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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,
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.
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?
Mr. SAVARESE. I do not know how anybody could possibly teil. 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
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 soinebody'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
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. Shonld it be murder, should it be gambling, should it be prostitution—where do you draw the line with any sense? We could not simply do it and we abandoned it.
On the Federal level, of course, you can make such a category because you have things like treason, perhaps kidnapping- I am not too sure. But even then you begin to wonder whether kidnapping should come under it, but, certainly, where national security is concerned it is very easy to say: "This is one crime for which we should be able to tap wires.” That category you might be able to establish.
I doubt whether you can intelligently set up a long list of Federal crimes and say which ones we should be able to tap wires for.
Senator KEATING. May I interrupt there to clarify this? I think the question of the chairman was not whether the Attorney General was offered a court order procedure as to Federal crimes generally. But his suggestion was that as to crimes involving national security-and I believe he added kidnaping there
Senator ERVIN. Yes, he did.
Senator KEATING. As to those crimes he should be permitted to authorize the wiretap rather than the court. I think that is what the chairman was trying to get to.
Senator ERVIN. Yes.
Mr. SAVARESE. Then my previous discussion is not suitable as a response. I think the problem that you run into with your Attorney General authorizing it is obvious to most legislators.
In this case, you will have wide discretion in a single law-enforcement authority as to who the taps should be placed upon. Properly exercised, exercised with good conscience, with responsibility, with restraint, we have no problems. Exercised otherwise, you have some elements of the police state which could creep in. This may be a fear.
This can be overweighed, of course, by the tremendous world conflict that we find ourselves in, which may intensify later, which may justify so drastic a remedy.
I am not one to say on the Federal level whether you should place that kind of authority in the Attorney General or not, but certainly court control, I can see.
Senator ERVIN. As you suggest, it can be rather dangerous to vest in an executive officer a discretionary power which cannot be controlled by courts.
Mr. SAVARESE. I am inclined to think so. The emergencies may warrant it at times but for general purposes that is a strong power that you give him and a pretty dangerous one.
Senator KEATING. I think the Attorney General—to pursue the other point you are making-did then say that there should be only a certain list of terms, as on the Federal level, that designated certain crimes, as in the Dodd bill, and your feeling is that is pretty hard to do?
Mr. SAVARESE. Relatively, impossible on a State level. Maybe your Federal crimes run into different areas that you could categorize. I doubt it, though.
I would say one thing in fairness to your Attorney General: If he wants, or if the proposal is to authorize wiretapping for security purposes, then in fairness to him, we must admit that if that type of tapping is put under the jurisdiction of courts, it will be, obviously, less effective as a security measure because there is always the possibility of court leaks, in the administration of getting the orders stenographers, clerks, and things of that sort.
So, in fairness to him, there may be some point to it.
Senator ERVIN. The Department of Justice informs us that under the interpretation placed on section 605—that it permitted the wiretap where there was no disclosure by the Department, this has been the practice by the FBI; and that on the day before the witness made his appearance, 85 wiretaps were in existence under FBI supervision.
I wonder if you have heard any facts or rumors which indicate that there has been any substantial abuse of the power by the FBI!
Mr. SAVARESE. We have never uncovered anything which said there was abuse of the power, only the fact that they are doing it. There is ample evidence of the fact it has been done and we so indicated in our reports.
Senator ERVIN. I judge that you would favor a bill which would make it clear that section 605 is not to be construed to deny the States the power to resort to wiretapping under court order, if the State law 80 states ?
Mr. SAVARESE. Yes, we desperately need that.
Senator ERVIN. Is it not true that in certain areas of the country we have different problems with respect to crimes and, particularly, with reference to what we call organized crimes and for this reason it should be done on a local basis so that each State could deal with it!
Mr. SAVARESE. I think that is a very keen observation. And it is very difficult to generalize on the problem of eavesdropping and wiretapping as it applies to the States because it is so vastly different in
Senator ERVIN. Mr. Frank Hogan appeared before the subcommittee yesterday and, speaking with reference to classifying crimes, said that he did not think that it was wise in the case of wiretapping, because some of our greatest evils arose out of crimes which were not considered the most serious of crimes. He stated, in substance, that organized criminals depend upon financing for their existence. He said some crimes such as gambling, prostitution and crimes of that nature may be classified as minor crimes, but provide means by which the underworld gets financing. Also, that in many cases these crimes led to serious crimes of violence such as homicides. In his opinion, it was just as essential to have the power to wiretap to appre hond a person who engaged in gambling and prostitution and things of that nature as it would be to have the power to wiretap for what we considered major crimes.
Mr. SAVARESE. He so testified before us on a number of occasions. And we have reason to respect his judgment as one of the finest and most respected law enforcement people in the country. Senator ERVIN. Thank you.
Mr. CREECH. I apologize for not sending Senator Hruska's bill, S. 1822, to you at an earlier date. I believe that you have now had a chance to look at that bill. I would appreciate any comments which you might have on the approach in that bill that a finding must be made of probable cause to believe that a particular telephone has been