Perhaps a law should be passed requiring telephone companies to report unlawful taps to law enforcement officials as soon as they are discovered, instead of just taking the tap off. Other legislatively imposed surveillances may be desirable, too. Today, much equipment that can be utilized in wiretapping or eavesdropping may be readily procured by private citizens. Like most district attorneys, I would not object to reasonable legislation which either required records to be kept of the sales of all such equipment or narrowly defined those groups who may purchase such equipment under any conditions. I emphasize, however, that the legislation must be reasonable, because much electronic equipment which may be misused by private tappers may also serve perfectly proper functions in business and industry. If workable, reasonable bills can be devised to curtail abusive private tapping, I am confident they will receive strong backing from the great majority of district attorneys." II. THE SO-CALLED ABUSES IN LAW ENFORCEMENT TAPPING A. The Number of Taps At times Dash frankly admits he is pretty much "shooting from the hip." Thus, in his discussion of wiretapping by New York plainclothesmen, he begins: How much wiretapping is done this way by plainclothesmen is, of course, a matter of speculation. Accuracy of the figures, however, is not really essential, since what we are after is only an idea of the quantity of wiretapping done by police.10 Dash's complete lack of candor at other times, however, is rather appalling. For instance, immediately following the last-quoted statement, he asserts somewhat categorically that New York City plainclothesmen "are responsible for making from 13,000 to 26,000 wiretaps a year." "11 He compiled these figures on the basis of (1) 9. Dash does not place the entire blame for "most of the private wire tapping done in the world" on the New York police and prosecutors. He also accuses the New York Telephone Company of "an almost total lack of surveillance of private tapping." DASH 93. Not only does he refuse to accept the candor of the company's reports concerning its checks on complaints of suspected wiretapping, but as if with predetermined conclusions, he charges, without indicating a possible reason, that the company has adopted a common practice "of quieting complaints and playing down discoveries." Ibid. I concede that I, like Dash, have no first-hand knowledge on this subject. But I feel compelled nevertheless at least to mention that telephone company officials have made public statements which are just as credible as Dash's accusations and which indicate that the telephone companies do provide substantial safeguards against interception of telephone communications either by their own employees or outsiders. See, e.g., the statement of Mr. John J. Hanselman, assistant vice president of American Telephone & Telegraph Co., made before the Senate Subcommittee on Constitutional Rights. 1958 Hearings pt. 1, at 2-7. 10. DASH 68. (Emphasis added.) 11. Ibid. 85952 O-62-4 12 the impressions of "one former telephone company employee" whose identity, length of service for the telephone company, former position in the organization, etc., are all undisclosed; and (2) talks with an unknown number of completely unidentified “former and present plainclothesmen who were asked to speculate on the wiretap activity." "13 15 Dash does note that a comprehensive poll of all the district attorneys in the state of New York disclosed that only 2,392 wiretap orders were obtained throughout the state between 1950 and 1955.14 However, he regards these findings-which he entitles "the response to Silver's poll" -as inconsequential. As a matter of fact, this was not my poll but one taken by the New York Joint Legislative Committee to Study Illegal Interception of Communications (the Savarese Committee), whose work Dash generally commends highly.10 My only connection with the poll was as follows: I merely sent a copy of the Savarese questionnaire to my colleagues in New York State so that I might know the extent to which wiretapping is used in other counties and discern the opinions of other prosecutors concerning its value and effectiveness. True, I did read the results into the record at the Senate Subcommittee hearings," so they would be available for public perusal and use. That is only because the Savarese Committee itself did not see fit to publish the findings. Why, I do not know. If I were to permit myself to engage in one of Dash's favorite pastimes-speculation-I might suggest that the committee was "disappointed" by the results of its poll. 12. Ibid. (Emphasis added.) 13. Ibid. (Emphasis added.) Dash attempts to add some degree of authenticity to his speculation by suggesting mathematical processes by which one can arrive at his conclusion of 13,000 to 26,000 wiretaps per year in New York. However, one serious fallacy in his formulas is that an important "unknown," the number of taps per day, is "suggested" by his "former and present plainclothesmen." Ibid. Moreover, even assuming Dash's speculation somewhat accurately described the amount of tapping done by the New York Police Department, it certainly is far from correct with regard to tapping by the district attorneys' offices. Consider, for example, the following statement of my predecessor in Kings County, Miles F. McDonald: District attorneys are not evil people who are anxious to snoop on people's telephone conversations. . . . We do not use it unless it is important, and we do not do it just for the purpose of snooping. We only do it when we want to find out, is this particular defendant guilty of this crime? It takes six men to work a wiretap. It takes one-third, almost, of my detective force to operate one tap. Hearings on H.R. 408 Before Subcommittee No. 3 of the House Committee on the Judiciary, 83d Cong., 1st Sess., ser. 7, at 86 (1953) (hereinafter cited as 1953 Hearings). (Emphasis added.) 14. DASH 42. 15. Ibid. 18. See id. at 97-104. 17. 1959 Hearings pt. 3, at 539-41. B. The Safeguards Surrounding Court Order The gravamen of Dash's charge, if one may call it that, is that virtually no safeguard against arbitrary and indiscriminate wiretapping is provided by the requirement of a court order to tap.18 This is emphatically not so. As a practical matter, we do not make applications for wiretaps unless we feel we are legally entitled to do so.19 If we sign an affidavit in which we say, under oath, that we have reason to believe that we can get evidence of crime and we set forth sufficient facts to justify that conclusion and, further, subject ourselves to examination by the court to justify the reasonableness of the order, then and only then, can we procure an order to tap a wire.20 21 "All that is required," Dash tells us, "is a statement that there is reasonable ground to believe that evidence of crime may be obtained by interception of conversations over a specified telephone."" Curiously, however, the "example of a New York wiretap application" 22 relied on by Dash to support his assertion itself refutes this very charge; the application, an elaborate one which consumes almost two full printed pages, sets forth numerous detailed facts constituting the basis for the belief that evidence of crime may be obtained by a tap.23 Not so long ago, Dash himself vigorously defended the protections of a court order. In an article which he published in conjunction with Mr. Richardson Dilworth, now mayor of Philadelphia, at a time when Dilworth was district attorney and Dash his assistant, he said: [It is said] that any restrictions placed on wire tapping, such as requiring that a warrant be issued by a judge, will not be enforced and that judges will rubber stamp police requests. This is a shocking argument, for it applies equally well to the warrant provisions for search and seizure, for arrests and for every other type of law enforcement activity requiring 18. See DASH 44-47, 67. Assuming some law enforcement tapping is to be legal, a collateral problem concerns who should have power to authorize tapping in the particular situation. Some prominent law enforcers have advocated dispensing with the court order and vesting full power in the Attorney General. See Brownell, Public Security and Wire Tapping, 39 CORNELL L. Q. 195, 209-11 (1954); Rogers, The Case for Wire Tapping, 63 YALE L.J. 792, 797-98 (1954). However, the court order system has worked to our satisfaction in New York. 19. For example, if one squints hard enough at the fine print in the appendix to Dash's discussion of the New York situation, DASH 117, he discovers that in Brooklyn, which has a population of some three millions, from 1951 through 1954 there was an annual average of only 53% court orders, and the correlation between ultimate convictions and orders was eighty per cent. In light of this record, it is difficult to see how anyone can seriously maintain we are just a bunch of curious fellows who like to pry into other people's lives. 20. See N.Y. CODE CRIM. PROC. § 813-a. 21. DASH 47. 22. Ibid. 23. Id. at 48-49. judicial supervision. The argument in effect says that judges will not do their duty. If that is true, we have something much more serious to worry about than wire tapping. In dealing with problems of this sort, we must assume that judges and law enforcement officers will obey the law. If they will not, then any legislation outlawing wire tapping will not be effective, since it will be these same judges and the same law enforcement officers who will interpret and apply the law. The remedy for individual abuse is criminal prosecution, impeachment and action at the polls, and not strangulation of judicial and prosecution functions.24 Whom should we believe-Dash, the prosecutor, or Dash, the exprosecutor? Probably we would be safest in relying on somebody else altogether. The genuineness of the safeguard of the court order has been vouched for by a respected lawmaker who has long been a close student of the wiretapping problem-Senator Kenneth B. Keating. While testifying before a subcommittee of the House Committee on the Judiciary and recommending federal legislation including a court order requirement similar to New York's, he said: [The requirement of a court order] has worked very well . . . [in New York]. Before any of our law-enforcement officers can put a tap on a telephone, they have to apply to one of our judges and show him why the tap is necessary and what they hope to discover by it. In this way, the public is protected against mere spying and "fishing expeditions." 25 In a moment of rare concession, Dash does note District Attorney Frank Hogan's denial that he has ever engaged in "political wiretapping" 28 and the joint denial of Hogan and myself that applications for wiretap orders are perfunctorily heard by judges of the court of general sessions.27 But Dash devotes much more time and attention to the assertions of former Assistant District Attorney William Keating. The latter charges that there is widespread misuse of court orders.28 For example, he claims that by means of a “fraudulent" application Hogan installed a tap on the premises of Carmine De Sapio under the authorization of a court order "solely for political purposes." 29 Another alleged wiretapping abuse proclaimed by Dash30 is that of "exploratory tapping," that is, taking a sample of the conversations which can be picked up on a particular phone prior to getting a court order to tap it. As I told the Senate Subcommittee on Constitutional Rights,31 I can only say that this practice does not occur 24. Dilworth & Dash, A Wire Tap Proposal, 59 DICK. L. REV. 195, 197 (1955). To the same effect is Dash, Wire-Tapping: A Realistic Appraisal, 18 THE SHINGLE 37, 39 (1955). 25. 1953 Hearings ser. 7, at 5. 26. DASH 45. 27. Id. at 47. 28. Id. at 46–47. 29. Id. at 46. 30. Id. at 66. 31. 1959 Hearings pt. 3, at 542. in my office. I am not going to say what the police do because I have not checked into that, but in my office we do not know in advance whether a wiretap is going to be profitable or not. We seek a court order only when we have sufficient independent evidence on which we can say that we have reasonable grounds to believe that we will get evidence of crime.32 I guess that if one looks long enough and hard enough for "sensational stuff" one can always find some. Here, as in many places throughout the book, Dash is much stronger on innuendo than he is on the facts. To pit William Keating-a disgruntled former assistant in Hogan's office who was recently convicted of contempt of court-against his old boss, an outstanding tested prosecutor-is hardly worthy of comment. C. Police Corruption Exemplary of the confidential sources of "factual" information expounded in The Eavesdroppers is the "former plainclothesman" who is Dash's "authority" on wiretapping activities in New York between 1947 and 1951. Among his revelations was the following: A. I'm being very candid with you-if I'm a plainclothesman and I'm making $80 a week, and I go in on a pair and I come up on a hot pair ... and I went in on it on my own-well, that could be worth anywhere from $500 to $1000 to me personally. Q. You mean to keep them in business? A. No, just leave them in business. Just walk away from it. A. Oh yes, oh, definitely, $500 up.33 A. [I]f you grab a bookie's worksheet and he wants to- and you're going to court that afternoon with it-which is also standard practice and he wants his worksheet back, you charge him for his worksheet according to the amount of play he has on his worksheet. If he doesn't come across, as the saying goes, you just pass the word in the neighborhood or just let everybody see him get pinched, and then everybody puts in a winner. . . ..34 Q. How extensive is that practice? À. Oh, let me say that any man who is susceptible and needs an extra dollar will do it. Q. And would that be true of most plainclothesmen? A. I don't like to say this because I like being a policeman, but I think it's true of almost every cop. I don't say all.35 32. Because we never know when we will get "quack” complaints, in my office we have a strict policy- and I am sure it applies to other district attorneys, too that we will not apply for a court order to tap merely on the basis of an anonymous letter. We always investigate the matter ourselves first to obtain substantial evidence upon which to base a request for a court order. 33. DASH 59. 34. Id. at 59-60. 35. Id. at 60. |