« ForrigeFortsett »
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 concluded 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 amend. ment 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 . 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 Com
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 authori 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.
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 Attorneyi 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 wouid 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 authorizerl, 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,
American Jewish Congress.
CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Washington, D. C., May 11, 1954.
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 ORGANIZA
TIONS 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.
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." 2 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," : 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.
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.
MAY 18, 1954. Hon. ALEXANDER WILEY,
United States Senate, Washington 25, D.O. 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.
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, pote, 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.