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Mr. PARKER. They are enforcible probably to this extent, and this I think Mr. Dash, who wrote “The Eavesdropper,” will tell you the same thing. He said apparently the only people affected by the ban on wiretapping are the lawenforcement agencies, because the criminals continue it.
We are in this asinine situation. If I suspected you of being a blackmailer I could not tap your wire while you were blackmailing somebody because the policeman does not do that. The criminal does not care much about the law anyway, or he would not be violating it. He knows it is extremely difficult.
Mr. Dash-I might not be accurately quoting him exactly, but there are some people who believe all we have done in this prohibition is to stultify the police, and we have in no way interfered with the blackmailer and criminals. They are just going great guns with great impunity.
Mr. NEWMAN. What is your comment on that, Mr. Williams?
Mr. WILLIAMS. Well, my comment on that is I am sure Chief Parker is not suggesting that law-enforcement officers emulate the criminals they are seeking to apprehend.
Mr. PARKER. Only legal wiretrapping; that is all I am for.
Mr. WILLIAMS. Just because a man is committing a crime violating the wiretapping statute this certainly is not justification for the police to do the same thing.
Mr. PARKER. I am not suggesting that. Mr. NEWMAN. But are controls against wiretapping and eavesdropping enforcible?
Chief Parker said he thought they were extremely difficult to enforce.
Mr. WILLIAMS. I think they are enforcible. They are as enforcible as any law against clandestine crime.
We know different crimes have types. Open violence and passion. Then there are crimes that are surreptitiously committed.
I believe that the wiretapping statutes, the prohibitions against wiretapping, are capable of being enforced, as well as the probibitions against any acts which are of their nature clandestine or secretive.
Mr. NEWMAN. Are there any distinctions, Chief, we should make between wiretapping and eavesdropping? We have spent a great deal of time talking about wiretapping.
Mr. PARKER. There is a very basic distinction. Wiretapping deals with the interception of electronic messages, and does not require that I be on the premises where the conversation is emanating from, or the premises where it is being received.
Eavesdropping, of course, the ear could be used for that, or you can extend it electrically, or place on premises or near premises a device that will enable you to hear the sounds emanating from those premises, and you might get one part of a telephone conversation, but you are limited to the sounds within the scope of that particular device, and it has nothing to do with intercepting the wire, but there is a trespass involved in many of these cases, which Mr. Williams referred to was brought up by the Supreme Court in its dictum, and two of the Justices out of the nine referred the case to the Attorney General of the United States from the standpoint of possibly prosecuting the Long Beach policemen for violation of the Federal Civil Rights Act for doing something which the State law of California permitted them to do.
I do not know what happened to the Attorney General. He did not make a report on it, but he did not prosecute the policemen. When we read that we said our State law no longer is good, so we stopped it.
Mr. WILLIAMS. Chief, may I ask you a question ?
Mr. WILLIAM8. As you probably know, as a knowledgeable officer of the law, and lawyer, there is now a device which is capable of turning any telephone into a highly sensitive microphone even when the receiver is on the hook, and transmitting the sounds in the room where the phone is located for several miles.
Now, would you use that device in California in a hunt for evidence?
Mr. PARKER. I have never heard of the device, but I have got one here, if you are worried ; if you will get this, it scrambles your telephone conversation, and no wiretaps can find out what you are talking about, and I will give you the ad. You get two of those, the one you are talking to and the one on your end, and it comes out in some kind of a code and the person listening to the conversation gets a lot of gobbledegook.
Mr. WILLIAMS. Are you suggesting this is the antidote?
Mr. PARKER. I am not afraid of wiretapping. You are. I am sure my wires are tapped by the underworld for years, but I do not worry about it, it is only the guilty who flee.
Mr. WILLIAM6. I am afraid of it, Chief Parker, because I would hate to think that the rights which we fought so hard for in this country, and which are articulated in the Bill of Rights, would be tossed away in such cavalier fashion as to be tossed away with a dismissal, “I don't care whether privacy is invaded."
Mř. PARKER. I did not say that. I said I did not care whether they tapped my wires or not. That is a professional situation. I was wounded in France in World War II, so don't start telling me who fought for their country. Do not get the idea I was not over there too. Mr. WILLIAMB. I am very sorry you were wounded, sir. Mr. PARKER. The personal references—I fought for the same thing. Mr. NEWMAN. We have come to the end of this rather strenuous debate.
Thank you for being with us, Chief Parker and Mr. Williams. Thank you in the studio audience. This is Edwin Newman. Goodnight.
SURVEY OF VIEWS OF STATE ATTORNEYS GENERAL
The attorneys general of 45 States responded to a letter from the subcommittee chairman asking them to summarize their State statute and case law relating to wiretapping and ea vesdropping, and inviting them to express their views on the desirability of Federal legislation on these subjects.
ANALYSIS OF SURVEY REPLIES
THE LIBRARY OF CONGRESS,
Ilashington, D.C., July 21, 1961.
tapping or eavesdropping, State case law concerning use of illegally obtained
evidence, and Federal legislation on wiretapping or eavesdropping. Fifteen of the attorneys general who replied to the subcommittee's inquiry advised that their States have no laws about wiretapping. Twenty-eight referred to statutes which forbid wiretapping. Nine mentioned laws against eavesdropping.
States said to have no wiretapping laws are: Arkansas, Georgia, Hawaii, Kansas, Maine, Mississippi, Missouri, New Hampshire, Ohio, South Dakota, Tennessee, Texas, Vermont, Virginia, Wisconsin. States reported to have laws against wiretapping are:
Alabama : Recompiled Code of 1958, title 14, section 84; title 48, sections 414, 416.
Alaska : Compiled Laws Annotated, 1949, section 49-5-12.
Nebraska : Revised Statutes, 1943, section 86.328.
Pennsylvania : Purdons Statutes Annotated, title 15, chapter 43, section 2443.
Rhode Island : General Laws, title 11, chapter 35, section 12.
Wyoming: Statutes 1957, section 37-259. Four of the above States, Maryland, Massachusetts, Nevada and Oregon, permit wiretapping by public officers upon authorization by a court in certain circumstances.' The Louisiana law expressly declares that it shall not be construed to prevent officers of the law, while in the actual discharge of their duties, from tapping in on wires or cables for the purpose of obtaining information to detect crime.
In 10 of these States, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Nevade, New Jersey, Oregon, Pennsylvania and Rhode Island, the wiretapping laws apparently are designed to protect the privacy of users of telephone service. This also seems to be the import of the Louisiana statute, although its purpose is not so clear. Michigan's law seems to have the twofold purpose of protecting users from invasion of their privacy, and telephone and telegraph companies from malicious mischief and unauthorized use of their facilities. The other statutes cited appear to have been originally intended to protect communications companies, but since they expressly prohibit wiretapping, they may have a wider application. The attorneys general of Florida, Montana, North Dakota and Wyoming called attention to the uncertainty as to the intent of their laws.
Indiana has just passed a law H. 388, 92d session, Indiana General Assembly, which penalizes anyone, who, with intent to defraud any person of the lawful charge for telecommunications service, attempts to obtain such service by tampering with communications facilities. The attorney general of Indiana expressed the opinion that this is not strictly a wiretapping law. He also mentioned another act, Burns Indiana Statute (1956 replacement) section 10_4901, which forbids employees of a telephone or telegraph company to disclose communi. cations over the line of such company except to a court of justice or to a person authorized to know the same.
The attorney general of North Carolina reported that 'we have statutes which prevent the disclosure of telephonic messages, telegraphic messages, or which prohibit the unauthorized opening, reading or publishing of sealed letters and telegrams. In my opinion we do not have any statute or law which prohibits law-enforcement officers of the State from tapping wire or intercepting messages or conversations by any method or manner whatever and the recording of same."
The statutes cited by the attorneys general of the following States forbid the admission in evidence of, or penalize the giving of testimony concerning, information acquired by illegal wiretapping :
Delaware: Code Annotated, title 11, section 757.
Pennsylvania : Purdon's Annotated Statutes, title 15, chapter 43, section 2443
Rhode Island: General Laws, title 11, chapter 35, section 13.
North Dakota : Revised Code of 1943, section 12-42-05.
Five have statutes against eavesdropping by listening or recording devices :
California : Statute not cited.
Oregon: Revised Statutes, section 165.536–165.540.
The attorneys general of six States expressed the opinion that illegally obtained evidence is admissible in the courts of their States. Two others said eridence obtained in violation of constitutional right is inadmissible, but they believe evidence obtained by wiretapping would be received. Another said illegally obtained evidence is excluded and the admissibility of evidence obtained by wiretapping has not been determined. One attorney general cited a decision declaring wiretap evidence inadmissible, another a statute excluding all illegally obtained evidence in criminal cases. The States said to admit illegally obtained evidence are:
Iowa: State v. Smith (247 Iowa 500, 73 N.W. 2d 189).
New Hampshire: State v. Mara (96 N.H. 463). State v. Tracy (100 N.H. 287).
North Dakota : State v. Fahn (53 N.D., 203, 205, N.W. 67).
Ohio: State v. Lindway (131 Ohio Stat. 166 2 N.E. 2d 490) certiorari denied 209 U.S. 506; State v. Mapp (170 Ohio Stat. 427, 166 N.E. 2d 387).
(NOTE. Since the date of the attorney general's reply State v. Mapp has been reversed by the U.S. Supreme Court, 29 Law Week 4798. There the defendant was convicted of possessing lewd books etc. which had been seized during an unlawful search of her home. The Supreme Court held that "Since the 4th amendment's right of privacy has been declared enforceable against the States through the due process clause of the 14th, it is enforceable against them by the same sanction of exclusion (of evidence obtained in violation of the 4th amendment) as is used against the Federal Government." This case throws no new light in the use of information obtained by wiretapping.)
Utah: No case cited.
Vermont: No case cited. States which exclude evidence obtained in violation of constitutional right, but which have admitted, or which the attorney general believes would admit, evidence obtained by wiretapping are:
Washington: Evidence obtained in violation of constitutional right inadmissible: State p. Gibbons (118 Wash. 171, 203 p. 390); State v. Greco (52 Wash. 20 265, 324 p. 1056); evidence obtained by eavesdropping admissible, State v. Slater (36 Wash. 2d 357, 218 p. 2d 329).
Wisconsin: No case cited. The attorney general of Wyoming declared that the courts of his State exclude illegally obtained evidence, but that they have not ruled on the admissibility of evidence obtained by wiretapping.
In Griffith v. State (111 So. 2d 282) cited by the attorney general of Florida, a State district court of Appeal said, by way of dictum, that tapping of tele phone wires and listening in by law-enforcement officers violates the State constitution and evidence thus obtained is inadmissible in criminal prosecutions in State courts.
The attorney general of Texas cited a statute, Vernon's Annotated Code of Criminal Procedure of Texas, article 727a, which expressly forbids use in criminal cases of evidence obtained in violation of the Constitution on laws of the United States or of the State.
Eight attorneys general favored Federal legislation to permit State officers to engage in wiretapping either generally or in stated circumstances. These were: Alaska, Nebraska, New Jersey, Rhode Island, South Dakota, Vermont, Wisconsin, and Wyoming.
The attorney general of Mississippi took the position that wiretapping should be permitted "in proper cases and that reasonable and workable standards should be determined so that society would have some legal protection against the activities of criminals * *." The attorney general of North Carolina asked the subcommittee "to confine the proposed laws to the administration of Federal matters and the activities of Federal officers and to leave the States free to permit their officers to intercept communications for admission in the courts of the State in criminal actions."
The attorneys general of Iowa and Utah favored action by Congress to permit the use as evidence of information obtained by wiretapping, at least under certain conditions. Senator Keating's bill was endorsed by the attorney general of New Jersey ; Senator Dodd's by the attorney general of Rhode Island.
The attorneys general of Delaware, Missouri, and New Mexico oppose a Federal law to permit wiretapping. Those of Alabama and Oklahoma see no need for such legislation. The attorney general of California indicated a preference for a complete ban on wiretapping but suggested that if wiretapping is permitted under court order, the practice should be confined to licensed public utilities who would perform the tapping and report to the court. Florida's attorney general said he would not want to "set up by Federal law any further protection for gamblers in the communication of racetrack results."
The attorneys general of Hawaii and Massachusetts referred to the proceedings of the National Association of Attorneys General for the expression of their views. The letters and statements forwarded to us are returned herewith.
MARY LOUISE RAMSEY, Legislative Attorney.
STATE OF ALABAMA,
Montgomery, Ala., July 10, 1961. DEAR SENATOR ERVIN : In your letter to me under date of April 13, 1961, you requested a summary of State laws of Alabama concerning wiretapping and eavesdropping, and requested my opinion on the desirability of Federal legislation in this area.
Your letter to me under date of June 20, 1961, makes a similar request.
Alabama statutes which prohibit wiretapping or the interception of telephone and telegraph messages in Alabama are found in title 48, sections 414 and 416, Code of Alabama Recompiled 1958, and also in a part of title 14, section 84, subsection 18, Code of Alabama Recompiled 1958. These sections provide as follows:
"& 414. Tapping telegraph or telephone wires. Every person who shall make a connection, by wire or otherwise, with any telegraph or telephone wires, not owned or leased by him, for the purpose of obtaining information or listening to the transmission of telegraphic dispatches or telephone messages to which he is not entitled ; and any person who wrongfully obtains or attempts to obtain any knowledge of a telegraphic or telephone message by connivance with a clerk, operator, messenger or other employe of a telegraph or telephone company, or who being such clerk, operator, messenger, or other employe, wilfully divulges to anyone but the person for whom it was intended the contents or nature of a telegraphic or telephone message or dispatch, of which contents he or she may in any manner become possessed, shall be fined not more than five hundred dollars."
"8 416. Telephone or telegraph message not disclosed by the telephone or telegraph company.-Any owners, manager, operator, or employe, of any telegraph or telephone lines operated in the State of Alabama who shall publish or communicate in any way whatsoever, or cause or allow to be communicated, the contents of any telegram or telephone message sent or received over said line or lines without the consent of either the sender or receiver of the same, shall be guilty of a misdemeanor, and, on conviction, shall be fined not less than twenty-five dollars, nor more than one hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than twelve months." "8 84. Injuring public
utilities.-Any person who shall willfully or maliciously remove, damage or destroy :
“(18) Who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line; or
"Shall be guilty of a misdemeanor.”