogate from the individual's freedom and right of privacy, it should be considered only after a congressional determination that the advantage in safeguarding our national security outweighs the disadvantage to individual rights. If such legislation is then determined necessary, careful thought must be given to minimizing the accompanying impairment of individual privacy and freedom.
Those bills now under consideration by Congress are not acceptable. In their present forms, they fail to contain even the following minimum safeguards: (1) Supervision by a court upon written showings by the Government; (2) prohibition of unauthorized wiretapping together with clarification of the FederalState relationship on the subject; (3) limitation of scope to specified crimes regarding national security; (4) provisions to assure security of material obtained; (5) limitation of authorization to the FBI; (6) limitation of the duration of both the act itself and the periods of each judicial authorization; and (7) prohibition against the use of evidence obtained prior to the effective date of the act.
In consequence, this committee opposes the proposed legislation and respectfully recommends that the board of managers adopt this report as the report of the Chicago Bar Association and take whatever further action relative thereto it deems advisable.
AMERICAN JEWISH CONGRESS,
New York 28, N. Y., April 30, 1954
United States Senate, Washington 25, D. C. MY DEAR SENATOR LANGER: I enclose five copies of a memorandum on behalf of the American Jewish Congress on the pending wiretapping bills. I hope you will arrange for its inclusion in the transcript of the current hearings on those bills.
Because the committee is now considering these proposals, I have taken the liberty of sending copies to each member of the committee rather than sending a supply for the entire committee to you. Thank you for your cooperation. Sincerely yours,
HERMAN L. WEISMAN, Chairman.
STATEMENT OF THE AMERICAN JEWISH CONGRESS ON BILLS CONCERNING
The American Jewish Congress is a voluntary association of American Jews committed to the dual and, for us, inseparable purposes of defending and extending American democracy and preserving our Jewish heritage and its values.
The American Jewish Congress has, therefore, always been unequivocally opposed to communism, fascism and all other forms of totalitarianism. We know full well the meaning and nature of Communist tyranny and of its debasing and dehumanizing effects on all who have been forced to live under its dictates. As Jews we are particularly mindful of the campaign of cultural genocide directed against ethnic and religious minorities in Communist and Communist-dominated lands.
Together with all Americans who prize the blessings of freedom, we have re* peatedly affirmed our readiness to make those personal and collective sacrifices reasonably calculated to safeguard our democracy. But we are not persuaded that our Nation's security is enhanced when we resort to measures that violate the essential liberties whose preservation is our basic purpose. In any event, proposals offered in the name of security that infringe upon such liberties should be most carefully weighed.
The American Jewish Congress is opposed to the enactment of the wiretapping measures now being offered to the Congress. These measures, we believe, gravely violate the right to privacy, one of the most basic of all rights guaranteed .by 'a free society. Political surveillance of private conversation is one of the distinguishing characteristics of all totalitarianism; it is abhorrent in any democratic society.
Resort to such measures could be justified only if there is unanswerable demonstration that they will yield results clearly decisive for our national security. We submit that no such demonstration has yet been made. To intercept a single remark of a suspect that might possibly be of relevance would require listening to hundreds of the intimate personal, business, and professional confidences and conversations of innocent and loyal persons. The sense of distrust and disquiet that must inevitably follow the awareness that anonymous Government agents may be listening into one's most private conversations can have a shattering effect on the morale of our community.
There has been no showing that our national security hangs on so slender a thread as to justify recourse to such measures and we are confident that there are other and more effective methods of protecting ourselves against disloyalty and treason.
In this memorandum, we have confined our comments to two bills now before this Committee : S. 3229, introduced by Senator McCarran on March 31, and H. R. 8649, passed by the House of Representatives on April 8. Both bills would permit the introduction in court of evidence hereafter obtained by wiretapping, provided the tap had first been approved by a Federal district judge. H. R. 8649 would also permit use of wiretap evidence heretofore obtained with the approval of the Attorney General. S. 3229 would make all other wiretapping punishable as a crime. Both bills are limited to cases in which crimes affecting national security are committed or suspected.
At present, section 605 of the Communications Act of 1934 provides that no person shall "intercept * * * and divulge or publish" any telephone communication. Despite this provision, wiretapping is widely practiced not only by the Department of Justice but by State law enforcement agencies. Indeed, discussion of the pending wiretapping proposals has proceeded largely on the assumption that this activity is entirely legal. The Department of Justice has consistently taken the view (a) that the act prohibits interception only when coupled with divulgence and (b) that communication of the contents of a tap by one Government agent to another is not divulgence within the meaning of the act. Since no conduct deemed legal by the Department is likely to be prosecuted, the result is that there is no effective ban on wiretapping.
The Department's strained interpretation of the statute has not been upheld by the Supreme Court, despite assertions to that effect by proponents of H. R. 8649 in the House of Representatives. The Court has never been given an opportunity to rule on the question because the Department does not prosecute wiretappers. Hence, the only way in which wiretapping questions come before the Court is in cases in which wiretap evidence is used in prosecutions for other crimnes. In such cases, the Court has consistently ruled against use of the evidence. (The suggestion sometimes made that these decisions of the Court depart from the intent of Congress in adopting the Communications Act has no foundation whatever.) The only judicial expression on the validity of wiretapping itself is that of Judge Learned Hand who has stated it is "we!l-settled law that 'wiretapping' is forbidden by statute." United States v. Coplon (185 F. (20) 629, 636 (1950)). Certainly there is every reason to believe that the laws of some States permitting use of wiretap evidence in court are wholly illegal, as Representative Dodd suggested in the House debate on April 7 and 8 (4550).
We therefore urge adoption of a bill making clear what we believe to have been the intent of section 605, that all wiretaps are illegal and punishable. The latter objective would, of course, be achieved by S. 3229.
Protection of national security sometimes warrants measures that otherwise would not be justified. But Congress should require of the executive department
1 References are to the Congressional Record for April 7 and 8, 1954.