This report, approved by the Board of Directors of the American Civil Liberties Union on May 1, 1961, was prepared by Herman Schwartz, a member of the New York Bar. THE WIRETAPPING PROBLEM TODAY Wiretapping and other forms of electronic eavesdropping are recognized by even their most zealous advocates as encroachments on the citizen's right of privacy, aptly characterized by Supreme Court Justice Louis D. Brandeis as "the most comprehensive of rights and the right most valued by civilized men." Recently, pressure to authorize such encroachments has intensified.1 This is partly in reaction to legislative and judicial efforts to curtail wiretapping and other forms of unlawful and unconstitutional police practices, partly because of a serious and apparently growing crime problem, and partly because modern technology has made these types of surveillance both more penetrating and less expensive. The American Civil Liberties Union believes these pressures must be resisted. The enactment of legislation permitting wiretapping would be a staggering blow to the right of privacy, both symbolically and in practice. Symbolically, because our society will thereby have approved unlimited and unlimitable intrusions by the police into the citizen's personal life, contrary to basic constitutional principles. In practice, because innumerable innocent people will have their privacy invaded by officials, who, as Justice Brandeis said, at their best are "men of zeal, well-meaning but without understanding," and, at their worse, susceptible to graft, corruption, extortion and other improprieties. All Americans share concern about the serious crime problem but some, in their anxiety, would adopt improper methods without any attempt to assess either the need for these methods or their resulting harm to the ultimate values of a free society. The fact is that despite the pressures, no clear showing has yet been made that wiretapping is at all necessary or even particularly useful in fighting crime, even if it were less offensive to constitutional standards or the morality of free men. Relatively few prosecutory officials have called for such authority, and many have denied the necessity for any such weapon.2 On such a record, the "right most valued by civilized men" should not be violated. I. Some Historical Background Anglo-American history reflects a long and persistent conflict between the individual's right to be let alone and the need for infringing that right in order to protect society against its lawbreakers. 1. In the 1961 congressional session, four separate bills authorizing wiretapping and electronic eavesdropping were introduced in the Senate: S. 1495, S. 1086, S. 1822, S. 1221, 87th Cong., 1st Sess. S. 1086 was reported out favorably by the Subcommittee on Constitutional Rights, with certain amendments. In the 1962 congressional session, an Administrationbacked bill, S. 2813, was introduced. 2. Detailed exposition of these views appears later in the report. In sixteenth century England, the Stationers' Company was granted authority to search for and seize seditious libel and writings "contrary to the form of any statute, act or proclamation made or to be made." The Stationers, who were authorized to search anywhere, any time, for seditious matter used these general warrants on behalf of the state to seek out and destroy Puritan and other dissenting literature. Subsequent regimes in sixteenth, seventeenth and eighteenth century England reaffirmed these powers for their own purposes until the 1760's, when such powers were held unlawful. While these practices were being curbed in England, Parliament granted colonial revenue officers complete discretion to search in suspected places for smuggled goods by means of writs of assistance. The struggle against these writs was described by John Adams as "the first act of opposition to the arbitrary claims of Great Britain." Revulsion against general warrants and writs of assistance led the framers of the Constitution to include in the Fourth Amendment this express ban on general warrants: "no warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched and the person or things to be seized." The Supreme Court has refined this and has developed the corollary doctrine that a search can be made only to obtain certain objects: tools of crime, fruits of crime, contraband or goods on which an excise duty should have been paid. In other words, the Court has refused to allow police officers to search a person's home merely to obtain evidence of crime. For example, in a murder case, a policeman may obtain a search warrant to search for and seize the murder weapon but not a bloodstained shirt.3 Tapping of telephone communications appeared shortly after the telephone's invention. Police officers were reported to be wiretapping as early as 1895. The practice flourished during Prohibition and in 1928 produced the most important Supreme Court decision in the area, Olmstead v. United States.4 In that case, over the vigorous dissents of Justices Brandeis and Holmes, and by a 5 to 4 vote, the Supreme Court held that telephone conversations were not protected by the Fourth Amendment against wiretapping because a tap was neither a physical trespass into the home nor a seizure of tangible materials. In 1934, Congress passed the Federal Communications Act, § 605 of which prohibited the interception of any communication, and the divulgence or use of such communication. This was construed by the 3. The reasoning underlying this distinction will be explained later in the report. 4. 277 U.S. 438 (1928). Supreme Court in 1937 to prohibit wiretappings and to exclude from federal trials any evidence obtained through the use of a wiretap, either directly or indirectly. A subsequent decision established that the prohibition applied to intrastate as well as to interstate telephone communications.7 In 1942, however, the Supreme Court began to show a more permissive attitude toward wiretapping and other forms of electronic eavesdropping. It first ruled that a defendant could not object to the use of wiretap evidence by the Government, unless he was a party to the conversation, and then, that a detectaphone placed against a wall in an adjoining room to hear one side of a telephone conversation was not covered by § 605.9 Justices Frankfurter, Stone and Murphy dissented in each case, stating a willingness to overrule the Olmstead decision. In 1952 the Supreme Court, in Schwartz v. Texas,10 further held that state courts could consider wiretap evidence obtained by state officials even though such wiretapping was illegal. This decision was based upon an analogy with the then controlling decision of Wolf v. Colorado11 which held that state courts could consider evidence seized by state officials even though such seizure was unconstitutional. And in Rathbun v. United States 12 the Supreme Court further declared that permission to eavesdrop by one party to a telephone conversation was sufficient to legalize a detective's listening in on an extension phone. Even before the Supreme Court's more permissive attitude the United States Department of Justice served notice that it would tap. Originally, in the late 20's and 30's, United States Attorneys General, FBI Director J. Edgar Hoover, and other administration officers stated that they disapproved of wiretapping and did none.13 However, in 1941, under war-time pressure the Department of Justice declared that wiretapping itself was not illegal under § 605 so long as there was no divulgence of the information so obtained. The Department then construed transmission of wiretap evidence by a federal law enforcement officer to his superior as not a divulgence.14 This interpretation ignored the express prohibition in § 605 of any "use" of the information so obtained. 5. Nardone v. United States, 302 U.S. 379 (1937). 10. 344 U.S. 199 (1952). 11. 338 U.S. 25 (1949). 12. 355 U.S. 107 (1957). 13. See Westin, The Wiretapping Problem, 52 COLUMBIA LAW REVIEW 165, 173-74 (1952). 14. See Dash, Schwartz and Knowlton, The eavesdroppers, 394 (1959) (hereinafter cited as THE eavesdroppers). |