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Mr. WATERS. Mr. Ward, the answers you have given us are based on your experience of some 62 years in the U.S. attorney's office in Chicago, are they not?

Mr. WARD. Yes, sir; in part they are.

Mr. WATERS. You were the first assistant when you left there?
Mr. WARD. Yes, sir.

Mr. WATERS. And you are now State's attorney of Cook County, where the population is about how much?

Mr. WARD. In the neighborhood of 5 million.

Mr. WATERS. Thank you very much, Mr. Ward.

Thank you, Senator.

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. 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 wit

nesses.

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.

Privacy, however, does not mean solitude. Every man must communicate and exchange thoughts and ideas with others his wife, his children, his lawyer, his doctor, his priest, his business acquaintances, his constituents the list is obviously very long. The growth and complexity of modern society, merely the physical size of modern society, have made the telephone probably the major instrument for such intercourse, for it provides instantaneous, direct, spontaneous, and ostensibly private communication.

To permit law enforcement authorities to wiretap, even under limited circumstances, would seriously impair this privacy and security so necessary to a free society. Merely the thought that someone may be eavesdropping on a conversation with one's wife or lawyer or business associate will discourage full and open discourse.

Other witnesses have already adverted to the rapid and multiple development of modern forms of eavesdropping. As Mr. Edward Bennett Williams said today, there is the spike microphone, as in the Silverman case; there was the other kind of mike in the Irvine case, and decisions of the Supreme Court and other courts are full of such examples. Mr. Williams himself mentioned something which could be picked up for $25, which he offered to show to the committee in executive session.

By these devices, the most private and intimate utterances, often deliberately confined to one's home, are exposed to the ears of listening police. In fact, it will not be too long until some kind of miniature television and image recording instruments can be made generally available, and then the telescreen of George Orwell's "1984" will be with us.

All such types of electronic eavesdropping directly violate the fundamental rights protected by the fourth amendment to the Constitution. The fourth amendment was designed by the founders for the express purpose of avoiding unwarranted searching and seizures. In fact, history shows that the fourth amendment was drafted in order to avoid unlimited invasions and searches by the authority of general warrants and writs of assistance, the use of which John Adams has said sparked the American Revolution.

Electronic eavesdropping necessarily violates the spirit of the fourth amendment, because such eavesdropping cannot be limited in any way. Any authorization for such practices would necessarily be a general warrant, rather than a specific warrant limited to specific objects and places, for such a warrant would necessarily permit a general exploratory search for evidence in aid of prosecution. This is because such devices inevitably pick up all such conversations on the wire tapped or the room scrutinized, and nothing can be done about this. Thus, not only is the privacy of the telephone user invaded with respect to those calls relating to the offense for which the tap is installed, but, one, all his other calls are overheard, no matter how irrelevant and intimate; two, all other persons who use his telephone are overheard, whether they be family, business associates, or visitors; and three, all persons who call him, his family, his business, and those temporarily at his home are overheard.

In my statement, I cite a footnote by Professor Westin, summariz ing the fruits of one wiretap, and I think Mr. Williams referred to another example in his own experience.

The assumption that wiretapping and eavesdropping affect only criminals and outlaws of society is thus totally unwarranted and pernicious. The provisions of these bills and State enactments do not limit the eavesdropping to the phones of persons suspected of crime. Under such provisions, these eavesdropping devices may be installed wherever evidence of crime in general, or specific crimes, may be obtained, whether it be on the home or business telephone of a witness, or merely an acquaintance of the suspect, witness, or victim.

Even as to the suspect himself, it must not be forgotten that we are dealing with the privacy of someone who is presumed to be innocent until proven guilty beyond a reasonable doubt. A large proportion of people suspected of crime are not even arrested, much less found guilty beyond a reasonable doubt.

The broad sweep of wiretapping is most apparent where public telephones are tapped, which is all too common. Of 3,588 telephones tapped by New York City police in 1953-1954, for example I did not see figures for other years-1,617 were public telephones, or almost half. Inevitably, in these cases, only an infinitesimal number of the intercepted calls are even made by the suspect or by anyone remotely connected with him. Yet the privacy of numerous other callers is invaded, many of whom have resorted to a public telephone precisely in order to obtain a privacy not obtainable at their homes or businesses.

Because of this dragnet quality, wiretapping and other forms of electronic eavesdropping cannot be regulated by controls similar to search warrants; the object to be seized or the premises to be searched simply cannot be limited or even specified, because the very nature of a wiretap or spike microphone is to catch all calls and conversations.

This general warrant nature is reflected in the very language of statutes to legalize the practice. The existing and proposed statutes permit wiretapping to obtain evidence of crime-this, I think, is in S. 1086, S. 1221, and New York Code of Criminal Procedure, section 813(a) or of specific crimes, as in S. 1495.

The language of these statutes is, of necessity, the language of a general warrant and no more specificity is possible, because it cannot be determined in advance what conversations will be intercepted. Nor can it be specified what place is to be searched by citing the specific telephone number, because also intercepted are calls emanating from the telephone numbers of all others who call the intercepted number.

Mr. Williams adverted to the fact that the Constitution requires that the search warrant, to be reasonable, must be limited in object to three categories: contraband, instrumentalities of crime, and the fruits of crime. For that, he has a great deal of Supreme Court authority; United States v. Lefkowitz, United States v. Go-Bart Trading Co., and United States v. Gould, all reaffirmed recently in United States v. Abel. Rule 41 (b) of the Federal Rules of Criminal Procedure also adopt this constitutional requirement. Mere evidence is not enough.

Neither the wiretapping statutes currently in existence nor the proposed statutes comply with this limitation.

It is because of this unlimited and unlimitable invasion of fundamental rights that the American Civil Liberties Union is opposed to

wiretapping and other forms of electronic eavesdropping. Even though a bare majority of the Supreme Court decided, in the Olmstead case, that the fourth amendment does not directly protect telephone conversations against wiretapping, the union believes that the dissenters were clearly correct. Moreover, Congress is also a protector of our civil liberties. In exercising its legislative powers, Congress should not ignore the extent of the invasion by wiretapping of individual privacy and security. If a general warrant threatens individual liberty where physical entry into a home is concerned, it is equally pernicious where telephone conversations are concerned. The only difference between the forms of entry is that the invasion by a telephone tap is more difficult to detect and more treacherous because there is a greater sense of security when using the phone. Devices like a spike microphone aggravate the invasion of privacy manyfold, for all utterances within one's own home are picked up, not just telephone conversations to people outside the home.

That police do, in fact, use informers, shadow people, and eavesdrop outside houses cannot justify wiretapping. Wiretapping is a far greater invasion of personal privacy than any of these methods. One who talks to an informer is himself responsible for making a mistake about a person whom he had an opportunity to assess and in whom he chose to confide; one whose telephone is tapped plays no part in the intrusion. Indeed, one has almost no control at all where it is someone else who initiates the call.

When a man leaves his home and he is followed, he has ventured voluntarily into a public area. One whose phone is tapped has taken no such action. The use of an eavesdropper is a trivial invasion of privacy compared to a wiretap; no eavesdropper can hang around for 60 to 90 days catching every conversation, as does the indefatigable electrical tap and recording machine. Moreover, as Mr. Williams pointed out, a householder who expects and desires privacy in his home or a businessman in his office can always go to an isolated portion of his home or office, but there is no escape from a wiretap unless one renounces entirely the use of the phone.

Nor should it be argued that a person should renounce the use of a phone today. In our society, simply because of its physical size and complexity, a telephone has become an extension of one's home or office, and few can do without it.

The union also believes that no sound argument whatsoever has been made showing that wiretapping is indeed necessary. Such arguments break down into two parts: First, that very little tapping is done; secondly, that, when used, it is indispensable.

As is well known, in this area, it is very difficult to get statistics. Luckily, the offices of District Attorneys Hogan and Silver and the New York City police have published a fair amount of statistics from which we can get some idea of what is involved.

Senator KEATING. Mr. Silver, I think, indicated, and I think Mr. O'Connor did, too, that there are about 500 wiretap orders a year in New York State. Am I right?

Mr. CREECH. I believe Mr. Silver said he requested something like 50 to 55 a year.

Senator KEATING. Mr. O'Connor said 15 to 20 in his county. I believe the 500 was in the State.

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