WIRETAPPING AND EAVESDROPPING LEGISLATION

THURSDAY, MAY 11, 1961

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 12 o'clock noon, in room 1228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin, Carroll, of Colorado, and Keating.

Also present: William A. Creech, chief counsel and staff director, and Bernard Waters, minority counsel.

Senator ERVIN. The committee will come to order.

Senator KEATING. Mr. Chairman, before the first witness is called, might I have inserted in the record at this point two statements, one by Cornelius Wickersham who is the former U.S. attorney for the eastern district of New York?

Senator ERVIN. That will be printed in the record at this point. (The document referred to is as follows:)

STATEMENT BY CORNELIUS W. WICKERSHAM OF THE NEW YORK BAR

Senator Ervin has been kind enough to ask for my opinion in a statement for the record of the hearings of the Subcommittee on Constitutional Rights of the Committee on the Judiciary of the U.S. Senate, submitting my views on the specific proposals pending before the subcommittee with respect to your long-term study of wiretapping and eavesdropping.

Permit me to say in the first place that having studied the subject for a number of years and read various court decisions affecting the same, I have come to the very definite conclusion that it is essential that the Communications Act should be amended to permit wiretapping by law enforcement officers under proper control of the courts and that without this the law enforcement agencies have been deprived of one of their best weapons in the fight of the community against crime and particularly against organized crime. At the same time I think unauthorized wiretapping should be severely penalized in unmistakable terms. As your committee is undoubtedly aware the crime rate is on a steady increase throughout the country. In 1958 it was said to be 9.1 percent above 1956, up 23.9 percent over an average of the previous 5 years. Organized crime is a major problem of the United States and according to the previous Attorney General, costs the country extremely large sums of money.

To maintain gangster domination the racketeer combination must continue to operate beyond the reach of effective law enforcement. One of the greatest triumphs for organized criminal activity, I am convinced, would be the continued prevention of any enactment of wiretapping legislation for law enforcement purposes.

The wiretapping controversy was brought to a head by the Supreme Court decision in December 1957 in the case of Benanti against the United States (355 U.S. 96). The effect was to preclude the use in a Federal prosecution of wiretap evidence obtained by State officers pursuant to State law. Later lower court decisions have resulted in such doubts as to the legality of the State laws that judges are afraid to permit law enforcement officers to intercept wire communi

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cations to obtain evidence of crime (cf. Judge Davidson, New York Times, Mar. 8, 1960). The district attorney of New York County, Mr. Hogan, has stated that the result is a crippling blow to law enforcement.

The construction put by the courts on section 605 of the Communications Act has had the practical effect of striking down State laws sanctioning wiretapping by law enforcement officers under court order, or at least throwing such doubt on the practice that few dare to run the risk of the criminal penalties of the act. While in the earlier Schwartz case the court appears to have held that under the circumstances of that case section 605 of the Communications Act did not exclude intercepted communications from evidence in criminal proceedings in State courts, some of the language in the Benanti case has thrown considerable doubt on the validity of State laws permitting interceptions by law officers under court order. Thus, the Chief Justice on page 105:

"In the light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow State legislation which would contradict that section and that policy."

Moreover, the footnote on page 106, after stating that the Schwartz case was not to the contrary, continued:

"While it refused to overturn a State rule of evidence, the Court was satisfied that the action of the State officials nonetheless violated section 605 (344 U.S., at 202)."

The basic issue before your honorable committee involves the proper balance to be struck between civil rights on the one hand and the need for effective law enforcement on the other. Those who believe in complete freedom from interference with wire communications, no matter what the cost, frequently refer to what Mr. Justice Holmes said in the Olmstead case (277 U.S. 438 (1928)), to the effect that wiretapping is dirty business. What they generally fail to mention, however, is that in that case the evidence was obtained in violation of law. The Olmstead case involved illegal wiretapping by Federal prohibition officers in the State of Washington where wiretapping was declared a crime by a specific statute. Hence, one is able to understand Mr. Justice Holmes' dissent and it seems worthwhile to quote his language as follows:

“*** But I think, as Mr. Justice Brandeis says, that apart from the Constitution the Government ought not to use evidence obtained and only obtainable by a criminal act. ***" (pp. 469-470).

and later

"For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed" (p. 470). [Emphasis mine.] Nevertheless, those opposed to permitting law enforcement officers to use this obvious means of obtaining evidence for the prosecution of criminals continue to use Mr. Justice Holmes' remarks to support their opposition without reference to the context.

The writer of a letter to the New York Times maintained that wiretapping by a Government agency was an intolerable abuse of privacy and worse still that it was shocking to our sense of decency and fair play (Apr. 27, 1960).

In an answering letter, published in the New York Times on May 5, 1960, the undersigned stated that it seemed to him that it was still more intolerable that an effective weapon to prevent the peddling of dope to our young people should be destroyed, and that no law enforcement officers should be deprived of that effective means to detect and punish crime, and perhaps the only effective weapon in their hands in such cases. The same might be said of kidnaping and other atrocious crimes.

It seemed to me then and it still seems to me that the real question involved is whether it is preferable to run the risk of abusing privacy in a limited number of cases rather than to prevent the use of a vital weapon for the detection and punishment of criminals in the continuing crime wave which is already a disgrace to our civilization.

The experience in New York over the years shows a relatively low number of court orders granted to law enforcement officers for wiretapping.

It is my information that in 1952 the total number of orders procured in New York City was only 480. The figures gathered by the New York District Attorney's Association on the number of wiretapping orders procured by all district

attorneys in the State of New York showed, I am informed, that for the 5 year period of 1950 through 1954 the total number of wiretapping orders procured was then 2,400 or an average of less than 480 a year for 61 district attorneys whose districts included a population of some 14 million people. Surely, this cannot be said to be an abuse of judicial discretion.

These figures differ greatly from the much larger figures given by Mr. Justice Douglas in his book ("An Almanac of Liberty") for orders granted for 1952 in New York, which I personally doubt.

Wire communication is freely used by organized crime in the conduct of their war on society. Why should those whose duty it is on behalf of the public to discover and punish criminals be deprived of the best means of protecting our family, our children, our friends, and the public generally from criminals and organized crime?

The proposal to enact legislation to permit wiretapping under court order is wholeheartedly supported by the Grand Jury Association of New York County, of which the undersigned is of counsel. The association is a disinterested body with long experience in combating crime and in the administration of justice and who, in a sense, represent the conscience of our community.

With respect to the three bills pending before your committee I would personally prefer those introduced by Senator Keating (S. 1086 and S. 1221) or either one of them.

S. 1086 has the great advantage of being short and to the point with respect to State law enforcement officers acting under court order in accordance with the law of the State of New York and other States having similar laws. This bill if enacted into law would have the result strongly recommended by the Grand Jury Association of New York County.

S. 1221 is of course of broader scope, especially as it applies to Federal as well as State law enforcement officers, and has the advantage of permitting similar practices in both State and Federal courts.

As the committee knows, the bill introduced by Mr. Dodd (S. 1495) permits wiretapping under court order for both Federal and State law enforcement officers but is restricted to certain major crimes, including murder, extortion, bribery, etc. While it also covers attempts or conspiracies to commit the crimes mentioned in the bill it does not necessarily reach convictions for lesser offenses, including the slightly lesser offenses, and I have some doubt as to whether it might not raise difficult questions where the greater crime was charged but for various reasons a conviction was obtained only for a lesser offense of the same general category. Furthermore, New York County during the 1955-59 period according to District Attorney Hogan's experience had actual need for official wiretap interception in certain so-called lesser crimes such as official corruption, rent gouging, illegal wiretapping, abortion, robbery, and jury tampering-all really quite serious, but excluded by Senator Dodd's bill. (Public hearings on wiretapping, New York Commission of Investigation, Exhibit No. 2, p. 13-c. 1960.) While half a loaf is better than none, I would personally prefer the broader scope of Senator Keating's bill (S. 1221).

The solution of the wiretapping controversy between individual right to privacy and the rights of society to protection against infamous crimes was definitely realized in practice in this State where for many years wiretapping has been legal under the laws and constitution when carried out by law enforcement officers under judicial restraints and until the decision of the Supreme Court construing the Communications Act. Undoubtedly safeguards are necessary, but it must be recognized that the interception of communications between racketeers has greatly hampered the operation of organized crime. A large percentage of professional criminals have been jailed as a result of information received through such interception. It would be most unfortunate if this important law enforcement weapon was not restored to law enforcement officers under proper court control.

I may add that according to my information such legalized wiretapping is supported by the National District Attorneys' Association, District Attorneys' Association of the State of New York, the New York Chamber of Commerce, the New York State Commission of Investigation, the National Executive Committee of the American Legion, the Civil Rights Committee of the Association of the Bar of the City of New York, and New York County Lawyers Association's Civil Rights Committee.

In the name of good government, of the prevention of crime, of the necessity of an important weapon to combat criminals and organized crime, a cancer

in the body politic, I strongly recommend approval by your honorable committee of any bill which restores to the States the right to provide for legalized wiretapping under court order as well as the furnishing of this weapon under similar judicial restraint to law enforcement officers of the Federal Government. Senator KEATING. He endorses the two bills I have introduced, S. 1086 and S. 1221.

I would also like to include Michael J. Murphy's letter, the police commissioner of New York City, who likewise endorses the two amendments.

Senator ERVIN. That will also be printed in the record at this point. (The letter referred to follows:)

STATEMENT BY MICHAEL J. MURPHY, POLICE COMMISSIONER, CITY OF NEW YORK ON FEDERAL WIRETAP LEGISLATION (S. 1086, S. 1221, AND S. 1495), on May 9, 10, AND 11, 1961

I wish to thank the committee for this opportunity to express my views concerning proposed Federal legislation in the area of wiretapping and eavesdropping. As police commissioner of the city of New York, it is my responsibility to command the largest local police department in the Nation; a department which deals with the most complex crime problems imaginable. At the present time, the Police Department of the city of New York and other law enforcement agencies in our State are faced with a confusing situation in the area of wiretapping.

In 1957 the U.S. Supreme Court, in Benanti v. U.S., 355 U.S. 96, indicated that wiretapping, coupled with a divulgence, was a violation of section 605 of the Federal Communications Act, even when done pursuant to State law. This decision caused much confusion among State prosecutors and police officers as to the exact status of wiretapping conducted within their States pursuant to State laws. The problem was accentuated when the U.S. Court of Appeals for the Second Circuit, in April 1960, rendered its decision in the case of Pugach v. Dollinger, 277 F. 2d 739. In this case, the defendant, Pugach, sought to enjoin the district attorney and the police department from divulging wiretap evidence in a State criminial trial. The U.S. court of appeals denied the injunction. Chief Judge Lumbard, writing for the court, felt that the Federal court should not interfere in a State criminal trial.

However, Judge Waterman, in a concurring opinion, stated as follows: "If at a trial it appears that section 605 of the Federal Communications Act is violated by the unauthorized divulgence of a witness under oath of an intercepted communication, the United States can enforce that violation against the witness by prosecuting him under section 501 of that act. In fact, as I read the opinion of the Chief Justice speaking for a unanimous court in Benanti v. U.S., even though the interception was authorized by a New York State wiretapping order, the divulgence would be such a clear violation of the Federal Communications Act that Federal prosecuting officers would be expected to so prosecute." The judge also stated: "It is, therefore, presumptuous to assume that any New York State trial judge will acquiesce to the commission of a crime against the United States in his presence, in his courtroom, by a witness testifying under oath. If such a crime is committed and remains unprosecuted after it has been stated by the U.S. Supreme Court in Schwartz v. Texas, 344 U.S. 199, at page 201, and by us here, that the interest of the United States may be adequately protected through enforcement of the penal provisions of section 501, there will have been a most extraordinary affront to this court." And in concluding his opinion, the judge said: "Accordingly, I ask that the U.S. district attorney for the southern district of New York follow the proceedings in People v. Pugach with the closest attention."

In March 1961, the U.S. Supreme Court affirmed the decision in the U.S. Court of Appeals in the Pugach matter. What is the effect of these court pronouncements? We have the U.S. Supreme Court indicating in the Benanti case that it is a violation of section 605 for a State police officer, operating under State law, to wiretap and divulge the information obtained through the use of such wiretap. We have the U.S. Court of Appeals and the Supreme Court of the United States stating that a State may make use of wiretap evidence in its criminal proceedings without interference from a Federal court. But when we are faced with the warning that such divulgence may result in a Federal prosecution of a local officer

who is performing his duties under the laws of his State, it is clear to see that local law enforcement officers may not proceed to use court ordered wiretaps without doubt as to the propriety of their actions.

Why should loyal and dedicated policemen be forced to work under such a shadow.

There is no need to discuss the original intent of Congress in enacting section 605 of the Federal Communications Act for, whatever the original intent, the issues have been decided by the highest court of our land. It must be borne in mind that the U.S. Supreme Court in U.S. v. Olmstead, 277 U.S. 438 decided that wiretapping in and of itself was not a violation of any constitutional provision. The status of wiretapping today stems from an act of Congress. The interpretations of this act and their effects may be remedied, therefore, by further action on the part of Congress, which we urge.

Why are we asking Congress to modify the effects of the Benanti and Pugach cases? Why are prosecutors and police agencies seeking to maintain the right to invade the privacy of telephone conversations in proper cases? I assure you, we do not take this step lightly, but seek this relief because we feel strongly that court-approved wiretaping is one of the most important weapons in a law enforcement officer's arsenal. To strip him of it, is to render him deaf to criminal conspiracies and gives the underworld another advantage over the law and another cause to laugh at and to flout justice.

As law enforcement officers, we are representatives of the people, whose protection is our prime responsibility and sworn duty. We recognize the conflicting values necessarily involved in a consideration of wiretapping and eavesdropping. After weighing these values, there can be no doubt that it is decidedly in the public interest and in furtherance and protection of our liberties that wiretapping, under court supervised safeguards be authorized .

In this connection I refer to the remarks of Senator Frank E. Moss, junior Senator from Utah. Senator Moss, in an address delivered in New Orleans on February 19, 1960, before the Third Annual Attorneys General Conference, said:

"I do not wish to belabor the point and I do not wish to appear as an alarmist, but it is important to recognize the threat posed by the modern criminal-he is a modern man, with modern tools at his disposal and the know-how to use them. He is represented by modern attorneys. He deals in and with the modern corporate institutions. He circles the globe in modern airplanes and he has readily available to him modern means of communications that can put him, within minutes, in touch with almost any place in the world. We cannot cope with a jet-age criminal with a horse and buggy prosecutor. We need a modern district attorney, with modern tools and the legal right to use them. The right to wiretap, with proper safeguards, is essential."

Senator Moss' statement goes to the heart of the matter. The law enforcement officer and the prosecutor today are engaged in a war to the finish with a powerful crime cartel. Congressional hearings and investigations by State agencies have demonstrated beyond doubt the existence of an organized criminal element in this country. Director J. Edgar Hoover, in the February 1960 issue of the "FBI Law Enforcement Bulletin" stated:

"America today is threatened by a sinister, unholy alliance which saps the strength of our Nation and besmirches our country's dignity. To the profession of law enforcement this dark force is known as organized crime ***." Law enforcement officials everywhere are becoming more and more vocal and increasingly bitter over what we regard as an unjustified curtailment of our activities in the enforcemnt of the criminal laws of our respective jurisdictions. We, too, are citizens, and we, too, are vitally interested in civil rights. We protect civil rights with our minds and our bodies 24 hours a day, 7 days a week. Therefore, we feel our views should receive great weight when judges or legislators meet and in the forum of public opinion.

The New York statutes concerning wiretapping afford every possible protection to safeguard the innocent user of the telephone. The law in New York is more comprehensive in scope than section 605 of the Federal Communications Act. The New York constitutional provision relating to wiretapping is an integral part of the search and seizure provisions of the New York constitution, article 1. section 12. The penalty provisions applicable to law enforcement officers and others alike are more severe than the Federal law provides-declaring the violation a felony punishable by a maximum 2-year term as against the counterpart 1-year maximum for the Federal misdemeanor.