third persons, and so forth. The Attorney General advised that the individual in charge of the tap would be instructed to destroy all that information or evidence which would not have to do with the particular individual or with a conversation involving a particular individual which we have under investigation.

The conversation would be destroyed by the individual who had the responsibility for the tap, so that it should not even be discussed to his superior.

Such instructions would raise very serious problems for the following reasons:

1. Under section 6 of the act the law enforcement officer would have an obligation to disclose the contents of any intercepted conversation which he received in the course of his official duties and would be required to disclose the contents while giving testimony under oath, duriny any criminal procedure or in any U.S. court or grand jury proceeding.

2. The Attorney General suggested that the individual who has the responsibility for the tap should not disclose this to his superior; would create endless opportunities for blackmail. This is not farfetched.

As I indicated in my testimony, the principal purpose of wiretap in New York, as far as gambling and bookmaking is concerned, is to find out what the take is. So I think it would not be far fetched to assume that underlings who did not have-who were prohibited from disclosing this evidence to a superior would have absolute freedom to do with this evidence whatever he saw fit.

And I think this would be a very dangerous thing, to start a chain reaction of thousands of agents throughout the country who would possess hundreds of thousands of different instances of confidential information, privileged communications, which they then could use with complete freedom for blackmail purposes.

This is the result, based on the statement of the Attorney General. (Exhibits B and C attached to Mr. Sidney Zagri's prepared statement are as follows:)

EXHIBIT B

"HOBBS ACT CASES APPLIED TO TRADE UNION REPRESENTATIVES"

Perhaps the most salient fact is that virtually all of the decided cases arising under the Hobbs Act have involved trade union representatives (through 1955, at least, literally all of the cases were of this sort).

A second fact to be noted is that a very strong line of authority has developed for the view that the term "fear" in (b) (1) and (2) of the Hobbs Act includes fear of purely economic coercion or detriment. (See Bianchi v. U.S., 219 F. 2d 182 (8th Cir. 1955), certiorari denied, 349 U.S. 915; Callanan v. U.S. supra; U.S. v. Dale, 223 F. 2d 181 (7th Cir. 1955)). Such a construction of the act seems to open the door to a most expansive application of it. Though the courts frequently say that the act does not curtail legitimate labor activities, the foregoing cases along with the principle of "economic" fear indicate a danger that the traditional aspects of collective bargaining may in time be held to fall within the purview of the Hobbs Act.

"FEDERAL ANTIRACKETEERING STATUTE" (HOBBS ACT), 18 U.S.C. 1951

1. U.S. v. Kemble, 198 F. 2d 889 (3d Cir. 1952). Business agent of local tried to enforce collective bargaining agreement by insisting that outside driver hire a helper for 1 day's unloading. Collective bargaining agreement with employer at whose unloading site dispute occurred, provided that all unloading at the dock should be performed by local union members.

Held-violation of Hobbs Act.

2. U.S. v. Green, 246 F. 2d 155 (7th Cir. 1957). Massed assembly of union workers at work site attempted to coerce employer to hire unwanted construction workers.

Held-violation of Hobbs Act.

3. U.S. v. Sweeney, 262 F. 2d 272 (3d Cir. 1959). Union steward attempted at work site to implement conditions of collective bargaining agreement, by exacting payment for unloading of trucks (rate of payment alleged to be higher than permitted by collective bargaining agreement).

Held-steward's conviction affirmed.

4. Saffo v. United States, 213 F. 2d 131 (8th Cir. 1954). Grand jury investigation to determine possible violation of Hobbs Act by defendant. Defendant questioned as to whether he had seen other officials or union members carrying pistols in connection with strike against cab company.

Held-Fifth amendment does not excuse defendant from answering such a question (though he could refuse, on grounds of possible self-incrimination, to answer question as to whether he himself had carried firearms).

5. U.S. v. Nedley, 255 F. 2d 350 (3d Cir. 1958). Defendants, members of a striking Teamsters' local, encountered independent operator of tractor-trailer and his helper when the latter stopped at a restaurant while making a delivery between St. Louis and Pittsburgh. Defendants, after learning operator's destination, told him of a general strike there and asked him to turn back. Later, defendants followed operator and his helper, ultimately engaging in an altercation with them. Defendants were indicted for violation of the Hobbs Act (18 U.S.C. 371) by "robbery" of the tractor-trailer. They were convicted in the district court (see 153 Fed. Sup. 887) with the judge there taking the position that "robbery" under the Hobbs Act is not common-law robbery. On appeal, held, reversed and remanded with direction to acquit.

It is clear from the foregoing facts the government has applied the Hobbs Act in cases involving altercations arising out of strike activity. This is another illustration of Hobbs Act application to conduct flowing from normal trade union activity in the course of a strike.

EXHIBIT C

"WIRETAPPING IS AN INVASION OF THE RIGHTS SECURED BY THE FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES"

It is my opinion that the proposed legislation runs afoul of the Fourth Amendment to the United States Constitution, despite the fact that the United States Supreme Court, 35 years ago, declared wiretapping not to be in violation of that Amendment. Olmstead v. United States, 277 U.S. 438 (1927). In Olmstead, conviction for violating the National Prohibition Act was attacked on the sole grounds that the information which led to the discovery of the conspiracy and the conviction of the defendants was obtained, in large part, by intercepting telephone messages. It was alleged by the defendants that the Fourth Amendment to the United States Constitution had been violated. In pertinent part, the Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

A 5–4 decision of the Supreme Court (Justices Holmes, Brandeis, Butler, and Stone dissenting) held that wiretapping was not a violation of the Fourth Amendment because (a) the Amendment protects only material things and (b) it prohibits only an actual physical trespass for the purpose of making the seizure. Justice Brandeis, in a prophetic dissenting opinion, properly foresaw the difficulties with such a materialistic interpretation of the Fourth Amendment. “But "time works changes, brings into existence new conditions and purposes.' Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.

"Moreover, ‘in the application of a constitution our contemplation cannot be only of what has been but of what may be.' The progress of science in furnishing

the Government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions. "That places the liberty of every man in the hands of every petty officer,' was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?" [Emphasis added.] That this prophecy has been fulfilled is borne out by Dash, Knowlton & Schwartz, The Eavesdroppers (Rutgers University Press, 1959).

In 1934, Congress purported to outlaw wiretapping by the enactment of Section 605 of the Federal Communications Act, 47 U.S.C. 605. That statute provides, insofar as here pertinent, that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person" and it further provides that “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 * * * use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto." A first violation of the statute is punishable as a misdemeanor, with subsequent violations punishable as felonies. An ancillary effect of this legislation was to render inadmissible, in Federal prosecutions, evidence secured as a result of wiretapping. See, for example, Nardone v. United States, 302 U.S. 379 (1937); Benanti v. United States, 355 U.S. 96 (1957); yet notwithstanding the broad scope of the statute, and the language appears to be unambiguous, the Department of Justice has consistently taken the position that there is no Federal statute prohibiting or punishing wiretapping alone. Thus, Supreme Court Justice Robert H. Jackson, when Attorney General, in a March 19, 1941 letter to the Judiciary Committee, took the position that any person could tap telephone wires and "act upon what he hears or make any use of it that does not involve divulging or publication." Attorney General William P. Rogers in December of 1959 took essentially the same position before the same committee and it is an open secret that the Department of Justice does, in fact, use wiretapping in certain cases.

S. 2813 would have the effect of repealing Section 605 and would legitimatize what has been 35 years of illegal practice on behalf of the Department of Justice. The admonition of Justice Brandeis in Olmstead bears reiteration:

"Crime is contagious. If the Government becomes a lawbreaker it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the Government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution" (277 U.S. 438, at 485).

After Olmstead, other cases made their way to the United States Supreme Court and culminated, in 1954, with Irvine v. California, 347 U.S. 128 (1954), the case which is often remembered as the one in which the California police had placed a microphone in the defendant's bedroom and, for over a month, listened to the disclosures revealed by the microphone. Although the Court, again by a 54 decision upheld the validity of the conviction, the decision was premised on the ground that the Fourth Amendment did not reach the actions of the state police officers (a view later reversed in Mapp v. Ohio, 367 U.S. 643 (1961)). The real significance of Irvine lies in the fact that eight of the nine Justices of the Supreme Court precisely and squarely laid forever to rest the statement in Olmstead that the Fourth Amendment protection did not apply to the spoken word. Thus, one of the grounds on which Olmstead rested was obliterated.

Then, in Silverman v. United States, 365 U.S. 505 (1961), the Court disposed of the other ground on which Olmstead rested. Silverman was the case in which the District of Columbia police officers inserted a spike microphone into a party wall and effectively audited everything said in the adjoining house. Although there is discussion in the case with respect to physical intrusions, the Court took great pains to add:

"In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls.

Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law. * * *[d]ecision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area." [Emphasis supplied.]

I think it a reasonable inference, as a result of Irvine and Silverman, that the rationale of Olmstead, that the fourth amendment protects only material things seized by physical trespass, is no longer valid and that intrusion by wiretapping would now be considered an invasion of the rights secured by the fourth amendment to the U.S. Constitution.

The reasoning set forth above finds support also in the language of the fourth amendment. The amendment protects against "unreasonable searches and seizures" but provides for the issuance of search warrants upon proper application. The use of the search warrant, however, has always been for the purpose of locating instruments of crime, the fruits of crime, or contraband. Historically, search warrants are not permitted simply to secure evidence of a crime. The case of Gouled v. United States, 225 U.S. 298, 309-310 (1920) affords ample support for this proposition:

"Although search warrants have been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as a result of the Boyd and Weeks cases, supra, they may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding * * *. The government could desire its possession [the particular item seized] only to use it as evidence against the defendant, and to search for and seize it for such purpose was unlawful." [Emphasis supplied.] Yet, it is clear that this is exactly what the proposed legislation would accomplish, the seizure of evidence.

In 1958, Justice William O. Douglas wrote:

"The truth is that wiretapping today is a plague on the Nation. It is a far more serious intrusion on privacy than the general writs of assistance used in colonial days. Now all the intimacies of one's private life can be recorded. This is far worse than ransacking one's desk and closets. This is a practice that strikes as deep as an invasion of the confessional." Dogulas: "The Right of the People," p. 151 (1958).

3. Wiretapping of questionable value as a law enforcement instrument

There has not been any real showing that wiretapping has particular utility. In fact, in the famous case of United States v. Judith Coplin, 88 F. Supp. 921 (S.D.N.Y. 1950), the prosecution went to great efforts and succeeded in convincing the trial judge that none of its evidence resulted from wiretapping despite the almost continuous interception of the defendant's telephone calls. The government in that case took the position that the wiretapping had been completely useless. No less an authority than J. Edgar Hoover has referred to wiretapping as an “archaic and inefficient practice” which “has proved a definite handicap or barrier in the development of ethical, scientific, and sound investigative technique" (letter from J. Edgar Hoover to the Harvard Law Review, February 9, 1940, Wire Tapping and Law Enforcement, 53 Harv. L. Rev. 870, n. 53 (1940)). Later, he approved the release of a Department of Justice press statement which stated that "the discredit and suspicion of the law-enforcing branch which arises from the occasional use of wiretapping more than offsets the good which is likely to come over it" (9 Int'l Jurid. Ass'n Monthly Bull. 103 (1941)).

Other law enforcement officers have agreed with Mr. Hoover. William Keating, testifying before the Judiciary Committee of the House of Representatives in 1955, stated: "I don't know of a serious case in my recollection in the city of New York where a conviction was obtained on wiretap evidence" (hearings before Subcommittee No. 5 of the House Committee on the Judiciary, 84th Cong., 1st Sess., ser. 2, at 194). Similarly, Thomas McBride, formerly Attorney General of Pennsylvania, stated:

"My personal view is that wiretapping should be banned, that there isn't sufficient good done by it to overcome the harm that is done by that feeling of loss of freedom of decent people" (hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 2nd Sess., pt. 1, at 25).

Another prosecutor, Circuit Attorney Thomas F. Eagleton of St. Louis, testified: "[t]o me there is involved a far more significant matter than practicality which I feel is being overlooked. *** This matter, this transcendent issue, is the protection of the Constitutional rights of all persons in the United States" (Id., pt. 2, at 259). And, the late Senator Thomas C. Hennings, of Missouri, writing in 44 Minn. L. Rev. 813, 833 (April 1960), observed:

"Even though a former prosecuting attorney myself, I am still not convinced that effective law enforcement is dependent on the use of wiretapping.

"I wish to emphasize a tentative conclusion. Both as to the cries from the law officers of one State [New York] for Federal permission to maintain State and local wiretapping and as to the interest in legislation to authorize wire tapping by Federal officers, I think judgment on the alleged need in each area resembles a Scotch verdict: not proven. ***

"While we search for solutions, I prefer that history judge our time and our institutions in terms of our concern for the protection of civil liberties, constitutional rights, and individual freedom, rather than in terms of our unrestrained pursuit of transgressors."

Turning now to the legislation itself, Section 4 would render inadmissible in Federal and State courts and other agencies any evidence derived from the interception of wire communications, if the disclosure thereof would be in violation of Section 3. Section 3, in turn, makes it unlawful to intercept or disclose wire communication unless in accordance with Section 5 (a) and (b), which authorizes the Attorney General, either in his sole discretion or through application to a Federal court, to undertake wiretapping on certain stated national security and Atomic Energy offenses, or murder, kidnapping, extortion, and narcotics violations or Section 5(c), which would authorize the attorney general of any state, where wiretapping is permitted upon application to a court, to make such application where the crime involved is murder, kidnapping, extortion, bribery, or a narcotics offense. Under the language of the statute it would appear that, in those states not permitting an application to be made by a police officer for leave to tap a telephone wire, evidence secured by tapping would not be admissible in the courts of that state. To this extent and in this limited area, the bill may well be meritorious. Section 8 sets forth what type of application is required to either a federal or state court under Section 5. This is in keeping with Section 2(b) of the findings that there is inconsistency among the laws of several states relating to wiretapping and that additional legislation, presumably federal, is needed to provide adequate protection against improper interception and to set out safeguards for legally permissible interception. In setting forth these procedures the bill would appear to be preemptive under the supremacy clause of the United States Constitution and state procedures presently in effect would fall. nA interesting discussion of this problem is found in Robert v. State, 220 Md. 159, 151 A. 2d 737 (1959) and People v. Broady, 5 N.Y. 2d 500, 158 N.E. 2d 817 (1959). You may also wish to refer to the annotation appearing at 74 A.L.R. 2d 855. If you have in mind some sort of a "states rights" or "dual sovereignty" argument, you would find it in this area but it is not nearly as persuasive a one we were able to make last year with reference to the proposed immunity bill.

Senator HART. Mr. Zagri, had you anything to add?

Mr. ZAGRI. No, except thank you very much.

Senator LONG. About this authority the Attorney General had for wiretapping based on an opinion of the Attorney General, do you know that back in 1940-42, and even later, in 1954, wiretapping legislation was considered by the Congress but was never passed?

Mr. ZAGRI. I think that is correct.

Senator LONG. You would say, then, that all during these years, it has perhaps been the sense of the Congress of the United States that wiretapping is not proper?

Mr. ZAGRI. That is correct.

In fact, I think this proposal here is has been turned down by previous Congresses, only the proposal was a little more moderate than this one.

Senator LONG. No further questions.

Senator HART. Senator Fong?