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WIRETAPPING AND EAVESDROPPING LEGISLATION

TUESDAY, MAY 9, 1961

U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 357, Old Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin, Carroll, Keating, and Hruska.

Also present: William A. Creech, chief counsel and staff director, and Bernard Waters, minority counsel.

Senator ERVIN. The committee will come to order.

Two years ago the Subcommittee on Constitutional Rights held hearings on wiretapping and eavesdropping. Beginning today, the subcommittee will hold 4 days of hearings on these subjects, on four bills pending before it; they are S. 1086, 1221, 1495, and 1822. (S. 1086, 1221, 1495, and 1822 follow :)

[S. 1086, 87th Cong., 1st sess.) 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 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 223 of title 18 of the United States Code is amended by adding at the end thereof the following: "g 3501. Evidence of intercepted communications

“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 divulgence, in any proceeding in any court of such State, of the existence, contents, substance, purport, effect, or meaning of any communication so intercepted if such interception was made after determination by a court of such State that reasonable grounds existed for belief that such interception might disclose evidence of the commission of a crime.”

SEO. 2. The analysis of chapter 223 of title 18 of the United States Code is amended by inserting immediately below "3500. Demands for production of statements and reports of witnesses." the following: "3501. Evidence of intercepted communications."

(S. 1221, 87th Cong., 1st sess.) A BILL To regulate eavesdropping, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That part I of title 18 of the United States Code is amended by adding thereto a new chapter :

"Chapter 28-Eavesdropping "Sec. *570. Definitions. "571, Eavesdropping prohibited. "572. Possession of eavesdropping instruments. *573. Ex parte order for eavesdropping. "574. Admissibility of evidence. *575. Exceptions. "576. Duty to report violations.

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“8 570. Definitions

“As used in this chapter-
“(1) 'Eavesdropping' refers to a situation in which a person-

"(a) not a sender or receiver of a telephone or telegraph communication willfully and by means of instrument overhears or records a telephone or telegraph communication, or aids, authorizes, employs, procures or permits another to do so, without the consent of either a sender or receiver thereof; upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall be retained in his possession by the judge issuing the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge denying the same.

“(b) not present during a conversation or discussion willfully and by means of instrument overhears or records such conversation or discussion, or aids, authorizes, employs, procures or permits another to do so, without the consent of the party to such conversation or discussion; or

"(c) who, not a member of a jury, records or listens to by means of instrument the deliberations of a jury or who aids, authorizes, employs, procures or permits another to do so. “(2) 'Person' means any individual, partnership, corporation, or association including the subscriber to any telephone or telegraph service involved but excluding any law enforcement officer while acting lawfully and in his official capacity in the investigation, detection, or prosecution of crime.

"(3) 'Instrument means any device, contrivance, machine, or apparatus or part thereof designed or used for acoustical detection including but not limited to wiretapping equipment, microphones, detectaphones, spike mikes, dictaphones, radio transmitters, and recorders. 8 571. Eavesdropping prohibited

"A person who engages in eavesdropping

"(1) in the District of Columbia or any Territory or possession of the United States; or

“(2) for the purpose of aiding or abetting or perpetrating any Federal offense; or

“(3) where the conversation, discussion, or communication overheard or recorded is by wire or radio; or

(4) for the purpose of obtaining information concerning any activity under Federal regulation; or

“(5) where the information overheard or recorded is to be transmitted in interstate commerce or outside the United States; or

“(6) where the instrument employed to overhear or record the conversation, discussion or communication utilizes or involves facilities in inter

state or foreign commerce, shall be fined not more than $5,000 or imprisoned not more than one year and a day, or both. 8 572. Possession of eavesdropping instruments

“A person who has in his possession any eavesdropping instrument under circumstances evincing an intent to use or employ or allow the same to be used or employed for unlawful eavesdropping under section 571 of this chapter, or knowing the same to be so used, shall be fined not more than $1,000 or imprisoned for not more than six months, or both. $ 573. Ex parte order for eavesdropping

(1) An ex parte order for eavesdropping may be issued by any judge of any United States Court of Appeals or a United States District Court or any judge of the Municipal Court of Appeals for the District of Columbia or the Municipal Court for the District of Columbia or any Commissioner of the United States, upon oath or afirmation of an authorized agent of any Federal law enforcement agency that there is reasonable ground to believe that evidence of Federal crime may be thus obtained and particularly describing the person or persons whose communications, conversations, or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication identifying the particular telephone number or telegraph line involved. In connection with the issuance of such an order the judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers

“(2) Orders for eavesdropping must be obtained before the eavesdropping commences, except as hereinafter in this section provided. A law enforcement officer may eavesdrop without a court order obtained pursuant to this section only when he has reasonable grounds to believe (a) that evidence of crime may be thus obtained, and (b) that in order to obtain such evidence time does not permit an application to be made for such a court order before such eavesdropping must commence. In any such case an application for a court order pursuant to this section must be made within twenty-four hours after such eavesdropping commenced. In computing said twenty-four hour period, legal holidays shall not be considered. The application for such a court order must contain, in addition to the requirements set forth in this section, the time when such eavesdropping commenced. If such application is granted, the order shall be made effective from the time the eavesdropping commenced. If the application is denied, the eavesdropping must cease immediately.

“(3) Except in any trial, hearing, or other proceeding, a person who willfully discloses to any person, other than a carrier whose facilities are involved, or other authorized agent of any law enforcement agency, any information concerning the application for, the granting or denial of orders for eavesdropping, or the identity of the person or persons whose communications, conversations, or discussions are the subject of an ex parte order granted pursuant to this section shall be fined not more than $1,000 or imprisoned not more than six months, or both. "§ 574. Admissibility of evidence

"Evidence obtained by any act in violation of this chapter, and evidence obtained through or resulting from information obtained by any such act, shall be inadmissible for any purpose in any civil action, proceeding, or hearing : Provided, however, That any such evidence shall be admissible in any disciplinary trial or hearing or any administrative action, proceeding, or hearing conducted by or on behalf of any governmental agency. "8575, Exceptions

"(1) Nothing contained in this chapter shall prohibit eavesdropping by any law enforcement officer or agency of any State or any political subdivision thereof, or the introduction in any court of evidence obtained by such eavesdropping, where the eavesdropping has been authorized by a court of such State upon a determination that reasonable grounds existed for belief that such interception might disclose evidence of the commission of a crime.

"(2) There may be introduced in any court of the United States evidence relating to the existence, contents, substance, purport, effect, or meaning of any communication by wire or radio which has been intercepted by any law enforcement officer or agency of any State or political subdivision thereof, where the interception of such communication was authorized by a court of such State upon a determination that reasonable grounds existed for belief that such interception might disclose evidence of the commission of a crime.

“(3) Information obtained prior to the effective date of this chapter by any authorized agent of any Federal law enforcement agency through or as a result of the interception of any communication by wire or radio upon the express written approval of the Attorney General of the United States in he course of any investigation of any Federal offense shall, notwithstanding the provisions of section 605 of the Communications Act of 1934 (48 Stat. 1103), be deemed admissible in evidence in any criminal proceedings. "576. Duty to report violations

"It shall be the duty of every carrier subject to the Communications Act of 1934 (48 Stat. 1103) to report to the law-enforcement agency having jurisdiction, any information coming to his attention with regard to violations of this chapter. Any willful violation of this section shall be punishable by a fine of up to $500."

Sec. 2. The proviso contained in section 605 of the Communications Act of 1934 (48 Stat. 1103) is amended to read as follows: “Provided, That this section shall not apply to the interception, receiving, divulging, publishing, or utilizing the contents of (a) any radio communication broadcast or transmitted by amateurs or others for the use of the general public or relating to ships in distress, or (b) any eavesdropping by any person in accordance with chapter 28 of title 18 of the United States Code."

SEC. 3. The Communications Act of 1934 (48 Stat. 1061), as amended, is amended by adding the following new section: "223. Authorized interceptions

“All carriers subject to the provisions of this chapter are hereby authorized to permit eavesdropping by any person in accordance with chapter 28 of title 18 of the United States Code."

Sec. 4. If any provision of this chapter or the application of such provision to any circumstance shall be held invalid, the validity of the remainder of this chapter and the applicability of such provision to other circumstances shall not be affected thereby.

[S. 1495, 87th Cong., 1st sess.) A BILL To prohibit wiretapping by persons other than duly authorized law enforcement

officers engaged in the investigation or prevention of specified categories of criminal offenses, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Federal Wire Interception Act".

DEFINITIONS SEC. 2. As used in this Act-

(1) The term "wire communication" means any communication made through the use of telephone or telegraph facilities furnished by any person engaged, as a common carrier for hire, in providing such facilities for the transmission of interstate or foreign communications;

(2) The term "interstate communication” means any communication transmitted (A) from any State to any other State, or (B) within the District of Columbia or any possession of the United States ;

(3) The term “foreign communication" means any communication transmitted between any State or any possession of the United States and any foreign country;

(4) The term "intercept” means the acquisition by any person, through the use of any intercepting device, of the contents of any wire communication made by any other person;

(5) The term "intercepting device" means any mechanical, electrical, or electronic device or apparatus other than a telephone or telegraph instrument, an extension telephone instrument, a switchboard, a wire communications line, cable, or system, or other part of the facilities used for the transmission of a wire communication from the sender to the person intended by the sender to be the recipient thereof;

(6) The term "contents", when used with respect to any wire communication, means any information concerning the existence, contents, substance, purport, or meaning of that communication;

(7) The term “person" means any individual, including any individual serving as an investigative or law enforcement officer of the United States, any Federal agency, or any State, and any partnership, association, joint-stock company, trust, or corporation;

(8) The term “Federal agency” means any department, agency, or armed force of the United States ;

(9) The term "State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any possession of the United States; and

(10) The term “judge of competent jurisdiction", when used with respect to any application for leave or any order granting leave to intercept any wire communication, means

(A) a judge of a district court of the United States or a court of appeals of the United States, as to any application made or order entered to obtain evidence of, or to prevent, the commission of any offense in violation of any statute of the United States; and

(B) a judge of any court of a State who is authorized by a statute of that State to enter orders granting such leave, as to any application made or order entered to obtain evidence of, or to prevent, the commission of any offense in violation of the law of that State.

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