[Minnesota Law Review April 1960] The Wiretapping- A Defense Counsel's View Edward Bennett Williams* I. THE WIRETAPPING PROBLEM 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.1 Unfortunately, these biting words of Mr. Justice Douglas do not describe a new practice. Wiretapping is as old as the telephone itself; yet, as Samuel Dash, Robert Knowlton, and Richard Schwartz have demonstrated in The Eavesdroppers," the problems posed by wiretapping remain as far from solution as ever. Attorney General Rogers published an article in 1954 which summarized the case for wiretapping. He urged that wiretapping is essential to protect the nation against spies, saboteurs, and other subversives. He further urged that it is no worse than the use of informants, decoys, dictaphones, peeping, and the like, all of which have been accepted practices of law enforcement for many years. Neither of these arguments, however, is really dispositive of the issue. Informed sources have questioned the real utility of wiretaps in security cases. In the celebrated case of United States v. Coplon,* for example, the prosecution succeeded in convincing the trial court that none of its evidence came from wiretapping, despite almost continuous interception of the defendant's telephone calls." In other words, the government itself took the curious position that wiretapping had been completely useless. Professor Louis B. Schwartz, who, during the four years he spent in the Department of Justice, helped prosecute the leading federal • Member of the District of Columbia Bar. 1. DOUGLAS, THE RIGHT OF THE PEOPLE 151 (1958). 2. Dash, KnowLTON & SCHWARTZ, The EavesDROPPERS (1959) [hereinafter cited as DASH]. 3. Rogers, The Case for Wire Tapping, 63 YALE L.J. 792 (1954). 4. 88 F. Supp. 921 (S.D.N.Y. 1950). 5. See id. at 926, rev'd on other grounds, 185 F.2d 629 (2d Cir. 1950). wiretapping cases, has made a fine analysis of this problem." He concluded: [I]t is clear that there never was a showing or even a serious attempt to show that we would catch fewer criminals or that criminal activity would increase in case of the unavailability of the surveillance devices involved. All we could prove, and I think all that the current talk of necessity means is that the prosecution will lose a particular conviction, as in the Coplon case, when it becomes known that an illegitimate detection device has been employed. This does not prove that future Coplon cases cannot be found and successfully prosecuted by more orthodox procedures. Nor is it reasonable to suppose that the failure of the Coplon prosecution has encouraged or increased espionage activity. A traitor who risks death if apprehended is certainly not going to be deterred by the knowledge that his telephone may be tapped; at most, he will avoid use of the telephone. ...7 Interestingly enough, these views were once shared by J. Edgar Hoover. In 1940 Hoover termed wiretapping an "archaic and inefficient" practice which "has proved a definite handicap or barrier in the development of ethical, scientific, and sound investigative technique." And again in 1941, he approved a press release stating 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 of it.” Perhaps it may be easier to catch spies by wiretapping than by other methods. I suppose law enforcement would also be easier if we could use torture, general search warrants, mass arrests, and indefinite police detention. It would likewise be easier to convict spies if we could suspend the fifth and sixth amendments in such cases, so that there would be no privilege against self-incrimination and no right to counsel. The difficulty is that we destroy exactly what we are seeking to preserve when we try to protect democracy with essentially totalitarian tools. There is grave reason to fear, moreover, that a law allowing wiretapping in security cases would provide an opening wedge for permitting wiretapping in all cases. During the eighty-second Congress, a bill was introduced to permit wiretapping in cases involving the national security.10 During the eighty-fifth Congress, the sponsor of this legislation introduced a bill to permit wiretapping in all felony cases. During the eighty-sixth Congress, this same member intro 11 6. Schwartz, On Current Proposals to Legalize Wire Tapping, 103 U. Pa. L. REV. 157 (1954). 7. Id. at 160. 8. Letter From J. Edgar Hoover to the Harvard Law Review, Feb. 9, 1940, quoted in Note, Wire Tapping and Law Enforcement, 53 HARV. L. REV. 870 n.53 (1940). 9. Department of Justice Press Release, March 15, 1940, quoted at 9 INT'L JURID. ASS'N MONTHLY BULL. 103 (1941). 10. H.R. 479, 82d Cong., 1st Sess. (1951). 11. H.R. 12394, 85th Cong., 2d Sess. (1958). duced a bill to permit wiretapping in all cases.12 His explanation for this shift in position was that the telephone and telegraph now constitute dangerous channels through which criminal conspiracy can operate with impunity. As Dash and his colleagues have demonstrated, the record in New York bears out the conclusion that wiretapping is most useful as a weapon against organized vice.13 The overwhelming majority of the wiretaps authorized in New York have been in gambling, narcotics, and prostitution cases. There have been very few wiretapping orders in prosecutions for the most serious crimes, such as rape, robbery, and murder, because wiretapping is almost useless in such cases. There have likewise been very few orders in security cases. The evils inherent in wiretapping assume far greater proportions when they are balanced, not against the evils of subversion, but against the lesser evils of gambling. There are even more serious objections to the second argument of the Attorney General-that wiretapping is essentially no different from many accepted law enforcement practices. A crucial difference lies in the extent to which wiretapping invades the privacy of wholly innocent people. None of the legislative proposals to authorize wiretapping would restrict tapping to the wires of people suspected of crime. One of the most recent Supreme Court cases in this field involved a tap on a public telephone in a bar. Apparently it is standard practice for the New York police to tap public telephones which may be used by suspects. These taps may record one conversation involving a gambler or narcotics offender and five hundred conversations involving wholly innocent and unsuspecting people whose most personal affairs are thus laid bare to view. 14 Even when the police tap the wires of a criminal suspect, they almost inevitably intercept the conversations of many people having no connection with the suspected offense. This serious aspect of the wiretapping problem was humorously illustrated by a cartoon in the Wall Street Journal which showed two detectives giving, their superior a staggering stack of records with the explanation: "The guy we wire tapped is the father of a teenage girl! Several years ago I tried a case where I was required to read the transcription of hundreds of telephone conversations intercepted by the New York police. For the first time, I really understood why Mr. Justice Holmes once characterized wiretapping as “dirty business.” The participants in these conversations included an insurance company, several doctors, a lawyer, numerous department stores, a grocery, a pharmacy, a dairy, and countless other people who were not 12. S. 1292, 86th Cong., 1st Sess, (1959). 13. DASH 40, 65-66. 14. See Benanti v. United States, 355 U.S. 96 (1957). even suspected of any offense. The taps included many calls in which the defendant was not a participant at all. They included, moreover, conversations of the most confidential character-conversations between husband and wife, lawyer and client, physician and patient. The most intimate details of these people's lives became a matter of police record as the result of a single wiretap. Furthermore, the fruits of police wiretapping all too often become a matter of public record. Many of my client's conversations were read at a public hearing in the New York courts. At least one of them was reprinted in full by the New York Times. Others were presented before a nationwide television audience during the Kefauver Committee hearings. Unfortunately, this was not an isolated occurrence. The McClellan Committee, for example, used national television to make public countless conversations intercepted by the New York police. No search warrant could possibly involve so sweeping an intrusion into private affairs. As Professor Schwartz has pointed out: A search warrant must specify the things for which the officer is to search and, in general, these must be either articles used to commit the crime or else the proceeds of crime. A search for an object of purely evidentiary significance would almost certainly be held unconstitutional, as in case the warrant purported to authorize the seizure of a personal diary containing an account of the alleged crime. But wire tapping is unavoidably a hunt for evidence, pure and simple, i.e., for incriminating admissions. And since no one can forecast when the incriminating admission will be made, the hunt may have to go on for months, as against the specific and limited temporal authority granted by the ordinary search, warrant for tangible things. . . .15 Another difference between wiretapping and using an ordinary search warrant is that the victim seldom learns that his wires have been tapped. If government agents seize a man's papers or property without a valid warrant, he can make a motion to the court for their return. However, if government agents listen to a man's most confidential conversations over weeks or months or even years, he may never even discover it. Such abuses cannot be corrected either in a court of law or in the court of public opinion. Only where something incriminating turns up do the courts enter the picture. It is thus the innocent who are left completely without remedy. The federal government's attitude toward wiretapping has been riddled with inconsistencies which have served only to augment the problems inherent in this field. During World War I, Congress prohibited wiretapping because of widespread fear that government communications were being intercepted. But when this proscription expired at the end of the war, wiretapping became one of the gov15. Schwartz, supra note 6, at 163. ernment's own chief weapons against Prohibition violators. Law enforcement tapping was discontinued under Attorney General Stone in 1924 but resumed under Attorney General Mitchell in 1931. It was again temporarily discontinued by Attorney General Jackson in 1940 but again resumed by direction of President Roosevelt a few months later.16 However, since 1940 the government has tapped with appalling consistency whenever it has felt the need to do so. In 1958, J. Edgar Hoover stated publicly that the FBI was operating ninety wiretaps across the country, all in internal security cases.17 By its own admission, the FBI also employs wiretaps in kidnapping cases. In 1957 I delivered a lecture in which I challenged the legality of FBI wiretapping. Louis B. Nichols, assistant director of the FBI, wrote me a letter after this lecture in which he summarized the Bureau's present position as follows: I am unaware of any court decision which has ruled that wire taps are illegal per se. What the courts have done is to ban evidence secured from wire taps and this whole matter was explored rather fully in the attached statement of the late Mr. Justice Robert H. Jackson when he was Attorney General. In the FBI, telephone taps are utilized only with the written approval of the Attorney General in cases involving internal security or those involving kidnapping,18 In his attached statement analyzing section 605 of the Communications Act of 1934,19 Attorney General Jackson stated: There is no Federal statute that prohibits or punishes wire tapping alone. The only offense under the present law is to "intercept any communication and divulge or publish" the same, Any person, with no risk of penalty may tap telephone wires and eavesdrop on his competitor, employer, workman or others and act upon what he hears or make any use of it that does not involve divulging or publication.20 Section 605 provides 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. . . ." However, it further provides that "no person having received such intercepted communication or having become acquainted with the contents, sub 16. See Brownell, The Public Security and Wire Tapping, 39 CORNELL L.Q. 195, 196-200 (1954); Rogers, supra note 3, at 794-95. 17. Wash. Post & Times Herald, May 19, 1958, § A, p. 10, col. 2 (final ed.). 18. Letter From Louis B. Nichols to Edward Bennett Williams, Oct. 25, 1957. 19. Communications Act of 1934, ch. 652, § 605, 48 Stat. 1103, 47 U.S.C. § 605 (1958). 20. Letter From Attorney General Robert H. Jackson to Hon. Hatton W. Sumners, Committee on the Judiciary, March 19, 1941. The Jackson view remains the position of the Attorney General's office even now. See Transcript of Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 86th Cong., 1st Sess., at 160 (Dec. 15-16, 1959) (testimony of Attorney General William P. Rogers). |