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. Hon. WILLIAM LANGER, AMERICAN JEWISH CONGRESS, Chairman, Committee on the Judiciary, 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 WIRETAPPING 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 crimes. 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 "well-settled law that 'wiretapping' is forbidden by statute." United States v. Coplon (185 F. (2d) 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).1 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. a more convincing showing of necessity than has yet been given before it confers on it this dangerous power. Justice Jackson has just had occasion to say, on behalf of the Supreme Court, that "science has perfected amplifying and recording devices to become frightening instruments of surveillance and invasion of privacy, whether by the policeman, the blackmailer, or the busybody." Irvine v. California, decided February 8, 1954 (22 U. S. L. W. 4119, 4120.) Congress has the ultimate responsibility to see that this threatening development is kept within bounds. Neither the report of the House Committee on the Judiciary accompanying H. R. 8649 (H. Rept. No. 1461, 83d Cong., 2d sess.) nor the debates in the House of Representatives supply any substantial evidence requiring this backward step. On the contrary, several Congressmen with long experience as prosecutors, including Representatives Thomas and Dodd (the latter was once an FBI agent), insisted that resort to wiretapping is not necessary and must do more harm than good. Up to now, Congress has rejected repeated demands from the Department of Justice that it authorize wiretapping. The matter was fully discussed in Congress in 1941, on the brink of our entry into World War II. Congress conIcluded then that the need to take that step had not been shown. No more convincing showing is now offered. In the words of Representative Thomas, “We have fought two wars without this, and we have won them" (4534). Dozens of Communists have been brought to book without using wiretap evidence and the House debates reveal that no more than seven persons would be prosecuted if use of previously obtained wiretap evidence was permitted. Representative Curtis, who pointed this out, rightly said, "I would rather see seven Communists go unpunished than contribute in such a way to the undermining of the procedural foundations upon which our liberties and the future glory of our country rests" (4624). It is no answer to say that we must engage in this "dirty business" because espionage and treason are likewise "dirty business." The argument that only traitors are injured by wiretapping is specious. In the words of Representative Dodd, those who make this argument "have no conception of the nature of a right. Besides being the lowest form of authoritarian propaganda, it is also the most subtle and deceitful. What has happened in this Nation when responsible men make such an argument for this kind of legislation?" (4550) Finally, neither the report nor any supporter of the bill has answered the argument that wiretap evidence is inherently dangerous because of its great susceptibility to abuse. Representative Rogers and others pointed out in the House debates that to permit wiretapping even for limited purposes puts "temptation in the way of politically unscrupulous or totalitarian-minded officials" (4529). Furthermore, we are informed that wiretap recordings can be and have been altered in a fashion that defies detection. Sentences, single words, and even parts of words can be excised. Yet, when an altered recording is replayed, it carries all the conviction of a direct genuine reproduction of the speaker's original words. This possibility of abuse should be looked into further before Congress takes this step. The constitutional fathers found it necessary to provide in the fourth amendment an express provision against unwarranted searches and seizures. They did not, of course, include a prohibition of wiretapping, but it is plain that that practice is of the same nature as the practices with which they were familiar and which they found it wise to condemn. The invasion of privacy by wiretapping is one of those practices that must be opposed "because they encourage the kind of society that is obnoxious to free men." Walder v. United States decided February 1, 1954 (22 U. S. L. W. 4095, 4096). In the words of an editorial in the Wall Street Journal of November 19, 1953, "It could create an atmosphere in which people would be afraid to talk on the telephone about anything." We urge, therefore, that the only need now is for clarification of the prohibition of wiretapping contained in the Communications Act. Both tapping and the use of wiretap evidence should be barred. Having made this clear, we deem it appropriate also to comment on specific aspects of the bills now under consideration. We do this not to suggest correction of defects but rather to point out the evils that are almost certain to inhere in any proposal that rests on the assumption that this dangerous weapon can be kept under control. As will be noted in the following paragraphs, S. 3229 is less objectionable than H. R. 8649; yet it too omits many provisions that would minimize the harm that can result from this form of eavesdropping. 1. Prohibition of wiretaps.-We regard as the chief virtue of S. 3229 the express provision making it a crime to tap wires except as permitted under the other terms of the bill. As already noted, this is a much needed provision. Representative Celler referred to evidence that "there are million and millions of wiretaps, good ones and bad ones, by the FBI, the police, the armed services, business executives, investigating committees, and labor unions" (4619). If there is need to protect the people against agents of foreign nations, there is also a need to protect them against deprivation of their liberties by overzealous or unscrupulous agents of their own Government. Members of the House Judiciary Committee explained the omission of a provision making unauthorized wiretaps punishable on the ground that that was a matter in the jurisdiction of the Committee on Interstate and Foreign Commerce. The Senate is not bound by this consideration, as shown by the fact that Senator McCarran has found it appropriate to include the prohibition and penalty provisions in his bill. 2. Court approval.-S. 3229 provides that wiretaps shall be made only with the approval of a Federal district judge. H. R. 8649 would permit the use in evidence of wiretap evidence obtained in the future only if the tap was made with such judicial approval. Unlike S. 3229, it would permit use of evidence obtained in the past without judicial approval. Several Representatives suggested that this was to create an unreasonable and hence unconstitutional distinction between past and future offenders. It was also urged that the provision had a distinctly ex post facto quality, even if it was not unconstitutional. Without attempting to explore these issues, we suggest only that it hardly seems worth while to take so widely criticized a step solely to place on trial some seven accused persons, persons whose effectiveness as enemy agents has long since been destroyed. 3. Extent of judicial scrutiny. We have already noted that wiretapping is an invasion of privacy of the kind guarded against in the fourth amendment, which bars searches and seizures, except those made with a warrant, issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." S. 3229 in effect makes this requirement applicable to applications for wiretaps. The application must be "supported by the authorizing certificate of the Attorney General and such oral and other evidence as the judge may require to determine whether there is reasonable ground for belief that such interception will result in the procurement of evidence of the commission of any such crime." The order signed by the judge must "specify the person or persons whose communications may be intercepted, the purpose of such interception, and the identity of the individual or individuals authorized to make such interception." H. R. 8649 would require only that a judge be satisfied that "there is reasonable cause to believe that such crime or crimes have been or are about to be committed and that the communications may contain information which would assist in the conduct of such investigations." This is a far looser requirement than is contained in S. 3229. The application may be made without an authorizing certificate from the Attorney General. Any communications may be intercepted that may merely assist in the conduct of investigations. The court order need not contain specifications of the person or persons whose communications are to be intercepted, the purpose of the interception, or the identity of the person who is to make the interception. The same considerations that prompted the careful limitations of the fourth amendment on searches and seizures apply to wiretaps; hence, similar limitations should be made. Inded, without such limitations, the requirement of a court order is illusory. Bench warrants are required by the fourth amendment "so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right or privacy was deemed too previous to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals." McDonald v. United States, 335 U. S. 451, 455-456. Plainly, courts cannot "weigh the need" on the basis of the meager showing that would be made under the House bill. Even under S. 3229, however, the protection of purely private matter intended by the fourth amendment would not be achieved. The amendment provides that search warrants must describe the "things to be seized." This insures against seizure of innocent material. But no limitation that a judge can put in an order authorizing a wiretap can prevent interception and recording of all the conversations on the intercepted line. |