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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 beard, 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 EAVESDBOPPING 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 S. 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 & 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 eavesdrop ping 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 prohibit specified forms of eavesdropping 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.
CONCLUSION Only by making plain an absolute prohibition of all wiretapping and electronic eavesdropping can we halt the invasion of the privacy 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. ROBISON, 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 transm ers, 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. "f 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. "g 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 $5,000 or imprisoned not more than one year and a day, or both. "$ 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, which 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 bis views.
In the event that you or a representative of your Department cannot appear personally as a witness, the subcommittee would, of course, be pleased to receive for the record, any prepared statement you may wish to submit.
Copies of S. 1086, S. 1221, and S. 1495, are enclosed for your convenience.
The subcommittee appreciates very much your cooperation and assistance in its study. With all kind wishes, I am, Sincerely yours,
SAM J. EBVIN, Jr., Chairman. (The letter above was sent to the following departments and agencies:
Department of Defense.
Federal Communications Commission.
Interstate Commerce Commission.) (Replies to the preceding letter, received by the subcommittee, follow :)
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., August 25, 1961. Hon. JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate.
DEAR MR. CHAIRMAN : Reference is made to your request for the views of the Department of Defense with respect to S. 1495, a bill to prohibit wiretapping by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified categories of criminal offenses, and for other purposes ; S. 1221, a bill to regulate eavesdropping, and for other purposes; and S. 1086, a bill to amend title 18 of the United States Code to authorize cer. tain communications to be intercepted in compliance with State law, and for other purposes.
S. 1497 would permit the interception of wire communications by investigative or law enforcement officers of the United States or any Federal agency, including the Armed Forces, upon application to the Attorney General or a judge of competent jurisdiction, depending on the circumstances. Wire communications are confined to those made through facilities furnished by a common carrier. Under section 4(a) of the bill, concerning authorization by the Attorney General to intercept wire communications, a crime under one of the following chapters of title 18, United States Code, must be involved :
(a) Chapter 37-Espionage and Censorship.
(d) Chapter 115—Treason, Sedition, and Subversive Activities. Section 4(b) concerns application to a judge of competent jurisdiction for authorization to intercept wire communications. Either a crime under one of the above chapters of title 18, or an offense under any Federal statute involving murder, extortion, bribery, gambling, racketeering, or narcotics violations, must be involved.
S. 1221 provides for the issuance (by a Federal judge or U.S. commissioner) of an ex parte order authorizing eavesdropping or wiretapping upon the oath or affirmation of an authorized agent of any Federal law enforcement agency that there is reasonable ground to believe that evidence of Federal crime may be thus obtained.
S. 1086 provides that no law of the United States shall be construed to probibit the interception, by a State law enforcement officer, in accordance with State statute, and divulgence in a State court of the radio or wire communication provided that such interception was made after determination by a State court that reasonable grounds existed for belief that the interception might disclose evidence of the commission of a crime.
The Department of Defense makes no recommendations with respect to the enactment of these bills but defers to the views of the Department of Justice as the executive agency having the controlling interest in the matter of wiretapping
The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this report for the consideration of the committee. Sincerely yours,
CYRUS R. VANCE.
CENTRAL INTELLIGENCE AGENCY,
OFFICE OF THE DIRECTOR,
Washington, D.C., May 19, 1961. Hon. SAM J. EBVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary,
U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: You have requested our views on three bills, S. 1086, S. 1221 and S. 1495, dealing with the subject of wiretapping and eavesdropping.
I appreciate your interest in giving this Agency an opportunity to express its views on this proposed legislation. The National Security Act of 1947, as amended, provides that the Central Intelligence Agency shall have no police, subpena, law-enforcement powers, or internal-security functions. Consequently, the subject of the above-mentioned bills is not within the jurisdiction of the Agency and it would be inappropriate for us to comment on them.
The Bureau of the Budget has no objection to the submission of this report from the standpoint of the Administration's program. Sincerely,
ALLEN W. DULLES, Director.
DEPARTMENT OF LABOR,
Washington, May 25, 1961.
U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: Thank you for your kind invitation to comment on the three bills dealing with wiretapping and eavesdropping, S. 1086, S. 1221, and S. 1495.
S. 1221 is the only one of these bills which would be pertinent to the operations of the Department of Labor. As you know, this bill would permit wiretapping under ex parte order from a Federal judge or commissioner on a showing that there is reasonable ground to believe that evidence of any "federal crime" may be obtained. This would of course include violations of the Fair Labor Standards Act and the Labor-Management Reporting and Disclosure Act under both of which the Department of Labor has enforcement responsibilities. With regard to the former, we have not found, during the many years the law has been in effect, any need for the authority which would be granted by S. 1221. Our experience under the latter statute, which has been in effect for less than 2 years, has been insufficient for us to reach a conclusion. I might state, however, that generally we believe it preferable to limit such wiretapping anthority to certain specified crimes and that such general authority is not desirable. Yours sincerely,
ARTHUR J. GOLDBERG, Secretary of Labor.