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cuted very soon, or immediately, after the plan is made. To require that a Federal court order be obtained before setting up the wiretap to secure evidence would almost certainly hazard the entire undertaking. The time element alone could make it impossible to carry out.
FBI agents must also operate in secrecy. Finally, what sort of evidence would have to be shown in order to justify a Federal judge in acting? The intelligence agents would not know that a certain type of act was going to be planned or executed. They have to act on suspicions, hunches, scraps of information, that may lead to something important or to a dead end. In applying for a court order it could rarely if ever be proven that its issuance would be certainly followed by the receipt of evidence that would lead to court conviction, even assuming that the order could be obtained in time and without prior knowledge of the person or persons believed about to perpetrate the crime. It is quite conceivable that a Federal judge might refuse to issue an order applied for on a speculative chance that it might be valuable.
Mr. Chairman, if we are going to have legislation let it be consistent, workable, and effective. H. R. 8649 at best is weak and inconsistent and, at worst, can be completely self-defeating. On the contrary, S. 2753 is consistent in allowing the court use both of past and future evidence obtained by wiretap in cases involving crimes against the national security. As there is no requirement for prior court order, it would not hazard or impede expeditious action by an intelligence agency where there is prospect of obtaining valuable or incriminating evidence, nor would it risk breaking the cloak of secrecy which is so essential in this vital work. I hope S. 2753, or some measure involving its provisions, may find favor and be reported by this committee. I appreciate this opportunity to submit my views on this subject of such grave concern to the security and integrity of our people, our Government, and our way of life.
WIRETAPPING FOR NATIONAL SECURITY
THURSDAY, APRIL 29, 1954
UNITED STATES SENATE,
Washington, D.C. The subcommittee met, at 10 a. m., pursuant to recess, in room 424, Senate Office Building, Honorable Alexander Wiley (chairman of the subcommittee) presiding.
Present: Senators Wiley and Welker.
We are very happy to have you, Commissioner Hyde, with us this morning. You have a statement, I presume. STATEMENT OF ROSEL H. HYDE, CHAIRMAN, FEDERAL COMMUNI
CATIONS COMMISSION, ACCOMPANIED BY WARREN E. BAKER, GENERAL COUNSEL, FEDERAL COMMUNICATIONS COMMISSION Mr. HYDE. Yes.
Senator Wiley. If you will make your statement, we will have a few questions to ask you afterwards and then we will let you go in peace, I trust.
Mr. HYDE. Chairman Wiley, my name is Rosel H. Hyde. I am the Chairman of the Federal Communications Commission. I am appearing here this morning at the request of your chairman to present the views of the Commission on four bills dealing with the important question of the interception of communications in cases involving the investigation of certain Federal crimes, and the degree to which information obtained may be introduced in evidence in the course of criminal or civil proceedings to which the United States is a party.
All of these bills have as one of their objectives the modification of the existing provisions of section 605 of the Communications Act of 1934, as amended, which, as you are aware, has been interpreted by the Supreme Court of the United States to preclude the Government from introducing in evidence in any criminal or civil action, information concerning any crime which has been secured through wiretapping or other interception techniques.
I should like to point out that although section 605 has been physically incorporated into the Communications Act because of its general relation to communication activities, it is primarily a criminal statute of the type normally found in title 18 of the United States Code. This fact has been recognized by both the Federal Communications Commission and the Department of Justice, and the Department of
Justice exercises responsibility for investigating and prosecuting possible violations of section 605.
The Commission, of course, furnishes the Department of Justice technical assistance where it can do so and when such assistance is requested by the Department.
I believe it important to make clear at the outset of my remarks the true nature of section 605 of the Communications Act and the Commission's responsibility and role in relation thereto, because of the fact that, in our opinion, most of the controversial questions with which your committee is faced in the consideration of these bills are matters relating to the security of this nation and to the proper administration of justice, rather than questions directly related to communications problems as such.
Thus, such questions as whether it is necessary or advisable to require a court order before permitting the interception of any communication to be subsequently introduced in evidence, or whether the provisions of these bills should be made retroactively applicable to material which may have been heretofore intercepted, are matters about which we are not fully informed, and on which we are not in a position to make any recommendations. We feel that it would be inappropriate for use to express any conclusions as to whether the authority granted to law enforcement officials in these bills is or is not necessary for the proper administration of criminal justice or for the protection of the security of the United States.
During recent years various bills have been introducd in Congress which would have permitted wiretapping and the interception of radio communications by law enforcement officers under certain specifield circumstances. The Commission's position with respect to these legislative proposals has always been that the basic policy determination as to whether the provisions of section 605 should be relaxed in order to permit limited wiretapping is one that must be made by the Congress. The Commission has consistently expressed the view that if such limited wiretapping is to be permitted, adequate procedural safeguards should be instituted in order to avoid any possibility of abuse. Here again, it is appropriate that the Congress determine what is included in adequate safeguards.”
We also believe that it is essential that any legislation adopted spell out clearly the circumstances and procedures under which interception may be permitted so that both the users of communications facilities and the carriers performing this invaluable service will know in advance their rights and responsibilities.
In recognition of the fact that the proposals with respect to wiretapping are by nature closely related to criminal law enforcement, it is our opinion that any law enacted should be included as a part of title 18 of the United States Code, rather than as an amendment to the Communications Act.
This would be in keeping with the fact that the Department of Justice has the responsibility for the enforcement of section 605, and with the fact that it is primarily the Department of Justice which will make use of the authority conferred by such legislation. The enactment of the proposed legislation now before this committee, and its incorporation into title 18 of the United States Code, would create no new problems for the Federal Communications Commission.
In conclusion, may I state that I sincerely appreciate the opportunity to testify before your committee concerning these important bills dealing with the interception of communications. The Commission and its staff are ready to afford your committee whatever assistance you may desire.
Senator WILEY. Mr. Chairman, I have very few questions after listening to that statment. It has been reported that such private wiretapping is growing in leaps and bounds and that private detective agencies are being hired by all sorts of individuals and groups in order to intercept purely private communications. To what extent is the FCC aware of this practice?
Mr. HYDE. Senator Wiley, there are not very many complaints coming to use. There are a few. Our practice is to refer such complaints to the Department of Justice. The number is small and that may surprise you in the light of the comment you have just made.
Senator WILEY. As far as you know personally then, you are not in a position to comment with any degree of certainty upon the size or the abuse that is made in this direction?
Mr. HYDE. No; I could not give you accurate information on that. The fact that we get but a limited number of complaints does not mean that there would not be a larger amount of wiretapping than the number of complaints indicated.
Senator WILEY. Outside of the complaints have you heard the matter discussed quite generally that there is a great deal of abuse?
Mr. HYDE. I have seen some press comment about it. I have seen some public discussion of the matter.
Senator WILEY. What I am getting at is, Senator McCarran suggested that all private wiretapping be made illegal. Have you any ideas on that?
Mr. HYDE. My personal view is that interception of private communication is very repugnant to me. It is an invasion of what you would like to think of as your personal privacy, and one naturally resents having unauthorized persons listening to his private conversations. I must add, though, that personal rights and personal conveniences have to yield when matters of national defense are concerned.
Senator WILEY. Yes, but that was not my question. My question was whether or not you would prohibit all private wiretapping and make it a criminal offense?
Mr. HYDE. I am not in a position to give a Commission statement on that, but my personal inclination would be to prohibit it. I would not want the prohibition to be so tight as to prevent actions necessary to protect the national defense.
Senator WILEY. You would not, I presume, either, attempt to prohibit the utilization of this method by authorized State agencies, would you?
Mr. HYDE. I would not be opposed to it, assuming of course that proper safeguards would be provided to prevent abuses.
Senator WILEY. Do you have some national security unit which concerns itself with this problem?
Mr. HYDE. The only unit of our organization which I think would be concerned there is our monitoring service which is primarily designed to prevent unauthorized use of radio, illegal operation of stations, in general to enforce the licensing requirements of the Communications Act. We at times are asked to do certain monitoring for defense purposes, and as a matter of fact, we have a request before Congress now for an appropriation to enlarge upon our monitoring service in order to do a more effective job of frequency usage of monitoring
Senator WILEY. I think that is something we have not developed yet in your particular agency. You are utilizing a monitoring service and that really means intercepting communications over the wires, does it not?
Mr. HYDE. Senator Wiley, may I explain that while monitoring does suggest monitoring of message content, our primary interest actually is to detect operation on a channel and to detect operation in a manner not consistent with license requirements. We do not monitor message content in our regular course of work.
Senator WILEY. Can you illustrate that by some specific instance? Mr. HYDE. Yes. We have a system of monitoring stations with directional equipment and if anyone of them detect a signal suspected as being that of an unauthorized operation, other stations in the network are alerted to take bearing and by methods and techniques which are known to radio people and which have been perfected in our organization the location of that operation can be ascertained with a high degree of accuracy and the operator located in the illegal operation handled, as it should be, under laws which prohibit operation of stations without licenses.
Senator WILEY. Illustrate it. Give me an instance. For instance, station X. What is it doing? How is it doing it? What instrumentality does it use?
Mr.HYDE. The station may be detected reporting race track results at some authorized racetrack, but the results being communicated to people outside interested in off-the-track gambling which is usually illegal. When we get a report of any such operation we notify our monitoring stations and they with cars equipped for monitoring purposes will maintain a watch on the frequency and the minute the operation is detected they undertake to locate it with precision and appropriate law enforcement officers, move in.
Senator WILEY. You are talking about radio now.
Senator WILEY. What about television? Do you monitor any television or telephone communications?
Mr. HYDE. We do not monitor any telephone conversations. We do not monitor television for the purpose of observing program content. We do monitor television operation on occasion for purposes of ascertaining whether or not the operation is in accordance with signal specifications and Commission standards. Those standards are of course designed to prevent interference and provide appropriate efficiency of operation to give good service.
Senator WILEY. If, as has been suggested in the McCarran bill, we would prohibit wiretapping, would that prohibition if it were applicable only to private wiretapping have any application or restriction on your agency?
Mr. HYDE. In my judgment it would not.
Senator WILEY. Would there be any need for language in any bill that might come from this conimittee to protect the right of your agency to monitor radio?