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.

35

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. Public telephones may be tapped, the danger of which has been previously commented on.

8. The reporting provisions of the bill omit some of the most important information relevant to the widetapping problem: The indictments, convic 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.

86 Hearings, pp. 537-538.

37 Hearings in the current wiretapping dilemma in New York State created by recent 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.

85952 O-62-28

(Subsequently, the following additional comments were received

by the subcommittee:)

AMERICAN CIVIL LIBERTIES UNION,
Washington, D.C., July 12, 1961.

Re additional comments on proposed wiretap legislation.
Hon. SAM ERVIN,

Chairman, Subcommittee on Constitutional Rights,
U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: On May 11, Herman Schwartz, Esq., appeared as a representative of the American Civil Liberties Union to offer its views on proposed wiretapping and electronic eavesdropping legislation, S. 1086, S. 1495, and S. 1221. Since then, however, two additional proposals have been made: (1) S. 1822, introduced by Senator Hruska; and (2) certain amendments to S. 1495, proposed by the Department of Justice. We would like to offer these additional comments on both these proposals for your consideration. If there is time, we would appreciate having them included in the record of the hearings on this subject conducted by the Subcommittee on Constitutional Rights.

8. 1822-INTRODUCED BY SENATOR HRUSKA

The bill, which is limited to authorizing State wiretapping, is subject to all the specific objections which we raised to the Keating bill, S. 1086, except two: (1) the Hruska bill is intended to meet the objection that a search for mere evidence is unconstitutional and the bill therefore limits orders to situations where a court finds probable cause that the telephone "is being, or will be, used in furtherance of the commission of" a crime; and (2) the orders are good for only 30 days.

Regardless of the merits of these changes, the seriously objectionable features of the Keating bill, S. 1086, still exist, namely:

1. No wiretapping should ever be permitted.

2. There is no need for State wiretapping because the offenses for which wiretapping is most desired, those arising out of organized crime, are interstate in nature and cannot be dealt with effectively by State law enforce ment authorities.

3. The statute permits 50 different approaches to interstate communications and a basically Federal right-privacy.

4. The bill does not provide that illegally obtained evidence is to be excluded from evidence and hence it does not provide for any effective sanctions against illegal wiretapping.

5. There is no Federal control over the State's grant of wiretap orders for findings of "probable cause" are not really reviewable, especially on a cold record, long after the fact.

6. The bill would permit wiretapping for any crime, even the most trivial misdemeanor.

7. There is no recognition of the public phone problem.

8. No court order system can protect individual rights because it is not possible to limit or supervise taps.

Under the circumstances, the bill is totally unacceptable. As with S. 1086, it would produce a complete Federal withdrawal from this area of civil liberties, without retaining any Federal controls or protections. In a total reversal of present policy which bans all wiretapping, the bill not only permits wiretapping, but gives the States almost complete discretion in the matter. Since no showing has yet been made that wiretapping is even necessary, there is certainly no justification for going from a total ban to an almost complete absence of restrictions.

PROPOSED DEPARTMENT OF JUSTICE AMENDMENTS TO 8. 1495 (DODD)

The Justice Department amendments to the Dodd bill, S. 1495, do not significantly improve the bill, but, in certain respects, they worsen it. Consequently, all the comments on page 11 of the ACLU statement filed on May 11, 1961, still stand with the following modifications:

Comment 1: The Justice Department bill is worse because it puts no limit at all on State statutes, whereas the original Dodd bill, S. 1495, permitted wiretapping only for certain crimes, and only insofar as such crimes are punishable by death or more than 1 year's imprisonment.

Comment 3: Section 4(d) (3) attempts to limit the taps to phones of suspects or where the phone is being used in the commission of the crime. Insofar as the suspect's phone is concerned, the search is still a mere evidentiary search. Moreover, the amended bill does not require that there be no other means available for obtaining the information.

In addition (1) the bill permits a tap to obtain merely information rather than evidence, section 4(a) (2), 4(d) (2), which broadens what may be sought, since "evidence" can be limited to what is admissible whereas information covers everything.

(2) The bill contains a good provision that where wiretap evidence is to be used at trial, Federal or State, the defendant is to be provided with a copy of the wiretap authorization and supporting affidavits, so that he may try to challenge its validity. Unfortunately, it is quite probable that almost all such challenges will fail.

Other than the above, the amendments do not seem significant. On the whole, the amendments have worsened the bill.

Sincerely yours,

LAWRENCE SPEISER, Director, Washington Office.

Mr. CREECH. The next witness is the Honorable Frank S. Hogan, district attorney, New York County, New York City, N.Y.

Senator KEATING. Mr. Chairman, while you were out, I entered into the record an introduction of my friend, Frank Hogan, who is one of the outstanding law enforcement officers of the Nation, who I know will have a lot of interesting information to give us.

Senator ERVIN. The committee is delighted to have you with us, Mr. Hogan.

We regret very much that we have had to detain you to such a late hour. As one who had the privilege of sitting on what is known as the McClellan Rackets Committee, I am very grateful to you for the fine cooperation which you, in your office, gave that committee in its investigation.

STATEMENT OF FRANK S. HOGAN, DISTRICT ATTORNEY, NEW YORK COUNTY, NEW YORK, N.Y.

Mr. HOGAN. Thank you very much, Senator. I came late, so I have not been delayed unduly. It was very generous of you to make that comment with respect to the cooperation given by my office to the committee.

Senator Keating, thank you very much for those words.

Senator Ervin, you may recall that I had hopes 3 years ago of serving in the Senate, but the people of our State, in their wisdom, selected Senator Keating. We did not know each other at that time, but we have become very good and dear friends, and certainly the voters could not have elected a finer champion and a greater friend of law enforcement.

Senator KEATING. I appreciate that very much, Frank. I feel that I may be inadequate to this task, but I can at least perform it better than I could yours, and I mean every word that I say when I say that I have the highest respect for you and your great abilities in the field.

Mr. HOGAN. Thank you, Senator.

I have a statement and, with your permission, I shall read that. I am grateful to you, Senator Ervin, and to the members of the Subcommittee on Constitutional Rights of the Senate Judiciary Committee for inviting me to these hearings.

There are three bills presently before you that treat with legalized court-ordered interceptions of telephone communications.

Senator Keating's bill, S. 1221, is a most comprehensive proposal. In addition to conferring upon the States the right to make telephonic interceptions under specified conditions, it deals with similar interceptions by Federal law enforcement personnel, and with the broader question of electronic eavesdropping.

Senator Dodd's bill, S. 1495, is limited to wire interceptions. Its lengthy and detailed provisions are designed to satisfy those persons who are persuaded that this is essential law enforcement activity but who, at the same time, are concerned with possible abuses they conceive might be connected with it.

I have served in the district attorney's office of New York County for almost 26 years. Based on that long experience, I testify here, without any reservation, that telephonic interception is the single most valuable weapon in the fight against organized crime. Under safeguards, provided by New York State law, I maintain, further, that this irreplaceable investigative tool has been used sparingly and with the most selective discrimination.

I would favor, therefore, the passage of Senator Keating's bill, S. 1221, which faithfully reflects New York law, as it exists today. I sympathize with Senator Dodd's magnificent effort to reconcile opposing viewpoints and favor much that is incorporated in his bill, S. 1495. Some of the regulations, I would submit, are unrealistic and impractical.

Either of these bills would improve greatly Federal law enforcement. But, we must recognize that there are areas in our country where organized crime is not a problem. There are other areas where organized crime is a problem but where officials have had no experience in dealing with it and are, therefore, unaware of the great assistance these bills offer in their fight against major criminal enterprises.

I am not so hopeful as I should like to be that either of these bills, affecting Federal law enforcement, will pass. My lack of optimism can be attributed, in part, to the fact that we district attorneys in New York have been patiently but eagerly waiting to hear the voice of Congress assert itself in this area since December 8, 1957.

On that day, almost 311⁄2 years ago, the Supreme Court of the United States, in the Benanti case, declared that section 605 of the Federal Communications Act, making it a crime to intercept telephone conversations and divulge their contents, applied to telephone conversations intercepted by State as well as Federal officials.

Judges, police officials, and prosecutors in New York, it would appear, have been committing Federal crimes for over 20 years. In our defense, let it be noted that we became lawbreakers under most respectable auspices.

Back in 1938, New York amended its constitution. One of the new provisions, adopted by our constitutional convention and approved by vote of the people, authorized the interception of telephone communications by law enforcement officers, acting pursuant to court orders. The debates in the convention on this subject were long and spirited, but I cannot remember a single allusion by any speaker to the possibility that the 1934 Federal Communications Act might be