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sideration of possible statutory revisions is appropriate and timely.
Implicit in S. 3340 and the accompanying report is the premise that S. 3340 deals essentially with problems of local law-enforcement which are primarily the concern of the several states, and the principles and standards formulated by the respective states should accordingly be given predominant if not conclusive weight. This premise is not wholly valid. In the area covered by S. 3340, considerations of local law-enforcement are interwoven with those relating to the regulation of a nationwide system of telephonic communication, which is indisputably a matter of primary national interest and responsibility. Whether and in what circumstances state agents should be permitted to tamper with telephonic communications, a substantial and indistinguishable portion of which are interstate, & are problems of paramount federal concern, not essentially different from those which would arise if the proposals sought to empower state agents to open the mails incident to their local law-enforcement activities. We do not think it would seriously be contended that Congress should grant authority to state agents to open mail in transit in aid of local law-enforcement, without at the very least laying down precise limitations and standards as conditions precedent to the exercise of any such authority.
At the present time, it has been settled by authoritative rulings of the Supreme Court that 8605 of the Federal Communications Act prohibits interception and divulgence of any telephonic communication by anyone, whether such communication be intrastate or interstate, and whether such interception be by a private individual, or by an agent of a state government acting under purported authority of a state statute.?
6 Weiss v. U.S., 308 U.S. 321, 327; Benanti v. U.S., 335 U.S. 96, 104.
7 In Benanti the Court pointed out that it has not yet been decided whether both an interception and a divulgence are necessary for a violation of $605 F.CA. (355 U.S. at noon.) This ambiguity furnishes the rationale on which federal investigative agents, such as the staff of the FBI, presently base their wiretapping activities. It is contended that since such interceptions are performed only for investigative purposes, and are not "divulged" by being offered in evidence in any court, the statute is not violated. (Hearings, C.R. Subcom. Sen. Judiciary; Communications from Attorney General William P. Rogers, Part 5, pp. 1481–2).
The federal policy has been part of the law of the land since enactment of the Federal Communications Act of 1934, even though not uniformly understood or applied. Indeed, 6 years prior to the enactment of the statute, in Olmstead v. U.S., 277 U.S. 438, 4 justices of the Supreme Court (Holmes, Brandeis, Stone and Butler) not only characterized wiretapping as “dirty business” (Justice Holmes' words) but were of the view that evidence thus obtained violated the Federal Constitution's prohibition against unreasonable searches and seizures. At least several members of the present Supreme Court have asserted their adherence to this view.8
The national policy against wiretapping expressed in 8605 F.C.A. is buttressed by similar prohibitions contained in statutes enacted by 33 states. Only 6 states have statutes purporting to authorize law-enforcement officials to engage in wiretapping, upon compliance with specified procedures.10
Since the enactment of S. 3340 would constitute a first and farreaching relaxation in the quarter-century federal prohibition against wiretapping, it may be anticipated that the enactment will ultimately have a broad impact on present wiretapping restrictions throughout all areas, federal as well as state. At the state level, it may be expected that in many of the 33 states which now prohibit wiretapping, enactment of S. 3340 will be urged as an example and invitation for parallel state enactments. At the federal level, it will inevitably and forcefully be urged that there is no logical justification to deny wiretapping authorization to federal agencies alone, once S. 3340 has relaxed and reversed the present national policy against wiretapping.
To mention these considerations, however, is not necessarily to oppose any modifications of the present national policy.
8 See On Lee v. U.S., 343 U.S. 747 (1952), dissenting opinions of Justices Douglas, Frankfurter, Burton. See also dissenting opinions in Schwartz v. Texas, 344 U.S. 199 (1952)
o Communication from Legislative Reference Service, The Library of Congress (Hearings, C.R. Subcom. Sen. Judiciary, Part 5, p. 1527). The communication lists 89 states as prohibiting wiretapping, but this list includes the 6 which permit limited wiretapping by law-enforcement officials.
10 Id. at p. 1528. The 6 states are Louisiana, Maryland, Massachusetts, Nevada, New York and Oregon.
Rather, the purpose is to suggest that S. 3340 has a disarming simplicity which may serve to obscure the far-reaching policy changes which this measure will effectuate throughout the nation, at federal and state levels. In sum, it may be said to shift the national policy from one flatly prohibiting wiretapping at any level, to one favoring "controlled" wiretapping at all levels.
Viewed in this light, it is evident that a threshold and basic policy decision must be reached as the first step in evaluating S. 3340: Should this significant shift in national policy be effected? If so, does S. 3340 embody controls and standards requisite and appropriate for the revised national policy?
COMMITTEE CONCLUSIONS AS TO S. 3340 Our Committee has concluded: (1) that it is prepared to accept and recommend the basic change in national policy discussed above; (2) that S. 3340, in its present form, is deficient in the controls and standards requisite and appropriate for the revised national policy (A) Basic Policy Conclusion.
The considerations which entered into the basic policy conclusion of the Committee were various, as was the weight accorded to one or another of these considerations by the respective Committee members. There was general recognition that we are confronted in this area, as in so many others, with the search for that most elusive of formulae, in which a proper balance is struck between the respective needs of society and the rights of the individual. To some, the advantages of wiretapping in aid of lawenforcement officials in combatting crime seemed entitled to greater weight in the formala.11 To others, it appeared that the rights of the individual require zealous protection in respect of police wiretapping for, as has been authoritatively asserted, "a telephone interception is a far more devastating measure than any search warrant.” 12
11 See, e.g., Brown, The Great Wire-Tapping Debate and The Crisis In Law Enforcement, 6 N.Y. Law Forum, 265–282.
12 Hofstadter, J., In the Matter of the Interception of Telephone Communications of Anonymous, 207 Misc. 69, 74-75 (N.Y. Sup. Ct., 1955):
In the final analysis, however, even those members of the Committee philosophically opposed to all wiretapping were induced by essentially pragmatic considerations to join in the Committee's conclusion that the national policy should officially shift from absolute prohibition of wiretapping to "controlled" wiretapping. For it is clear from a number of authoritative studies that, in the face of the present national policy, wiretapping by law-enforcement officials and others is now so widespread and entrenched a practice throughout the nation that it would be illusory to believe any complete prohibition could be made effectual, or that it would comport with public opinion.18 These studies, moreover, indicate that the trend of both public and expert opinion is now in the direction of controlled" wiretapping by law-enforcement officials, under continuous and close supervision.
Our Committee believes this trend may be salutary, and that a desirable solution may be achieved if-but only if-the controls under which the law-enforcement officials are permitted to engage in wiretapping are meaningful and adequate. Incorporation of such meaningful and adequate controls should be an absolute
“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. Everything said over the line is heard, however foreign to the stated objective of the law-enforcement officers. The most intimate conversations, personal, social, professional, business or even confidential of an unlimited number of persons may be laid bare. In effect, the line of everyone who is called from or makes a call to the tapped line at any time is being tapped during the maintenance of the tap. When a line in a public telephone booth is tapped, as has on occasion been done, the conversations of people having no relation of any kind to the operator of the place in which the booth is situated or the person whose line is tapped, are overheard. It is little wonder that Justice Brandeis was moved to say in the Olmstead case: 'As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.' (277 U.S. 438, 476.)"
18 See, for example: DASH, SCHWARTZ, KNOWLTON, THE EAVESDROPPERS (1959); Westin, Wiretapping: The Quiet Revolution, Commentary Magazine April 1960 (reprinted in Hearings, C.R. Sen. Judiciary, Part 5, pp. 1957–1964); Westin, The Wire-Tapping Problem, 52 Col. L. Rev. 165; Rozenzweig, The Law of Wire Tapping, 32 Cornell L.Q.514, 33 Cornell L.Q.78.
condition to the shift in national policy sought by such measures as S. 3340. Discussed below are the important deficiencies of S. 3340 in this regard. (B) Deficiencies of S. 3340.
The deficiencies of S. 3340 may be grouped in 4 categories, as follows: (1) lack of limitation in respect of type of crime; (2) lack of specification of requirements for obtaining court orders and maintaining records; (3) lack of prohibition of use of evidence obtained in violation of the statute; (4) lack of provision for federal surveillance.
(1) Lack of limitation in respect of type of crime. If a state court order is obtained, the bill would legalize state wiretapping in the investigation of any crime, even the pettiest misdemeanor. The sweep of the New York statute which it follows in this regard has been the subject of severe criticism;14 we do not believe it should be permitted to set the standard for revised federal policy in the regulation of our nation-wide system of telephone communication.
A Nevada statute, enacted in 1957, authorizes court wiretap orders only where "there are reasonable grounds to believe that the crime of murder, kidnapping, extortion, bribery or crime of endangering the national defense or a violation of the Uniform Narcotic Drug Act has been committed or is about to be committed.” 15 Limitation of wiretaps to more serious crimes of this type accords with a substantial body of expert opinion. 16
Our Committee believes that such limitation to more serious crimes is highly desirable in order to curtail invasion of the right
14 See authorities cited on the preceding page. See also the critical pronouncement of an incumbent Justice of the New York Supreme Court, based on his extensive first-hand experience with wiretapping under the New York statute, In the Matter of the Interception of Telephone Communications of Anonymous, (supra).
“New York Special Sessions Justice Frank Oliver testified that the court order had proved ineffective as a means of protecting the citizen, and that delegates to the constitutional convention never imagined that such orders 'would be issued on trivial grounds or in cases involving only suspicion of a misdemeanor or offense.'” (Westin, The Wire-Tapping Problem, 52 Col. L. Rev. 165, 195)
16 Nev. Stat. ch. 242 (1957); see Appendix.
16 For example, limitation to crimes "directly and immediately affecting the safety of human life" (Westin, The Wire-Tapping Problem, 52 Col. L. Rev. at 203); limitation to cases involving national security, treason, sabotage, espionage and related offenses (Mr. Edward B. Williams, Hearings, C.R. Subcom. Sen. Judiciary,