Mr. SCHWARTZ. I studied figures presented at the hearing in May 1960 held by the Sarachan Commission-10-year figures. My figures on New York City show about an average of 335 orders in 1959.

Now these orders cover more than 500 telephones, for an order frequently covers more than 1 phone. Some statistics I studied in Kings County showed approximately 1.7 phones per order.

Since one tap catches many, many people every day, especially taps on business and public telephones, these orders produced an invasion of the privacy of thousands of people every day.

Moreover, there is a great deal of evidence of much unauthorized police wiretapping throughout the country. I do not propose to list them here, but in a footnote in my statement, I have indicated some authority for that, and I think Senator Carroll commented on it also this morning.

Now it is not at all likely that the amount of wiretapping or electronic eavesdropping can be significantly reduced or even controlled. With the vast amount of unauthorized official wiretapping that goes on, is it at all likely that any court control which seriously attempts to limit and reduce the amount of wiretapping will be successful? If the police find the limitations chafing, they will ignore them as much as they ignore the present absolute prohibition. The only result would be to make the practice legal and respectable and to sanction the admission of the fruits of wiretapping in evidence, thereby removing one of the few deterrents to such improper conduct.

Indeed, the possibility of getting an order rendering the wiretap evidence admissible will only encourage sample tapping to see whether it is worthwhile to apply for an order.

I should also like to point out a comment that there is a question whether a Federal court can even issue a wiretap order, because such an order may not come within the case or controversy jurisdiction of article III of the Constitution. Mr. Justice Jackson referred to this in his lectures at Harvard several years ago, and commented that this raised very interesting and even dubious constitutional questions.

Finally, the protections contemplated by a preliminary showing are bound to be futile. Experience in New York has shown that the papers in support of the applications will frequently contain little more than the formal matters presented by the statute, and there have been instances of false affidavits.

There is also serious doubt, despite the great clamor for wiretapping by prosecutors, as to the need for such authority in dealing with crime. Gambling and vice, which in New York, for example, are only misdemeanors, are the major crime areas where wiretapping is used.

I shall comment here that Mr. Ward, a few minutes ago, stated that in Cook County, at least in his experience, wiretapping was not a sine qua non for effective law enforcement, and nobody really knew how many more crimes would be solved with it.

To repeat, gambling and vice are the major crime areas where wiretapping is used. Even in these areas, the success and indispensability of wiretapping are dubious. Justice Samuel Hofstadter, of New York, declared in 1955 that his record of the fruits of wiretapping orders showed

some arrests and fewer convictions, and then rarely, if ever, for a heinous offense. 85952 O-62-27

Secondly, insofar as gambling and vice are generally operations of organized crime, the problem is not that the investigative techniques are inadequate, but that the public is indifferent and law enforcement either inept or corrupt. A recent study in New York, although calling for wiretapping authority, attributed the ineffectiveness of efforts to suppress organized gambling primarily to the absence of integrated effort among law-enforcement agencies, as well as to lax police work and public indifference. This was the report on syndicated gambling in New York State.

And the same causes seem operative elsewhere. I noticed in the paper the other day that Mr. Fred Cook, a newspaper reporter, has written a book on gambling, the essence of which seems to be that most of the expense in gambling operations seems to be for bribery. Nor is the enthusiasm for wiretapping especially widespread even among law enforcement and investigatory bodies. Attorney General Kennedy has recently stated that he would not be in favor of its use under any circumstances, even with the court's permission, except in certain capital offenses, which he listed as murder, treason, and kidnaping.

Senator KEATING. The Attorney General has testified here today. through the Assistant Attorney General, in general support of my bills related to State wiretapping, and has endorsed many of the provisions of Senator Dodd's bill with regard to Federal wiretapping. Mr. SCHWARTZ. I am aware of that. I was here and heard it. Senator KEATING. That is his latest position.

Mr. SCHWARTZ. The only conclusion is that he may well have changed his mind. I was referring to an interview given by him to Look magazine, which was published March 28, 1961.

Senator ERVIN. In other words, he is either wiser or more foolish today than he was some time ago.

Mr. SCHWARTZ. It is our position, of course, that there is no question about which it is.

In my statement I listed a great many other law enforcement and legislative authorities. These include a New Jersey committee which studied the matter 2 or 3 years ago, a California commission, the attorney general of Pennsylvania, and the circuit attorney of St. Louis. I think the committee is familiar with most of these.

I would also point out that 33 States have made wiretapping illegal, many quite recently, in many populous and industrialized jurisdictions, such as Illinois, Pennsylvania, California, Florida. These States have completely outlawed wiretapping and, in some instances, its fruits, both by statute-Pennsylvania and Illinois in 1957; and by judicial decision-California, Florida, and New Jersey within the last 6 years.

Senator KEATING. You realize 1086 would have no application to them at all.

Mr. SCHWARTZ. I am quite aware of that.

Senator KEATING. In other words, it leaves it to the States to make their decisions.

Mr. SCHWARTZ. My point is that there is a great deal of dispute as to the policy of wiretapping.

Senator KEATING. There is no question of that.

Mr. SCHWARTZ. Now although advocates of wiretapping cite statistics to argue that wiretapping is necessary, these figures are not persuasive. In the first place, most of the convictions are in the morals area, vice and bookmaking. Are these convictions worth granting the police such dangerous powers to invade privacy, especially since the inadequacies of law enforcement in these areas are primarily attributable to lax enforcement, as shown above?

Secondly, although useful information is frequently obtained, not even an indictment follows in about 50 percent of the cases where wiretaps are installed. This was Mr. Hogan's testimony before a New Jersey legislative committee about 2 or 3 years ago.

Even if these statistics were more convincing, they cannot be assessed in the absence of data showing, (1) the number and nature of the convictions, as distinguished from indictments or other charges, obtained through wiretapping; and (2) a showing that the convictions could not have been obtained anyway; that is, without the wiretap evidence. As a matter of fact, insofar as some of the leaders of organized crime have been brought to justice, this has been more through the efforts of Federal law enforcement agencies who cannot wiretap. The reason is simple: The FBI does a thorough and energetic job of investigation.

Senator KEATING. Well, if I am not mistaken, Counsel, and correct me if I misinterpret these figures which were given to us by Mr. Hogan and I recognize that New York may be unique in having an unusually capable district attorney-but in 1956-I shall just start at that point-there were 34 arrests of people whose wires had been tapped, of which there were 33 convictions and no acquittals, 1 case pending.

The next year there were 18, of which there were 13 convictions, 1 acquittal, 4 pending.

In the next year there were no acquittals, 6 cases pending, and in 1955, 41, of which there were 13 convictions, no acquittals, 3 otherwise disposed of, which says, "Turned over to other authorities," and 25 cases pending.

That does not take care of your second point, that the convictions might have been obtained otherwise, but it does indicate that in those cases where there were wiretaps, the juries only found in all those 4 years one innocent party.

I have not misinterpreted what these records show, have I?

Mr. CREECH. No, sir.

Mr. SCHWARTZ. One cannot know whether these convictions could have been obtained otherwise. Has it been indicated what kind of crimes were involved here? I think that is rather important. Senator KEATING. That is not shown.

Mr. SCHWARTZ. The information that I got, which I got from New York hearings, and, I would like to study those figures you have at my leisure, is that between 1950 and 1959, 720 wiretap orders were issued, including renewals, where 219 investigations were involved covering an unknown number of telephones. Using the ratio I discussed above, which is 1.7 phones per order, this probably covered about 1,250 telephones. These orders resulted in 458 arrests, of which 335 ended in convictions, 70 acquittals or discharged, 7 otherwise disposed of, and 36 still pending.

Senator KEATING. That is correct, and that is on here. I think perhaps I stressed it too much by starting with the year 1956. In all fairness I was impressed with the fact that in all those 4 years, there was only one acquitted in the entire group.

But over the period of the years 1950 to 1959, the 10-year period, there were 727 wiretap orders, 458 arrests, 335 convictions, 70 acquittals, 17 otherwise disposed of, and 36 cases pending.

It is not quite as strong as the way I had given it, but that is a rather large percentage of convictions as against acquittals.

Mr. SCHWARTZ. Well, I think one has to consider here not merely the number of convictions and acquittals, but the number of cases that, despite the wiretap evidence, were not even brought, where orders were issued. I think it is important to remember in this connection also that the orders frequently cover more than one phone, such as in a conspiracy action, where it might cover quite a few. In other cases, it might cover only one.

Now, Mr. Justice Frankfurter has commented on the utility of wiretapping in his dissent in the On Lee case. There, as you may recall, one agent went in with a radio tied to him and another agent listened outside and, of course, the man to whom the first agent spoke, On Lee, did not know about that. Justice Frankfurter, talking about all forms of wiretapping, said:

My deepest feeling against giving legal sanction to such “dirty business" as the record in this case discloses is that it makes for lazy and not alert law enforcement.

One final point is that one cannot overlook the abuses to which the power to wiretap may be subject. Doctoring of tape recordings is not difficult, as was demonstrated 2 years ago before this very committee. There have also been many instances of extortion and shakedown based on information obtained by wiretapping, especially in the gambling area, where wiretapping is most used.

A grand jury investigation in Kings County in 1950 unearthed much corruption, including false supporting affidavits in support of the application for a court order, and vague, conclusory pro forma applications in other instances.

There have been other recent examples mentioned.

Now, of course, any device or weapon can be abused, but the secrecy and scope of the tap makes it especially prone to abuse. The tapper who is at all unscrupulous or weak or underpaid is severely tempted. The problem is aggravated by the absence of any effective check on how the tapper obtains and uses his information. Thus, if he does pick up blackmail material, he can use it without even revealing how he obtained this material, and there is no way of checking. The person blackmailed will generally want to avoid the publicity.

As Justice Hofstadter concluded in 1955, improved law enforcement requires a larger force with more pay for the men and a renewed spirit from within, but not more wiretaps.

Now, in light of its general objection to all forms of wiretapping, the union disapproves S. 1086, S. 1495, and S. 1221. But we have certain specific objections to these bills. I shall discuss only some of these objections orally. The rest are in our statement. We first discuss 1086. The union believes that wiretapping by State officials is especially obnoxious because, under the bill, each State is free to

adopt any system it pleases, subject only to the requirement that there be a judicial finding of "reasonable grounds." This would permit as many as 51 varying systems with respect to a basically Federal right and concern.

Mr. Williams this afternoon commented also on the problem of a wiretap in one State on calls coming from another.

Under the bill, the grounds for granting an order, "where such interception might disclose evidence of a crime," are so broad as to permit a tap on a mere possibility of obtaining relevant evidence. The point about the legality and constitutionality of a statute permitting a search for mere evidence has also been adverted to.

Moreover, no Federal controls are imposed with respect to defining what are "reasonable grounds," for no attempt is made to spell out the elements of such a standard. Even if such an attempt were made, it would be almost impossible to review the specific determinations, even if such a standard were articulated, for review would have to be of a cold record, long after the order has been granted.

No. 4, wiretapping is proposed to be permitted for any crime, no matter how petty.

Mr. Williams and others have commented that under the bill, illegally obtained wiretap evidence would remain admissible in all proceedings. Thus, there would be no effective sanction against illegal wiretapping. Even in New York, a bill has been proposed to extend the ban on illegally obtained wiretap evidence to criminal proceedings. Governor Rockefeller vetoed it because he felt it would not accomplish the purpose, and because the district attorney's office recommended that the whole problem be reviewed. The information on this appears in these hearings at page 1879.

Finally, in permitting State wiretapping, the bill constitutes almost complete abdication by the Congress of Federal responsibility for wiretapping. What it does is throw the whole problem to the States, and say that whatever the States consider best in the wiretapping area, they can do. This represents a very sharp departure from present law, which attempts to control wiretapping by prohibiting it entirely.

Now, as to S. 1495, we have commented on State wiretapping and wiretapping to obtain evidence. Incidentally, in both 1086 and 1495 there is no awareness of the fact that public telephones represent a separate danger and problem.

S. 1495 permits wiretapping for certain purposes when the Attorney General deems it necessary, without court order. Although the Department of Justice testimony this morning is to the contrary, the Attorney General himself said in that Look interview that court orders are necessary, and Kings County District Attorney Silver stated before this committee 2 years ago that prosecutors are often subject to excessive zeal and should never be free of court control where civil liberties are concerned.

The reporting provisions of the bill omit some of the most important information relevant to the wiretapping problem: The indictments, convictions, and acquittals resulting from the tap, and the offenses involved therein.

As to S. 1221, this purports to regulate all forms of electronic eavesdropping, and we seriously doubt its constitutionality. In the first