« ForrigeFortsett »
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. Inevitably, miniature television and image recording instruments will soon be developed and the omnipresent 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 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 provi. sions 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 involving at the other end, the Julliard School of Music, Brooklyn Law School, Consolldated 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. )
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." In United Statcs 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 bad 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.
modern society, and the need for rapid and direct communication, this freedom should not be interfered with or inhibited.
II. THE ARGUMENTS FOR WIRETAPPING
Prosecutors and police authorities who favor permissive wiretapping assert that in fact they do very little tapping and that it is indispensable where used. Neither of these contentions is supported by the record.
1. The extent of wiretapping.–The statistics published by the district attorneys of New York and Kings Counties show an average of about 110 orders per year for the period 1950–59. The New York City police obtainei. 124 orders in 1958, and 225 in 1959. Thus, at least 335 orders were obtained in New York City in 1959, covering more than 500 telephones, for an order frequently covers more than one telephone. Since one tap catches many, many people per 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 ample evidence of such unauthorized police wiretapping throughout the country.' Much of this unauthorized eavesdropping is resorted to as surveillance and sampling tapping, on the basis of which an application for an order can be framed if the tap turns up useful information. Despite heated denials of such tapping, the record fully justifies Congressman Celler's trenchant comment:
"If you have a method which is so easy *** I cannot conceive how in ordinary circumstances the police wouldn't avail themselves of that very facile method of detecting crime." 1
Nor is it likely that the amount of wiretapping or electronic eavesdropping can be significantly reduced or even controlled by some court order system, either State or Federal. 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 wiretaps 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 tappings to see whether it is worthwhile to apply for an order.
Finally, the protections contemplated by a preliminary showing are 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." 16
Furthermore, there have been demonstrated instances of false affidavits."?
When the peril of invasion of privacy is so great, no community can afford to rely on so feeble a safeguard as a court order system.
2. The Need for Wiretapping.–Despite the great clamor for wiretapping by prosecutors, there is serious doubt and disagreement 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. Even in these areas, the success and indispensability of wiretapping are dubious. Justice Samuel Hofstadter of New York declared in 1955 that his
11 Hearings on the current wiretapping dilemma in New York State created by Federal court decisions, 10-14, 62 (1960). 19 See statistics for Kings County, N.Y., which show 1.7 telephones per order. Id. at 62.
13 "The Eavesdroppers," 39-73, 122, 151, 168, 217, 247 ; Fairfield & Clift, “The Wiretappers," the Reporter, Dec. 23, 1952, Jan. 6. 1953 ; Westin, "Wiretapping: The Quiet Revolution," Commentary, May 1960, 333, 337 ; Westin, "The Wiretapping Problem," 52 Columbia Law Review, 165, 195–196 (1952); cf. Attorney General Kennedy, Look magazine, Mar. 28, 1961, p. 25.
14 Quoted in "The Eavesdroppers," 43.
05 It is also debatable whether a Federal court can grant wirtap orders, because applications for such orders may not come within the definition of "case or controversy." under article III of the Constitution. Such orders are not merely ex parte. but most will never be tested, because they will not produce useful evidence. Thus as Justice Jackson observed, even the power of a Federal court to attempt to limit wiretapping “raises interesting and dubious" constitutional questions; "The Supreme Court and the American System of Government," 12 (1955).
18 Matter of Interception of Telephone Communications,” 207 miscellaneous 69, 136 N.Y.S. 20 612, 618 (1955).
17 See report of the Kings County grand jury, summarized in Westin, 52 Columbia Law Review at 195-96.
18 Specific objections to the court order systems in the bills under consideration appear below,
record of the fruits of wiretap orders “showed some arrests and fewer convictions and then rarely, if ever, for a heinous offense." 18
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. And the same causes seem operative elsewhere.21
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 kidnapping." FBI Director J. Edgar Hoover has at various times in the last 30 years called it "unethical," * inefficient, and a handicap to the development of sound investigational techniques." In 1940, Mr. Hoover issued a statement saying:
"The discredit and suspicion of the law-enforcing branch which arises from the occasional use of wiretapping more than offsets the good which is likely to come of it."
The attorney general of Pennsylvania and the circuit attorney of St. Louis, Mo., testified against wiretapping at hearings of this committee. State legislative investigating committees in New Jersey and California have recently found that the need for wiretapping does not outweight the damage to individual liberty and judges who have issued wiretap orders, such as Justice Hofstadter and New York Special Sessions Judge Frank Oliver have disparaged the value of the weapon. Indeed, 33 States, including Illinois, Pennsylvania, California, Florida, and other populous and industrialized jurisdictions have completely outlawed wiretapping and, in some States, its fruits, both by statute (Pennsyl. vania and Illinois in 1957) and by judicial decision (California, Florida, and New Jersey, within the last 6 years).
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. We have this concession from no less an advocate of legalized wiretapping than District Attorney Frank S. Hogan of New York. *
Even if the 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. Indeed, 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.
As Mr. Justice Frankfurter said, dissenting in On Lee v. United States:
"Suppose it be true that through 'dirty business' it is easier for prosecutors and police to bring an occasional criminal to heel. It is most uncritical to assume that unless the Government is allowed to practice 'dirty business' crime would become rampant or would go unpunished.
19 136 N.Y.S. 2d at 613.
21 "The Eavesdroppers," 1.28 (New Orleans) ; 280 (Nevada) ; see New York Times, May 5. 1961 (Kansas City, Mo.).
22 Look magazine, Mar. 28, 1961, p. 25.
20 Report of New Jersey Joint Legislative Committee To Study Wiretapping and Other Unauthorized Recording of Speech, 27 (November 1958), reprinted in hearings, 1783–1834.
22 Hearings before the Senate Judiciary Committee of California (1956) summarized in "The Eavesdroppers," 192-98. 28 For Judge Oliver's remarks in 1948, see Westin, 52 Columbia Law Review 198. 2Note. 31 N.Y.U.L.R. at 210. 30 See report of New Jersey Joint Legislative Committee 28, reprinted at bearings, 1812. While any device or weapon can be abused, the secrecy and scope of the tap makes it especially prone to abuse. The tapper who is at all unscrupulous or weak 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 bow he obtained this material, and there is no way of checking. The person blackmailed will generally want to avoid the publicity attending a private suit or a complain to the authorities.
"In the first place, the social phenomena of crime are imbedded in the texture of our society. Equally deep-seated are the causes of all that is sordid and ineffective in the administration of our criminal law. These are outcroppings, certainly in considerable part, of modern industrialism and of the prevalent standards of the community, related to the inadequacy in our day of early American methods and machinery for law enforcement and to the small pursuit of scientific inquiry into the causes and treatment of crime.
"Of course we cannot wait on the slow progress of the sociological sciences in illuminating so much that is still dark. Nor should we relax for a moment vigorous enforcement of the criminal law until society, by its advanced civilized nature, will beget an atmosphere and environment in which crime will shrink to relative insignificance. By 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 laro enforcement. It puts a premium on force and fraud, not on imagination and enterprise and professional training" 343 U.S. 747, 760–61 (1952). (Emphasis supplied.)
Moreover, 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 wire tapping, 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. Other recent examples of police shakedown and corruption in New York City and elsewhere preclude optimism that city police officers will not abuse this weapon.
As Justice Hofstadter of New York 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."
III. PROPOSED LEGISLATION In light of its general objection to all forms of wiretapping, the union disapproves S. 1086, S. 1495, and S. 1221. In addition, we submit the following specific objections:
(1) S. 1086 would amend section 605 by permitting interception by State law enforcement officers upon a "determination by a court of such State that reasonable grounds exist for belief that such interception might disclose evidence of a crime." The bill is basically an enabling statute permitting State wiretapping where a court order system is in force.
In addition to the union's basic position that all wiretapping should be prohibited because of its inherent dangers and that no court order system can ever be effective, the union also finds the bill defective in the following respects :
1. 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 interstate telephone communications.
Furthermore, the most common justification for wiretapping is that it is necessary to combat organized crime. Organized crime is, however, interstate in scope, most effectively fought by Federal officials.
21 Hearings, 509-510.
* "The Eavesdroppers,” 52-62, 219, 280 ; Westin, "Wiretapping : The Quiet Revolution," commentary. May 1960. p. 337.
23 See Westin. 52 Columbia Law Review at 195-196 ; see also remarks of Justice Hofstadter. 136 N.Y.S. 2d at 618.
34 136 N.Y.S. 2d at 619.