prima facie violation. The technical and drafting problems will require careful study, but they should be met in order that unauthorized wiretapping may be prohibited in clear, entorceable terms.

WIRETAPPING BY STATE OFFICIALS

None of the bills makes any reference to wiretapping by state officials. The present law on that subject is, to say the least, confused (assuming that Congress has the constitutional power to prohibit and regulate wiretapping by state officials, although that has not yet been precisely decided by the Supreme Court). The Court of Appeals of the State of New York has upheld the use in evidence of information obtained by wiretapping in accordance with the New York procedure, stating that it did not believe that Congress intended by section 605 to curb the state's police power. One of its decisions went to the United States Supreme Court and was there atfirmed by an equally divided court.30 In a later case the Supreme Court said that while these and other state court decisions were "not controlling here, they are entitled to consideration because of the high standing of the courts from which they come."'31 The court apparently assumed that tapping of wires by state officials was illegal, but refused to upset a conviction for robbery in a state court by means of evidence so obtained, on the ground that use in state trials of evidence illegally obtained did not present a federal question. The court declined to read into section 605 a prohibition against such use in state trials and it therefore did not have to consider whether Congress could have prohibited such use.

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. As the cited opinions show, this problem involves consideration not only of wiretapping as such, but also of the extent of the national interest in protecting wire communications from

interference by state officials, and of achieving a wise balance between Congress and the state legislatures in determining methods of state law enforcement.32

WHO SHOULD TAP

The committee is opposed to the granting of the powers involved to any agency other than the Department of Justice, and specifically opposes authorizing the armed forces to tap wires. The House bili contains such authorization (upon the express written approval of the Attorney General); the McCarran bill does not. At the House Hearings. representatives of those services failed to point out any consideration warranting their use of wiretapping.

FOOTNOTES

'S. 3229 (McCarran), discussed in this report; S. 832 (Wiley). which is along the lines of H.R. 477 discussed in note 15 below; S. 2753 (Potter), which amends section 605 of the Communications Act of 1934 to make it inapplicable to past or future interceptions for the purpose of prosecution for national security crimes.

2 The material and literature are extensive. See annotations to Alan F. Westin, "The Wire-Tapping Problem: An Analysis and a Legislative Proposal", 52 Col. L. Rev. 165 (1952); Comment, 52 Mich. L. Rev. 430 (1954); Margaret Lybolt Rosenzweig, "The Law of Wire Tapping" (study prepared for the New York State Ban Association), 32 Corn. L. Q. 514, 33 id. 73 (1947).

Letter to Representative Elliot, Feb. 21, 1945.

* Our committee rendered a report dated May 31, 1951 on various wiretap bills then pending in the House. Following the House Judiciary Subcommittee hearings last year (see note 15 below) oui committee undertook a fresh study of the subject, in which it has had the benefit of a preliminary study made prior to the hearings by the Association's Committee on Law Reform.

THE EXISTING SITUATION

Olmstead v. U. S., 277 U. S. 438 (1928).

The Olmstead doctrine was reaffirmed in Goldstein v. U. S., 316 U. S. 114 (1942), Goldman v. U. S., 316 U. S. 129 (1942), and On Lee v. U. S., 343 U. S. 747 (1952). In the first two Chief Justice Stone and Justices Murphy and Frankfurter dissented, and in the last case Justices Frankfurter, Burton and Douglas dissented.

The Goldstein case held that only parties to the intercepted conversation have a right to object to the use of the information in evidence. The Goldman case held that there was no violation of the Fourth Amendment from the introduction in evidence of conversations picked up by a detectaphone located outside the wal! of defendant's office, which conversations included what occupant of the office stated over the telephone as well. The On Lee cam allowed use of self-incriminating statements made by the defend ant to an old acquaintance, who had on his person a conceale

16

microphone and antenna which transmitted to a receiving set outside the premises.

The only case in which wiretapping was held to violate the defendant's constitutional rights is the second Coplon case. The FBI tapped her wire and her parents' wire until a week betore her trial, intercepting among other things her discussions with her lawyers regarding witnesses and trial strategy. In Coplon v. U. S., 191 F. (2d) 749 (D. C. Cir. 1952), it was held that this deprived her of her right to counsel under the Fifth Amendment.

• Nardone v. U. S., 302 U. S. 379 (1937).

Weiss v. U. S., 308 U. S. 321 (1939) held that transcripts of purely intrastate conversations, obtained in the course of a general wiretap, also could not be introduced in evidence in a federal prosecution.

"Nardone v. U. S., 308 U. S. 338 (1939).

House Judiciary Report (see note 15 below), p. 2.

On the validity of the Department of Justice's interpretation, the position of most of our members is as follows:

We believe that the Department's view is a misconstruction of the statute as it has been interpreted by the Supreme Court. In the first Nardone case the Court said:

"We nevertheless face the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person' shall divulge or publish the message or its substance to any person'. To recite the contents of the message in testimony before a court is to divulge the message. (302 U. S. 379, 382)

"It is urged that a construction be given the section which would exclude federal agents since it is improbable Congress intended to hamper and impede the activities of the government in the detection and punishment of crime. The answer is that the question is one of policy

(p. 383)

In the second Nardone case (308 U. S. 338; 1939) the result could not have been reached if the court had believed that interception plus divulgence within the Government was legal; the court could not have found illegal the other evidence which the Government obtained through use of the wiretap leads, for the fruit could not have been poisoned if the tree itself had never become poisonFurthermore, under the fourth clause of section 605, no person having received such intercepted communication, or having

ous.

become acquained therewith, shall "use" any information therein contained.

Two lower court decisions have dealt more explicitly with the illegality of interception plus internal use. In the first Coplon case the defendant's pre-trial motion for the destruction of wiretap records was granted, Judge Ryan saying: "The fact that these inter ceptions were carried on under written authorization of the Attor ney General imparts no sanctity to them; they remain unlawful and prohibited." (88 F. Supp. 921, 925; S.D.N.Y. 1950.) The conviction obtained subsequently at the trial was reversed, in part on the ground that the defendant had been refused opportunity to examine the wiretap records, Judge Learned Hand saying: "It is of course well-settled law that 'wiretapping' is forbidden by (185 F. (2d) 629, 636; C. A. 2 1950.)

statute

We appreciate that the Government may consider it has the most compelling reasons for wiretapping, particularly in time of war or impending war. During the fall of France in 1940 President Roose velt is said to have issued a confidential memorandum to Attorney General Jackson (apparently unpublished, but widely referred to) ordering the Department of Justice to employ wiretapping to pre vent and punish subversive activities and extreme danger to life. But the existence of such reasons does not change the law, and in our opinion wiretapping plus internal divulgence by federal officials constitutes a violation of section 605.

Four of our members (Messrs. Jacobi, Schell, Victor and Willard) specifically disagree with the foregoing reading of section 605 and the decisions under it, and they accordingly believe that the position of the Departinent of Justice is warranted.

The Department of Justice's interpretation of section 605 is accepted in the report of the House Judiciary Committee, recommending the earlier version of H.R. 8649 by a divided vote. 10 100 Cong. Rec. 4532, Apr. 7, 1954.

11 House Judiciary Report, p. 4.

12 Cominent, 52 Mich. L. Rev. 430, 436 (1954) .

18 House Hearings (see note 15), pp. 18, 20.

14 100 Cong. Rec. 4522-4557, 4612-4636, Apr. 7, 8, 1954.

TWO DIFFERENT OBJECTIVES

16 In May and July 1953 hearings on four bills were held before Subcommittee No. 3 of the House Judiciary Committee, the record of which has been printed as Serial No. 7 "Wiretapping for National Security", here cited as "House Hearings.". The subcom