mittee No. 5, House Committee on the Judiciary, 84th Cong., 1st sess., serial 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., 2d 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 Thomas C. Hennings, of Missouri, writing in 44 Minnesota Law Review, 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 wiretapping by Federal officers, I think judgment on the alleged need in each area resembles a Scotch verdict: not proven * **

"While we search for solution, 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."

EXHIBIT A

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 worksite 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 worksite 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, 225 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.

NEW YORK STATE BAR ASSOCIATION, ALBANY, N.Y., REPORT OF THE COMMITTEE ON PENAL LAW AND CRIMINAL PROCEDURE ON S. 1086, A BILL TO AMEND TITLE 18 OF THE UNITED STATES CODE TO AUTHORIZE CERTAIN COMMUNICATIONS TO BE INTERCEPTED IN COMPLIANCE WITH STATE LAW, AND FOR OTHER PURPOSES

DISAPPROVAL

This bill would amend chapter 223 of title 18 of the United States Code by adding at the end thereof a section 305-1 which would provide that no law of the United States shall be construed to prohibit the interception by a lawenforcement officer of any State, in compliance with the statute of that State, or to prohibit the divulgence in any proceeding in a court of that State of the existence or contents of the communications intercepted if the interception was made after a determination by a court of record that reasonable grounds exist for believing that the interception might disclose evidence of a crime involving gambling, liquor, narcotics, or prostitution, or a crime punishable by a maximum sentence of 5 years or more, and such determination was made by the court upon written application and the order permitting the interception was effective for not longer than 60 days and extended for not more than an additional period of 30 days. The bill also provides for certain reports to be made to the Administrative Office of the U.S. Courts, and a further report by the Administrative Office of the U.S. Courts to the Congress with respect to wiretap orders obtained. The bill further provides that wiretapping evidence, except when obtained pursuant to the procedure outlined in the bill, shall be inadmissible in any court of the United States or of any State.

The committee approves the objective of this legislation which is to permit the several States to regulate, by their own statutes, the interception and divulgence of telephone communications. In New York State, the people, by constitutional amendment adopted in 1938, and by enabling legislation, have approved the principle of regulated tapping, supervised by a court. This policy has been negated by Supreme Court interpretation of section 605 of the Federal Communications Act, which indicated that the State provisions are nugatory, because they are in conflict with the overriding Federal law. District attorneys in New York State are embarrassed in the conduct of their duties, and some refuse to tap, while others do so; some use the evidence so obtained, and others refrain from doing so. This uncertainty should be resolved in the public interest. It is true that the New York State tapping scheme contains no limitations as to the crimes for which tapping is permitted, and the proposed law envisioned by this bill is more restrictive than the State law. We feel, however, that even further restrictions would be desirable, and, accordingly, the committee is of the opinion that the class of crimes in which the States would be permitted to wiretap and use wiretap evidence in the State courts, as defined by the bill, is too broad, and that the categories of "gambling, liquor, and prostitution" crimes open the use of wiretapping to investigations in respect to relatively minor offenses. We note further that where such cffenses are part and parcel of organized criminal enterprises, wiretapping or interception orders would in all likelihood be obtainable under that provision of the bill which permits the obtaining of interception orders for crimes punishable by 5 years or more.

Additionally, we note that, although apparently it is not intended, nevertheless, by implication, the bill would make evidence obtained as a result of State wiretap admissible in the Federal courts, as well as the State courts. This unlooked-for result would stem from the inadvertent use of language which spells out the courts in which wiretapping evidence would be inadmissible, if the procedure were not followed, and includes Federal courts. It thereby opens the way for Federal officers to use the fruits of legal State wiretaps in the Federal courts. This abrogation of the Supreme Court's recent disapproval of the "silver platter doctrine" was also probably not intended by the bill's proponent.

As it is the policy of the committee to disapprove any legislation which it is unable to approve in its entirety, this bill is disapproved. We note, however, that the reasons for disapproving this legislation is the inclusion of any crime involving gambling, liquor, or prostitution and the opening of the door to the indirect use of wiretap evidence in the Federal courts.

Accordingly, the bill is disapproved.

NEW YORK COUNTY LAWYERS' ASSOCIATION, JOINT REPORT OF COMMITTEE ON CIVIL RIGHTS AND COMMITTEE ON THE CRIMINAL COURTS ON PROPOSED FEDERAL LEGISLATION ON WIRETAPPING (S. 2813)

On February 7, 1962, there was introduced in the U.S. Senate S. 2813, a bill submitted by the Attorney General of the United States to prohibit wiretapping by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified categories of criminal offenses. In a letter dated February 1, 1962, submitting this bill to the Senate, the Attorney General described as follows the reason for submitting the proposed legislation : "Existing law has proved ineffective, both to prevent indiscriminate wiretapping which seriously threatens individual privacy, and to afford a clear cut basis for the legitimate and controlled use of wiretapping by law enforcement officials."

The Attorney General noted that State and local prosecutors are faced with the dilemma that exercise of wiretapping authority conferred by State law— as in New York State-may violate existing Federal law, and that the inadmissibility of wiretap evidence or evidence derived therefrom in Federal courts under current law has prejudiced the enforcement of Federal statutes designed to protect the national security. The basic Federal law now applicable to wiretapping is section 605 of the Federal Communications Act (47 U.S.C. 605), which prohibits intercepting and divulging or publishing any wire or radio communication without the sender's authorization. The Attorney General also noted that the Congress has had numerous wiretrapping proposals before it in recent years, that extensive hearings have been held on the subject, and that these were considered in the preparation of the draft legislation.

As the bill submitted by the administration appears to be the major focus of future congressional consideration of wiretapping legislation, this report deals only with that bill and with proposals which have been made to amend that bill.

SUMMARY OF THE BILL

The most important provisions of S. 2813 are as follows:

1. Certain congressional findings are made to show a need for the legislation. 2. It is made unlawful willfully to intercept, disclose, or use the contents of any wire communication except as specifically authorized and such violation is made a felony.

3. Evidence obtained from unauthorized interceptions, or any evidence derived therefrom, is inadmissible in any Federal, State, or local court or any other governmental proceeding.

4. Three classes of interception are authorized (sec. 5):

(a) The Attorney General, in his sole discretion, may authorize interceptions with respect to certain crimes affecting the security of the United States, where a judicial application could not be made and other means are not readily available for obtaining the information.

(b) The Attorney General of the United States or an Assistant Attorney General may authorize an application to a Federal judge to permit wiretapping with respect to any offense involving the security of the United States, murder, kidnaping, extortion, bribery, graft, transmission of wagering

information, racketeering, narcotics, and of conspiracy to commit any of the foregoing.

(c) The attorney general of any State or any principal prosecuting attorney for any political subdivision of a State, if authorized by State law, may apply to a State court for a wiretap order, with respect to the crimes of murder, kidnaping, extortion, bribery, narcotics, or conspiracy involving the foregoing.

5. Law enforcement officers securing information in accordance with such authorized wiretapping may use and disclose its contents in the proper discharge of their duties or in any Federal, State, or local criminal proceeding (sec. 6).

6. Section 1362 of title 18, United States Code, is amended to make interception or disclosure of wire communications in violation of this act a felony, punishable by a fine of not more than $10,000 or imprisonment for not more than 2 years, or both (sec. 7).

7. A procedure is established for applications to a court, applicable both to Federal and State or local law enforcement officials, requiring a full statement of the facts involved. The court is then required to find that an order can be issued under this act and that no other means are readily available to secure the required evidence. No such order is to extend for more than 45 days, with 20-day renewal periods permissible. In addition, notice of intent must be given to a defendant before such evidence may be used in a criminal proceeding in a Federal court and motions to suppress in a Federal court are authorized (sec. 8).

8. Certain reports as to such orders must be submitted to the Administrative Office of the U.S. Courts and the Department of Justice.

9. Section 605 of the Communications Act is appropriately amended.

NATURE OF POST CRITICISMS

Two types of criticism have long been directed at this and similar legislation generally, without specific reference to the provision of any bill:

1. That the Federal Government should not interfere with lawful wiretapping under State law by State law enforcement officials; or

2. That no wiretapping should be permitted and that the provisions of section 605 of the Federal Communications Act and of the "illegal search and seizure" clause of the 4th and 14th amendments to the Constitution should be strictly applied to prevent wiretapping, which is alleged to be unnecessary for lawenforcement purposes.

ALLEGED INVASION OF STATE AUTHORITY

The first position is one which has been strongly espoused by district attorneys in New York State, and which makes this bill of particular concern to the New York bar, since it would invalidate both constitutional and legislative provisions under which New York State courts have granted wiretap orders in the past. On the other hand, recent developments in U.S. Supreme Court and Second Circuit Court of Appeals cases have resulted in a situation under which New York State wiretap orders are already substantially ineffective since such evidence can no longer be introduced in evidence. Certain State judges now refuse to sign such orders on the grounds that the Federal law does not authorize them.

It seems clear that a national policy must control the interception of wire communications. Such communications cannot be considered as merely intrastate in character, even if a specific telephone call may be so. The same telephone, without requiring any reference to an operator, can now be used to telephone the next street or across the country, and a wiretap cannot differentiate between local and long distance calls from the same tapped telephone. The need for a national policy in this area was recognized in the original enactment of section 605, the basic antiwiretapping provision in the law.

We endorse this need for a uniform policy on wiretapping whether it is to be effectuated by the enactment of new legislation, or the enforcement of the present prohibitions of section 605. We also recognize that legislation in this area must consider not only that there are highly responsible and trained public officials who would not abuse legalized wiretapping-as we are sure would be the case with many of New York City's district attorneys-but also that

there are those who may and do misuse such authorization. While, as a New York bar association, we must recognize the particular needs and problems of New York City law enforcement, we must also, in evaluating proposed Federal legislation, acknowledge that such legislation would apply in all of our States.

OPPOSITION TO ALL FORMS OF WIRETAPPING

We also realize that strong arguments have been presented against any authorized wiretapping, based upon traditional American rights of privacy, the prohibitions against illegal search and seizure contained in the fourth amendment to the Constitution, and sincere opinions as to the proper means for catching and prosecuting criminals. We are deeply sympathetic with these arguments. But the illegal search and seizure provisions of the Bill of Rights have been interpreted by the Supreme Court in Olmstead v. United States, 277 U.S. 438, Benanti v. United States, 355 U.S. 96, and Schwartz v. Texas, 344 U.S. 199, not to preclude use by law enforcement officials of wiretap evidence, although such use was forbidden in the Federal courts under section 605 and by decisions of the Supreme Court in the exercise of its supervisory powers over the courts.

In evaluating the broad opposing points of view on wiretapping, the failure by the Federal Government to enforce section 605, and the moral effect on law enforcement of continued wiretapping in apparent violation of Federal law, we have concluded that, despite our inherent personal and philosophical dislike of the practice, further legislative action is required. We believe that such legislation must establish enforcible Federal standards, delineate permissible wiretapping by law enforcement officials, under judicial supervision, with meaningful sanctions against violations, and provide for an adequate reporting system which permits Congress periodically to reevaluate the effects of the law.

This, basically, is a description of S. 2813. We believe that if wiretapping by law-enforcement officials is to be authorized at this time, this bill generally represents the extent to which it should now be permitted, and provides generally acceptable safeguards against abuse.

PARTICULAR CRITICISMS OF THE BILL

1. We think it undesirable to empower the Attorney General to authorize interceptions in his sole discretion (sec. 5a), without providing for any judicial review of his action. Section 8(g) (3) provides that lack of probable cause may be shown by a defendant moving to suppress wiretap evidence only where a court has issued the order. This, in effect, excepts the Attorney General from the constitutional command of amendment 4 that no warrant may issue except upon probable cause and therefore seems to be of doubtful constitutionality. Even if constitutionality be assumed, no justification appears for depriving a defendant in capital cases, e.g., treason and the like, of the opportunity to challenge what could conceivably be arbitrary action on the part of an Attorney General.

2. The bill should clarify the situation with respect to the securing, during a wiretap, of evidence of (1) other crimes specified in the act than the one for which the wiretap was authorized, and (2) other crimes not specified in the act than the one for which the wiretap was authorized.

3. The sealing provisions (sec. 8(h)) should be clarified so as to remove any doubt that a Federal defendant moving to suppress under section 8(g) may have access to the papers on which the order authorizing the wiretap was based. It should also be clarified so as to insure the availability to a State court defendant of such papers if he desires to avail himself of his right under Mapp v. Ohio, 367 U.S. 643, which bars use in a State court of illegally obtained evidence and sanctions a motion to suppress by a State court defendant. We suggest, however, that the act provide, in view of its provisions for disclosure to various agencies (sec. 9) as well as to defendants, assuming the clarification of section 8(h) recommended above, that the act make some provision for the protection of informers consistent with a defendant's constitutional right of confrontation.

4. Section 4 of the act should be amended by inserting, after "Whenever" in line 9 of the words "after the effective date of this act.' Such change would avoid affecting any rights which State prosecutors may presently possess to introduce in State court trials evidence secured by wiretaps before the effective date of the act.