relevancy does that have to the problem of preventing law-enforcing people who want to obey the law from being able to go to a court and get the court's aid in helping them solve serious crimes?

Let us make the possession of wiretapping apparatus a crime; whatever you can do, I would favor it. I helped draft such legislation. But I fail to see the relevancy of that situation to the necessity of decent law-enforcing agents, and preventing them from having a legal way of using telephone interception to help solve serious crimes against the public.

Senator CARROLL. There is a body of opinion that believes that unlawful wiretapping is so widespread and so prevalent that it would be far better to legalize it and put some teeth into it, put some procedures into it; and therefore to give the law-enforcement officers an opportunity to tap legally. It is said if you don't let them do it legally, they are going to do it illegally anyway.

Mr. SILVER. And then you can't do anything about it because nobody knows about it. Or, if they do, they blink their eyes at it.

Senator CARROLL. This is the purpose of my question, to explore this position.

Mr. SILVER. Many people say in States like California and Illinois, where wiretapping is illegal, the police hire private people to do it for them. To me that is a chaotic situation.

I was talking about the sections requiring reporting concerning intercepted wire communications. We have no objection to full reports-number of orders, types of crimes, anything that anybody would want to know. But I said I cannot be too emphatic about this when the requirement is, as in section 7(a), to disclose the contents of applications, that I respectfully voice most serious objection.

Sources of information do not come to prosecutors easily. It is most difficult to come by good information, from either good or evil sources. This would operate as a gag upon those whom we depend to talk. It is difficult now. It would become impossible under this proposal.

Altogether too many people would know the most important and confidential information in possession of the prosecutor. We all know how difficult it is to contain information now. Under this requirement to disclose sources of information, persons giving it, telephone numbers, and so forth, it would destroy the very purpose we are seeking to get legislation to free us from the shackles of Benanti.

To make it complete, section 7(b) (5) requires that there shall be furnished

such other information as may be requested in writing from time to time by the chairman of the Committee on the Judiciary of the Senate or of the House of Representatives, or by the chairman of the Committee on Interstate and Foreign Commerce of the Senate or of the House of Representatives.

We know that the chairman cannot do these things personally. Who will control access to this information? Where will it be kept and safeguarded?

I hesitate to say so, but in all candor I must: This can well become a great source of information valuable to organized crime and racketeering. Their ways are devious. They have no lack of money. In New York State, for example, where we show a copy of the court order to the telephone company to get their aid, it is a common thing

for the underworld to reach in and learn of our operation. As I said, their ways are devious, and they are powerful.

Often, even those who favor wiretapping in one form or another advocate exclusion of gambling as one of the crimes for which one may get an order to tap a wire. It happens that S. 1495 does not.

I regret to say that the general public has a total misconception of the relationship of gambling to organized crime and racketeering. A Brooklyn grand jury for many months looked into this situation. In capsule form, it found that gambling is the lifeblood of organized crime. And may I submit as an exhibit the presentment made on February 26 of 1959 of this grand jury to this committee.

(The document referred to was received for the files of the subcommittee.)

Mr. SILVER. May I submit as an exhibit the provision in the New York State constitution and section 813(a) of our Code of Criminal Procedure which sets forth the statutes under which wiretapping orders are procured in New York State.

(The documents referred to follow :)

ARTICLE I, SECTION 12, OF THE CONSTITUTION OF THE STATE OF NEW YORK “Security against unreasonable searches, seizures and interceptions. S. 12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof." (Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

SECTION 813-A OF THE CODE OF CRIMINAL PROCEDURE OF THE STATE OF NEW YORK

"Section 813-a. Ex parte order for eavesdropping. An ex parte order for eavesdropping as defined in subdivision one and two of section seven hundred thirty-eight of the penal law may be issued by any justice of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorneygeneral or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication, identifying the particular telephone number or telegraph line involved. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing

the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same."

Mr. SILVER. A book, "The Eavesdroppers," has been written under the auspices of the Pennsylvania Bar Association by Samuel Dash, an attorney at law in Philadelphia. When he came to me and sought my help, I thought he would make an objective report on the wiretapping problem. I gave Mr. Dash all the information I had and opened my files to him. What resulted was not an objective report but an innuendo-splattered thriller. Many opponents of wiretapping have referred to this book for their support.

May I submit an article I wrote for the Minnesota Law Review on the book called "The Eavesdroppers"?

Senator ERVIN. The committee would be delighted to have that article, and, if you have a copy available, we will put it in the record. Mr. SILVER. Yes. I have brought it with me and I will give it to the reporter.

(The article referred to is reprinted with the permission of the copyright owners, from vol. 44, Minnesota Law Review, p. 835, and follows:)

The Wiretapping-
Eavesdropping Problem:

A Prosecutor's View

Edward S. Silver*

As district attorney for the second largest county in the nation, I gave Samuel Dash every possible help I could in his study, for I expected him to write an objective appraisal of the wiretapping situation. I regret to say that he has written an innuendo-splattered "thriller" instead.1

I. THE PROBLEMS OF PRIVATE WIRETAPPING

Dash states at one point that "it is safe to say that most of the private wiretapping done in the world is done in the city of New York." I have no way of knowing whether or not this is really so. Nor, may I add, does Dash, although I suppose he is entitled to his guess. But even if his charge were accurate, it would still be inconsequential. It is also safe to say that New York City is the financial hub of the world. And it is safe to say that New York City is the artistic and musical hub of the world. It is safe to say that many things are "most" in the city of New York.

However, one thing is patently clear. It is not even safe to say, as Dash seems to, by innuendo, that the prosecuting attorneys are indifferent to the problem of private wiretapping. I have said it before, and I now reiterate-no group is more anxious to wipe out private wiretapping than the prosecuting attorneys. For by prosecuting private tappers, we underscore the distinction between unauthorized tapping used for personal, nefarious profit and authorized tapping employed to enforce the laws.

Dash devotes much space to the various unsuccessful investiga

District Attorney, Kings County, New York; President, National Association of County and Prosecuting Attorneys.

1. DASH, KNOWLTON & SCHWARTZ, THE EAVESDROPPERS (1959) [hereinafter cited as DASH].

2. Id. at 79. (Emphasis added.)

3. See especially id. at 82-83.

4. Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 86th Cong., 1st Sess., pt. 3, at 539, 563 (1959) [hereinafter cited as 1959 Hearings).

tions and prosecutions against John G. Broady, a notorious private tapper. However, he notes only incidentally that my colleague in New York County, Frank Hogan, recently convicted Broady of an extensive wiretapping operation." If Hogan and his staff are to be criticized for anything in connection with their prosecution of Broady, it should be for their overzealousness, not their laxity or indifference. In fact it was largely on the grounds of overzealous prosecution that two dissenting judges of the New York Court of Appeals voted to reverse Broady's conviction."

Furthermore, prosecutions for unlawful wiretapping have not been limited to private citizens. In February 1959, my own office obtained convictions against two policemen, Joseph Weiner and Norman Connally. We also tried a police inspector in connection with the same affair but, after a jury disagreement, reluctantly concluded that we could not successfully prosecute him. It is interesting to note that Dash himself has publicly praised New York prosecutors on another occasion for their vigorous prosecution of wiretap violators. He said:

A significant by-product of the New York law has been the prosecution of persons who engaged in unauthorized wire tapping. The district attorney appreciates that his own privilege is secure only so long as the public is satisfied that wire tapping is being properly restricted and supervised.8

That we can and do attempt to eradicate an illegal tapping situation when we know about it, there is no question. But that we in fact do not know about all such situations, there is likewise no question. Just a moment's reflection will reveal why it is so difficult for even the most industrious district attorneys or police departments to detect such highly surreptitious activities.

In dealing with typical crimes, whether or not we solve them, we at least know they have been committed. For example, a mutilated body is uncovered, premises are found looted, or a ransom note is sent. However, no comparable signs are left-indeed no signs whatsoever when an unlawful wiretap is made and subsequently removed.

5. See DASH 29-30, 33, 81-89. "It would be difficult to exaggerate the importance of this case. The sentencing of Broady to serve two to four years now introduces a new factor of risk." Eavesdropping and Wiretapping, REPORT OF THE NEW YORK JOINT LEGislative CommITTEE TO STUDY ILLEGAL INTERCEPTION OF CommuNICATIONS (March 1956), reprinted in Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 2d Sess., pt. 2, at 290 (1958) [hereinafter cited as 1958 Hearings].

6. See id. at 90.

7. See People v. Broady, 5 N.Y.2d 500, 516-18, 186 N.Y.S.2d 230, 244-46, 158 N.E.2d 817, 827-28, cert. denied, 381 U.S. 8 (1959).

8. Dash, Wire-tapping: A Realistic Appraisal, 18 THE SHINGLE 37, 39 (1955). Furthermore, Dash thought enough of this statement to say it a second time. See Dilworth & Dash, A Wire Tap Proposal, 59 Dick. L. Rev. 195, 200 (1955).