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STATEMENT OF EARL E. HARTLEY, ATTORNEY GENERAL OF THE STATE OF New
STATE OF NEW MEXICO,
DEPARTMENT OF JUSTICE,
Santa Fe, May 10, 1961. Hon. WILLIAM A. CREECH, Chief Counsel, Senate Subcommittee on Constitutional Rights, Senate Office
Building, Washington, D.C. DEAR MR. CREECH : Pursuant to the request of your committee counsel, there is enclosed original and one copy of statement which I had proposed to present before your committee, concerning my views on wiretapping and eavesdropping. Very truly yours,
EARL E. HARTLEY, Attorney General. Gentlemen, I thank you for this opportunity to express to you my opinion concerning wiretapping and eavesdropping as a means of securing evidence. Although my official capacity is that of Attorney General of New Mexico, my viewpoints on the questions under consideration are those of a private citizen tempered by years of private practice as a lawyer.
My appearance here in opposition to legalized wiretapping and eavesdropping should in no way be construed as an attack on its proponents. The legislation before you is carefully drawn, and the question of propriety is certainly one on which reasonable men might differ.
To me, the enactment of such legislation would constitute a long step in the direction of a police state, a step which can and should be avoided. There is no question but that the enemies of our society and our way of life are working assiduously to destroy us; but that is no reason for us to abdicate our freeedoms to a police state of our own making. The thought of my privacy being invaded by so-called friendly ears is no more appealing to me than the thought of it being invaded by enemy ears. In fact, it has been well said that in our daily affairs as individuals we can usually protect ourselves from our enemies, but only God can protect us from our friends.
Before the advent of modern methods of communication and even more modern means of interception, the individual could himself adequately protect his privacy. It has only been over a period of the past 70 or 80 years that we have found it necessary to formulate rules of law in ever-increasing numbers to assist the individual in protecting what each of us probably consider a most sacred right—the right of privacy. The right is not yet fully defined by rules of law. But to legalize the interception of what we have come to consider our most private and intimate means of conversational communication would, in my opinion, constitute an invasion of privacy in the most insiduous and offensive manner possible.
We as a nation are an excitable people, and the desire to facilitate the capture and conviction of those who would destroy our Republic might well influence us to adopt methods not in keeping with the traditions of free dom. No step toward ex parte court proceedings and Gestapo methods, of law enforcement should be tolerated even in the face of redoubled pressures and threats against us.
The morale of our Nation is high and the determination of our people to retain the traditional American freedoms and rights is great enough to withstand any cold war propaganda and threats. We can repel our enemies on all fronts. The surrender of any of those freedoms or rights even to our own police would serve only to weaken that morale and determination. We cannot be too vigilant in the protection of individual rights; it is difficult to realize how easily these rights may be lost by subtle erosion.
The foregoing remarks may sound somewhat like an impassioned plea "against sin and for God and motherhood.” Perhaps I should confine my remarks to more specific items of my objections to the proposed legislation being considered by this committee. Certainly all of you, as well as the sponsors of these bills, are as devoted to the United States, its Constitution, and the inalienable rights of its citizens as I am. But I was invited here
to express my viewpoints against legalized wiretapping and eavesdropping, and I must admit that my present feelings on the subject are quite strong and even emotional.
It has been brought to my attention that not only are the devices for recording conversations by wiretapping and eavesdropping highly developed but there is also an ingenious device for scrambling such recordings and regrouping the words in such a manner as to come out with apparent recorded conversations in individual voice that never actually took place, but so natural in sound as to make it impossible for the individual to effectively deny, before a jury, that any such conversation ever took place. I am describing this scrambling device only by hearsay-I am confident that you may develop more accurate testimony from experts in the field of electronics. I am no expert in any field, and I do not here accuse our police of stooping to the use of such a device—however, they are subject to some of the human weaknesses that the rest of us have, and it is a matter of personal pride with most officers of the law to follow through and secure convictions of those charged with crime as a direct result of their own investigations. I am simply pointing out here that the existence of such scrambling devices, if they do exist, should be a rather strong deterrent to the passage of the bills here in question.
As mentioned earlier, this right of privacy about which I have been speaking has not yet been fully defined or delineated in our rules of law. In volume 41 of American Jurisprudence at page 925 there is the following statement concerning definition and nature of the right:
“The right of privacy is concisely defined as the right to be let alone. It has also been defined as the right of a person to be free from unwarranted publicity, and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. It is apparent that these definitions are couched in the most general terms. Indeed, the diversity of the cases in which the right of privacy has been applied and the relatively undeveloped state of the law on the subject make it difficult or impossible to formulate a precise definition. However, an analysis of the authorities on the subject suggests the following as a fairly comprehensive definition of what constitutes an actionable invasion of the right of privacy: the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. The right in question is a phase or complement of the right to the security or immunity of one's person, a part of the broad right to an inviolate personality. In jurisdictions which recognize the right of privacy, it is an independent legal right of the individual, and its violation constitutes a tort. *• *"
Certainly nothing could be more outrageous to ordinary sensibilities than to have the intimacies of your own bedroom recorded and listened to by any third party. Of course, this is not the intent of the legislation, but none of these listening and recording devices have been so highly refined as to automatically omit those items and record only those bits of conversation helpful to the police in apprehending and convicting criminals. Surely we are not naire enough to think that the police will listen only to those conversations pertaining to the commission of crime. I recognize that the bills under consideration are replete with conditions designed to prevent abuses--yet these procedures are of necessity ex parte and readily lend themselves to star chamber tactics. Any time a judge hears only one side of a controversial question he is at a distinct disadvantage in reaching a just decision. Safeguards embodied in these bills probably meet the technical qualifications to comply with amendment IV to our Constitution which sets forth the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, but to me, it is not in keeping with the provision of amendment V to the effect that no person shall be compelled in any criminal case to be a witness against himself.
I hope that the views here expressed will be beneficial to you in your deliberations.
STATEMENT OF NORMAN DORSEN, PROFESSOR OF LAW, NEW YORK UNIVERSITY
SCHOOL OF LAW
New YORK UNIVERSITY,
SCHOOL OF LAW,
New York, N.Y., June 7, 1961. Thank you very much for inviting me to present my views to the subcommittee on the subject of wiretapping and eavesdropping, and in particular on the bills it now has under consideration : S. 1086, S. 1221, S. 1495, and S. 1822.
I am assistant professor of law at the New York University School of Law. I am also the director of the Arthur Garfield Hays civil liberties prograin at the school of law and a member of the District of Columbia, New York, and Supreme Court bars.
I wish to state at the outset that I unequivocally oppose wiretapping and ea vesdropping in every form, whether engaged in by private persons or by law enforcement officers. I therefore oppose the enactment of any of the bills being considered by the subcommittee. There is only one possible circumstance that would cause me to alter my total opposition to any legislation sanctioning such mechanical surveillanceunambiguous proof that it was needed by the police to solve serious crimes. I have studied the testimony of many law enforcement officers who seek authority to eavesdrop and wiretap and I have never seen such proof.
The decisive objection to wiretapping and eavesdropping is of course the large-scale invasion of individual privacy that is inevitably involved. The interception of telephone messages exposes the private conversations of the persons at both ends of the line. To tap one man's telephone is to spy on him and all those he may call or who may call him. It is also to spy on all visitors who may happen to use the surveyed telephone, To tap a public telephone is to spread the net even further.
Intrusions of this nature are comparable to the rifling of all correspondence of a man or a business. But even this analogy is inadequate to describe the magnitude of the violation of privacy which apparently is possible using “modern" mechanical techniques. I am astounded by the claims that are made for eavesdropping devices which either are or soon will be on the market. In no event do I believe that the subcommittee should sanction the use of any of these new techniques without the most careful study.
There may be some who shrug off the sinister implications of this mischief. They would harbor no sense of outrage, or believe they would not, if their own calls were monitored in the interests of law enforcement. More likely they doubt the possibility that the police would ever seek to overhear what passed on their telephone lines. For these people the way is clear.
I am not able to share this indifference or complacency. Nor do I believe that it would be shared by the vast majority of Americans, were they to reflect upon the question. Those seeking authority to spy must therefore carry a heavy burden.
Law enforcement officers are in the main conscious of this burden. They seek to carry it by representing that some wiretapping and eavesdropping is necessary to war successfully against organized crime.
But there is no solid evidence that the police must employ wiretapping to discharge their responsibilities effectively. The legislatures of the 33 States that prohibit official wiretapping do not seem to have regretted their decision. Furthermore, the chief of police of at least one major city has flatly declined to say that wiretapping was essential, perhaps because of the genuine fear that reliance on such methods will be in the long run sap the creative energy of the police and eliminate incentives to develop better investigatory techniques.
It does not advance the argument to point to increasing crime statistics. These are deplored by all. The question is whether the monitored telephone will assist in the reduction of serious crimes. I have heard many statements that it will but, as I have said, never have I seen concrete proof of this assertion. I cannot help but be deeply suspicious of the failure of wiretapping proponents to make any empirical case for their position.
I therefore recommend that the subcommittee not report favorably any of the bills before it. Even if the subcommittee differs with this judgment, it should approve no bill that does not provide adequate safeguards against misuse of the awesome power to spy on the public. Listed below are the safeguards that I regard as minimally essential to a bill authorizing wiretapping or ea vesdropping.
1. Applications by Federal officials for permission to wiretap or ea vesdrop should be entertained only in connection with a specified number of serious crimes, such as treason, sabotage, espionage, kidnaping, and the interstate narcotics traffic.
2. Permission to tap wires or eavesdrop should rest with a Federal judge, not with police officers or U.S. attorneys.
3. Applications for permission to wiretap or eavesdrop should be sworn to, and should contain a full statement of the pertinent facts showing that probable cause exists that a crime has been committed, and that there is no other feasible way to obtain incriminating evidence.
4. All applications should indicate that they have been approved by the Attorney General or a delegated assistant at the Department of Justice.
5. Permission should be limited to 60 to 90 days, with renewal contingent upon a showing of continued need.
6. In cases of unauthorized wiretapping and eavesdropping, (a) it should be explicitly provided that the evidence obtained will be inadmissible in Federal and State court, and (b) the offenders should be diligently prosecuted. The failure of the FBI to enforce the law against wiretapping since 1940 bas encouraged a cynical disrespect for the law.
7. Each Federal district court should publish periodic reports on the number and nature of applications; their disposition; the number resulting in criminal prosecutions; and other pertinent data.
Each of the four bills before the subcommittee would authorize ştate wiretapping. Special problems are inevitably created by multiplying the number of jurisdictions with authority to employ this dubious law-enforcement technique. In no event should there be an unjust discrimination in the treatment of this sensitive subject. Accordingly, any Federal statute permitting State wiretapping or eavesdropping should provide, as a minimum, that applications may be granted only for the investigation of specified serious crimes; that applications should be entertained only by a judge; that evidence obtained by unauthorized interceptions will be inadmissible in court; and that periodic reports must be made to the public by State officials.
I hope that the above views on this important and difficult matter are of assistance to the subcommittee.
STATEMENT OF FRED E. INBAU, PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY
To cope with jet-age criminals, particularly those engaged in organized, syndicated crime, it is imperative that the police be given the authorityunder controlled conditions of one sort or another—to resort to wiretapping and also to the use of other kinds of electronic eavesdropping for the purpose of crime detection and the apprehension of criminals.
Civil liberties pressure and sentiment have generally succeeded, in not only preventing the police from securing this privilege, but in actually taking it away from those who at one time had it or had exercised it under the assumption of permissibility. But sooner or later the force of serious circumstances and events will compel the grant of that privilege to the police. We certainly need it for national defense purposes; and we also need it in order to cope effectively with organized crime and other serious offenses.
The big bugaboo about eavesdropping is the understandable fear of its being used to probe into our private lives, to ascertain business secrets for competitive purposes, and to tap us or our parties for political purposes. Any such practices are unethical and ought to be outlawed. But here again effective controls are available to insure the proper exercise of police wiretapping privileges. New York, for instance, has a workable compromise. It is a felony in New York for anyone other than the police to tap a telephone wire; and the police can do so only upon court authorization for each particular case situation.
In my opinion the New York compromise between individual civil liberties and social requirements is a far better solution than a blanket prohibition of the practice.
Those who oppose police wiretapping overlook the fact that if the police really want to probe into our private lives for political or other reasons they can do so without resort to wiretapping. Moreover, in the course of ordinary, routine criminal investigations the police frequently come across information that could be misused for the same such purposes. Wiretapping, therefore, does not add appreciably to the risk of embarrassment to law abiding citizens. On the other hand, however, wiretapping is a very necessary operation for obtaining leads and evidence of foreign inspired efforts aimed at our national destruction ; and the same is true with respect to internal criminal activities, and especially where they are of the organized, syndicated type.
The legislatures, the courts, and the public must recognize the fact that individual liberties cannot exist in a vacuum. They are meaningful only if they are to be exercised within the medium of a safe, stable society.
AMERICAN JEWISH CONGRESS,
New York, N.Y., May 11, 1961. Senator SAM J. ERVIN, Chairman, Subcommittee on Constitutional Rights, Senate Office Building, Washington, D.C.
MY DEAR SENATOR ERVIN: The American Jewish Congress wishes to submit a statement to be included in the record of the current hearings on wiretapping and eavesdropping. The statement is virtually complete and will be mailed tomorrow.
We believe that the subject of wiretapping is one on which the American Jewish Congress has an informed position which will contribute to the committee's consideration of the pending bills. We have submitted statements on this subject to congressional committees in past congressional sessions. Our statement will not merely deal in generalities. It contains an analysis of the pending bills and submits a proposed bill embodying our views.'
The position of the American Jewish Congress on this issue is, we believe, different from that of most other organizations. We urge in our statement that all wiretapping is improper and should be barred by Federal legislation insofar as the Federal Government has power to do so. We therefore oppose any relaxing of the present prohibition and urge rather than section 605 of the Federal Communications Act be strengthened to achieve its original intent.
I hope, therefore, that the committee will accept the statement which we shall mall tomorrow. Yours sincerely,
STATEMENT OF THE AMERICAN JEWISH CONGRESS ON S. 1086, 1221, AND 1495,
BILLS CONCERNING WIRETAPPING, May 1961
INTRODUCTION The American Jewish Congress is a voluntary association of American Jews committed to the dual and, for us, inseparable purposes of defending and extending American democracy and preserving our Jewish heritage and its values.
The American Jewish Congress has, therefore, always been unequivocally opposed to communism, fascism and all other forms of totalitarianism. We know full well the meaning and nature of Communist tyranny and of its de basing and dehumanizing effects on all who have been forced to live under its dictates.
Together with all Americans who prize the blessings of freedom, we have repeatedly affirmed our readiness to make those personal and collective sacrifices reasonably calculated to safeguard our democracy. We have also insisted that our Nation's security is not enhanced when we resort to measures that violate the essential liberties whose preservation is our basic purpose. Accordingly, we urge particular care when proposals are offered in the name of security that infringe upon basic liberties.
POSITION OF AMERICAN JEWISH CONGRESS The American Jewish Congress believes that all persons, including Federal and State officials, should be prohibited from engaging in wiretapping. Wiretapping, we believe, gravely violates the right of privacy, one of the basic rights guaranteed by a free society. Political surveillance of private conversation is