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. ERVIN, Jr., Chairman. (The letter above was sent to the following departments and agencies: Department of Defense. Department of the Interior. Department of State. Department of the Treasury. Central Intelligence Agency. Federal Communications Commission. Federal Power Commission. Federal Trade Commission. General Services Administration. Interstate Commerce Commission.) (Replies to the preceding letter, received by the subcommittee, follow :) GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, Washington, D.C., August 25, 1961. 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 certain 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. (b) Chapter 55-Kidnaping. (c) Chapter 105-Sabotage. (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 prohibit 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, Hon. SAM J. ERVIN, Jr., OFFICE OF THE DIRECTOR, Washington, D.C., May 13, 1961. 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. Hon. SAM J. ERVIN, Jr., DEPARTMENT OF LABOR, Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, 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 authority to certain specified crimes and that such general authority is not desirable. Yours sincerely, ARTHUR J. GOLDBERG, Secretary of Labor. FEDERAL TRADE COMMISSION, OFFICE OF THE CHAIRMAN, Washington, D.C., May 8, 1961. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your letter of April 27, 1961, in which you request the Commission's views on S. 1086, S. 1221, and S. 1495, all of the 87th Congress, 1st session, bills dealing with wiretapping and eavesdropping. You have indicated that the Senate Constitutional Rights Subcommittee has scheduled hearings on the bills for May 9, 10, and 11. The Commission's authority involves the fields of antitrust and trade regulation and, except in rare instances, the relief it seeks is civil in nature. Some of the statutes the Commission administers contain criminal penalty provisions, such as the Wool, Fur, Textile and Flammable Fabrics Act, enforceable through the Attorney General. For the most part, however, the Commission's duties are not concerned with laws in the criminal area. This Commission does not, and has never found any need to, engage in wiretapping or eavesdropping in its enforcement activities. It has no authority under existing law to engage in such practices and does not seek authority from the Congress to do so. Because of time limitations, this report has not been submitted in advance to the Bureau of the Budget. By direction of the Commission: PAUL RAND DIXON, Chairman. GENERAL SERVICES ADMINISTRATION, Hon. SAM J. ERVIN, Jr., Chairman, Committee on the Judiciary, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: Your letter of April 27, 1961, requests the views of the General Services Administration on the bills S. 1086, S. 1221, and S. 1495, which are concerned with matters of wiretapping and eavesdropping. S. 1086 would authorize certain communications to be intercepted in compliance with State law. This bill, however, concerns the activities of law enforcement officers or agencies of the States and does not affect activities of GSA officials and employees. S. 1221, with respect to eavesdropping by authorized agents of a Federal law enforcement agency, concerns the operations of GSA only to the limited extent of law enforcement in Government buildings over which this agency has jurisdiction. S. 1495 affects both the law enforcement and investigative operations of GSA. On the basis of past experience, it is not anticipated that this agency would make extensive use of the authority specified in this bill. Although S. 1221 and S. 1495 are of some interest to GSA, their practical application to our operations is limited. For this reason, GSA would defer to the views of the Department of Justice and other major law enforcement agencies on these bills. In view of the above, we respectfully suggest that this agency be excused from appearing before the Senate Constitutional Rights Subcommittee or from furnishing a prepared statement for the record. It is not anticipated that enactment of the subject bills will have any significant financial effect on the operations of GSA. The Bureau of the Budget has advised that, from the standpoint of the administration's program, there is no objection to the submission of this report to your committee. Sincerely yours, JOHN L. MOORE, Administrator. FEDERAL POWER COMMISSION, Washington, May 11, 1961. Re S. 1086, S. 1221, and S. 1495, 87th Congress, 1st session, wiretapping and eavesdropping. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I appreciate your letter of April 27, 1961, inviting my views on the proposals embodied in the bills referred to above by appearing in person at the hearings or by submitting a statement. The Federal Power Commission, as you doubtlessly are aware, is concerned in general with the regulation of the interstate aspects of the electric power and natural gas industries. While it is true that in the performance of its functions hearings are held at which evidence is taken, it is not the type of evidence which is usually obtained by wiretapping or similar methods, and, in any event, our staff does not employ such methods. The subject matter of these bills is not applicable to our proceedings and, consequently, any views the Commission might have would not be based on its administrative experience. In the circumstances, we do not desire to offer any comment concerning the bills. Sincerely yours, JEROME K. KUYKENDALL, Chairman. INTERSTATE COMMERCE COMMISSION, Hon. SAM J. ERVIN, Jr., OFFICE OF THE CHAIRMAN, Washington, D.C., May 3, 1961. Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR CHAIRMAN ERVIN: This is in reply to your letter of April 27, 1961, advising of the current activities of your subcommittee in the area of wiretapping and eavesdropping practices of law enforcement officers and private individuals, and inviting me or another respresentative of the Commission to appear and testify at the hearings scheduled for May 9, 10, and 11 on bills S. 1086, S. 1221, and S. 1495—all of which relate to wiretapping and eavesdropping. The Interstate Commerce Commission, as you know, does have certain investigatory and enforcement responsibilities in the transportation field. Its investigators and enforcement officers, however, do not engage in wiretapping or eavesdropping in the performance of their duties. For this reason, and since the proposed measures would not affect the Commission's work in other respects, it does not appear that we are in a position to offer constructive comments thereon at the forthcoming hearings. Therefore, unless you know of some way in which the Commission could be helpful to you or the subcommittee in this matter, I shall assume that you agree with me that the Commission should defer to those having experience and direct responsibilities in this area, and that no useful purpose would be served by the Commission's participation in the hearings. Sincerely, EVERETT HUTCHINSON, Chairman. Hon. SAM J. ERVIN, Jr., DEPARTMENT OF THE INTERIOR, Chairman, Subcommittee on Constitutional Rights, DEAR SENATOR ERVIN: Thank you for the invitation for a representative of this Department to attend the hearings scheduled for May 9, 10, and 11 on S. 1086, S. 1221, and S. 1495 relating to wiretapping and eavesdropping. While we are very much interested in the subject from the standpoint of constitutional rights and governmental policy, the effect of the bills on the work of this Department would not be sufficiently direct to warrant the submission of specific recommendations. Your thoughtfulness in offering us the opportunity, however, is appreciated, and we hope that your study will be a fruitful one. Sincerely yours, D. OTIS BEASLEY, Secretary of the Interior. STATEMENT OF THE FEDERAL COMMUNICATIONS COMMISSION ON S. 1086, S. 1221, AND S. 1495, BILLS DEALING WITH WIRETAPPING AND EAVESDROPPING (SUBMITTED FOR THE RECORD, MAY 24, 1961) This statement is submitted to present the views of the Federal Communications Commission regarding S. 1086, S. 1221, and S. 1495, bills which deal with wiretapping and eavesdropping. Since these bills primarily set out the conditions under which eavesdropping or the interception of communications shall be permitted by law enforcement officers, matters pertaining to the proper scope of such legislation as well as appropriate penalties for violations would seem to be matters within the unique responsibility of Congress. Inasmuch as this Commission is the Government agency with the primary responsibility in the regulation of communications by wire and radio, we should like to state that, while we are sensitive to the need for balancing the privacy of communications against the need for the Nation to protect itself from subversion and crime, we feel that any enactment impinging on the secrecy of communication should be circumscribed with the most careful safeguards. Inasmuch as the Department of Justice is the agency primarily responsible for the enforcement of section 605 of the Communications Act, we will restrict our comments generally to the effects the proposed legislation would have on this Commission's regulatory responsibilities. We have no problem with S. 1086. However, S. 1221 and S. 1495, as presently drafted, would seem to prohibit, or at least severely restrict, presently authorized radio monitoring by both this Commission and radio licensees who operate on shared channels. Such prohibitions or restrictions would have a substantial adverse impact on the Commission's regulatory authority over radio communications. Such a result can be avoided by appropriate language specifically exempting radio monitoring by both the FCC and, where necessary, by certain FCC radio licensees. This Commission's radio monitoring has been carried on almost from the beginning of the regulation of radio by the Federal Government. It is the only feasible way to supervise the use of the airwaves to insure that radio stations are operating on their assigned frequencies, with authorized power, that the stations are being used for the purposes set out in their licenses, and that the requirements contained in the Communications Act and the FCC rules are being met. The only serious challenge that has been made to this authority was in United States v. Sugden ((9th Cir. 1955) aff'd per curiam, 351 U. S. 916 (1956)). In that case, the court held, with the Supreme Court affirming, that the Commission could monitor radio communications for the purpose of enforcing the act, but that the information obtained could not be disclosed except in connection with the Commission's necessary policing for violation of the act.' The Commission's monitoring authority might be seriously questioned if provision is not made for it in S.1221 and S. 1495. S. 1221 presently provides a criminal penalty in section 571 for a person who engages in eavesdropping "(3) where the conversation, discussion, or communication overheard or recorded is by wire or radio. Section 570(1) (b) of S. 1221 defines eavesdropping in pertinent part, as referring to a situation in which a person not present during a conversation or discussion willfully and by means of instrument overhears or records such 1 The subcommittee might also wish to consider an appropriate amendment to sec. 605 to allow the FCC to turn over evidence of the violation of Federal law which is obtained by the lawful monitoring of radio communications to an appropriate law enforcement agency. Under the Sugden case, for instance, a Commission monitoring officer would be in violation of sec. 605 if, in the course of his lawful monitoring activities, he heard communications not intended for the general public which would tend to indicate the commission of acts of espionage, smuggling, or other crimes and disclosed those communications to the Department of Justice. We feel that the Congress may well wish to remedy this situation. |