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STATEMENT ISSUED AT A MEETING OF THE 'EXECUTIVE COMMITTEE OF THE NEW

YORK DISTRICT ATTORNEYS' ASSOCIATION, IN GARDEN CITY, LONG ISLAND, X.Y., ON DECEMBER 12, 1957, IN REFERENCE TO A DECISION OF THE U.S. SUPREME COURT IN UNITED STATES v. BENANTI, ON DECEMBER 9, 1957

In its recent decision in United States v. Benanti, the Supreme Court of the United States has declared that section 605 of the Federal Communications Act, rendering it a crime to intercept telephone conversations and divulge their contents, applies to telephone conversations intercepted by State as well as Federal officials. The effect of this decision, apparently, is to raise a doubt concerning the validity of New York legislation empowering State law enforcement officers, pursuant to court order and under a procedure providing ample safeguards against abuses, to engage in wiretapping for the purpose of obtaining evidence of crime. Since this decision appears to deprive district attorneys and law enforcement agencies of one of their most effective weapons in combating criminal activity, we feel that certain observations are in order.

No one having any substantial experience in the field of law enforcement could entertain the slightest doubt that authorized wiretapping is an essential weapon in the fight against modern organized crime. Without it, district attor. neys and the police become virtually helpless in numerous instances where dangerous and nefarious activity is conducted by ringleaders in such fashion that their detection and apprehension becomes impossible in the absence of this tool. It is no exaggeration to state that the outlawing of wiretapping by law enforcement officials represents an incalculable boon to the underworld.

As it has operated in this State, legalized wiretapping has never produced private or public injustices of the sort envisioned by alarmists unfamiliar with the procedure employed. In fact, a joint legislative committee of our State legislature, after a thorough study of wiretapping operations in New York State, explicitly declared that they had found no abuse whatever by any district attorney in the utilization of our wiretapping procedures.

The basis of the recent Benanti opinion, so far as here pertinent, is that, in enacting section 605 of the Federal Communications Act, the congressional intention was to go beyond regulation of the conduct of Federal employees and to extend its criminal application to that of State employees as well, even though acting pursuant to the constitution and statutes of their State. Without detailing the various legal arguments to the contrary, it seems in order to point out that the actions of Federal legislators during the past few years hardly support the proposition that such was the congressional intent.

Indeed, numerous congressional committees, devoted to exposing the extent of labor racketeering, narcotics traffic, juvenile delinquency, and other deleterious influences in this country, have consistently relied upon information given to them by State prosecutors, which information, as they well knew, was largely procured through the instrumentality of telephonic interception. It is safe to say that 100 or more Senators and Representatives have participated in such hearings where the nefarious machinations of criminal elements were divulged to the public through the medium of legalized wiretapping. It is also safe to state that not one of these legislators, nor any other Senator or Representative from either side of his House, has ever raised his voice in protest or objection to the use of such valuable information. Under these circumstances, among others, we find it difficult to believe that the Congress, in enacting section 605 of the Communications Act, intended to render the use of such interceptions as criminal offense.

In the light of the foregoing, we, in the arduous battle against racketeering and crime, necessarily importune the Congress to amend section 605 to exempt State officials from its operation wherever the particular State authorizes its law enforcement bodies to intercept and divulge telephonic communications pursuant to its constitution and statutes, with due regard for the safety of its citizens. Present:

Edward S. Silver, president (Kings County): T. Paul Kane, first vice Mr. SILVER. I just wanted to read one of the paragraphs in this statement of the New York State District Attorneys Association which points out that numerous congressional committees devoted to exposing the extent of narcotics traffiic, juvenile delinquency, and other deleterious influences in this country have consistently relied upon the information given to them by State prosecutors, which information, as they well knew, was largely procured through the instrumentality of telephonic interception.

president (Schoharie County); Abraham Isseks, second vice president (Orange County); Henry P. DeVine, treasurer (Nassau County); Richard G. Denzer, secretary (New York County); Frank S. Hogan (New York County): John M. Braisted, Jr. (Richmond County): Paul H. McCabe (Chemung County); Harry L. Rosenthal (Monroe County); John F. Dwyer (Erle County); Raymond C. Baratta (Dutchess County); Frank A. Gulotta (Nassau County).

I make this statement to indicate it was the thinking of Congress that interception and divulgence was not a violation of the law. That has become academic because Benanti has said it is and we bow to the authority of the Supreme Court. As a result of the Supreme Court decision, the United States v. Benanti, handed down in December 1957, it has now made it unlawful for a person, which includes law enforcement agencies such as district attorneys, from intercepting and divulging telephone conversations under the operation of 605 of the Federal Communications Act.

The decision also declared that the Federal Government by section 605, had preempted this field from the States. Much has been written by eminent scholars of the law that this was never the intention of Congress.

It is also indicated by the fact that many Members of Congress by their committees came to State district attorneys' offices and received evidence which was procured by interception, but Benanti has now said what Congress intended by section 605 to preempt this operation and as I said, I respectfully bow to the decision of the Supreme Court.

Prior to Benanti, the law in a State like New York was that we could only intercept a telephone conversation of a person when we could show, under oath, and get the facts to show it, that we have reasonable grounds to believe that the person whose telephone is to be intercepted is engaged in criminal activities. Further, we must state, under oath, that we have reasonable grounds to believe that we will get evidence of crime by the interception. Further, the court could, and often did, make further inquiry from witnesses to satisfy itself before signing the interception order.

As a result of Benanti, the interception and divulgence of telephone conversations has become unlawful, even in a State like New York.

Senator CARROLL. May I interrupt?
Mr. SILVER. Yes.

Senator CARROLL. You state that you have to show under oath that you have reasonable grounds to believe the person whose telephone is to be intercepted is engaging in criminal activities. Is there any limitation upon the type of criminal activities for which phone taps are allowed?

Mr. SILVER. No, there is not.
Senator CARROLL. Do you think this authority is too broad?

Mr. SILVER. No, I do not. And as I will later show in my statement for the reason that when we embark on a criminal investigation we are never sure what type of crime we will run into.

We have, for example, procured court orders to intercept phone conversations of people that we knew were engaged in the policy game and in listening to that conversation we have gotten evidence of murder cases, evidence of arson, evidence of narcotics.

In other words, when you are dealing with criminal personalities they do not limit themselves to a particular type of crime. They are engaged in criminal activities for the purpose of making money and we never know what type of crime we are going to run into.

Senator CARROLL. The question, it seems to me, is whether we are to so broaden section 605 as to permit law enforcement officers to go to court to request tapping authority because someone is engaged in any criminal activity.

Early this morning I studied the report of the Association of the Bar of the City of New York upon this question. This report suggested a limitation on the selection of crime for which tapping authority is to be allowed.

I gather your present New York statute is broad enough to cover the whole field. All that must be shown to the court is evidence of criminal activity.

Mr. SILVER. We have to show the person is engaged in crime and we have reasonable grounds to believe that we will get avidence of a crime.

Now, I want to say this, Senator, in New York State which I think is a fair laboratory, we have 62 district attorneys; 62 counties which are as varied as New York City is from some small country town in the West with a population of some 18 million people. We have operated under that statute for 20 years and in a very exhaustive investigation carried on by a State legislative committee under the chairmanship of a very able gentleman, they haven't found one instance in 20 years where a district attorney has abused this right given to them under the statute.

Senator CARROLL. Is this power only given to district attorneys? Mr. SILVER. No; it is also given to police.

Senator CARROLL. Is there any evidence that the police have abused it?

Mr. SILVER. I do not know.

Senator CARROLL. It is my understanding there is substantial evidence that it has been abused by the police.

Mr. Silver. There is not substantial evidence. If you are referring to my friend, Sam Dash and his book, I have some comment about that later.

Senator CARROLL. I am referring to Sam Dash's testimony before this committee in past years, not his book.

Now is there any basis for the observations that have been made that teams of detectives will get a wiretap order and use it themselves for a shakedown?

Mr. Silver. In our Harry Gross investigation which was a boroughwide and almost citywide investigation into gambling and corruption, we did find some instances where corrupt policemen were using wiretapping, and not under a court order, but by illegal wiretapping to get information which they used for their own purposes.

I know that this is true at times because 2 years ago I prosecuted two policemen and convicted two policemen for doing just that. But we are talking about wiretapping under a court order. There is no question that there is a great deal of abuse in connection with wiretapping by people who are unlawfully tapping wires. Now as to those people, no punishment would be too severe, so far as prosecutors are concerned, with regard to unlawful wiretapping. For example, the statute in the present New York legislation, section 813B of the criminal code of procedure makes it a felony for a law enforcement agency to tap a wire without a court order and it was written and promulgated by the district attorneys association in my State.

In fact, I had something to do with it myself and so as far as illegal wiretapping is concerned, there is nobody more arduous than we are to make that a serious crime.

Senator CARROLL. Incidentally, I have never read Mr. Dash's book. I have heard his testimony.

Mr. SILVER. I am not recommending the book to you, but I had to read it to know what the book said. He makes the observation for example, that the district attorneys are loath to prosecute for unlawful wiretapping because it would indicate to the public that something is being done that is wrong with regard to wiretapping and give the whole thing a bad flavor. Nothing could be further from the truth.

The difficulty is he does not understand, though he should as a former prosecutor, that when a burglary is committed or a homicide is committed, even if the perpetrator is not found you know that a burglary was committed. You know that a homicide was committed. You have the corpus delicti. But if somebody taps a wire illegally, he pulls off his equipment. There is no evidence left to show that there has been such a crime. So to begin with we very rarely get the information that such a crime was committed. For example, we have advocated that the telephone company should be compelled by statute to advise the district attorney whenever they find a tap on a wire.

Now we have been told, and I don't know how true it is, that telephone companies, even if they find a tap, will take it off and tell the subscriber that "your wire is clear” because they don't want to give the impression that perhaps the telephone isn't quite as private as it might be.

Now I say telephone companies should be compelled to advise the district attorneys when and if they find a tap. Then perhaps there would be more prosecutions. The lack of prosecutions does not come about because of any lack of desire on the part of the prosecutor to do so.

Senator CARROLL. I didn't mean to draw you away from your statement, but wanted to emphasize this question of selectivity and I will discuss that later on.

Mr. SILVER. Yes, yes.

Senator CARROLL. I am also informed that Mr. Dash will appear before us today and we then will have a chance to hear his testimony.

Senator KEATING. Mr. Chairman, on the point you are making, can I ask one question before Mr. Silver gets away from it?

Senator CARROLL. Yes.

Senator KEATING. Reference is made by Senator Carroll to the fact that a court order may be obtained no matter what the crime is, whether it is a serious felony or a misdemeanor.

Is there any limitation, Mr. Silver, as to the type of crime for which search warrants may be obtained in New York State ?

Mr. SILVER. No. I can get a search warrant for any crime.

Senator KEATING. So that the rule as regards a court order with reference to wiretapping is the same as the rule with reference to search warrants in that respect.

Mr. SILVER. That is correct, and one other thing should be said that the word "misdemeanor" is not a word of art in the law. There are some States in which crimes are called misdemeanors and in other States are considered very serious.

For example, until last year in our own State conspiracy to commit murder was a misdemeanor punishable like any other misdemeanor, while in the State of California it was punishable by death. We have corrected that with regard to murder, but there are still many conspiracies to commit serious crimes that are still misdemeanors in New York State that are considered very serious in other States.

The words “misdemeanor" or the amount of “punishment” are not terms of art in the law. In one place they can punish a crime by 20 years and in others by 1 year, depending on how the particular States regard the crime with which they are dealing. To use the word "misdemeanor" or "punishment” as a standard makes it difficult for various States because their standards are different.

Senator KEATING. It seems to me that Congress might well recognize and probably should recognize different degrees of crimes so far as Federal police powers are concerned, but that it would not be appropriate under Federal-State relationships for Congress to recognize different degrees of crime or supervise the exercise of State police powers in a Federal statute. I think there is a real distinction there.

Senator CARROLL. Mr. Silver, what I had in mind here is the report submitted by the Committee on Federal Legislation of the Association of the Bar of the City of New York for proposed Federal legislation to legalize the State's wiretapping. This is dated January 10, 1961. The report recognizes the need for some change in the Federal law but it points out some deficiencies in S. 3340. I assume that is the bill that Senator Keating introduced last session. Has there been any modification ?

Senator KEATING. No.

Senator CARROLL. On page 8 the report groups the deficiencies of S. 3340 into four categories, as follows:

1. Lack of limitation in respect to the type of crime;

2. The lack of specification of requirement for obtaining court orders and maintaining records;

3. Lack of prohibition of use of evidence obtained in violation of the statute;

4. The lack of provision for Federal surveillance.

I have very personal strong feelings about this as you know-when I was district attorney in Denver, I prosecuted one of the most significant eavesdropping cases in the country.

This case was on eavesdropping and wiretapping. We had lawyers in this case who didn't tap wires, but ran their own wire and we prosecuted under the common law on eavesdropping. The lawyers found guilty were disbarred. The State supreme court upheld the conviction. Colorado takes a very dim view of wiretapping although my district attorney in Denver doesn't express himself.

As I read this report I thought there was considerable merit in it. Later on, I am informed, Mr. Gasperini will testify concerning this.

Mr. SILVER. Mr. Gasperini is the chairman of the Committee on Federal Legislation, Association of the Bar of the City of New York.

I just want to say, Senator Carroll, that I have the report and also an

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