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tions in the State courts. So far as the laws of the State of North Carolina are concerned, we have statutes which prevent the disclosure of telephonic messages, telegraphic messages, or which prohibit the unauthorized opening, reading, or publishing of sealed letters and telegrams. In my opinion we do not have any statute or law which prohibits law-enforcement officers of the State from tapping wires or intercepting messages or conversations by any method or manner whatsoever and the recording of same. In my opinion, such intercepted communications, upon proper foundation being laid, by the law-enforcement officers are competent evidence in the courts of the State of North Carolina to the same extent as if the law-enforcement officer overheard the conversation by the use of his auditory faculties. The net result of S. 1086 is that the Congress is dictating to the States how they can use intercepted messages by law-enforcement officers in their own State courts and this proposed bill would require any State to have a determination by a court of the State that reasonable grounds existed before the interception would be authorized. I am opposed to this bill because I feel the State should regulate its own law-enforcement officers and should be free to permit the interception of communications on the part of law-enforcement officers without order of court.

As to S. 1495, if the definition in subsection (7) of section 2 of this act is an attempt to regulate State officers and State courts, then I am opposed to S. 1495. It would appear from the whole tenor of section 4 of S. 1495 that subsection (c) is an attempt to tell the States how they shall regulate their own administration of criminal laws and therefore I am opposed to all of S. 1495 insofar as it relates to and attempts to dictate to a State what that State can do under its own laws and in its own courts by way of intercepted communications. If the Federal authorities wish to tie the hands of their law-enforcement officers by any such methods and if they wish to obstruct the investigation of spies and saboteurs by any such methods, then they are free to do so so far as I am concerned, but somewhere and sometime the Government must have power to adequately and sufficiently defend itself against those who would destroy it.

For the same reasons I am opposed to S. 1221 which also attempts to dictate to the States what they shall do in their own criminal practice and in their own courts with intercepted communications.

I would ask the subcommittee to confine its proposed laws to the administration of Federal matters and the activities of Federal officers and to leave the States free to permit their officers to intercept communications for admission in the courts of the State in criminal actions pending therein.

Senator ERVIN. We will call our first witness.

Mr. CREECH. The first witness is the Honorable Edward S. Silver, district attorney, Kings County, Brooklyn, N.Y.

Senator ERVIN. The Chair would like to afford Senator Keating the opportunity to introduce Mr. Silver to the subcommittee.

Senator KEATING. Thank you, Mr. Chairman, the witness has been for a number of years the district attorney of Kings County which is Brooklyn in my State. He has a distinguished record as district attorney. He is highly regarded and respected for his work in the field of law enforcement and he is here today not only in his individual capacity, having been one of the most diligent students in this field, but also he appears on behalf of the National District Attorneys' Association of which he is the immediate past president.

I am very proud to introduce to the committee Mr. Silver, who is my friend and a fine public official of my State.

Senator ERVIN. I will have to ask Senator Carroll to take the Chair. I have another committee to attend at this time.

Senator CARROLL (presiding). It seems that I have heard Mr. Silver before on this subject.

You may proceed, Mr. Silver

STATEMENT OF EDWARD S. SILVER, DISTRICT ATTORNEY, KINGS COUNTY, BROOKLYN, N.Y.

Mr. SILVER. Thank you, Mr. Chairman.

Senator Keating, thank you for your very gracious and flattering remarks in your introduction.

Mr. Chairman, I appreciate the opportunity that you and your colleagues have afforded me in testifying in support of congressional legislation in connection with various so-called wiretapping bills that are now before your committee for consideration.

As Senator Keating has indicated, I have the honor of representing the National District Attorneys' Association, which has over 1,600 members from all 50 States of the Union, and representing counties in which 60 to 70 percent of the population of our country reside. I am the immediate past president of the National District Attorneys' Association and I served until August of 1960.

The National District Attorneys' Association has passed a number of resolutions in favor of wiretapping bills similar to S. 1086.

May I be permitted to submit as an exhibit the last resolution passed in March of this year dealing specifically with S. 1086!

Senator CARROLL. Without objection, it will be put in the record. (The resolution referred to follows:)

RESOLUTION

Whereas the National District Attorneys' Association, at its annual meeting in Milwaukee, Wis. (1959), and at its annual meeting in Boston, Mass. (1960), by resolution, urged upon the Congress of the United States the enactment of legislation to permit the enactment by States of legislation concerning the interception of telephonic communications under proper safeguards; and

Whereas two bills, Senate bill 3340 and House bill 11589, concerning the enactment of such legislation were introduced before the 86th Congress, and that Senate bill 1086 (similar to Senate bill 3340) has been introduced in the present 87th Congress: Now, therefore, be it

Resolved, That the National District Attorneys' Association does hereby reaffirm its stand on this important matter, and urges upon its membership the support of such measures through contact with their own Congressmen or Senators and by such other means which may be appropriate. Dated this 11th day of March 1961, at Tucson, Ariz.

Attest:

NATIONAL DISTRICT ATTORNEY'S ASSOCIATION, By PATRICK BRENNAN, President.

HARRY ACKERMAN, Acting Secretary.

Mr. SILVER. On December 12, 1957, just 3 days after Benanti was decided, the executive committee of the New York State District Attorneys Association issued a statement which I submit is rather significant and timely today.

It is not long and I will either read it or submit it as an exhibit, depending on the direction of the chairman.

Senator CARROLL. How lengthy is it?

Mr. SILVER. It is two pages.

Senator CARROLL. Without objection, it will go into the record. (The document referred to follows:)

STATEMENT ISSUED AT A MEETING OF THE EXECUTIVE COMMITTEE OF THE NEW YORK DISTRICT ATTORNEYS' ASSOCIATION, IN GARDEN CITY, LONG ISLAND, N.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 attorneys 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 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 (Erie County) Raymond C. Baratta (Dutchess County); Frank A. Gulotta (Nassau County).

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 traffic, 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.

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 respect fully 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 evidence 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,

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