place, it permits eavesdropping in order to obtain mere evidence. In the second place, it would open the door to widespread, uncontrolled eavesdropping on wholly innocent people, because this kind of eavesdropping cannot be controlled or brought within the fourth amendment requirements of specifying a particular place and a particular crime.

In sum, the union's position is that in a free society, the end of law enforcement does not justify any and all means. Even if far more convictions could be obtained through the use of such procedures as general warrants, for example, we should not choose to use them.

Since the case for wiretapping and other forms of electronic eavesdropping is so weak, and since great damage to the freedom of the individual is so obvious, there is absolutely no basis for passing any type of legislation to grant such authority. Rather, the present statute dealing with wiretapping, section 605 of the Federal Communications Act, should be tightened in the following ways:

All evidence obtained directly or indirectly from a wiretap should be rendered inadmissible in any court, to eliminate the spectacle of a court, sworn to uphold the laws of the United States, participating in the commission of a Federal crime by aiding and abetting the divulgence of illegally obtained and illegally disclosed evidence.

(2) The law should be changed to make it explicit and clear that an offense is committed by either interception or divulgence. The statute does in fact state this now, but within the Department of Justice and other agencies, it has been interpreted to allow interception, so long as the information is not divulged outside the agency. The statute should make it clear that when one FBI agent tells his superior, he is divulging and making use of the evidence, and that this is forbidden by the statute.

(3) A defendant should be permitted to object to the admission in evidence of wiretap evidence, even though not a party to the conversation, for any person adversely affected has the right to protest the commission of a Federal offense.

(4) Grand juries should be convened periodically to inquire into the enforcement of the laws against wiretapping. Because of the record of unauthorized use of wiretapping, the blackmail temptation and other corruption rooted in this practice, and the ever-increasing growth of new eavesdropping devices, there must be constant review of the electronic eavesdropping problem.

(5) A private remedy for unlawful wiretapping should be statutorily established, with minimum punitive damages plus counsel fees. If the possibility of financial loss to the wiretapper exists, unlawful wiretapping can be deterred.

Finally, the various telephone companies should be required by law to lock all feeder and terminal boxes, and to report all instances of wiretapping immediately to the Federal authorities.

Senator ERVIN. I have read your statement completely, and I want to congratulate you on presenting the case against wiretapping, I think, in the strongest possible light.

Mr. SCHWARTZ. Thank you very much.

Senator ERVIN. You have a very fine, very complete, and very wellwritten statement.

Mr. SCHWARTZ. Thank you.

Senator KEATING. I want to join, even though I obviously do not agree with all of your conclusions, in that compliment; it is a very well done statement.

Mr. SCHWARTZ. Thank you.

Mr. CREECH. I can only say that it has been covered so fully, the only thing we can do from these conclusions is perhaps to draw you out on certain aspects.

We have had a statement this morning by Mr. Miller that wiretapping can be authorized without endangering any legitimate right of privacy and that a facility can be found for avoiding the question of interfering with the search and seizure provisions of the fourth amendment. As we have said earlier, we also had a very divergent point of view expresed by the former attorney general of Pennsylvania and others, that there is a limited amount of wiretapping and search and seizure necessary. I wonder if you would care to go into this aspect a little more fully?

Mr. SCHWARTZ. Well, as I stated in the statement, the analogy is only that in both cases, there is an invasion of privacy. However, there the analogy ends, because with ordinary search and seizure you go into a court and say, "I am looking for a gun." If you go into the house of a man where you are looking for a gun used in a crime, and find it right away, you have to leave. That is the beginning and

the end of it.

With a wiretap, that is not the beginning and the end of it. You go into court and say, "I think there is something wrong going on here." Suppose you completely fulfill the requirements of a strong reasonable ground presentation. You automatically, as I said, cover all the calls of the person who is being suspected, all those in his house, all those who call him-there is no possible way of limiting this, especially since, I should think, any sensible wiretapper would set up some kind of a recording device so that he does not have to hang around 24 hours a day. Under those circumstances, there is no possibility whatsoever of culling out the relevant material and cutting it off right away.

For that reason, since the ordinary search and seizure can be limited, and because there is no way of limiting the electronic eavesdropping, the analogy is limited. Since the method used for providing protection in the first situation cannot cover the second, the union believes that the search warrant is not the answer; the court order system is definitely not the answer.

Mr. CREECH. You referred to the Silverman case. Do you believe that the use of such a device as the spike mike could be regulated by statute?

Mr. SCHWARTZ. The type of intrusion in the Silverman case could not possibly be authorized by a Federal court, because, first it automatically picks up mere evidence as well as material used in the crime. Secondly, it is unlimited and unlimitable. On both those grounds, I do not think any statute could ever constitutionally authorize that kind of eavesdropping device.

Senator KEATING. You do not object to the provision in 1221 which, for the first time, makes it a Federal crime to tap wires or eavesdrop illegally and unlawfully, and not under court order and not within the provisions of the act?

Mr. SCHWARTZ. We agree with every provision of the act which constitutes a sanction against this kind of conduct, whether it be eavesdropping or whether it be wiretapping.

The idea of the bill is in some ways quite correct. All these types of eavesdropping involve the same invasion; namely, the invasion of the right of privacy. They are all a form of eavesdropping, and attempt to invade somebody's attempt to keep something confidential. Making such attempts a Federal crime would be fine, as far as we are concerned.

Mr. CREECH. I'realize you have stated your opposition very clearly, but in the event there should be Federal legislation in this field along the lines that have been indicated here today-for example, in the area of national defense and certain specified Federal felonies-who do you feel should be entrusted with the authority to wiretap? Do you feel it should be left up to certain specified agencies of the Government?

Mr. SCHWARTZ. We take no position on that because of our blanket condemnation.

I should also like to comment on this problem of wiretapping for national security. I think it is obvious that the members of the union are also concerned with national security. But no case has yet been made that wiretapping is necessary for these purposes. The Attorney General and others have come in here and said that they need it. We, of course, cannot dispute that, because we are not prosecutors. We do not know these problems. But a democratic society does not permit the chief law enforcement officer to obtain very broad powers because he merely says he needs them. There have been instances like that in our history and they have not been good.

The situation during World War II, for instance, where a general incarcerated large number of Japanese on the west coast is not a nice part of American history.

Mr. CREECH. The committee has heard statements and testimony to the effect that the nature of court proceedings under which wiretapping orders are issued is contrary to the due process clauses of the 5th and the 14th amendments. These statements have been that although an ordinary search warrant is issued ex parte, wiretapping, in agreement with your thinking, is not an ordinary search for a specific thing, and that in ex parte proceedings, there is no one present to present the other side, to challenge the representations made by the law enforcement officers or to take an appeal and see that the actual wiretapping stays within the bounds of the court order set by the judge. Would you care to comment on this position?

Mr. SCHWARTZ. I am not familiar with the argument. Without being committed totally to a position at this time and pending further study, it does not seem to me that the ex parte nature makes a difference in this context, because the interest invaded in both cases is the same, in the search warrant and in that area.

Senator KEATING. As a lawyer and apart from your personal views, you would recognize the ridiculous situation presented by a district attorney being required to give notice to a person who's wire he is going to tap before he gets an order?

Mr. SCHWARTZ. I do not think you got the drift of what I was going to say, Senator. What I was going to say is that I do not see any dif

ference between the search warrant situation and the eavesdropping situation, in that they both involve ex parte orders. You have to have ex parte orders in both cases; you cannot warn the party.

I think, however, that there is a great deal of substance to what Justice Jackson says. In the search warrant situation, in almost every case, the person whose property has been searched has a chance to challenge it in court, either by challenging the warrant, which he does at his peril, of course, or by a motion to suppress.

But in the wiretapping situation, it seems almost beyond doubt that a great many wiretaps will lead to nothing, although we have no statistics on this. They have to.

Consequently, you have asked a Federal court to issue an order in a nonadversary proceeding, which will never be tested. It is quite possible that the Supreme Court will rule, as Justice Jackson indicated, that this is a violation of the Constitution, which limits the jurisdiction of the Federal courts to cases or controversies.

As to another aspect of due process, I said in my statement that the fourth amendment does not directly cover wiretapping. It may very well be that the Court will follow Rochin, the California stomach pump case, where it was the due process clause which prevented the police officers from pumping that man's stomach. The Court may come to the position that these electronic devices violate the due process clause of the 5th and 14th amendments, separate and apart from the 4th amendment, and separate and apart from the self-incrimination clause of the 5th amendment.

Senator ERVIN. Mr. Schwartz, the committee is deeply grateful to you and the Civil Liberties Union for making the case against wiretapping in as strong a light as it can be made.

Mr. SCHWARTZ. Thank you very much. I very much enjoyed being

here.

Senator ERVIN. We are sorry we were until such a late hour getting to you due to circumstances beyond the committee's control.

(The complete statement by Mr. Herman Schwartz is as follows:)

TESTIMONY OF AMERICAN CIVIL LIBERTIES UNION ON S. 1086, S. 1495, AND S. 1221 CONCERNING WIRETAPPING AND ELECTRONIC EAVESDROPPING

My name is Herman Schwartz. I am a practicing attorney in New York City. I appear here today as a representative of the American Civil Liberties Union to offer the union's views on proposed wiretapping and electronic eavesdropping legislation, S. 1086, S. 1495, and S. 1221.

The American Civil Liberties Union, now in its 41st year, is a private nonpartisan organization concerned with the defense of civil liberties. It has a deep concern with the general problem of wiretapping and electronic eavesdropping and with the specific legislation proposed here. The union appreciates this opportunity to present its views.

The wiretapping problem strikingly illustrates the ever-present tension between the two indispensable and interdependent elements of a free society: (1) detection and prosecution of crime; (2) protection of civil liberties against overzealous law enforcement. Although the union's special competency lies in the area of constitutional rights, it is full aware that enforcing the law against crime is necessary. Its deep concern for the preservation of civil liberties has not blinded it to the fact that freedom is never secure in a society where lawlessness is rampant; the union and its members do not wish to live in fear of robbery, murder, and sabotage any more than do other people.

Successful criminal prosecution is not, however, 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. Conduct

which unnecessarily reduces such freedom is not defensible, whether by a felon or by a police officer. A heavy burden of proof thus lies on all attempts to justify any invasion of such privacy, even if in the cause of crime detection.

After extensive study during the past and prior years, it is the union's considered position 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.

I. THE THREAT TO LIBERTY FROM WIRETAPPING AND OTHER ELECTRONIC
EAVESDROPPING DEVICES

An essential difference between the totalitarian state and the free society is that the totalitarian state completely deprives the citizen of his privacy. The state tries to observe all movements, words, and even thoughts. Fear and insecurity dominate every aspect of life and the pursuit of happiness is merely a phrase.

Recognizing this, as Mr. Justice Brandeis has said:

"The makers of our Constitution *** sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the Government, the right to be left alone the most comprehensive of the rights of man and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissent).

And in ICC v. Brimson, Mr. Justice Harlan declared:

"We said in Boyd v. United States, 116 U.S. 616, 630-and it cannot be too often repeated-that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the Government and its employees of the sanctity of a man's home, and the privacies of his life. As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241, 250, 'of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.'" 154 U.S. 447, 479 (1894).

Privacy does not, however, mean solitude. Each man must communicate and exchange thoughts and ideas with others—his wife, his children, his doctor, his lawyer, his priest, his business acquaintances and associates, his friends, his constituents. The growth and complexity 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. Awareness by the public of the power to wiretap is alone sufficient to reduce drastically the sense of security and privacy so vital to a democratic society. The mere thought that someone may be eavesdropping on a conversation with one's wife or lawyer or business associate will discourage full and open discourse.

Indeed, officials who are in office for a period of time can build up a substantial body of information on other public officials and representatives, which can seriously impair the workings of representative democracy.'

The rapid and multiple development of modern forms of electronic eavesdropping only aggravates the threat of this fundamental invasion of personal liberty. In Silverman v. United States, 365 U.S. 505 (March 6, 1961), a spike was inserted into a wall and became a giant microphone picking up all conversations on two floors of a house. The Supreme Court held that this violated the fourth amendment. This committee has heard testimony of other eavesdropping devices which can record conversations at great distances or behind closed doors. The Supreme Court expressed shock and dismay at the microphone in

1 For reports of such tapping, see Fairfield and Clift, "The Wiretappers," the Reporter. Dec. 23. 1952, pp. 19-22.

2 Hearings before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee. 86th Cong., 1st sess., pp. 13-20 (May 20, 1958), pp. 517-520 (July 9, 1959). These hearings are hereinafter cited as "Hearings."