4. Time limits on orders.-S. 3229 would make court orders good for only 6 months, renewable for another 6 months. Under H. R. 8649, however, a court order once granted would permit taps to be made on a line at any time or times in the future and to be continued indefinitely. Representative Curtis appropriately criticized this aspect of the bill in the House debate (p. 4623). 5. Multiple taps.-S. 3229 would permit wiretaps only by the Department of Justice. H. R. 8649 would permit taps by specified agencies of the Justice, Army, Air Force and Navy Departments, subject to the requirement of the Attorney General's approval. There is no reason to permit tapping by Departments other than Justice. The investigation of suspected criminal activities is the responsibility of that Department. When other Departments come upon indications that treason, sabotage or other security crimes are being committed, they turn the case over to the Justice Department. This was made plain by Deputy Attorney General William P. Rogers at the hearings before the House Committee (hearings, pp. 31-34). The House bill creates the possibility of several taps on the same wire. The requirement of approval by the Attorney General would not necessarily eliminate that possibility. 6. Public phones.-Both S. 3229 and H. R. 8649 would sanction taps of public as well as private phones. On the theory that a subversive agent may occasionally use a telephone booth in a corner drugstore, the Government would be allowed to listen in on the conversations of all who use that phone. Yet the vast bulk of the calls will be made by persons in whose affairs the Government has no concern and will be of a most personal nature. Wiretaps on phones installed for the use of the public should therefore not be sanctioned. 7. Multiple applications.-Both bills, while requiring a court order, would still permit unlimited "shopping around" to find a favorable judge; an application that had been denied by one or more judges could still be made to and granted by another judge. This could be avoided or at least curbed by requiring that applications state whether similar applications had been made to any other judge. In the alternative, authority to approve wiretap applications should be confined to a single judge in each district, assigned by the senior judge or by an appellate court. 8. Permanent legislation.—Both S. 3229 and H. R. 8649 propose a permanent change in the law, authorizing the use of wiretap evidence not only in the present emergency but at any time in the future. Both Representatives Feighan and Dodd urged that the bills should have terminal dates. The former suggested that the terminal date be the defeat of the Communist world conspiracy (p. 4545). The latter suggested that authorization to use wiretap evidence should be made for not more than 1 year, at the end of which time the Attorney General should be required to inform Congress "how many wiretaps were authorized, how much information was obtained and used for prosecution purposes in our Federal courts" (p. 4550). Representative Dodd's proposed amendment to this effect was defeated by a vote of 157 to 77 (pp. 4630, 4634). A power of this kind, once given, is always hard to withdraw. Congress certainly has the right to require the Department of Justice to show that its continuation is necessary and that no abuses have resulted. 9. Annual reports.-Neither S. 3229 nor H. R. 8649 contain provisions that would assure to Congress and the public the information concerning the scope of wiretapping that they need to be able to decide whether the practice has gotten out of hand. Even without the time limitation suggested in the preceding paragraph, there should be provisions requiring the Attorney General to report annually the number of taps sought, authorized, and made during each year, the reasons for the rejection of applications by the courts, the use to which evidence obtained by the taps was put, the crimes that justified the taps, and the court cases in which wiretap evidence was used. Such reports should be made to the public as well as to Congress so that both may view the matter in perspective and decide whether there has been any large-scale invasion of the privacy that has long been regarded as a precious right of citizens in a democracy, a right that assures to our citizens a feeling of security in their private affairs that is denied to the unfortunate subjects of Communist regimes. Respectfully submitted. HERMAN L. WEISMAN, Chairman, Commission on Law and Social Action, American Jewish Congress. CONGRESS OF INDUSTRIAL ORGANIZATIONS, Hon. WILLIAM LANGER, United States Senate, Washington, D. C. DEAR SENATOR LANGER: I am enclosing herewith a statement of the position of the Congress of Industrial Organizations on the serious question of wiretapping. This statement, which fully explains the position and thinking of the CIO on this subject, does not, in my opinion, require elaboration. Therefore, we are requesting that this statement be incorporated into the record of the committee, and we will not require the committee's time to hear the presentation of this statement. Knowing well that all the members of the committee recognize the seriousness of this subject, we are confident that our views will be given careful attention. Thanking you for your courtesy in this matter, I am, Sincerely yours, ROBERT OLIVER, Assistant to the President. STATEMENT OF THE EXECUTIVE BOARD OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS ON WIRETAPPING, ADOPTED SUNDAY, MAY 10, 1954 The members of the CIO, as well as millions of other Americans, find the idea of wiretapping obnoxious to their most basic traditions. Organized labor, indeed all the working people of this country, have a particular stake in democratic procedures. Civil liberties is more than a theoretical idea to us; under the protection of the American idea of civil liberties, we have been able to establish the worth and dignity of the American laboring man and woman and to gain for ourselves not only vast improvements in our standard of living but recognition of our basic rights to organize, to speak as a group, to have some voice in the determination of our fates. We know what freedom means, and we know from watching the experience of labor in totalitarian countries, what the loss of freedom can mean. That is why we ejected the agents of totalitarianism from our own councils; that is why we oppose the use of the methods of totalitarianism by anybody, anywhere, at any time. Wiretapping is offensive to our concept of fair play and invades the security of the individual. As you have no doubt heard many times during these hearings, Justice Holmes called wiretapping dirty business, and Justice Brandeis recognized it as an instrument of tyranny and oppression. These are strong words, but there are perhaps no words too strong to express the general feeling of revulsion of the American people against this ugly practice. It is significant that even those who, like Attorney General Brownell, propose to permit wiretapping under certain conditions, indicate their agreement with this general distaste for snooping.1 Nevertheless, this invasion of privacy has become a habitual public and private practice; the dirty business has become a big business. It is estimated that there are more than 100,000 wiretap instruments in use in this country, and there is general recognition that private and business phones are tapped in order to spy on unions, business partners, political rivals, and possibly erring husbands or wives. Nearly everyone in Washington takes it for granted that, in addition to the taps authorized expressly by the Attorney General, there is constant and widespread tapping by Federal agencies. Congressman Celler has testified before the House Judiciary Subcommittee considering this problem of wiretapping that it would be naive to believe otherwise. He also highlighted another commonly accepted belief, that Members of Congress and Government officials frequently fear to use the telephone for matters of importance, a fear which is shared by individuals throughout the Nation. Wiretapping is one of the worst kinds of snooping; it exposes many innocent bystanders for each person whose line is tapped; it exposes every area of personal life in addition to conversations concerning the subject under investigation. And it puts in the hands of the snooper the most private information about unsuspecting persons. Clearly, many of those into whose hands this information comes find difficulty in resisting the temptation to use it for their own gain. 1 Brownell, The Public Security and Wiretapping, 39 Cornell Law Quarterly 195 (1954). We believe this notorious practice of wiretapping has spread for two reasons: The lack of any adequate penalties for the interception of information, and the legal interpretation of section 605 of the Federal Communications Act which treats that section as prohibiting only tapping and divulging, and not tapping alone. That interpretation is disputed by many eminent attorneys, but it has had the approval of a succession of Attorneys General, and is relied upon by those who wish to justify wiretapping. Although the Supreme Court has ruled that evidence obtained either directly or indirectly by tapping is inadmissible in a Federal court, the tapping goes on. We believe that Congress should act at once to impose severe penalties for unauthorized interception of wire communications. Senator McCarran's proposal in his bill (S. 3229) that such a prohibition be made a part of the civil rights chapter of the Criminal Code seems most appropriate to us. We also urge that any person whose rights have been so invaded should have a direct Federal civil right of action for punitive damages against the wiretapper. In the light of our-and other Americans'-view of wiretapping and similar invasions of privacy, the recent increase in demands for a law which would authorize tapping and make evidence procured by it, under certain circumstances, admissible in Federal courts, raises many serious questions. We are concerned with whether or not there is a real need for this particular form of police investigation, which the Director of the FBI has described as "archaic and inefficient." We recall that the late Philip Murray, in discussing the values for which World War II was being fought, cited the axiom, "the dumber the cop, the bigger the nightstick,' ,"3 and we believe that the altertness and ingenuity of our security agencies would not be well served, but might tend to become flabby, by relying upon the dangerous illusion that spies and saboteurs can be caught by eavesdropping on private conversations carried on over common carriers. 12 The Congress, in determining what kind of legislation, if any, to recommend in this field, is respectfully urged to consider most carefully these underlying problems and to remember that our democratic values have been the source of our greatness. We yield to no group in our support of effective measures to block Soviet espionage and sabotage in our country. But the proponents of wiretap legislation have failed to make out a case for the effectiveness of wiretapping and of wiretap evidence in this field. The dangers inherent in this invasion of our basic right of privacy far outweight any showing that has been made for wiretapping as an arm of national security. Weighing the various considerations, the CIO urges the rejection of all the proposed bills and the strengthening of section 605 of the Federal Communications Act so that it will prohibit in so many words the act of making the tap, with adequate penalties for violation as already indicated. Hon. ALEXANDER WILEY, United States Senate, Washington 25, D. C. MAY 18, 1954. DEAR SENATOR WILEY: In connection with the current study of wiretapping legislation being undertaken by your subcommittee, we have been informed by the subcommittee staff of your interest in obtaining expressions of opinion by interested individuals and groups. With the thought in mind of possibly rendering assistance to your subcommittee, the undersigned have prepared the enclosed memorandum on proposed Federal wiretapping legislation. As members of the bar we have felt some responsibility to study and analyze proposals for legislation in a field of such far-reaching importance to the legal profession and the public at large as this We hope that the results of our study will be of some use to you in your consideration of current legislative proposals. one. If, in your opinion, the enclosed memorandum is a useful contribution, we should be glad to have you make it a part of the printed record of your hearings. Respectfully, LLOYD N. CUTLER. 2 Letter from J. Edgar Hoover, note, 53 Harvard Law Review 863, at 870 (1940). 3 What Are We Fighting For? A symposium conducted by the St. Louis Post-Dispatch, 1943, pp. 98, 100. PROPOSED FEDERAL WIRETAPPING LEGISLATION SUMMARY This memorandum first considers the comparative merits of two bills presently pending in the Congress which deal with the subject of wiretapping: H. R. 8649, as passed by the House of Representatives, and S. 3229, presently pending before the Senate Judiciary Committee. We believe that S. 3229 is greatly preferable to H. R. 8649, because of the strict limitations and safeguards which are contained in the Senate bill but omitted in the House bill. However, we believe that certain additional safeguards are also required if the use of wiretap evidence is not to make serious inroads on the right to a fair trial. If evidence based on wiretapping is to be used in criminal trials, the destruction, editing, or alteration of recordings and other data obtained in the course of wiretapping should be prohibited, and these recordings and other data should be made available for the defendant's inspection. We favor the addition of these safeguards to S. 3229 and recommend that this bill be enacted in preference to H. R. 8649. However, if H. R. 8649 is preferred by the Senate Judiciary Committee, we recommend that it be amended to include the same amendatory provisions as we propose for S. 3229. ANALYIS OF PENDING LEGISLATION If legislation is to be passed authorizing wiretapping and the use of wiretap evidence in Federal prosecutions, the legislation should be drafted so as to permit this generally undesirable practice only to the extent absolutely required by considerations of national security and subject to procedural safe guards designed to minimize its impact on the right to a fair trial enjoyed under our Constitution. H. R. 8649, as passed by the House of Representatives and presently pending before the Senate Judiciary Committee, falls far short of achieving these obiectives. It is a loosely drawn piece of legislation which, if enacted, would doubtless require years of litigation to clarify its ambiguities. It contains a number of undersirable features which have no significant connection with the interests of national security. Fortunately, there is also pending an alternative bill which recognizes the dangers inherent in legalizing wiretapping and which grants a limited right subject to a number of desirable restrictions. This is S. 3229, introduced on March 31, 1954, by Senator McCarran, the ranking minority member of the Senate Judiciary Committee. S. 3229 is preferable to H. R. 8649 in the following respects: 1. S. 3229 makes all wiretapping, except as specifically authorized, a crime. Today, the only legal prohibition against wiretapping is section 605 of the Communications Act of 1934 which makes it unlawful to intercept and divulge a wire communication. There is no justifiable excuse for wiretapping by private individuals or by public officers who have been unable to obtain whatever authorization may be required by law. The mere act of unauthorized wiretapping should be made a crime, regardless of whether it can be proven that the intercepted communication has been divulged. This result is accomplished by S. 3229. However, H. R. 8649 contains no such provision and is therefore objectionable. 2. S. 3229 is not retroactive. H. R. 8649, on the other hand, would permit the introduction into evidence in criminal prosecutions of testimony based on wiretapping done in the past. Any evidence so obtained and disclosed by the tapper to his superiors in the past was illegally obtained and disclosed. This retroactive feature of H. R. 8649 would thus breach the long-established rule of Weeks v. United States (232 U. S. 383 (1914)), that illegally obtained evidence may not be used in the Federal courts. While there may be no substantial question as to the constitutionality of such a retroactive change in the rules of evidence, the practical result of such a change would be most unfair. It would mean that evidence obtained contrary to law, and without any effective regulation or supervision by prosecuting attorneys or the courts, could be used indiscriminately against potential defendants, even though the tap was made under such improper circumstances that even if a Federal judge had been asked to authorize it in advance, he would have refused to do so. The desirability of punishing a specific individual for past offenses provable only by illegally obstained wiretap evidence is greatly outweighed by the dangers inherent in the promiscuous use of evidence obtained without reference to any legal standards. 47683-54-17 3. S. 3229 would require that an order authorizing wiretapping be obtained from a Federal district judge in the district where the wiretap is to be made. This seems preferable to the comparable provision of H. R. 8649, which would merely require that an order be obtained from a judge of any United States court of appeals or district court. This could result in the anomaly of an order being obtained in San Francisco authorizing the tapping of telephones in New York. Further, it would encourage shopping around for a judge who is willing to issue such orders on the basis of a minimum showing of necessity. Clearly, not all judges will have the same standards with respect to the issuance of an authorizing order; as time goes by the views of the various Federal judges will become known; and the result will be a flood of applications directed toward the judge or judges who have shown themselves to be most willing and ready to grant authorizing orders. This undesirable practice would be reduced by the provision of S. 3229 that the application must be addressed to a judge of the district where the interception is to be made. Shopping around could be eliminated altogether by requiring that the application be addressed to the chief judge or his designee in the district where the tap is to be made. This would eliminate shopping around within districts where there are a number of Federal judges, such as the District of Columbia and the southern district of New York. More important, it would introduce a desirable element of uniformity into the development of standards for granting authorizing orders. 4. H. R. 8649 prescribes no standards for the guidance of the judge who is asked to issue the authorizing order, other than that he shall 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." S. 3229 properly restricts the issuance of an order to cases where "there is reasonable ground for belief that such interception will result in the procurement of evidence of any such crime." It does not adopt the undesirable criterion of H. R. 8649 that "the communications may contain information which would assist in the conduct of Furthermore, S. 3229 permits the judge to require the taking of oral or other evidence to support the conclusion that the order should be issued. such investigations." 5. H. R. 8649 provides no method of centralized control over the obtaining of authorization orders. Although it states that the "express written approval of the Attorney General" must be obtained, H. R. 8649 does not provide that a certification of such approval must be presented to the judge. Furthermore, H. R. 8649 permits an investigating agent from any one of a number of agencies to obtain the order. S. 3229, by contrast, requires the authorizing order to be sought by a United States attorney, assistant United States attorney, or authorized officer or attorney of the Department of Justice, who in turn must present the Attorney General's authorizing certificate. 6. H. R. 8649 places no limitations at all on the scope of the wiretapping activity which may be conducted pursuant to a court order. An order could be issued under H. R. 8649 permitting the tapping of an indeterminate number of telephones over an indefinite period of time. But S. 3229 requires that the order shall specify the person or persons whose communications may be intercepted, the purpose of the interception, and the identity of the individual or individuals authorized to make the interception. Furthermore, S. 3229 provides that an authorizing order shall be effective for not more than 6 months, unless renewed for a further period of not more than 6 months by the judge who issued the original order, after a hearing and determination by him that reasonable grounds have been shown for continued interception. This provision will give an opportunity for continued judicial control over wiretap orders. It is suggested, however, that 60 days is a sufficiently long period of time for an authorized interception and that renewal orders shou'd likewise be confined to 60 days. There is no reason why wiretapping should be continued indefinitely if, after a reasonable period of time, such as 60 days, no evidence of crimes affecting national security has been obtained. For all the reasons stated above, the commendable specificity of S. 3229 iş greatly preferable to the vague, loose provisions of H. R. 8649, which, if enacted, would lead to many undersirable practices. ADDITIONAL DESIRABLE AMENDMENTS OF EITHER BILL S. 3229, as presently drawn, does not assure that evidence obtained through wiretapping will be admitted in Federal courts only under conditions that protect the defendant's right to a fair trial. |