bill. Although we urge rejection of that proposal on policy grounds, we believe that it provides better safeguards against abuse than any of the proposals previously made. Even so, we think there are further objections of some importance even to S. 2813, and we have stated these matters in the appendix.

Just parenthetically, I may say we agree in large part with the Federal legislation committee on the objections they have to S. 2813 on technical matters.

We have not commented in the appendix on other legislation because we believe the administration bill to be much the best.

We believe that if legislation is to be enacted, we believe it should be generally on the pattern of the administration proposals.

I will pass without repetition what is, I am sure, familiar to all of you now, the somewhat confused state of law that has existed on the authorization for wiretapping and the admissibility of wiretap evidence in Federal and State courts. Let me make just these few words of summary on that, with one comment.

The present state of the law in wiretapping is confusing and inconsistent. Interception and divulgence by any person is a crime under section 605. In Schwartz v. Texas, however, the Court held that wiretap evidence obtained by State officers was not made inadmissible in State courts by section 605, since there is a lack of any clear intent by Congress to supersede State rules permitting introduction of evidence obtained in violation of a Federal statute.

Subsequently, the Court, in the Benanti case, held that wiretap evidence obtained by State officers was inadmissible in a Federal court, even though procured under a New York statute authorizing wiretaps by court order.

Thus, the present state of the law on wiretapping is confusing and inconsistent. Interception and divulgence by any person is a Federal crime (47 U.S.C. 605). Whether interception alone constitutes a crime has specifically been left open (Benanti). No wiretap evidence of any kind from any source is admissible in Federal courts (Nardone, Benanti). Federal law does not prohibit the admission of wiretap evidence in the State courts (Schwarz v. Texas). And a defendant in a State criminal prosecution cannot, as a matter of Federal law, prevent his conviction based upon the use of wiretap evidence even though the use of such evidence itself constitutes a crime (Pugach).

One further comment on that. I had thought until last week, really, that the law had finally come into a state of some clarity on this matter. Because after the recent decisions, it seemed to me that the law as the Supreme Court would enforce it now meant that wiretap evidence would be inadmissible in State as well as Federal courts. Indeed, Mr. Hogan of New York, respected district attorney there, acted on the same assumption and has, as you know, indicated that he believes that wiretapping or at least divulgence in State courts, is a violation of section 605. Last week, however, the New York Court of Appeals, in a 4-3 vote, affirmed a conviction on the basis of evidence that was largely based upon wiretapping. Accordingly, in New York again, it seems permissible to admit wiretap evidence in State courts to aid in conviction, even though there seems no doubt that the divulgence in a State court is itself a crime.

Again it seems to me that the Supreme Court must clarify a not by any means altogether clear statute.

In any event, we think this should be clarified, if not by the Supreme Court, by some other kind of legislation.

Now, if I may remark briefly on wiretapping as such and the bill on which the committee is holding hearings, and the right to privacy: Whether Congress should authorize wiretapping or make effective its prohibition brings into sharp focus the ancient conflict between personal liberty and the need to maintain law and order so that personal liberty may flourish. Wiretapping constitutes a serious invasion of each citizen's right to privacy, the right to be let alone.

I think no one disagrees on that basic proposition. The question is to what extent, if any, should that right to privacy be invaded under the necessity of law and order. Under the contention of some, wiretapping also constitutes a highly efficient investigative technique. The question then becomes: Does the threat to privacy outweigh the need of law enforcement agencies in the hierarchy of democratic values or vice versa ?

The right to be let alone, although not specifically enumerated in the Constitution, is necessarily implicit in the guarantees of the Bill of Rights. As Justice Brandeis wrote in his Olmstead dissent:

[The makers of our Constitution] conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men (277 U.S. at 478).

The infringement of wiretapping on what Mr. Justice Brandeis called this most valued right is enormous. Modern technology in a democratic society should expand each individual's opportunities for self-development and lead to greater freedom of choice and personal liberty. The telephone is a technical advance which can either extend or curtail the right to privacy. It has become an extension of the individual's personality, a vital and indispensable means of communication. But tapped telephone lines contain the germs of totalitarianism, a means of constant surveillance and drastic curtailment of liberty.

Wiretapping, in Mr. Justice Holmes' pungent words, is almost uniformerly considered "dirty business." Its impact has best been described by Justice Hofstadter from personal experience in passing on applications for wiretap orders. Let me quote a little of what he said:

A telephone interception is a far more devastating measure than any search warrant. A search warrant is confined to a definite place and to specific items or, at least, to items of a stated class or description. Those in possession of the searched premises know the search is going on and, when the officer has completed his search, whether successfully or not, he departs. Not so, in the case of a telephone interception. The interception order is obtained ex parte and the person whose line is to be tapped is, of course, in ignorance of the fact. The tap is maintained continuously, day and night.

Now, departing from his quotation, under the administration bill, this would provide wiretapping, this kind of constant surveillance, within the home of the individuals and all homes of individuals who call that individual or who are called by him, for 45 days and then without apparent restriction upon the number of extensions thereafter, each of which might be 20 days. It would be inconceivable, of course, that a search authorization could be granted by warrant of

anything like the same comprehensiveness. Yet all the safeguards that are apparent, that are available in cases of warrants, necessarily cannot be available in the case of wiretap authorizations.

Returning again to the committee's comments and views, the committee, after a search of a wealth of material and discussions with law enforcement agencies, the committee has concluded that neither the effectiveness nor the need for wiretapping justifies the wholesale invasion of privacy entailed in this investigative technique. The actual and potential abuse and corruption inherent in any system of wiretapping also militate against its authorization.

The critical problem, then, becomes the effectiveness and necessity of wiretapping.

Despite the claim that wiretapping is highly effective in the detection and conviction of criminals, there is little concrete evidence to support it. District Attorney Hogan claims it is effective 80 percent of the time and Kings County and upstate New York statistics were also given to support this view. However, the statistics, expressed only in terms of number of taps, arrests and convictions, are not convincing. The great majority of wiretaps pertain to gambling and vice-hardly heinous crimes requiring such a drastic method. Thus, in 1954 New York City police tapped 1,081 lines and made 395 arrests, of which 327-a very substantial majority-were for bookmaking, prostitution, and other related vice offenses. (Note, "Wiretapping in New York," 31 N.Y.U.L. Rev. 197, 210, n. 96 (1956). See also New York hearings, p. 103.) Although these crimes may support organized crime, the organizers are not arrested. Those reputed to be the "kingpins" of organized crime, so far as they are apprehended, have been usually deported or convicted of tax fraud or other Federal offenses where wiretap evidence is inadmissible.

More important, some law enforcement officers do not feel wiretapping is either necessary or effective.

This has always seemed to me particularly striking. I have tried sometimes to project myself into the role of a prosecuting official, and I cannot but think that if I were in that role and were concerned with law enforcement, I, too, would advocate wiretapping, because it seems like an additional tool in the apprehension of criminals and detection of crime. Yet officials testify in rather striking number that they oppose and do not find wiretapping necessary. I consider this most persuasive and gather that it is not in all circumstances necessary.

In response to inquiries from the Senate Subcommittee on Constitutional Rights, in 1961, only some 13 of 45 attorneys general asked for wiretapping authority. The circuit attorney for St. Louis and the attorney general of Pennsylvania both testified they can perform their duties without resort to wiretapping. The California Senate Judiciary Committee opposed wiretapping in a 1955 report. A New Jersey Joint Legislative Committee, after a 2-year study, concluded "There is not at the present time a sufficient need for legalized eavesdropping and wiretapping for law enforcement personnel in New Jersey.' Senator HRUSKA. Mr. McKay, do you recall the date of that report or the years in which that study was made?

Mr. MCKAY. I do not have the date of the report, but it was reported in your 1961 hearings. It is some time in the last decade. Senator HRUSKA. Thank you.

Mr. MCKAY. Justice Hofstadter, in denying an application for a wiretap order, stated he had required written reports of the results obtained from interceptions he had authorized. These reports deepened his anxiety about granting further orders, since they showed "some arrests, fewer convictions, and then rarely, if ever, for a heinous offense." Only 6 States, including New York, authorize wiretapping by statute, while 33 prohibt any tappng.

Turning to the other side of the problem-that is, the extent of possible and actual abuses which ordinarily and almost necessarily flow from wiretapping, I would suggest this: Although at the present time, wiretapping is a Federal crime, it is and remains widespread, even in violation of what is now the clear mandate of the law, and probably to a greater degree than suspected or even imagined, according to recent information revealed. As Attorney General Kennedy noted on February 1, 1962, in transmitting S. 2813 to the Speaker of the House:

Every Attorney General for the past 25 years has authorized wiretapping by Federal agents in particular cases involving the national security.

Even where State law authorizes wiretapping under court order, this formality is frequently overlooked. Violation of section 605 as it stands is apparently not a deterrent. Only one conviction for violating section 605 seems to have been obtained. This is understandable, since law enforcement officers are necessarily and naturally reluctant to prosecute one another for using a device they feel is necessary and justified. In addition, a New York judge testified, when wiretap orders are obtained most pertain to trivial cases or involve suspicion of misdemeanor. This supports the statistics presented at the New York hearings, discussed above, which show gambling and vice as the major targets of wiretapping.

In addition to its widespread unauthorized use, or its abuse for trivial purposes, wiretapping has all too often led to corruption among the tappers. A Kings County grand jury in 1950 returned a presentment condemning the "losse, irregular, and careless" methods of Brooklyn police which bred police bribery and corruption. Furthermore, recordings are easily doctored to manufacture evidence or material for blackmail.

It is argued that any police power is subject to abuse and we must have faith in our public servants. This is of course true. But many highly effective practices are strictly prohibited, such as the third degree or star chamber proceedings. Their threats to freedom, and to the presumption that all men are innocent until proved guilty, outweigh their effectiveness. Wiretapping poses an even greater threat to liberty.

The committee on the Bill of Rights recommends that Congress make effective its prohibition against wiretapping. Section 605 of the Communications Act should be amended to make clear that either the interception or divulgence of telephone communications constitutes a crime. Wiretap evidence or evidence obtained through leads furnished by wiretapping should be inadmissible in any court or proceeding, State or Federal. There is no doubt, of course, that Congress can prohibit the use of such evidence in State courts. It can prohibit all wiretapping because of its power to regulate interstate commerce, as it has already done in section 605. The supremacy clause of article

VI makes such prohibition binding on the States. Congress has in the past regulated evidence in State courts through immunity statutes, closely analogous to the amendment we suggest.

The only way to make effective the existing prohibition is to foreclose use of the tainted evidence. Since wiretapping is so widespread, it will probably continue; but the incentive to tap can be reduced. If no use can be made, directly or indirectly, of wiretap evidence, law enforcement officers will resort to legal means to obtain admissible evidence.

We believe interference with telephone communications is a direct assault on liberty which this free society should not permit.

I have appended to this statement our remarks on S. 2813, which I should like to be included with my statement.

Senator FONG. It shall be received in evidence. (The document referred to is as follows:)

APPENDIX

MAJOR QUESTIONS PRESENTED BY THE TEXT OF S. 2813

Setting aside, for this purpose, our objections to any wiretapping, we recog nize in S. 2813 the serious consideration give this problem by the administration. We commend, most respectfully, the effort to strike a balance to reconcile policies which our committee regards as irreconcilable. We recognize in S. 2813 the most carefully constructed proposal of any yet submitted to the Congress to permit wiretapping.

Withal, the bill contains proposals which, in our judgment, need further analyses and further clarification. Following are five major questions which the bill raises, without comments on each:

1

1. In what circumstances would application to a U.S. court for an order to permit wiretapping be "prejudicial to the national interest"?

Section 5(a) permits the Attorney General of the United States to authorize the tapping of wires by the FBI without court order when application to a court (in the Attorney General's opinion) may be prejudicial to the national interest. Herein lies our gravest objection to the machinery of S. 2813. Our courts are the balance-pin between the duty to apprehend criminals and the individual liberties of our citizenry. Our U.S. judges are screened by the Attorney General, approved by the various bar associations, appointed by the President, examined by this very committee, and confirmed by the U.S. Senate. If such judges are not suitable persons to evaluate the need for wiretap orders in national security cases with maximum regard for the national interest, how better qualified is the Attorney General?

Furthermore, the bill permits disclosure of evidence obtained from a lawful wiretap only upon trial. Such trials must be held before U.S. judges. The conclusion seems to follow that what is really sought by section 5(a) of S. 2813 is permission for the Attorney General to tap wires when he deems it desirable in national security cases without any ultimate responsibility to anyone for the use that may be made of the information obtained.2

The whole weight of our national experience opposes vesting a power with such potential for arbitrary abuse in any Government official.

2. Why does the bill permit an unlimited number of extensions to wiretap orders?

Section 8(e) provides an initial 45-day term to a wiretap order with no limit on the number of 20-day extensions permitted. We believe that, once the initial order has been granted, courts will all too readily renew the term. An order which may be carefully limited on its face can, we feel, by indefinite prolongation constitute precisely the indiscriminate abuse which the Attorney General has set out to prevent.

1 We have not commented, although we are prepared to do so, on technical phases of the bill. We have limited ourselves to aspects concerning civil liberties.

2 It will be noted that sec. 9 of S. 2813 requires annual accounting to the Congress only of court-order wiretaps.

3 Congressional Record, 87th Cong., 2d sess., p. 1688, col. 3 (Feb. 7, 1962).