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The former counsel to the New York City Anti-Crime Committee, William J. Keating, testified at bearings held by a subcommittee of the House Judiciary Committee that the value of legal wiretapping has been "greatly exaggerated.' He said that as an assistant district attorney he had used wiretaps for years and “never got one scrap of evidence or information that was of value * *
The use of wiretapping is, moreover, inherently dangerous because of its susceptibility to gross abuse. These abuses shock the conscience and raise the question whether in the balance it pays to permit a practice that is so ineffective in detecting crime and so effective in promoting it.
THE PENNSYLVANIA EXPERIENCE One State, Pennsylvania, has recently seized this nettle firmly by adopting an absolute ban on wiretapping, without exceptions for anyone. In a statute passed in 1957, wiretapping was prohibited, being made both a criminal offense and a basis for a civil action for damages or a penalty.
In the following year, this committee heard illuminating testimony on the effect of this bill from the then attorney general of the State, Thomas McBride, now a member of the Pennsylvania Supreme Court. Since his testimony is in the records of this committee, we need not refer to it in detail. It is sufficient to say that Mr. McBride frankly conceded that the prohibition had placed restraints on law-enforcement officials and that they had expressed some unhappiness with it. He was not even prepared to say that it had no overall effect on the amount of crime in the State, though he expressed the opinion that it had not. The main thrust of his testimony was that a ban on wiretapping was desirable and essential to achieve "the greater good, undoubtedly, that comes from the feeling of freedom people have that they are not being listened to." He went on to say:
"My personal view is that wiretapping should be banned, that there isn't sufficient good done by it to overcome the harm that is done by that feeling of loss of freedom of decent people."
THE NEW YORK EXPERIENCE The success of the Pennsylvania experiment with an absolute ban on wiretapping may be contrasted with what has happened in the State that has had the most extensive and widely studied experience in court-supervised wiretapping of any State. The New York experience shows that limited police wiretapping, even under a system of judicial supervision, is neither possible nor desirable.
In 1942, the New York State Legislature enacted section 813(a) of the New York State Code of Criminal Procedure, which established a procedure whereby telephone and telegraph communications could be intercepted upon obtaining an ex parte court order. Nineteen years later, revelations concerning the abuses of this system and the illusory nature of its judicial controls have made it clear that legalized wiretapping in New York State has been a sordid failure. More dishonesty and criminal activity have been bred than have been prevented. So glaring, as a matter of fact, have the abuses been that one legal writer has described legal wiretapping in New York as “a shining example of what a legalized system should not be." Westin, “The Wiretapping Problem,” 52 Columbia Law Review 165, 196 (1952). This same writer characterized the New York State wiretapping program as affected by "corruption, blackmail, misuse of warrant procedures, failure to prevent unauthorized wiretapping, and loss of general confidence in the security of the telephone as a medium of communication. * * *" (id. at 196–197).
A thorough investigation into police wiretapping was conducted by the Kings County (N.Y.) grand jury in 1950. Their presentment condemned the “loose, irregular, and careless" methods used by Brooklyn police and concluded that such wiretapping abuses supply fertile ground for police bribery and corruption. Assistant District Attorney Helfand described the practice as "a club to blackmail" and he charged that police officers sold information without the suspicion of their superiors in the police department.
Unscrupulous police officials are known to use information obtained by wiretapping for extortion and blackmail. A police officer on a tap may obtain information extraneous to the criminal activity for which he procured the tap, but valuable for purposes of victimization. Law enforcement officials have been known to use wiretapping for the purpose of determining whether or not they are getting their proper "payoff” from criminals. Since these taps are author
ized in conjunction with actual criminal activity, there is no way to check the purposes for which the taps are used.
These abuses arise naturally from the nature of the New York procedure. It is common knowledge in New York that sophisticated law enforcement officials steer clear of judges known to be strict about granting wiretap orders and prefer to submit their applications to the more lenient members of the judiciary. But in any case, it is difficult for a judge acting in good faith to determine whether a particular application is reasonable or not. A writer for the New York Times magazine section, Robert G. Whalen, has pointed out that judges are busy men who "have little time for protracted discussion of whether or not an officer's suspicion is 'reasonable'. The requested order usually is issued.”
New York Special Sessions Justice Frank Oliver testified in 1948 at hearings before the New York County Civic and Criminal Courts Bar Association as follows: "A man's home is not his castle in New York. It is just an uncovered garbage can for the police to pick over *** The mere mention of a warrant breaks judicial ribs with laughter. If you want to see a policeman roll on the floor, just mention the search and seizure provisions of the Constitution."
The limitations of judicial supervision are illustrated by the fact that in certain cases wiretaps authorized on different telephones and in unrelated investigations were nevertheless sanctioned by the courts all under the heading of one case. Assistant District Attorney Helfand, in his 1950 testimony, asserted that the authority to tap telephones was often obtained on false affidavits, that "dishonest statements” were used by policemen to obtain warrants, and that applications for wiretapping warrants were often made without any information to support the requests. Said Helfand, “Without facts and without any information, members of the (police) department supported their applications with such statements as a matter of convenience and as an expedient to obtain an order."
These are but some of the major problems. Add the fact that wiretap recordings can be and have been altered in a fashion that defies detection. Sentences, single words, and even parts of words can be excised. Yet, when an altered recording is replayed, it carries all the conviction of a direct genuine reproduetion of the speaker's original words.
These abuses, serious as they are, occur during the course of otherwise legal activity. They arise as inevitable concomitants of legalized wiretapping and are virtually impossible to control. Police officers borrow wiretap equipment from a squad in the Bureau of Criminal Information at New York City Police Headquarters. There is no check on whether they use equipment properly or not. Unscrupulous police officers can operate with abandon. The telephone company readily acquiesces in a police officer's request for the information he needs to make a tap. The average building superintendent does not know enough to ask to see a court order authorizing the tap. All these factors combine to make taps by a policeman extremely easy. Thus no matter how conscientiously the procedure for legalized wiretapping is administered, this type of fraudulent and illegal wiretapping is almost impossible to detect and control. The fact that a procedure exists whereby taps may be legally used gives rise to the evil of illegal taps.
In sum, abuses of the gravest sort are the necessary and natural results of giving wiretapping legal sanction. As long as wiretapping is legalized, prevention of illegal interceptions is difficult or impossible. Experience teaches us that the police are reluctant to make arrests for a practice they are themselves committing. Only a total ban on wiretapping bespeaks the public condemnation of the practice with enough vigor to make its actual elimination feasible.
CONSTITUTIONAL PROTECTION OF PRIVACY Our constitutional fathers found it necessary to provide in the fourth amendment an express prohibition of unwarranted searches and seizures. Wiretap ping is of a piece with the practices with which they were familiar and which they found it wise to condemn. But while searches and seizures can be surrounded by appropriate safeguards to limit their harmful effects, wiretapping is inherently beyond such limitation. A court order can guard against seizure of innocent material, but no words a judge puts in an order authorizing a wiretap can prevent interception and recording of all the conversation on the intercepted line. This distinction was well stated in a 1955 decision by New York State Supreme Court Justice Hofstadter (In the Matter of an Application for an Order Permitting the Interception of Telephone Communications of Anonymous, decided Jan. 10, 1955), when he said :
"A telephone interception is a far more devastating measure than any search warrant. A search warrant is confined to a definite place and to specific times, or, at least, to items of a stated class or description. Those in possession of the searched premises know the search is going on and, when the officer has completed his search, whether successfully or not, he departs. Not so in the case of a telephone interception. The interception order is obtained ex parte, and the person whose line is to be tapped is, of course, in ignorance of the fact. The tap is maintained continuously, day and night. Everything said over the line is heard, however foreign to the stated objective of the law-enforcement officers. The most intimate conversations, personal, social, professional, business, or even confidential, of an unlimited number of persons may be laid bare. In effect, the line of everyone who is called from or makes a call to the tapped line at any time is being tapped during the maintenance of the tap. When a line in a public telephone booth is tapped, as has on occasion been done, the conversations of people having no relation of any kind to the operator of the place in which the booth is situated or the person whose line is tapped are overheard. It is a little wonder that Justice Brandeis was moved to say in the Olmstead case :
“ 'As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping' ” (277 U.S., 438, 476).
Justice Hofstadter's opinion is a thorough treatment of the wiretapping problem by one who has been in daily contact with it. We are supplying this committee with a copy of his opinion and suggest that it be inserted in the record in full, if that has not already been done.
Justice Hofstadter rightly stated, “A tapped wire is the greatest invasion of privacy possible. However rationalized, its authorized use has its roots in the amoral doctrine that the end justifies the means." The invasion of privacy by wiretapping is one of those practices that must be opposed “because they encourge the kind of society that is obnoxious to freemen" (Walder v. United States (347 U.S. 62, 65 (1954)). In the words of an editorial in the Wall Street Journal of November 19, 1953, "It could create an atmosphere in which people would be afraid to talk on the telephone about anything."
PROPOSED BILL PROHIBITING ALL EAVENDBOPPING Believing as we do that the “dirty business" of wiretapping and its modern elaboration, electronic eavesdropping, should be absolutely prohibited, we have drafted and are submitting with this statement a proposed bill that would, we believe, effectively and unambiguously achieve the original purpose of section 605 of the Communications Act.
The bill would add a new chapter to part I of title 18. Section 570(1) would define "eavesdropping" so as to cover wiretapping and the use of a mechanical device to overhear or record conversations. While paralleling provisions in 8. 1221, it would differ (1) in omitting the separate paragraph covering jury deliberations which, we believe, are sufficiently covered by the previous paragraph, and (2) in making it clear that eavesdropping would not be covered by the act if done with the consent of any party to a conversation.
The proposed section 570(2) would define "person" so as to apply explicitly to Government agents.
The proposed section 570(3) follows the Keating bill's definition of "instrument."
The proposed section 571, which would make eavesdropping a crime, parallels S. 1221, with only one difference. It should be noted that the conduct defined as eavesdropping in section 570(1) of both the draft bill and the Keating bill includes conduct not subject to Federal regulations, for example, overhearing a conversation in the same State under circumstances not involving any Federal activity or power. The proposed section 571, defining the crime, is designed to operate whenever the eavesdropping occurs under circumstances permitting Federal regulation. The Keating bill defines six categories of such circumstances, including eavesdropping engaged in "for the purpose of obtaining information concerning any activity under Federal regulation.” We believe this provision is too vague for inclusion in a statute defining a crime and have therefore omitted it from our proposed bill.
The proposed section 572, which would make it a crime to possess eavesdropping equipment under specific circumstances, follows the Keating bill, with one difference. The Keating bill would make it a crime to possess eavesdropping instruments “under circumstances evincing an intent" to use them in violation of the statute. We believe it should be made clear that possession is illegal only when there is an actual intent to make illegal use and have therefore changed the quoted words to "with the intent.”
The proposed section 573 would make divulgence of information obtained in violation of the act a crime, provided that the divulgence was done with knowledge that the information was obtained by illegal eavesdropping.
The proposed section 574 would bar the use of eavesdropping evidence in court and before administrative bodies. This section has two aspects. First, it would bar from Federal court and administrative proceedings all evidence obtained by eavesdropping, whether or not the eavesdropping was engaged in under circumstances making it otherwise subject to Federal regulation. Second, it would bar from all proceedings, Federal or State, evidence obtained by eavesdropping in violation of the proposed section 571. As to the first provision, we entertain no doubt that Congress can regulate Federal judicial and administrative proceedings to the extent of barring evidence obtained by methods that it regards as harmful to the public welfare. As to the second, we believe that, to the extent that Congress has power to probibit specified forms of eaves. dropping by statute, it has power to make that prohibition effective by barring evidence obtained in violation of the statute.
As to both aspects of this section, the prohibition would be absolute. It would apply to both criminal and civil proceedings and also to administrative action.
The proposed bill contains no exemption for wiretapping or eavesdropping by police officials. For the reasons already stated, we believe that is as it should be.
Only by making plain an absolute prohibition of all wiretapping and electronic eavesdropping can we halt the invasion of the rivacy that has long been regarded as a precious right of citizens in a democracy. That right assures to our citizens a feeling of security in their private affairs that is denied to the unfortunate subjects of totalitarian regimes. Respectfully submitted.
JOSEPH B. ROBI8ON, Of Counsel.
APPENDIX [Proposed Federal bill prohibiting wiretapping and eavesdropping) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That part I of title 18 of the United States Code is amended by adding thereto a new chapter:
"As used in this chapter-
"(a) not a sender or receiver of a telephone or telegraph communication willfully and by means of instrument overhears or records a telephone or telegraph communication, or aids, authorizes, employs, procures or permits another to do so, without the consent of either a sender or receiver thereof; or
“(b) not present during a conversation or discussion willfully and by means of instrument overhears or records such conversation or discussion, or aids, authorizes, employs, procures or permits another to do so, without the consent of a party to such conversation or discussion;
"(2) 'Person' means any individual, partnership, corporation, or association, regardless of public office or status, including the subscriber to any telephone or telegraph service involved.
"(3) Instrument means any device, contrivance, machine, or apparatus or part thereof designed or used for acoustical detection including but not limited to wiretapping equipment, microphones, detectaphones, dictaphones, radio transmitters, and recorders. "g 571. Eavesdropping prohibited. "A person who engages in eavesdropping
“(1) in the District of Columbia or any Territory or possession of the United States; or
“(2) for the purpose of aiding or abetting or perpetrating any Federal offense; or
“(3) where the conversation, discussion, or communication overheard or recorded is by wire or radio; or
“(4) where the information overheard or recorded is to be transmitted in interstate commerce or outside the United States; or
"(5) where the instrument employed to overhear or record the conversation, discussion or communication utilizes or involves facilities in interstate or foreign commerce, shall be fined not more than $5,000 or imprisoned not
more than one year and a day, or both. “8 572. Possession of eavesdropping instruments.
“A person who has in his possession any eavesdropping instrument with the intent to use or employ or allow the same to be used or employed for unlawful eavesdropping under section 571 of this chapter, or knowing the same to be so used, shall be fined not more than $1,000 or imprisonment for not more than six months, or both. "8 573. Disclosure of information.
"Whoever divulges any information or any evidence obtained directly or indirectly by means of eavesdropping in violation of section 571 of this title, knowing it to have been so obtained, shall be fined not more than $5,000 or imprisoned not more than one year and a day, or both. “8 574. Admissibility of evidence.
“Except as proof in a suit or prosecution for a violation of sections 571, 572, or 573 of this title, (1) no evidence obtained directly or indirectly by means of eavesdropping, or as a direct or indirect result of eavesdropping, shall be received in evidence in any Federal court on any matter, civil or criminal, or in any proceeding of any Federal department or agency, and (2) no evidence obtained directly or indirectly by means of eavesdropping in violation of section 571 of this title or as a direct or indirect result of such violation, shall be received in evidence in any court or administrative proceeding, whether Federal, State, or local."
VIEWS OF DEPARTMENTS AND AGENCIES
To obtain their views on wiretapping and eavesdropping, the following letter was sent by the subcommittee to the heads of various departments and agencies of the Federal Government:
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS. DEAR
: The Senate Constitutional Rights Subcommittee is currently examining the problems posed by wiretapping and eavesdropping practices of law enforcement officials and private individuals. Public hearings have been scheduled for May 9, 10, and 11 to consider three bills dealing with wiretapping and eavesdropping, S. 1086, S. 1221, and S. 1495, wbich have been referred to this subcommittee.
Inasmuch as the bills have some application to Federal departments and agencies, it would be desirable if you, as (Title) of the Department or Agency) would submit your views on these proposals. The Attorney General bas already been invited to appear before the subcommittee and give us the benefit of his views.