Communications Commission would draw up in order to find out as much as it could about how much wiretapping and eavesdropping was going on.

For example, you might require each telephone system to report how many taps its linemen discovered in the course of a year. California has made that a State law now and the date of that is 1956 or 1957 that they did this-they required, on the regulations of their public utilities commission that all telephone companies in California report to the public utilities commission each year how many taps they find. A figure of, I believe something like 52 or 50 wiretaps was found in the reporting period of 12 or 14 months for which I happened to see a later statement here. This would be a way of providing an agency that would take the trouble to collect this information, to appraise it, and to use it as a basis for changing not the basic terms of the statute but the way in which these operating procedures as I would call them, of the basic wiretapping system would be carried out.

I see trouble in letting the Attorney General do this because I think that the Attorney General's office is too frequently involved in the merits of wiretapping and in the feeling of pressure to use wiretapping. I would think it would be helpful to have this in an independent, regulatory agency rather than either done by the Attorney General or by some other executive agency directly concerned with problems of law enforcement.

Senator CARROLL. The reason I mentioned the FCC is that they have a large backlog of cases now.

Mr. WESTIN. I did make a statement in my remarks that I am sure this would be taking a lot of money and probably a special appropriation. A staff could be especially created, to be known as the Interstate Communications Divison which would be a staff which devoted its attention to the problem of policing the wiretapping system.

I remember in 1951, having talks with some Federal Communications officials about this and their comment was exactly as you suggest, Senator. They said, "As busy as we are, why do you wish enforcement of the wiretapping statute on us?"

I can appreciate that if Congress were to want to do this, it would have to make a money commitment to set up a staff to do it.

Senator CARROLL. Perhaps there ought to be a new bureau to take care of interceptions, "bugging," and what not. It would set out operational instructions; the telephone company would report to it and it would report to the Congress. This would be a large operation.

Mr. WESTIN. Yes, I think it is. And any attempt to do it with less than that would have two very bad consequences.

On the one hand, you wouldn't get the facts on which to judge the way the system is operating and this is what Senator Dodd was much concerned about in his bill.

The second trouble that you would have if you didn't do this would be that there are no means short of constant amendment by Congress of changing the operative procedures as opposed to the basic definitional procedures. If Congress were to deliver itself of a wiretapping statute this year or next year, I wouldn't want to have to gamble on passing amendments year after year in order to take care of probfems, because I think the same tug of forces between those that oppose and those that favor wiretapping practices would be likely to be constant. Careful amendment is something that would not take place.

Senator CARROLL. Now this has been very, very helpful and indeed some creative and imaginative thinking has been done.

As the chairman said, it is indeed a very difficult problem. It shows what we can get into. For example, in New York a group of lawyers talk about Federal surveillance. I don't see how we can do it unless we set up some new great bureaucracy. Perhaps we ought to let the States do what they want to do because I think it would take a long time before the Congress would take all these steps.

With the economy in such bad shape, do we have to do all these things. Are we about to be taken over by the criminal element? Do we have to take these great steps to prevent being taken over by the criminal element?

Mr. WESTIN. Are you talking about the State or Federal level, Senator?

Senator CARROLL. I am talking about the whole law enforcement picture.

Mr. WESTIN. I would think if you had a representative of the FBI here he would give you an instant response that in the areas of internal security, the Nation would be in peril if it couldn't keep its wiretaps on.

Somebody from the Narcotics Bureau would tell you if they couldn't wiretap they could not control the flow of marijuana as was described earlier.

Senator CARROLL. The point is this. They are wiretapping now, I assume. Really, what they seek is a legal sanction, I assume, and then, from a legal sanction, they want to use this evidence.

I can understand the plight of the district attorney in Brooklyn who has built up some cases only to have the Supreme Court pull the rug out from under him. I don't think this is going to affect my people in Colorado very much. I don't think it is going to affect the people of Illinois and Pennsylvania.

Mr. WESTIN. I think on this question, some interesting facts developed in Pennsylvania.

Immediately after the adoption of the total ban on telephone tapping in Pennsylvania, the police commissioner issued a statement that crime was up 18 percent since the time that the wiretapping statute was enacted.

The attorney general of the State of Pennsylvania, Mr. McBride, who was a witness before the subcommittee earlier, said that this was utter nonsense. He said that was all right to issue something like that to the newspapers and so forth, but "among us law-enforcement officials," the commissioner was not talking anything that makes sense because there was no correlation at all between the rise in the crime rate and the fact that you didn't wiretap. One of the things that was pointed out was that, taking the district attorney's office in Philadelphia as an example, there were only three wiretaps which the district attorney put on during the time-this is Victor Blank during the time that he was district attorney and before the wiretap ban went into effect. And so the 18-percent rise would come into effect because the three wiretaps were not engaged in by the district attorney and something like that by the police department in Philadelphia, there is something strange.

One of the other things involved in this was that the 18-percent figure lasted 1 year and after that, things went back to normal in

Philadelphia, with Pennsylvania following national norms as to crime rates. So it was more of a seasonal fluctuation than it was anything of a direct relationship to the wiretapping ban.

The police commissioner of Philadelphia made the following comment. He said that he could have solved a particular case, and he was talking about some sort of a gambling case, he said, he could have solved this in 24 hours with a wiretap whereas it had taken him 4 weeks to solve it using nonwiretap surveillance and normal police methods.

My own reaction to that is I think that society can afford to pay the difference between 24 hours and 4 weeks if it is protecting the right to privacy of the citizen and also trying to keep out of the hands of the police a kind of weapon which is highly volatile and dangerous. I thought when Police Commissioner Gibbons said that, he felt he was making a perfect argument for wiretapping, but my opinion is that the social cost of longer investigation is one we should pay.

Senator CARROLL. I want to say to you that the question of marijuana and heroin coming from Mexico is not a question of wiretapping. It is a case of two Government agencies not cooperating in their efforts.

The large States have enormous problems and that is why I don't like to pass judgment on what is happening in New York or in Illinois or in Pennsylvania.

They are areas where the people know what their problems are and perhaps we can get some leads from them; but I do not think that we should be stampeded into legalizing all of this. I think we ought to take a very careful look at it and you, yourself, have been very helpful this morning.

Mr. Chairman, I hope we haven't kept you from your lunch.
Senator ERVIN. No, sir.

Senator CARROLL Have you concluded?

Mr. WESTIN. Yes, I have.

Senator ERVIN. Do you have any questions, counsel?

Mr. CREECH. Yes, Mr. Chairman.

Mr. Westin, you have alluded to the position of Attorney General McBride, of Pennsylvania. He appeared before this committee and stated he felt all wiretapping should be banned and you also have alluded to the position of the city council of Philadelphia and, of course, to the district attorney there.

Now I wonder, sir, does your study indicate why there is such a disparity in views between the position of Philadelphia vis-a-vis New York which are both large, metropolitan areas, and Pennsylvania vis-a-vis New York State?

Would you care to indicate to the committee whether you have any feelings on the disparity of views?

Mr. WESTIN. I gave a great deal of thought to this because, as a political scientist, I had a strong interest in trying to see how these laws were passed. When I was looking at how these bills were passed in 1957, I tried to find out why it was that two States like Illinois and Pennsylvania had reached such a different result than States which seemed to be quite similar in terms of their problems of crime and their problems of powerful law enforcement bodies.

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I don't think that I ever came to a complete conclusion, but some of the things I felt were these. The general political situation in Philadelphia and in Pennsylvania was such that the Governor himself, believed that a wiretapping ban was a good thing. There was some talk that wires in Harrisburg, Pa., the State capital, were being tapped and there was even some talk that the Governor's wire had been tapped so that immediately you start off with a difference that in Pennsylvania the Governor favored a ban.

In New York, on the other hand, both the Democratic Governor, Averell Harriman, and the Republican Governor, Nelson Rockefeller, took the law enforcement viewpoint. Governor Harriman vetoed once and Governor Rockefeller twice vetoed legislation which came out of the Legislature of the State of New York which would have made inadmissible, evidence in criminal trials, evidence obtained in violation of the eavesdropping or wiretapping statute.

There was also the issue of the right of police to go in without a warrant at all, the so-called hot pursuit issue, for a period of 24 hours; after the 24-hour period is over, requiring them to go into court and justify their electronic eavesdropping and if they have not justified it, to stop it immediately, that was vetoed.

Thus, one difference that struck me immediately was that the executive position was different in the two cases.

Another thing that struck me was that in both Philadelphia and Chicago you had the local bar association taking an emphatic position in favor of a total ban. This went to a membership vote in the city of Philadelphia so that every person who came to the general meeting of the Philadelphia Bar Association cast a ballot to decide how the association would vote. In Chicago also, the bar association was very vocal.

This was not the case in New York. The bar association of the city of New York has generally taken a position in favor of tightly controlled and carefully limited court order wiretapping. I think that this is another important element that was different.

Very influential leaders of the Philadelphia Bar Association took a strong position against wiretapping. The comment was made that these were persons who were engaged in the practice of defending criminals and therefore they had something of a defendant's outlook in their approach to controlling wiretapping. But I don't think this is an explanation of why all the Philadelphia Bar Association reached that result.

Senator CARROLL. As a political scientist would you say there was also some difference in these areas because of the nature of the population and the scope of the criminal activity?

Mr. WESTIN. If I took a city like Chicago and compared it to New York, I think there is a similar sense of police officials feeling themselves harassed, feeling the need to have every weapon. There is no rural-urban division between Chicago and New York.

Philadelphia might be an intermediate kind of metropolitan area, although they have many serious law enforcement problems there. They face the problems of vice and narcotics and have many law enforcement difficulties in group 1 crimes, the major crimes dealing with violence.

I was not satisfied, when I thought about this, that we had here a difference in outlook between a rural, oriented kind of State and a highly metropolitan State.

I think an explanation of the 1957 acts may be the fact that Illinois and Pennsylvania passed their statutes quickly at a peak point of public hostility to wiretapping. It was in 1955 that the Broady wiretap net in New York was disclosed. That got more national publicity than anything previously. It was followed by two or three television broadcasts about the evils of "the third ear" and of "the snoopers." Perhaps both States managed to get their legislation through and passed before the wave of public indignation died down. This might be another element that would help to explain it.

Mr. CREECH. You have also stated that you would like to see any law enacted concerning wiretapping and eavesdropping, provided that the Federal Communications Commission would have control over the wiretapping.

It was suggested in earlier testimony before this subcommittee that the Attorney General should be given the right to issue orders rather than the courts being given this authority, and the reason suggested for this is that the Attorney General would then be in a positon to apprise the Congress or any interested agency of the extent of wiretapping.

I wonder, sir, what your view is with regard to this earlier suggestion.

Mr. WESTIN. If one assumes, as I do, that the judicial check on the executive's desire to wiretap is a good thing-the only danger in doing it through the judiciary is the assumption in your question that somehow Congress would not know how the wiretapping situation lay. This can be rectified by requiring Federal law enforcement agencies which intercept telephone communications or electronic eavesdroppers to report to an agency such as the FCC on the wiretaps that they have engaged in and the extent of them.

This I would see as perfectly within the legislative power to require annual reports of this character. I don't see it as infringing in some way on the privacy of the judicial branch since you are not requiring the judge to come forward and testify why he did or he didn't grant the warrant. You are just requiring the law enforcement officials to slip a carbon in, as it were, in their request and make this available, plus a statement by them as to what has happened in the cases in which they have used wiretapping.

I think some of the most illuminating statements that have come out as to how wiretapping works, have come from the district attorney's office in New York City where Mr. Hogan has made it a practice -not because he is required by law, but because he sees this, I am sure, as a way of supporting the case for guarded legalized wiretapping he has published yearly statements in the last few years of how many times his office has applied for orders, what cases these are in, what the result of each case was in which the wiretap has been placed, whether it went to trial, what was the result of the trial, were the wiretaps introduced in evidence, and so forth. I think that perhaps Mr. Hogan's self-developed system of reporting could be something that could be looked to by Congress.