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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 in. security 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 ICO 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 ball 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 cir. cumstances, 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 șilverman 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 conrersations 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."
the bedroom installed by California police in Irvine v. California, 347 U.S. 128 (1954).". By these devices, the most private and intimate utterances, often deliberately confined to one's home, are exposed to the ears of listening police. Iuevitably, miniature television and image recording instruments will soon be developed and the omnipresent telescreen of George Orwell's "1984" will be with
All such types of electronic eavesdropping directly violate the fundamental rights protected by the fourth amendment to the Constitution. The Founders established the protections of the fourth amendment because they had seen their homes subjected to unlimited invasions and searches by the authority of general warrants and writs of assistance. They sought to insure that such unlimited searches and general warrants would never be repeated and that Government officials would be allowed only specific warrants, particularly describing in the words of the fourth amendment, the "place to be searched" and the "thing to be seized." See Boyd v. United States, 116 U.S. 616, 630 (1886).
Electronic eavesdropping necessarily violates the spirit of the fourth amendment. Such eavesdropping cannot be limited in any way. Any authorization for such practices would necessarily be a general, rather than a specific warrant limited to specific objects and places, for it would necessarily permit a general exploratory search for evidence in aid of prosecution. This is because such devices inevitably pick up all the conversations on the wire tapped or 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 (1) all his other calls are overheard, no matter how irrelevant and intimate; (2) all other persons who use his telephone are overheard, whether they be family, business associates, or visitors; and (3) all persons who call him, his family, his business, and those temporarily at his home are overheard."
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 of the State enactments which authorize such practices do not limit the eavesdropping to phones of persons suspected of crime. Under such provisions, these eavesdropping devices may be installed wherever evidence of crime in general, or of 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.
Wiretapping's broad sweep is most apparent where public telephones are tapped, which is all too common. Of 3,588 telephones tapped by New York city police in 1953–54, for example, 1,617 were public telephones or almost half. It is inevitable that 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. Indeed, the proponents of wiretapping themselves admit that the process is indiscriminate, because one of their proudest claims is that evidence of crime X has occasionally been uncovered when policemen were looking for evidence of crime Y. Carried to their logical implication,
* Despite its disapproval of the practice, the Court did not require that the State court exclude the evidence.
"In the course of tapping a single telephone, a police agent recorded conversations 1pvolving at the other end, the Julliard School of Music, Brooklyn Law School, Consolidated Radio Artists, Western Union, Mercantile National Bank, several restaurants, a drugstore, a real estate company, many lawyers, a stationery store, a drycleaner, numerous bars, a garage, the Prudential Insurance Co., a health club, the Medical Bureau to Aid Spanish Democracy, dentists, brokers, engineers, and a New York police station." Cited in Westin, "The Wiretapping Problem," 52 Columbia Law Review 165, 188n.112 (1952). [Emphasis added. I
5 Note. "Wiretapping in New York," 31 N.Y.U.L.R. 197, 210n.96 (1956).
• Dash, Schwartz & Knowlton, The Eavesdroppers, 221, 278 (1959) (hereinafter cited as “The Eavesdroppers").
their claims would justify putting a tap on the line of anyone whom the police believe to be suspicious, which is exactly what is frequently done now.'
That wiretaps are general and not specific searches is reflected in the very language of statutes to legalize the practice. The existing and proposed statutes permit wiretapping to "obtain evidence of crime” 8 or of specific crimes, without requiring, as does the fourth amendment, specification of the "thing to be seized," the particular conversations. The language of these statutes is, of necessity, the language of a general warrant and no more specificity is possible. 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, for also intercepted are calls emanating from the telephone numbers of all others who call the intercepted number, a totally indefinable class.
Indeed, these statutes do not begin to meet the constitutional standards for a valid search. Under a valid search warrant, one can only search for articles involved in the commission of the crime, or contraband. These statutes permit a search for, and seizure of, mere evidentiary matter, pieces of evidence to assist in prosecution and conviction. The Supreme Court has held that "private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search that discovers them." 10 In United States v. Lefkowitz, the Court said :
"The decisions of this court distinguish searches of one's house, office, papers, or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, to take property that has been forfeited to the Government, to discover property concealed to avoid payment of duties for which it is liable, and from searches such as those made for the seizure of counterfeit coins, burglar's tools, gambling paraphernalia and illicit liquor in order to prevent the commission of a crime" (285 U.S. 452, 465 466 (1932)).
Because of this unlimited and unlimitable invasion of fundamental rights, 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, obviously 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 (the preservation of which is at the heart of the American system and the Bill of Rights). 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 aggrarate the invasion of privacy many. fold, 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 calls. When a man leaves his house and 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 bang around for 60 to 90 days catching every conversation as does the indefatigable electric tap and recording machine. Moreover, a householder who suspects and desires privacy in his home can always go to an isolated portion of his home, but there is no escape from the wiretap unless he renounces entirely the use of the telephone.
The argument that people should not use a telephone for their private conversations is fallacious. A telephone has become an extension of one's home or office, and few can do without it. The most confidential personal and business matters are discussed over the telephone. In view of the mere physical size of
? The Eavesdroppers, 66.