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They could not find one such case. And I can tell you that, as both the president of the National District Attorneys Association and particularly in New York State, no district attorney would offer wiretap evidence where an order was not procured because there is no reason why he should do it. If he has a right to get the order, he can get one. There is no excuse for him.
Senator HRUSKA. Will the Senator yield?
Senator HRUSKA. In that connection, are there any cases in your recollection where an order was applied for and the application was denied by the judge ?
Mr. SILVER. Yes.
Mr. SILVER. Well, to begin with, we don't apply too frequently for orders. For example, in Brooklyn, where we have a population of almost 3 million people, we do not apply for more than, on the average, 50 or 55 orders a year.
Senator HRUSKA. Would you have any idea how many applications might be denied during the course of the year?
Úr. SILVER. No, I do not. But, you see, I doubt whether that would—may I respectfully say that would not prove anything if the one who applies for the order only applies for it when he is quite sure he has the basis for doing it. The fact that everyone of our orders was granted indicates that we were circumspect in not applying for orders that might be denied.
Senator Hruska. The thinking of the prosecutor and the thinking of the judge concerning the seriousness of the application and its feasibility coincide. Let us put it that way.
Mr. SILVER. I don't know whether some have been denied, but I would say in a vast majority of cases, I would say 95 percent of the cases it would be a fair estimate to say the court signed the order.
Senator HRUSKA. The question I wanted to determine was whether the application was granted as a matter of course or whether the judge made a close scrutiny of the facts of each particular case.
Mr. SILVER. That again would depend on the judge in connection with any type of an order, whether it is search and seizure or even an order to pay alimony. Some judges are scrupulously careful and some aren't, and I suppose that applies to wiretapping as well as any other situation.
Senator KEATING. At this point could I ask one question for clarification.
In answer to an inquiry from Senator Carroll, you said that you thought there were many cases of illegal wiretapping. You did not mean to imply in that illegal wiretapping by public officials ?
Mr. SILVER. No. I meant by private detectives.
Senator KEATING. Businss spying on labor, labor spying on business.
Mr. SILVER. That is right.
Senator KEATING. And labor spying on each other, business spying on each other, husbands spying on the wives, and wives spying on husbands.
Mr. SILVER. That is right. For instance, the Broady situation where they had a couple of hundred wires hooked into one place. There were no law-enforcement officers in connection with that case. They were all private people working for private individuals.
For example, it would be a good thing if section 605 were amended by S. 1086. We probably could get the telephone companies to give us leased wires so we could centralize the supervision of intercepted telephones. As it is, they have a great reluctance to do anything because they say “we might be aiding and abetting the violation of 605," and therefore we cannot get leased wires, which would be another way of knowing that wires that do not come into a central spot are most likely unlawful taps. It would curb unlawful tapping, make it more hazardous.
Senator CARROLL. What do you mean by leased wires!
Mr. SILVER. By leased wires I mean, instead of having to go to the terminal where the pair is and hook it up with a plant for listening, the telephone company can arrange to have us listen to that number by connecting it to a central spot in my office for recording the conversation or listening to it. Under the leased-wire system, we could supervise in one place the listening to all telephones on which we have orders instead of having plants scattered all over the city, in cellars and on roofs and so forth.
Senator CARROLL. In talking about a leased wire, is this possible? This is Kings County, isn't it, that we are talking about?
Mr. SILVER. Yes.
Mr. Silver. It is not only possible; we did it during part of the Gross investigation, with the telephone company
Senator CARROLL. This is the question I put: If you had a leased wire do you mean a wire to the district attorney's office which would allow him to tap in at any place once a court order was secured?
Mr. SILVER. No. When I get a court order, the facilitation of listening to it is effected by running a leased wire, affecting only the number in the court order, which they connect. They have got wires running all over the city. By having that wire, instead of running down to a cellar someplace where we have to have two or three men listening, or install apparatus, that tapped wire would come to a particular room in the district attorney's office where it could be supervised instead of being in the cellar somewhere.
Senator CARROLL. I think that is very important on the leased wire. You go into court and you get an order. Now, after you get an order you go to the telephone company under present procedure, and then you make your contacts; you set up your plants. But now on a leased wire would you always have that wire in your office or would they have to establish a new wire coming in
Mr. Suver. They would have to establish it every time we got an order. In other words, we wouldn't be able-in order for us to have every wire, we would have to have all of the telephone company buildings in our place. Obviously, that is impossible. It is only if we can get an order to tap telephone X-1234, instead of
Senator CARROLL, On a leased wire.
Mr. SuLVER. Instead of going down in the cellar and connecting with our own wires, we could have the facilities for listening to it at i central place where we could better supervise the operation. It does not in any way extend our rights beyond the limitation of the statute. Senator CARROLL. Thank you.
Mr. SILVER. We would have no objection if district attorneys were required to report as set forth under section 7(b) (1), (2), (3), and (4). Any statistics as to number of applications, orders, types of crimes, and number of orders denied, and so forth, are perfectly all right. However, and I cannot be too emphatic about this, when the requirement is as to section 7(a) to disclose the contents of applications, I respectfully voice most serious objection.
Sources of information
Senator CARROLL. If you will permit an interruption here, I want to go back to the question put by Senator Keating.
Are you saying to this committee that only private investigators have been involved in unlawful wiretapping! What about law-enforcement officers! I am not talking about evidence that they introduce in court.
How much is the practice of wiretapping used to find out what goes on, without a court order! We are talking now about lawenforcement officers.
Mr. SILVER. You are talking about policemen ?
Mr. SILVER. Well, detectives are policemen. I would not be surprised that there are some policemen and detectives who might, without getting a court order, intercept a telephone to get leads to solve a crime. There is no way of knowing. Nobody can tell you how much of that there is. It depends on the attitude of the person.
If a person is for wiretapping, like myself, I am inclined to believe it isn't very extensive. You will have people come in and tell you there are 50,000 or 60,000 going on all the time.
Mr. Justice Douglas at one time, in a book, said in 1 year–I think 1952 or 1953—there were 56,000 wiretap orders procured in New York City. The fact is, there were less than 500_482, I think.
Senator KEATING. Yes, but when he was questioned about this, he had absolutely no evidence to back it up.
Mr. SILVER. In order to have 56,000 wiretaps we would have to ask the Government to give us a couple of thousand marines to keep order because no policemen would be on our streets. There aren't enough policemen to listen to so many taps in 1 year.
Some people, depending on what their attitude is, believe what they want to believe. I want to believe that it is not very extensive. Other people want to believe it is terribly extensive.
But I say I am for visiting the most serious consequences on people who tap wires unlawfully, whether they are police
Senator KEATING. Whether they are police.
Mr. SILVER. In fact, if they are police officers, it is worse because they have the means of getting an order if they are entitled to it. That is the reason we drafted 813(b), making it a felony for a law-enforcing agent to tap a wire without a court order under which we prosecuted two police officers in Kings County: But people are always confusing the fact that because there are individuals, whether it is extensive or not extensive, whether they are law-enforcing agents or not, because they are unlawfully tapping wires, which nobody approves, what 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 reportsnumber 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 tele phone 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