It would establish standards for the proper and improper use of the 397 pocket-size wire recorders which, as this subcommittee revealed, were purchased by various departments of the Government. It would relieve the Supreme Court of such close decisions as the recent one in the Silverman case, in which an eavesdropping spike intruded fivesixteenths of an inch too far into a gambler's house, and his conviction was thereby reversed.

In that case a fine blow was struck for liberty, but it would be much better that the police of the District of Columbia were provided with proper statutory procedure than that constitutional rights be measured in fractions of an inch. In that case, let us note, the Supreme Court emphasized that the intrusion on Silverman was without a warrant. Perhaps the court would not be entirely hostile to law enforcement eavesdropping under court order.

At any rate, I commend Senator Keating's bill for your most serious consideration.

My support of the Keating bills is not in derogation of the intelligent approach and conscientious bill drafting in Senator Dodd's proposal. I do have misgivings about this bill. It lacks the very important provisions for court orders; it deals with wiretapping only; and it adopts a form of the widely discussed proposal that wiretapping be authorized for certain crimes only.

I have yet to understand how you can limit a criminal detection measure to a few crimes without, in effect, giving immunity to others which in certain circumstances may be quite as vicious. But I do wish to emphasize that the Dodd bill would be immensely superior to

the law now in the Federal statutes.

I have assumed, gentlemen, that you are all thoroughly familiar with the 31 words in section 605 of the Federal Communications Act which are the only Federal statute on the interception of communications.1

You are cognizant of its shortcomings, but I feel compelled to add a few comments of my own.

Even its origin is worse than dubious. This brief clause was a tiny part of a very complex act of some 20,000 words setting up Federal regulation of the national communications system. It was enacted by the first New Deal Congress, overburdened with a host of monumental bills.

So far as any actual intent was concerned, that was clearly lost in the crowd. Neither the debates in 1934 nor the committee reports on the Federal Communications Act made any mention of this clause, or wiretapping, or wiretapping evidence.

As a legislator of some experience, I conclude that there was in reality no intent of Congress, that the clause simply slipped through unnoticed-the common legislative phenomenon known as a sleeper, which is usually corrected at the first opportunity. It is inconceivable that, if its purport had been recognized, especially with the meaning now attributed to it, there would not have been strenuous debate.

Though the Congress did not give it attention, the courts have labored endlessly, trying to define its meaning. As of last year, that

1 The 31 pertinent words are: " no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any per

basic legal volume, 47 United States Code Annotated, had 24 fineprint columns of annotations concerning this section of the law alone, and many cases have been added since. This is almost a column of court case summary for each word of the disputed statute, representing uncounted thousands of words of judicial opinions.

In all this vast superstructure of court-made law it has never yet been discovered whether the statute made a crime of wiretapping or only of interception with disclosure. The pinnacle was reached, of course, when the Supreme Court in the Benanti case made the astonishing discovery that Congress did not mean to allow the courtsupervised, constitutionally authorized system of law enforcement wiretapping in New York State, a meaning which had escaped thousands of capable judges in the previous 19 years.

This disproportionate amount of opinion law, as compared with the 31 words of the statute, is like some fantastic situation in Alice's Wonderland. Or possibly I should simply say, quoting New York's august Court of Appeals, that the statute is "not clear."

This is perhaps the most devastating comment that can be made of any penal statute; for, when ignorance of the law is no defense, ambiguity is an offense against justice.

But one thing is clear. The anonymous, unsung drafter of this clause, whatever his inscrutable purpose, did an inadequate, bungling job with a complex, important subject. With all due respect, gentlemen, I suggest that in neglecting to clarify its intent, and abandoning this function to the puzzled courts, the Congress has ignored the basic tenets of legislative responsibility.

I do not believe for a minute that Congress ever meant, or means now, to trample upon the police power of the States. To do so would wreck our entire system of criminal justice. The police power is the major great responsibility remaining to the States; and to no State is this more important than to New York, whose crime problem exceeds that of dozens of other States put together.

This subcommittee has a great opportunity of correcting a longstanding failure of Congress. I hope that Senator Keating's emergency bill will again be reported, and with enough motive power to obtain its enactment.

If I am wrong, and Congress does mean to preempt the police power of the States, and to forbid the use of court-controlled wiretapping in the pursuit of criminals, then it has the duty to say so in its own words.

These words would be clear beyond quibble-clear not only to the judges of our State courts but also to all the people, including the professional criminals and spies who would be the primary beneficiaries.

Senator ERVIN. I think it is a very fine statement. I certainly enjoyed your statement, especially your closing comment.

Senator KEATING. It shows what we can do when we really get started.

Senator ERVIN. Do you have some questions, Senator Keating? Senator KEATING. I wanted to ask Assemblyman Savarese about the testimony of Mr. Sam Dash. He testified that he found a widespread fear among professional people and persons in high political positions to use their telephones. He offered to submit detailed evidence for

this statement, which has not yet been received. He did indicate that he interviewed some 24 people in this category in New York, recommended to him by you and your counsel, Mr. Cerny.

Do you have the same impression that Sam Dash has that there is a widespread fear in New York, for instance, among professional people and persons in high political positions about using their telephones?

Mr. SAVARESE. I have certain convictions about that which I cannot document any more than Mr. Dash could document them, I am afraid. The 24 people that Mr. Dash said were referred to him are people I believe in the field of electronic interception and perhaps law enforcement people likewise. But they were not referred to him as people who would say there is widespread fear of use of their telephones.

When Mr. Dash first began his inquiry in behalf of the Pennsylvania bar, he spoke with us, with Mr. Cerny and myself, and I think we launched him on his original inquiry because we had been the first to move into the area and we were possessed of a lot of information-a lot of groundwork had been done which would save him considerable effort.

And in the course of talking with us, any number of names, not only in New York but in other States throughout the country, came to his attention, not necessarily to establish the fact that he testified to, but on the general subject of eavesdropping.

As to my sharing his fears, I think it would be a very simple matter to find 100 people or 200 people in New York who would say they are afraid to use their telephone. We have got over 8 million in the city and this subject has gotten such notoriety and publicity that people are afraid their wires are being tapped without even knowing why they are afraid.

We have never been able to document any such charge, and I think we successfully debunked the statement in the book of one of the illustrious Supreme Court judges that there were some 50,000 taps in the city of New York in 1 year, when we first made our inquiry. I do not think Mr. Dash has got any documentary foundation for that. I do not think he can back it up.

Senator KEATING. Thank you.

Senator ERVIN. I should like to ask whether we have any record of the case in which the judge observed that there were some 50,000 wire taps.

Senator KEATING. He wrote that in a book.

Senator ERVIN. That was in a book?

Senator KEATING. Yes. It was not in any case.

Mr. SAVARESE. It was published about a year before we made our inquiry in 1955 and we got in touch with the illustrious judge immediately and checked it through. It developed that the statement stemmed from a casual conversation of a researcher with a criminal lawyer in New York, I believe, who had suggested that there was that extensive number of taps in the city; and, of course, the record we have been able to get from the law enforcement people in New York State shows that this is a very wild statement.

Senator ERVIN. I am glad that you learned that the statement was made in a book rather than in a case in court.

Senator KEATING. I remember that when that was made the illustrious justice backed down completely when he was asked what he based his statement on.

Mr. SAVARESE. I am afraid so.

Senator KEATING. There was some other witness here who was a little more conservative than the illustrious justice, but he said there were 16,000-was that not the figure-in New York City. Do you think that is a little bit excessive?

Mr. SAVARESE. You mean officially?

Senator KEATING. No-wiretapping. No, he did not say officially. Mr. SAVARESE. I do not know how anybody could possibly tell. If you are talking about unauthorized, illegal tapping, there is no way in estimating that. That is done in cellars and alleys. You could not possibly guess that.

If we are talking about wiretapping pursuant to court order by law enforcement up until the Benanti decision, I think the record shows there may have been 200 or 300 a year in the entire city.

Senator KEATING. And in the entire State

Mr. SAVARESE. In the entire State

Senator KEATING. I think he said about 500 estimated in the entire State.

Mr. SAVARESE. That is right. And about 300 in New York City, which has over 8 million population.

Now, I daresay it is practically negligible, although I have no proof of that. We have not inquired.

Senator KEATING. And the thing that these opponents of wiretapping legislation always soft-pedal is the fact that S. 1221 for the first time makes unauthorized eavesdropping a Federal penal offense

Mr. SAVARESE. Yes.

Senator KEATING. In other words, it should have the effect, if properly enforced, of cutting down on this illegal wiretapping that is going on now.

Mr. SAVARESE. I do not know if my statement emphasized the one point that I feel very strongly about, which is this: In this electronics age, wiretapping is but one small way to accomplish eavesdropping. There are eavesdropping devices today that are fantastic.

And as your Federal situation now stands, it would be possible to use these elaborate eavesdropping devices without any fear of reprisal at all and accomplish the same thing that you prohibit them from doing if they tap a wire. This is patently absurd. They can eavesdrop so effectively with a parabolic mike across the street, aimed into a room, any kind of a room, where privacy is really desired. These things can do tremendous damage in breaking into the privacy of people, but you have no control over that-you only have it over wiretapping. This is ridiculous in today's day and age.

Senator KEATING. Did the New York Legislature at its last session extend the court order requirement on wiretapping to eavesdropping? Mr. SAVARESE. Not in the last session. We did that in 1957. In other words, we considered the "evil" which is breaking into somebody's conversation and hearing it when you are not supposed to. This is the evil. You can do it by tapping wires, you can do it with a secret radio transmitter, you can do it with all of these-you can jab a

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spike in the wall. Whatever way you do it, the evil is the overhearing of this conversation to which you are not a party.

So we established the crime of eavesdropping as it is done today instead of skulking under the eaves as it was in the common law and overhearing by means of your ear. Now, it is overhearing by means of device or wiretapping. We established the crime of eavesdropping as we know it today in 1961, and we prevented it being done by these devices except if it is being done by law officials under the surveillance of the courts.

And this would seem to be about as enlightened an approach as you can get to the problem.

Certainly, to fail to recognize that people can use these devices today to break into the privacy of conversation is like hiding one's head in the sand. It makes the whole Federal situation look absurd just to ban wiretapping and to permit them to go around using these microphones.

Senator ERVIN. In your opinion there would be more protection for the right of privacy if eavesdropping by electronic devices could be outlawed in all cases except where they are authorized by a court order for law enforcement purposes; is that your opinion?

Mr. SAVARESE. Quite obviously, there is no control now. The only control you have got is in that Silverman case which points up the absurdity of the situation. They drove the spike in the wall fivesixteenths of an inch too far and in so doing they violated the Federal Constitution prohibiting search and seizure without an order.

There are devices that they can use that would not protrude fivesixteenths of an inch through the wall and then they could eavesdrop all they pleased. This is pretty absurd.

Senator ERVIN. We had a representative of the Department of Justice before this committee yesterday giving the views of the Department. He suggested that there should be in the Federal law two procedures, one, authorizing wiretapping, and use of evidence obtained thereby in court, at the instance of the Attorney General, without a court order in cases of treason and espionage and sabotage against the Government.

He suggested that another procedure should be used for other Federal crimes. This would make wiretapping permissible if done pursuant to court order.

I just wonder, from your study of this subject, which this committee knows has been very profound, what your opinion would be with reference to this suggestion of the Department of Justice giving power to the Attorney General to authorize wiretapping in cases wher there was reasonable ground to believe such items as treason and espionage and sabotage were the purpose?

Mr. SAVARESE. It has some advantages and some rather obvious disadvantages.

In the first place, we attempted initially in our study to set up a category of crimes for which we could get legalized wiretapping and feel secure we are doing the right thing. It was very interesting to see the list that came down from the different law enforcement people who had not conferred with each other before they come in.

It is impossible to categorize that type of crime on a State level for which you would say we ought to be able to tap a wire. Should