(3) the great interest in this subject which the Association of the Bar has always had, and continues to have. With respect to our views on wiretapping generally, the committee on Federal legislation on January 10, 1961, released a report on proposed Federal legislation to legalize wiretapping permitted by State laws, a copy of which is annexed to this statement. The report was addressed to S. 3340, introduced in the 86th Congress by Senator Keating, S. 1086 in this Congress, and analyzes in detail S. 1086, which would relax the Federal ban against wiretapping by State lawenforcement officers. Our committee's report would recommend approval of S. 1086 provided-but only provided--that the bill be amended to contain four additional safeguards to insure against indiscriminate invasion of privacy by wiretaps without a solid showing of serious need. Our committee's report recognizes that— There is undoubtedly need for an end to the chaotic situation resulting from the clash between the Federal prohibition of all interception and divulgence of telephone communications, and the conflicting State statutes and practices. It also acknowledges the insistent claim of law-enforcement officers that wiretapping is a necessary weapon in the war against crime. The report emphasizes, however, the problem of making certain that a proper balance is struck between the respective needs of society and the rights of the individual. The report views the problem of wiretapping and the regulation of a nationwide system of telephonic communication as a matter of primary national interest and responsibility. It reaches the conclusion that the committee is prepared to accept and recommend a basic change in national policy with respect to wiretapping from one flatly prohibiting wiretapping at any level, to one favoring "controlled" wiretapping at all levels provided-but only provided-that the requisite controls and standards for a revised national policy relaxing the ban against wiretapping are adopted. The report recommends four necessary safeguards: (1) Legalized wiretapping must be limited to cases of serious crimes, punishable by maximum sentences 5 years or longer, i.e., a limitation to the more serious type of crimes such as crimes of murder, kidnapping, extortion, bribery, endangering the national defense, violating the Uniform Narcotic Drug Act, treason, sabotage, espionage and related offenses; (2) Legalized wiretapping will be permitted only on court order where a substantial showing of good cause has been made; (3) There should be a clear prohibition against use of evidence obtained by unauthorized wiretaps in State courts, as well as in the Federal courts where such a prohibition is already enforced; and (4) Regular reports on wiretapping activities should be transmitted to the Federal Communications Commission, the Attorney General, or another appropriate Federal agency, in order that continual surveillance as to the effectiveness and working of the statute could be obtained, and Congress could scrutinize the statute and note circumstances where it needs amending. 85952 O-62-9 The committee's report has received favorable comment from jurists, professors of law, and distinguished members of the bar, who have been and continue to be vitally interested in this entire field. Having summarized the report of our committee, which sets forth the committee's reasoning and research at much greater length, I now turn briefly to the specific bills which are before this subcommittee: With respect to S. 1086, as noted, our committee would recommend approval of S. 1086 provided-but only provided-it were amended to contain the four additional safeguards we deem vital and necessary. With respect to S. 1221, introduced on March 7, 1961, I note that a bill similar to S. 1221 was introduced by Senator Keating in the 86th Congress, 1st session, on March 5, 1959 (S. 1292). S. 1221 falls far short of the basic and minimal safeguards articulated in the report of our committee, and consequently does not receive the approval of our committee. For example, its proposed section 575 relating to "exceptions," is similar to S. 1086, and is accordingly subject to the same objections as to lack of safeguards set forth in our report. It would legalize as a matter of Federal law all wiretapping that is legal under State law, and thus result in a broad and sweeping authoriza tion of wiretapping-a result opposed by our committee, and as will be noted later, a result opposed by the association and its committees over a period of years. S. 1221 also allows the issuance of a wiretapping order— upon oath or affirmation of an authorized agent of any Federal law enforcement agency such order to be authority to wiretap for evidence of any crime. A hot-pursuit provision is also included allowing a tap to be made if time does not permit an application and if an order is obtained within 24 hours of the commencement of the tap. It would thus allow, on the Federal level, the very activities the report of our committee disapproves granting to State officials on the State level. In summary, S. 1221, with reference to wiretapping by both State and Federal officials, does not contain the necessary and minimal safeguards with respect to the type of crime, the specification of necessary court orders with a substantial showing of good cause, and provision for continual Federal surveillance. It should be noted however, that it does prohibit all private wiretapping. With respect to S. 1495, introduced by Senator Dodd of Connecticut, to the extent that S. 1495 contains the safeguards approved by our committee, it has approval. At the time of its introduction in the Senate, the press noted that it reflected some of the proposals of our committee as set forth in our January 10, 1961, report-The New York Times, March 31, 1961. In one major respect however, S. 1495 differs from the proposals made by our committee. It allows the Attorney General of the United States to authorize a tap without court order for the crimes of espionage, treason, sabotage, sedition, and kidnaping. In view of the Federal investigatory activities over which the Attorney General has authority, and in view of the need for stringent court control in the field, it would seem that there is no reason to except the Attorney General from the requirement of obtaining a court order upon a proper showing. In the remarks of Senator Dodd to the Senate on March 30, 1961, he noted with respect to this particular provision, that— The authority to permit wiretapping is lodged in the Attorney General in cases involving either espionage or kidnapping since the time element may be of such critical importance so as not to permit going to court and since an application to a court in espionage matters might require the disclosure of highly confidential information that should not be disclosed. It would seem that speedy application can be made to the necessary court as easily as having the Attorney General rule personally on these applications, and that the Federal judiciary can be entrusted with the necessary disclosure of information to issue the orders in espionage matters. With respect to S. 1822 introduced by Senator Hruska on May 8, 1961, this bill follows the form of S. 1086, and also falls far short of the basic and minimal safeguards set out in the report of our committee. This bill does not limit the wiretapping to cases of serious crimes, and does not contain the other minimal safeguards recommended by our committee. As a consequence, it would not receive the approval of our committee. Finally, I might say that this entire subject is a matter which has greatly concerned the association of the bar and its committees charged with responsibility in these areas, since at least the issuance of an earlier report by the committee on Federal legislation 7 years ago last Wednesday, on May 3, 1954. That report supported the authorization of wiretapping for crimes affecting the national security, such as treason, sabotage, espionage, sedition, seditious conspiracy, and so forth, provided-but only provided there was prior court approval, and all other tapping was prohibited. That report noted, at pages 1 and 2: On two most important issues raised between these bills, the position of our committee is that (1) the Attorney General should be authorized to wiretap in the specified areas (treason, sabotage, etc.) provided prior court approval is obtained upon a showing of reasonable grounds therefor, and (2) all other wiretapping should be prohibited in clear, enforcible terms. At page 14: Since none of the pending bills considers the problem of wiretapping by State officials, our committee did not consider it appropriate to do more than call attention to the fact that clarification in this area would serve a highly useful purpose. Clarification would still serve a highly useful purpose and is even more imperative. The association's concern with wiretapping continued, and in connection with certain proposed wiretapping and eavesdropping legislation in our own State of New York, a special committee on wiretapping and eavesdropping legislation submitted a report, approved at a stated meeting of the association on January 21, 1958. The report contained the following comment under the subtitle "Considerations Weighed by the Committee." The report is printed at pages 1973-1980 of part V of the hearings before this subcommittee, 86th Congress, 1st session. The committe has accepted the premise that wiretapping, "bugging," and all other forms of secret overhearing or eavesdropping are basically undesirable. Apart from law enforcement, they should have no place in our society. We accept the arguments asserted by law-enforcement officials that such devices are, in certain situations, essential weapons against crime, but the use of those weapons should, to the extent practicable, be stringently supervised by the courts. The association, at the January 21, 1958, stated meeting, in addition to approving the report of its special committee, adopted the following resolution: Resolved, That the Association of the Bar of the City of New York favors legislation which would require ex parte orders in connection with the use of equipment for eavesdropping by law-enforcement officers where the equipment is to be maintained for any appreciable period of time (hearings, Constitutional Rights Subcommittee, Senate Judiciary, pt. 5, p. 1980). The continued concern over the violation to privacy by wiretapping by the association of the bar and its committees continues to be reflected in the report of this committee which is annexed to this statement. In addition, I am authorized to state that a majority of the Committee on the Bill of Rights of the association is opposed to all wiretapping, and would recommend that Congress amend section 605 of the Communications Act to make clear that both the interception or divulgence of telephone communications constitutes a crime, and to prohibit the use of wiretap evidence or evidence obtained through leads obtained by wiretapping in any court or proceeding, whether Federal or State. I am sure the concern shown in the reports of the association of the bar and its committees is also shared by the members of this subcommittee. It is my hope that our report of January 10, 1961, and this statement may be of assistance to this subcommittee in making the vital and necessary decisions it must make in this difficult area. I would be happy to answer any questions any member of the subcommittee or its counsel may have. I would like to have marked for identification or annexed at this point in the record the report of our committee of January 10, 1961, and also the report of the committee on Federal legislation of May 3, 1954. Senator ERVIN. The two reports will be admitted into the record at this point and printed as part of the record. (The two documents referred to are as follows:) THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 42 WEST 44TH STREET COMMITTEE ON FEDERAL LEGISLATION Report on Proposed Federal Legislation to Under date of June 24, 1960, the Committee on the Judiciary of the United States Senate reported out S. 3340, which bill had been introduced under date of April 6, 1960 by Senator Keating. Accompanying the bill, the Committee issued a brief supporting report by Senator Keating.1 It does not appear that hearings were held with respect to S. 3340, although a subcommittee had held hearings during 1959 with respect to certain other bills which sought to legalize wiretapping by federal officials in specified circumstances, and which also included provisions similar to S. 3340.2 S. 3340 proposes to amend Chapter 223 of Title 18 of the United States Code by adding the following provision: "83501. Evidence of Intercepted Communication. No law of the United States shall be construed to prohibit the interception, by any law enforcement officer or agency of any State (or any political subdivision thereof) in compliance with the provisions of any statute of such State, of any wire or radio communication, and the divul 1 86th Cong., 2d Sess., Senate Report No. 1720, to accompany S. 3340. A bill similar to S. 3340 had previously been introduced in the House of Representatives by Congressman Celler as H.R. 11,589. 2 Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, U.S. Senate, 86th Cong., 1st Sess. (These hearings will hereinafter be cited as "Hearings, C.R. Subcom. Sen. Judiciary)." The last reported hearings in this series, published in Part 5 thereof, were held December 15 and 16, 1959. The principal pending bills with respect to wiretapping during this period were S. 1292 (introduced by Senator Keating) and H.R. 70 (introduced by Congressman Celler). Our Committee accorded preliminary study to S. 1292 and H.R. 70, but this report does not attempt to cover them in view of our understanding that only S. 3340, or a similar bill, is likely to be the subject of Congressional consideration early in the current session. |