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Mr. CREECH. Thank you, sir.
Now, do you believe the provision of S. 1495 which would allow the use in evidence of another crime discovered while wiretapping for a separate crime to be necessary or desirable ?
Mr. WARD. I would not believe it to be necessary or desirable. I think that the same rule with respect to the law of search and seizure should be followed. I appreciate, of course, that search and seizure and the problem which is presently under consideration, while they are analogous, and bear some resemblance, nevertheless, inherently they are different.
Prompted by what I think should be a solicitude there for the rights of the individual, and prompted by a desire to restrict the infringement upon the individual's rights, and to limit the trespass, so to speak, I think that evidence of "surprise offenses” if I may term it that way, should not be admissible.
Mr. CREECH. Do you believe, sir, that the problems connected with wiretapping and other electronic eavesdropping, are sufficiently similar so that they should be regulated by a single piece of legislation?
Mr. WARD. Would you repeat that question ?
Mr. CREECH. Do you believe that the problems connected with wiretapping today and the electronic eavesdropping devices we have discussed here are sufficiently similar that they should be regulated by a single piece of legislation?
Mr. WARD. No, I think they are distinguishable, although one finds it difficult, I think, to state with precision the basis of distinction. One difference which suggests itself is that I think eavesdropping connotes something that is local in character, as opposed, let us say, to wiretapping, which almost per se, let us say, is an interstate matter. That, of course, would go to the Federal jurisdictional concept.
I think in another vague sense that people are more sensitized to the question of wiretapping. They are more sensitive, let us say, to the problem of their own wires being tapped and conversations overheard than they are to so-called spike mikes, and the like. I think there is a distinction that can be drawn between the two.
Mr. CREECH. I am sure that you have given consideration to the possibility that under this pending legislation, confidential communications between attorney and client and between physician and patient might be the subject of interception and disclosure. I wonder if you might comment on that?
Mr. WARD. I think that is one of the sensitive areas, of course. The whole area is a sensitive area. I do not think that that fact would overcome the basic point that I believe, balancing these equities, that the welfare of the community could best be served by permitting, under judicial control, wiretapping. These are unfortunate byproducts, let us say, of that. They are to be regretted.
But I do think that in the overall consideration they are outweighed by the consideration of the community, from the standpoint of internal as well as external danger.
Mr. CREECH. There is a requirement in S. 1221 that before a Federal agent can obtain a court order to wiretap and eavesdrop, he must have a reasonable ground to believe that evidence of a Federal crime may be obtained, whereas under S. 1495, there is a requirement that the
interception must be required to gain evidence on the, or to prevent, certain specified crimes.
Do you feel that these requirements are narrow enough to protect the privacy of the individual citizen and to accord with constitutional guarantees against unreasonable searches and seizures?
Mr. WARD. Of course, I think as far as the searches and seizures question is concerned, while analogous, I think it is basically a question apart. I did point out what I felt was a question of ambiguity, as far as the question of intendment of S. 1495 is concerned. S. 1495 makes reference to the evidence that might be obtained as being only such evidence as is necessary to the conviction of such person for or to the prevention of, and so on.
Then, again, it says such evidence as is required. In other portions, the section speaks simply of evidence of the crime without the use of terms "essential" or "requirement." I do not know what the intendment of the proponent of the act is. Is it to be just any evidence relating to the commission of the crime, or is it to be only such evidence as will prove the commission of the crime, and assuming there is no evidence, save that telephonic evidence, if I may so characterize it?
Mr. CREECH. I would like to ask you at this point some questions pertaining to a statement which we received from the superintendent of the Chicago Police Department, Mr. O. W. Wilson.
Mr. Wilson, in his statement, has said that the police must accept some blame for the lack of public confidence in the means they use to achieve their purpose. Police abuse of their authority must be eliminated, not by withdrawing essential authority or by freeing the guilty criminal, but by raising police standards to a level of trustworthiness and by some action which will penalize the community which would employ such an officer as would abuse his privileges.
He says that police leadership has been dilatory in raising service qualifications and ethical standards. Do you feel this statement has validity with regard to the police use of wiretapping and eavesdropping devices?
Mr. WARD. I do not know, because I do not know what the context of the statement is. It would appear that the superintendent is deploring the want of higher standards by police officers. That, I think, is a question apart from the illegality or legality of their wiretapping
For example, the Federal Bureau of Investigation certainly has the highest sort of standards so far as personnel are concerned, and I believe so far as their professional operation is concerned. I think the question as to whether or not the Federal Bureau of Investigation, therefore, is delinquent in their standards because they tap wires is entirely a different question.
I think the superintendent is saying simply that it would be well and should be that police standards be improved. I think that statement is apart, really, from the question of wiretapping. If it is illegal, well, then, of course, the police cannot engage in it with any semblance of being true law officers. But if they may, with propriety, engage in it, as apparently they may in New York, that is a different question.
Mr. CREECH. Mr. Wilson also said that "a law like the Illinois law effectively curbs police use of this technique in gathering evidence, but
I seriously doubt that the law has any effect on the use of wiretapping or electronic eavesdropping devices by private detectives or investigators.”
Have you any comment on that point, şir?
Mr. WARD. I would say I believe it does operate as a deterrent to the existence of the law with respect to private investigators. I have been in office for approximately 6 months and am not in a position to be able to tell the subcommittee the nature, the extent, if any, of illegal wiretapping by private individuals in our community I do not know.
Mr. CREECH. Can you tell the subcommittee, sir, whether there have been any prosecutions or convictions under the Illinois eavesdropping laws banning wiretapping!
Mr. WARD. Very, very few. We have a wiretap law which goes back to 1927, and we have an eavesdropping law which goes back to 1957. Speaking from rough memory, I would say one or two under the 1957 act, but a handful under the Wiretapping Act. It has not been a very active statute in that prosecutive sense.
I think that is an experience common to most of the States of my type, with legislation of that type.
Mr. CREECH. Could you supply the subcommittee with any information you might have on that, and specify whether there have been prosecutions against private individuals or law enforcement officers ?
Mr. WARD. Surely, I would be glad to ascertain that and furnish that information to the subcommittee.
Mr. CREECH. Thank you.
(Subsequently, the following information was supplied by Mr. Ward.)
May I advise that we have been able to locate only one case which was prosecuted by this office under the Illinois Wire Tapping Statute. The prosecution was instituted in 1954. There were three defendants in the case: two of whom were to have been private investigators, and one of whom was the individual employing them. From the file, it appears that said employer and one of the investigator-defendants were fined $300 each. It appears that the other investigator-defendant died while the proceedings were pending.
There may have been, and probably were, other prosecutions instituted by this office for wiretapping, but inasmuch as records of this office beyond the last 10 years are in storage, we cannot say with certainty whether such prosecutions were had.
I do not possess any information as to prosecutions or the absence of prosecutions in other Illinois counties.
Examination of the Illinois Annotated Statutes does not disclose any prosecu. tions under the above-described acts which might have been considered by the Appellate Court of Illinois, or the Supreme Court of Illinois.
Mr. Ward, the subcommittee has heard testimony that if Congress passes a bill saying that wiretapping is permitted under State laws, then States such as yours, Illinois, would be encouraged to pass permissive legislation in this area.
What is you opinion on that, sir?
Mr. WARD. I think it would represent encouragement for those who would favor wiretapping under a system of judicial control. I think that if the Federal authority did authorize wiretapping, it would encourage activities by those persons who are in favor of wiretapping to seek to secure enactment of laws permitting it on a State level. I think there would be no question about it.
Mr. CREECH. Mr. Waters has some questions for you, sir.
Mr. WATERS. Mr. Ward, the answers you have given us are based on your experience of some 612 years in the U.S. attorney's office in Chicago, are they not?
Mr. WARD. Yes, sir; in part they are.
Mr. WARD. In the neighborhood of 5 million.
Senator KEATING. Thank you, Mr. Ward. We appreciate your coming and giving us the benefit of your views. Call
the next witness. Mr. CREECH. The next witness is the Honorable Frank S. Hogan, district attorney of New York County, New York City, N.Y.
Mr. HOGAN. Mr. Schwartz has indicated to me that he has been here since 10 this morning. If it meets with your pleasure, I shall yield to him. It will not inconvenience me, and since he has been here that long, I shall be happy to wait.
Mr. SCHWARTZ. It is entirely up to the district attorney. He has indicated that he would yield to me, but if the committee would prefer
Senator KEATING. Let us hear Mr. Schwartz.
I want the record to show, however, because I may be called away before Mr. Schwartz completes his testimony and before Mr. Hogan begins his, that it is my pleasure to introduce and to commend Mr. Hogan to the committee. He has had long experience and a distinguished record in the field of law enforcement, perhaps unequaled in the entire country; certainly at the very top.
He is highly regarded by all involved in the law enforcement field in the country. I know that he will have valuable testimony to give to us, and I make these comments for the record at this point, because the vagaries of our work here are such that as soon as Senator Ervin gets back, I may have to leave.
But I, of course, shall read his testimony and all the other testimony with great interest.
Mr. Hogan. Thank you very much, sir.
Mr. SCHWARTZ. I would like to express my appreciation to Mr. Hogan at this time.
Senator KEATING. The committee will hear at this time Mr. Herman Schwartz, attorney at law, New York City, N.Y. Mr. Schwartz is representing the American Civil Liberties Union.
STATEMENT OF HERMAN SCHWARTZ, ATTORNEY AT LAW, NEW
YORK CITY, REPRESENTING THE AMERICAN CIVIL LIBERTIES UNION
Mr. SCHWARTZ. Thank you, Senator. I am here to present the views of the American Civil Liberties Union on the three bills which have been proposed, S. 1086, S. 1495, and S. 1221. I have a statement which I should like to submit to the committee. I shall try in my oral testimony to hit only the high points, although I may have to read most of the statement.
Senator KEATING. That will be received in its entirety and you may proceed.
Mr. SCHWARTZ. The American Civil Liberties Union, now in its 41st year, is, as most of you know, a private nonpartisan organization concerned with the defense of civil liberties. Because of that, it has a deep concern with the general problem of wiretapping and eavesdropping.
The wiretapping problem, as has been said here often, strikingly illustrates the ever-present tension between the two indispensable and interdependent elements of a free society: the detection and prosecution of crime, and the protection of civil liberties.
Although the Civil Liberties Union is, of course, primarily concerned with civil liberties, the members of the union realize fully that in order to have a free society, and in order to have security for each individual in that society, you cannot allow crime and lawbreaking to be rampant. The members of the union do not wish to live in fear of robbery, murder, and sabotage any more than do other people.
However, successful crime prosecuting is not an end in itself; it is only the means of insuring a free and secure life for each citizen, and such a life is not possible unless there is a substantial amount of privacy for all. It is therefore the union's position that a heavy burden of proof, lies on all attempt to justify any invasion of such privacy, even if in the cause of crime detection.
The union has considered and reconsidered this matter quite often during the last 10 or 20 years; probably even before that, but I do not go before that. Its conclusion is that
wiretapping and other forms of electronic eavesdropping seriously invade privacy and endanger liberty, and that even if these practices were more useful than they actually are, their uncontrollable sweep precludes legitimizing their use.
To make such practices lawful is to move closer toward a police state, where constant government intrusion and surveillance inhibit and constrict a free people.
In our opinion, there is no basis on which so sharp a departure from our fundamental safeguards can be justified.
Our position is set forth in three parts. In the first part, which I hope will not be excessively repetitious of what others have said, we would like to set forth the threat to liberty from wiretapping and other electronic eavesdropping devices, as we see it.
In the second part, we should like to discuss some of the arguments made for wiretapping.
In the third part, we discuss some specific points about legislation here. I shall try to omit points which have been made by other witnesses.
As has been said many times here today, both by those who are in favor of some form of wiretapping and by others, one of the essential differences between the totalitarian state and the free society is that the totalitarian state completely deprives the citizen of his privacy. In our statement, we have quoted Supreme Court statements on the matter which go back many, many years. I shall not bother to repeat them here.