I would not think that you gained that much by having the Attorney General have all the power in his own hands to authorize wiretapping and I don't see that you lose anything because I think you could provide for the reporting otherwise.

Mr. CREECH. I see that you propose it should be limited to the FBI, the military, and the narcotics agents.

I wonder, would you have a law specify the various bureaus or agencies of the Government, or do you feel that such provisions should be in broader terms, that is, specifying the Department of Defense, the Treasury Department, and the Justice Department. What is your view with regard to the detail that you feel is desirable?

Mr. WESTIN. On the one hand, I am persuaded that not everybody who has the role of investigator for enforcement purposes in the Federal Government ought to have the authority to wiretap and eavesdrop.

The reason I am persuaded of this is that I think there are too many sectors of this kind in our Federal enforcement setup for the power to be distributed that widely.

I would like to see the narrowest group set up. Perhaps this would be something that would cause trouble because it would mean that agencies that normally engaged in their own wiretapping and eavesdropping or would normally do it now would have to go to the FBI or ask the FBI to do it.

I think of the analogy to the Solicitor General who is the central law officer in presenting cases to the Supreme Court and controls the litigation for reasons of uniformity and consistency. By that analogy you might say all of the law-enforcement agencies scattered throughout the Federal branch should be required to let the FBI run the wiretap in cases involving espionage, sabotage, and crimes directly affecting national security or crimes directly affecting the safety of human life.

Since my own view is to limit it in that way, I don't include for wiretapping the problems of tax evasion for which the Treasury might want to tap. There was a great deal of wiretapping incidentally, for income tax evasion in earlier periods in our history in the 1920's and early 1930's, but one doesn't hear too much about it at the moment.

Mr. CREECH. I wonder what your feeling is with regard to whether the passage of such bills as the subcommittee has before it would encourage most States to legalize wiretapping?

Mr. WESTIN. If the congressional measure were to require a State court order, then I would think that it would stimulate States to take their antiquated statutes that don't deal with the modern problem in any effective terms and would lead them to set up a court order provision and would be a development all to the good.

Perhaps if the question was if Congress did this would it some how put in the minds of a lot of law-enforcement officials who today for various reasons do not engage in this practice, the idea that they should, I think I would have to be frank enough to say I would not be surprised if that might not be a side effect. There might be some lawenforcement officials who just don't do it today because they see trouble for them with the Federal Communications Act as it is presently interpreted, but they might then feel that it is legitimate and might feel their communities almost expected them to engage in

this if they are to be 100-percent effective in coping with crime and, therefore, it is possible you might stimulate some wiretapping.

Mr. CREECH. Professor, I would like to have you comment upon an excerpt from an editorial which appeared in the Denver, Colo., Post of April 16, and which you incorporated in your statement. The last paragraph of that says that the newspaper finds that the privacy which is accorded the U.S. mails does not unduly hamper enforcement officers in their work and it concludes that telephone conversations deserve equal protection and immunity.

Will you comment on that?

Mr. WESTIN. I have a feeling that our law develops very differently, perhaps should not, but does develop differently according to whether things are concrete or abstract and perhaps this goes to something in the American temperament.

A piece of paper that has writing on it and is a physical thing which is given to the Government as proprietor of the mails has always been given the highest protection. I think that it is the combination of reasons. It is something physical which fits into our notion of the protection of the written word and at the same time, the fact that the Government enjoys the monopoly of mail delivery and one doesn't deliver his letters to a private carrier who would not open it. So that I think that the whole development of the law has been very different as far as the two are concerned.

The intermediate step which seems to me interesting to raise in light of your question is, What happens to the telegraph?

Back at the time of the impeachment trial of Andrew Johnson, for example, the committee that was prosecuting the impeachment seized telegraph messages that had been sent between one of Johnson's generals, one of his supporters in the Army, and several clerks that were out in the field. The general claimed that these were privileged; they were privileged because they were private communications and the Government had no right to expose them, claiming something of an immunity from search and seizure on this ground.

Congress was not impressed and the State courts have not been impressed on this. It is the law that you can, for purposes of congressional committee hearings or for law-enforcement purposes, compel Western Union to bring into the hearing room or into the court any written copies that they have of messages that are with them, filed with them.

You have a curious situation. There are laws against the tapping of telegraph wires, but the messages themselves, once written down as duplicates by the company, can be required to be produced for purposes of investigation and law enforcement.

Senator CARROLL. Can you compel the Post Office Department to submit the letter that is going through its mails?

Mr. WESTIN. That is presently in the possession of the Postmaster General?

Senator CARROLL. Yes.

Mr. WESTIN. I am not wholly familiar with the law on mail, but I do know that there is a section which gives a limited right of search to the postal authorities to look for certain types of things-contraband and explosives and obscenities. I think this latter has to be on a post card. I am not familiar with the question whether the U.S.

district attorney could have a search warrant served against a postmaster in a city because he knew the letter was passing between a gambler and the syndicate. I don't know whether this could be seized.

Senator CARROLL. I am thinking in terms of a fugitive, for example. Suppose the police wish to put a watch on his mail, or mail coming to his mother or his sister or somebody in close contact.

Mr. WESTIN. Mail covers, as I understand it, are done often and they are legal. I have seen reports in investigations that a mail cover was placed on so-and-so's mail and the authorities will list all the return addresses and the postmarks.

Senator CARROLL. Does it authorize anyone to open that envelop? Mr. WESTIN. I think there is a very important distinction between the mail cover and the opening. I know the mail cover can be done. The question you raised about whether you could lawfully seize a piece of mail in transit and open it on court order, I don't know. I have a vague feeling that you can't.

Senator CARROLL. Wasn't the purport of the Denver Post editorial that the mail could not be opened? I am not aware of any law or regulation that will permit it to be opened; perhaps there may be

one.

Through history the mail has enjoyed a highly privileged position. The telegraph by its very nature has not. A telegram is transmitted and read by scores of people before it is delivered. A letter is in an entirely different category and so is a personal telephone call. If I call you personally, I have the right, operating through a public utility, to talk to you personally.

If I telephone a radio station in Colorado to give it a report on a newsticker, I think I am right when I say there will be a beep coming along to let me know I am being recorded.

Mr. WESTIN. Yes, sir.

Senator CARROLL. When I hear that beep it takes away the personal privacy and I know therefore that I am speaking for the record.

If we legalize this thing we are permitting people to cut in on a great personal privilege.

We have the question of the rights of society, how far should we go. Coming back to the mail, I am not sure I am right on this but when they put on a mail cover and it is an important enough case, say a kidnaping case, I suspect that mail might be opened. I am not sure I am right, but I suspect that. Here we have been operating for a hundred years and more on this system which is imperfect, just like an arrest without probable cause, an arrest for investigation, done by the thousands every day over this country.

That leads me now to a question on the editorial. The real question is in the last sentence. The telephone conversation deserves privacy equal to that which is accorded the U.S. mails.

But here we are asked to open telephone conversations. This is, in a sense, what we are being asked to do except perhaps to say to the State, "handle your own problems." Each State will handle its own problems. It is true the problems in New York are far different from Colorado.

Now in New York you have the melting pot where people come from many other countries; and New York has great problems. The thing that impresses me about the New York situation is they have

tapped for 20 years and have able lawyers, and I think one of the outstanding police departments in the Nation. Perhaps I could justify myself by saying let the States handle it.

Mr. WESTIN. My own feeling would be there is nothing in the bills that have been proposed that requires each State to set up a wiretapping system.

I specifically made a comment under "B" of my third point that the measure should permit States to overhear conversations if this is done under court order or ban all wiretapping and eavesdropping if the States desires it.

In the instance you raise where Colorado is not faced with the same law enforcement problems and the degree that you have them in New York, then Colorado would be perfectly able to pass the IllinoisPennsylvania type of statute which wholly bans it and does not allow law enforcement officials to do it.

I wouldn't assume that the opening up of discretionary State power would become a requirement.

Senator CARROLL. They have a statute outlawing wiretapping and have had for many years. I don't think they pay any attention to it. I can't recall any prosecutions, but it seems to me the system, and the way they are handling it, seems to be getting along all right.

In our own State, if we were to wipe out that statute and put in another statute permitting interception and "bugging," I think our people would rise up in arms.

On the other hand, if we don't want tapping in Colorado, we shouldn't deny it to another area where their own people think they ought to have it.

My point was really about this editorial and to say there is some merit to it. The Denver Post editorial is taking sharp issue with Senator Dodd's bill. I think Mr. Silver yesterday took sharp issue with Senator Dodd's bill.

I will not press that any more because you have been here a long time and I know you are tired.

Mr. CREECH. Professor Westin, Mr. Waters has some questions. Mr. WATERS. Professor, could you tell us just briefly if you have any comments about that part of the Montgomery, Ala., newspaper containing an editorial which touched on the fact that, unlike the search and seizure operation, the wiretapper is in a position of one similar to a policeman being placed in a closet for an indefinite period and deciding what he heard was useful or not.

Mr. WESTIN. I think one of the most difficult problems of anybody who supports limited legalized wiretapping has to do with the scope of the search and the inability to pinpoint the search that you have in the wiretapping and eavesdropping situation and the classic search for concrete physical evidence that you have so clearly stated in the classic procedure of the fourth amendment and the law that developed around it.

My own feeling about this is that, if you assume for the moment that the police in grave crimes involving national security and the safety of human life should be allowed to search, the problem is to find a way to search on the telephone if it is the instrument of carrying out the crime which would provide some means of limitation. After you sit and think about it, at least as long as I sit and think

about it, I have never been able to do anything more than to say that the wiretap warrant is not as limited as the search warrant. It covers a longer period of time and also covers everybody that calls on that line, even though they may not be in any way connected with any criminal activity and so it puts a range of personal intrusion in the hands of police officers which troubles me very much.

Yet, having said that, I still come back to what seems to be the typical questions in the grave kind of criminal situation, and I am talking about wiretapping and eavesdropping in a small percentage of instances compared to the way some other advocates of limited wiretapping would have it, in those cases I think that it is the nature of the telephone that requires the enlargement of the search. Not that in some way we are perverting our law of privacy; rather that it is the difference in the method of communication. It requires something of a different level of search. I again feel torn into a clash of values myself.

Mr. WATERS. I take it then, Professor, that you are concerned with the fact the subject is unaware that his conversation has been intercepted.

Mr. WESTIN. The way you phrase that strikes me as a way in which those who advocate wiretapping sometimes do not phrase it; that is, if you have a wiretap warrant stipulating that the telephone is the instrument by which a crime is being committed this, it seems to me, is distinguishable from the situation in which, as unfortunately many police departments have done in the past, the officers simply know that somebody is a criminal and therefore tap his telephone because he will be saying things or talking about his activities and they hope to get leads.

My own feeling is that the judge who passes on the wiretap warrant, should be given a clearcut understanding by Congress in its draftsmanship that Congress wanted the judge not to give a warrant for coverage of a known criminal or coverage of somebody that was "engaged in dangerous activity", but only when the telephone is being used for the purpose of carrying on the offense for which wiretapping is being used as the investigative technique, I think this could provide some line of distinction.

I am familiar with the argument that many law enforcement officials would make at this point, that if you know that somebody is engaged in the middle of a crime, even though the telephone is not the instrument of carrying it out, the telephone will be the way that you get leads to know that the meeting is being set up on pier 66 or that the trucks are going to roll tonight. They would argue that you shouldn't narrow it simply to the instrument concept.

Yet, my concern about the broadness of wiretap instructions is such that I would like to see it limited to the situation where the telephone is an instrument of the crime.

Mr. WATERS. Thank you, Professor Westin.

Now could you tell us, I am not aware if the Illinois statute has ever been tested, but it purports to prohibit tapping or eavesdropping by any individual, any law enforcement officer, and even law enforcement officers of the United States in pursuance of his official duties. Do you have any comments on that portion of the State's statute?

Mr. WESTIN. Yes, at the time that was enacted, my first reaction was to wonder if this would hold up in a constitutional test.