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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.19 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." 14
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.18
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.27
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). 1. 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.
1 Quoted in "The Eavesdroppers," 43.
05 It is also debatable whether a Federal court can grant wirtap orders, because applications for such orders may pot 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. 2d 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." 23 FBI Director J. Edgar Hoover has at various times in the last 30 years called it "unethical,"
," 23 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 (Pennsylvania 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.
1° 136 N.Y.S. 2d at 613.
21 "The Eavesdroppers," 128 (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, 1788–1834.
27 Hearings before the Senate Judiciary Committee of California (1956) summarized in "The Eavesdroppers," 192-98.
** For Judge Oliver's remarks in 1948, see Westin, 52 Columbia Law Review 195. 29 Note. 31 N.Y.U.L.R. at 210. 30 See report of New Jersey Joint Legislative Committee 28, reprinted at hearings, 1812. "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. 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 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.
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.
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.
81 Hearings, 509-510.
33 "The Eavesdroppers," 52–62, 219, 280 ; Westin, "Wiretapping: The Quiet Revolution," commentary. May 1960. p. 337.
* See Westin. 52 Columbia Law Review at 195-196 ; see also remarks of Justice Hofstadter. 186 N.Y.S. 2d at 618.
44 136 N.Y.S. 2d at 619.
2. 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 constitutional objections to search warrants seeking mere evidence of a crime have already been discussed above. Moreover, since there can be no limitation as to the person whose phone is being tapped, the door is opened to an invasion of the privacy of wholly innocent persons such as mere acquaintances of those directly involved, either as suspect, witness, or victim.
3. Under the bill, 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 ; moreover, it would be almost impossible to review the specific determinations on this issue, even if such a standard were articulated, for review would have to be of a cold record, long after the order has been granted.
4. Wiretapping is proposed to be permitted for any crime, no matter how petty.
5. Illegally obtained wiretap evidence would remain admissible in all proceedings; thus, there would be no effective sanction against illegal wiretapping Experience shows that criminal sanctions against illegal wiretapping are never invoked against law enforcement officials.
6. In permitting wiretap orders to continue for 60 days the bill disregards the invasion of the privacy of innocent people caused by any wiretap. The defect is all the more serious when one considers the vastly greater damage that may result from a tap on a public telephone, which is
nowhere recognized. To sum up, the bill would grant State law enforcement officials an almost complete exemption from any Federal controls in an area which is primarily of Federal concern. This, we submit, is without justification.
(2) S. 1495 permits both Federal and State wiretapping under certain controls. In addition to the basic objections we have already stated, we find the bill objectionable in the following specific respects :
1. For the reasons set forth above, no State wiretapping should be permitted.
2. The bill permits wiretapping for certain purposes when the Attorney General deems it necessary, without court order. As Attorney General Kennedy recognized recently * and Kings County District Attorney Silver stated before this committee 2 years ago, prosecutors are often subject to excessive zeal and should never be free of court control where civil liberties are concerned.
3. The bill permits wiretapping merely to obtain evidence of the specified crimes. As noted above, a mere evidentiary search runs afoul of an unwavering and basic constitutional tradition.
4. The bill exempts from its prohibitory sections interceptions where one party has consented. However, each party to a conversation has a right to privacy and security, which no one else has a right to waive for him. An essential element of a free society is mutual trust, and we should do nothing to disturb this trust.
5. The bill would permit wiretapping by court order for an extremely broad class of cases. Responsible Federal officials like Attorney Generals Kennedy and Rogers and FBI Director Hoover have not asked for such broad authority.
6. The bill would permit interception for 60 days, which is excessive. Even in New York, judges have stated that 30 days is excessive.*7
7. Public telephones may be tapped, the danger of which has been pre viously commented on.
8. The reporting provisions of the bill omit some of the most important information relevant to the widetapping problem: The indictments, convie tions, and acquittals resulting from the tap, and the offenses involved
therein. (3) S. 1221 is a broad bill which purports to regulate all forms of electronic eavesdropping, by virtually reversing the decision in Silverman v. United States,
35 Cf. Look magazine, Mar. 28, 1961, p. 25. s Hearings, pp. 537-538.
37 Hearings in the current wiretapping dilemma in New York State created by recept Federal decisions 160 (1960).
365 U.S. 505 (Mar. 6, 1961). The bill is premised on the assumption that all forms of electronic eavesdropping are similar, and all are like conventional searches and seizures. As stated previously, the union totally rejects this position, which completely ignores the general warrant nature of such forms of electronic eavesdropping as wiretapping and spike microphones. The union's more specific objections are as follows:
1. The bill permits eavesdropping when "evidence of a Federal crime may be obtained thereby." First, there is no limitation as to persons, so that the privacy of those wholly innocent may be completely violated, with all of their private conversations in their own home overheard, simply because evidence of a Federal crime "may be obtained thereby." Secondly, it permits a search for mere evidence, which as shown above is unconstitutional.
2. Under this bill, a policeman could obtain a warrant for a spike microphone for 60 days in order to obtain evidence of any crime, no matter how petty.
3. Under the bill, evidence obtained through illegal eavesdropping would be admissible in criminal and administrative, though not in civil, proceedings. Thus, law enforcement officers—who are rarely involved in civil proceedings—would always be able to use the results of unlawful tapping and eavesdropping.
4. This type of eavesdropping could be permitted for more than 60 days if in "the public interest." The "public interest" is so vague a concept as
to be no limitation at all. In sum, the bill would only open the door to widespread uncontrolled eavesdropping on wholly innocent people, in their own homes, by the most modern and frightening devices. Because of the broad sweep of such modern devices, it is doubtful that the bill is constitutional. It is certainly undesirable as a matter of legislative policy.
IV. CONCLUSION 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 and security of the individual is so obvious, there is absolutely no basis for passing any type of legislation to grant such authority. Instead, the present statute dealing with wiretapping, section 605 of the Federal Communications Act, should be tightened in the following ways:
1. 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 explicitly 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.
3. A defendant should be permitted to object to the admission in evidence of wiretap evidence even though he is not a party to the conversation, for any person adversely affected has the right to protest the commission of a Federal offense by a court. (See the dissenting opinion in Goldstein v. United States, 316 U.S. 114, 122 (1942).)
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 electronc 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.
6. The various telephone companies should be required to lock all feeder and terminal boxes and to report all instances of wiretapping immediately to the Federal authorities.