holding that the Communications Act does not preclude state court use of wire-tap evidence, 148

The person whose wires have been tapped by investigators or others may seek to have federal criminal prosecution instituted or to bring a civil suit for invasion of privacy. Federal prosecutions for wire tapping have not been numerous in the past," 149 and there is no guarantee of a great willingness to undertake them in the future. As for civil actions, not every jurisdiction even recognizes a right of privacy; and in any event, a substantial recovery might be hard to come by if the investigator had acted under a court order-even if that order may have been a nullity by reason of the Communications Act, 150

The possibility of criminal prosecution may lead investigators to plead self-incrimination when cross-examined as witnesses about the use of wire-tap apparatus. In a federal court, this privilege would merit recognition. On the other hand, in the court of a state which had no penal law against wire tapping, the person pleading self-incrimination would face the argument that a state court should only recognize selfincrimination with reference to possible state penalties, not federal

Congress has recently been urged to overturn the principle of several Supreme Court decisions that certain state statutes have been superseded by federal "pre-emptive" legislation. To limit further Court holdings Schwartz v. Texas, 344 U.S. 199 (1952).

248

249

One writer states that there has been only one reported case involving wiretapping. Donnelly, Comments and Caveats on the Wire Tapping Controversy, 63 Yale L.J. 799, 802, n. 20 (1954). See also Westin, supra note 144, at 169. The Teamsters' Union leader, James Hoffa, recently emerged unscathed from a wiretapping trial. On the other hand, the writer is aware of a case tried in the Federal District Court for the Middle District of North Carolina, at its March 1957 term, which did result in a conviction and fine after a nolo contendere plea. United States v. Atkins and Stallings. This case was all the more unusual since one of the defendants was a County Chairman of the Democratic Party. Some might suspect that in this case and in the Hoffa prosecution there were at least some political overtones.

160 Certainly, the order, as evidence of good faith, would help negate a claim for punitive damages. One question that might be considered is whether a federal court has civil jurisdiction to entertain an action for damages based on an alleged violation of 605 of the Communications Act, 48 STAT. 1103 (1934), 47 U.S.C. 605 (1952). If there is such a right, what is the measure of damages? If a civil suit is predicated on an alleged violation of privacy in a jurisdiction which recognizes the right of privacy, the measure of damage is still a problem, especially where there is no proof that the tapped conversations were divulged by the investigator. Incidentally, with the new improved techniques for wiretapping with induction coil units, it would be unusual for the wiretapper to be guilty of trespass in the traditional sense.

along these lines, it has been proposed that Congress declare that its enactments should not be interpreted as pre-empting a field of legislation unless there is evinced a clear intent so to do. Should some such rule of construction be promulgated, the future of state-authorized wire tapping would brighten considerably, and the holding of the Benanti case as to the effect of the New York authorization of wire tapping would be imperiled.

Congress has also heard many proposals for the amendment of the Communications Act to allow wire tapping by federal law agents in certain types of cases and under certain conditions; 152 but the chances of passage of any such proposals do not seem good at the present time. Should the pre-emption legislation be enacted and restore to the states the power to authorize wire tapping and no amendment be made to the Communications Act, the ironic result will be that federal law agents, confronted with some of the most dangerous offenses, such as espionage will have no right to tap wires under any conditions, while a local policeman may be in a position to wire tap in investigating a relatively innocuous offense. To heighten the irony, the likelihood that federal agents would misuse the products of wire tapping for private purposes, such as blackmail, seems substantially less than that police officials at other governmental echelons might do so.158

Of course, in determining the methods that should be available to the federal investigator as compared with other law enforcement agents, one cannot overlook the risk of totalitarianism that always lurks in the background where there is a "national" police force.154 In connection with some investigative techniques, this risk is really insignificant. For example, if federal investigators are allowed to make compulsory bloodtests of suspects, there is no increased likelihood that this will speed the coming of a dictatorship in the United States. However, with wire tapping and the indiscretions and secrets it discloses-sometimes of considerable political import-there can be little doubt of the potentiality See, e.g., Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954); Westin, supra note 144, at 202.

152

158

Certainly, it is the writer's impression that federal investigative agencies have been less subject to scandal in the past than other investigative groups. Of course, state and local standards of criminal investigation seem to be continually improving.

184

Frequently, it is not realized that England has no "national police force" and that even the fabled Scotland Yard has jurisdiction only in the London area, unless requested for assistance by other English police forces. See, e.g., HARRISON, op. cit. supra note 51.

for misuse to help centralize power in the hands of a dictator or small group.

How real is this menace? Among its antidotes is the high pro fessional standard now set for their investigators by the Federal Bureau of Investigation and other federal agencies. This standard has its counterpart in several European and other countries where the penalties for misconduct by a policeman can be quite severe. Another safeguard is the division of investigative jurisdiction among several federal agencies, and the limitation of the Federal Government to the detection and punishment of only those crimes with "federal" significance, others being punished by state agencies. Against this institutional background, the dangers to democracy from a "national" police force seem exaggerated.

There is another strong argument that supports proposals to legalize some federal wire tapping, whether or not state investigators are allowed to tap wires. At the present time, it seems clear that some wire tappir is being done by the Federal Bureau of Investigation.156 Apparently, a major motivation for this wire tapping has been a belief that it was ar essential instrumentality for detecting certain dangerous enemies society, such as spies. Convinced of the necessity to tap wires in certain cases where national security is at stake, the FBI agent feels morally justified in tapping the wires in such instances. It is unlikely that he will be dissuaded by any statute from tapping wires in a case where he feels that such investigative methods are essential. Thus, he is thrown in conflict with some of the very laws that he is called upon to defend. Aside from the difficulties of conscience that this entails, this conflict lowers him in the eyes of the community. Moreover, having once tapped wires in the interests of necessity, the investigator may find "necessity" to be a relatively flexible concept in subsequent investigations.

155

On the other hand, to provide the investigators with authority to tap wires in certain well-defined instances-particularly those involving espionage or sabotage-where the arguments of necessity are especially Admittedly, police forces with a very high professional standard in some respects can become engines of totalitarianism. This seems to have been true in Nazi Germany and elsewhere, efficiency having been united with tyranny. However, this writer has been unable to discern a real danger in that respect in this country, in so far as federal investigators are concerned.

186

This came to light in the Judith Coplon prosecutions. United States v. Coplon, 191 F.2d 749 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952); United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920 (1952). See also Westin, supra note 144, at 169.

convincing,17 may reduce considerably the pressure for the federal agent himself to utilize a prohibited investigative technique. And, as one writer points out, it may induce the Federal Government to institute more wire-tapping prosecutions-a course of action difficult to adopt when federal agencies are themselves engaged in illegal wire tapping.168

The criticism will be voiced that this argument involves a lowering of legal standards to accommodate the illegality of the investigator and a failure to utilize the law to elevate standards of behavior. Still, even the power of law to reform police behavior can only be exercised within reasonable bounds; and the limitations today on federal wire tapping may have somewhat transcended those bounds.

VII

CONCLUSION

For the most part, the investigator, using new scientific techniques, has not been unduly handicapped by the courts, although as to wire tapping, some mitigation by Congress of the legal restrictions on federal agents would probably be helpful. Legislation at either the federal or state level might also be desirable: to impose restrictions on access to information from police fingerprint and photograph files; to require the licensing of polygraph operators; and to provide more expressly for the circumstances under which body fluids can be obtained from a suspect.

In a few instances, the courts have reached unfortunate results in this field-chiefly when they departed from usual American practice and relied on sweeping generalizations, instead of piecing out solutions on a case-by-case basis. However, as of today, a reasonable balance seems to exist between the need of society for efficient law enforcement and the needs of the individual to have some area of privacy and of protection against humiliation or pain at the hands of the police.

187

See Rogers, supra note 153; Westin, supra note 144. But cf. Donnelly, supra note 149; Schwartz, On Current Proposals to Legalize Wire Tapping, 103 U. Pa. L. Rev. 157 (1954).

159

Westin, supra note 144, at 169. Of course, the Department of Justice does not seem to consider that its wire tapping is illegal. Id. at 179.

Mr. CREECH. The next witness is the Honorable Frank O'Connor, district attorney of Queens County, N.Y.

Senator KEATING. Mr. Chairman, may I have the privilege of introducing my distinguished constitutent, the district attorney of Queens County, N.Y. Mr. O'Connor is the president of the New York State District Attorneys Association and has had a distinguished career as a prosecutor and is one of our ablest public servants. am very happy to have the benefit of his advice.

Senator ERVIN. The committee is delighted to have you with us. We have had, necessarily, to delay hearing you until this hour. STATEMENT OF FRANK O'CONNOR, DISTRICT ATTORNEY OF QUEENS COUNTY, N.Y.

Mr. O'CONNOR. I appreciate your kind words.

Since the famed decision in the Pugach case, which held as the previous witness testified, that no Federal court would enjoin a law enforcement official in the State of New York from using the fruits of wiretapping, there has been considerable confusion in our State.

As a matter of fact, Professor Everett referred to it in very kindly terms as an "unfortunate" situation.

I think Senator Keating, in some of your very excellent talks in support of your bill on the floor of the Senate and elsewhere, you have referred to the situation in'stronger terms as being "intolerable" and I think that perhaps better describes the situation.

Those of us in law enforcement in the State of New York find ourselves in a completely compromising position, and, frankly, all of the members of our association, which consists of 62 district attorneys in the State, have been looking to me for some kind of guidance and some word as to whether or not there is any likelihood that the Congress at this session will do something to clear up the situation.

We have many, many prosecutions that are pending right now in which we have devoted not only days, but weeks and months, and I think frankly we have in many cases done years of investigation where we have presented the fruits of our investigation to a grand jury, where we have received valid indictments. Those indictments have been sustained against attack on motions to dismiss and now, because of the wiretap situation, we are uncertain as to the legality of the prosecution. For example, in the county of Monroe where the city of Rochester is located, the district attorney recently dismissed 22 cases pending on his criminal calendar because the evidence in those cases had been gathered through wiretaps.

Mr. Silver has in excess of 200 cases pending in the county of Kings. I have at least 10 to 15 pending in Queens, and Frank Hogan will testify tomorrow to the number he has pending in New York County, in which part, at least, of the evidence was uncovered through legal wiretaps.

Now, these are cases involving serious crime. I don't subscribe to the tendency in some quarters to sweep under the rug cases involving gambling. I feel very strongly that gambling is a very integral part of organized crime.

These cases involve not only gambling: they involve in my county, for example, criminal abortion. It is my opinion we will never be able to prosecute cases involving this crime without the assistance of wiretapping.