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Section 416, supra, has been held not to try to apply to the testimony of a telephone operator listening to a conversation when such is presented in a criminal case in Alabama courts. Hall v. State, 208 Ala. 199, 201, 94, So. 59; Morris v. State, 25 Ala. App. 156, 161, 142 So. 592.
I am not aware of any present need in the State of Alabama for further Federal legislation. Yours very truly,
Attorney General. By BERNARD F. SYKES,
Assistant Attorney General.
STATE OF ALASKA,
Juneau, June 28, 1961. DEAR SENATOR ERVIN: This is in reply to your letter of June 20, 1961, in which you request a summary of Alaska's law on wiretapping and eavesdropping, and my opinion on the desirability of Federal legislation in this area.
Alaska has no legislation or case law regarding eavesdropping. However, section 49 5–12, Alaska Compiled Laws Annotated, 1949, provides in part:
"* * * if any person shall tap any wire or line used for the transmission of such message, current, or power, or shall procure or advise the same to be done; the person so offending shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $500, imprisonment not to exceed 6 months, or by both such fine and imprisonment in the discretion of the court* * .
This is our only legislation regarding wiretapping and as of this writing we have no case law interpreting it.
In my opinion, Federal amendatory legislation in this area would be desirable. Although we have not had a great deal of contact with it, it seems to me that the provisions of section 605 of the Federal Communication Act are somewhat more stringent than they need to be. A desirable alternative to the blanket prohibition which now exists might be something similar to the New York approach, which provides for procurement of a warrant to wiretap on a showing of probable cause. The procedure is similar to obtaining a search warrant. An approach of this type would provide a tool with which law enforcement bodies could work effectively, and at the same time offer the public a measure of protection from "the police state." If I can be of further assistance, please do not hesitate to contact me. Very truly yours,
RALPH E. MOODY, Attorney General. By GARY THURLOW,
Deputy Attorney General.
DEPARTMENT OF LAW,
Phoenix, Ariz., May 10, 1961. DEAR MR. ERVIN: I respectfully submit the following information setting forth our present State laws and my general views in the field of wiretapping and eavesdropping.
Sections 13-886, 13–887 and 13-888 of the Arizona Revised Statutes presently read as follows: "813–886 Fraudulent reading or learning of contents of message in telegraph
or telephone office; punishment “A person who, by means of any machine, instrument, or contrivance, or in any other manner, wilfully and fraudulently reads, or attempts to read, a message, or to learn the contents thereof, while the message is in a telegraph or telephone office, or is being received at or sent from such office, or who uses or attempts to use, or communicate to others any information so obtained, shall be punished by imprisonment in the State prison for not to exceed five years, by a fine not exceeding five thousand dollars, or both.
"813–887 Disclosure or alteration of telephone or telegraph message without
authority; punishment “A person who wilfully discloses the contents of a telegraph or telephone message, or any part thereof addressed to another person, without permission of such person, unless directed to do so by the lawful order of a court or judge, or who willfully alters the purport, effect, or meaning thereof, shall be punished by imprisonment in the State prison for not to exceed five years, or by imprisonment in the county jail for not to exceed one year, or by a fine not exceeding five thousand dollars, or by both such fine and imprisonment. "S 13-888 Opening without authority or procuring false delivery of telephone
or telegraph message; penalty “A person not connected with a telegraph or telephone office who, without authority or consent of the person to whom the sealed envelope is directed, wilfully opens such sealed envelope enclosing a telegraph or telephone message addressed to any other person, with the purpose of learning the contents of the message, or who fraudulently represents any other person, and thereby procures to be delivered to himself the message addressed to such other person, with the intent to use, destroy or detain the message from the person entitled to receive it is guilty of a misdemeanor."
Arizona adopted the above-cited statutes shortly after the turn of the century from the laws of the State of California. Judging from the number of cases that have reached our Arizona Supreme Court, it appears that the above-quoted wiretapping laws have either not been fully enforced or the activities in the field of wiretapping within the State of Arizona during the past 50 years have been negligible. In 1918 our supreme court considered the case of state v. Behringer, 19 Arizona 502, 172 P. 2d 660. In this case the court, passing on the proper interpretation of section 13–886 as it then appeared in our Penal Code (Pen. Code 1913, section 692) stated, "It is not a telegraphic message until it is received at the telegraph office. Until it is delivered to the telegraph company, the duty of protecting it's contents devolves upon the sender and the same is true as to telephone messages.” The construction and application of this statute, which prohibited wiretapping back in 1918, did not apply to the act of placing a dictaphone over the transom of a hotel room to overhear messages sent from a telephone transmitter in the room. The above-referred case followed very closely the general California rule of that time.
Obviously the State of California has had a large number of cases coming before its courts interpreting their statutes in this field. In addition, their legislature has kept their laws as to wiretapping and eavesdropping in closer pace with modern technology that has taken place during the past 50 years. Our State has not moved forward on this subject.
My present recommendations would be for the appropriate committee of the Arizona State Legislature to conduct a thorough examination of the various State laws in these fields with the object of revising our own statutes in light of modern techniques and other major changes that have occurred in this field since the enactment of our Arizona wiretapping laws. My personal specific recommendations would include the requirement of prohibiting eavesdropping upon juries. I further feel that our statutes, when enacted, should prohibit eavesdropping without the consent of all parties when one party is either in the custody of a law enforcement agency or other public agencies, and the conversation is with his attorney, religious adviser, or licensed physician.
I appreciate the opportunity to express my views in this particular field and will remain deeply interested in the action that is taken by your subcommittee in resolving the many problems that this subject presents. Very truly yours,
ROBERT W. PICKRELL,
The Attorney General, C. LAWRENCE HUERTA. Assistant Attorney General.
STATE OF ARKANSAS,
Little Rock, April 21, 1961. DEAR SENATOR EBVIN. This will acknowledge your letter requesting information concerning the laws of Arkansas covering (1) wiretapping and (2) eavesdropping.
Arkansas in 1955 passed a rather general act known as the “Peeping-Tom Law" (Ark. Stats. (1959 Supp.) Section 41-1426). Section 2 of this act provides as follows:
"A person who loiters on or about the premises of another for the purpose of spying upon, or invading the privacy of another in a clandestine, surreptitious, prying, or secretive manner, or with evil design, or for the purpose of committing an immoral act, or an act of voyeurism, in the manner or with the design as aforesaid, shall, upon conviction of the first offense, be fined in any sum not less than five hundred dollars ($500.00) nor more than one thousand dollars (1,000.00) or imprisioned in the county jail for a period not less than three (3) months nor more than six (6) months, or both, and on conviction of a subse quent offense, shall be imprisoned in the state penitentiary for a period not less than two (2) years nor more than five (5) years."
In a Law Review article by Mr. Robert R. Wright (9 Ark. Law Review 397) it was pointed out that this act might be extended to include wiretapping. However, to the best of our knowledge no such interpretation has yet been placed on the provisions of this act: If we can be of futher service, please advise us. Yours very truly,
Attorney General. By Sam H. BOYCE, Assistant Attorney General.
SACRAMENTO, CALIF., June 27, 1961. DEAR SENATOR ERVIN: In response to your inquiry of June 20, please be advised that California law prohibits wiretapping and mechanical eavesdropping, and I prefer that the law remain so. If any exception is provided with court approval, the authorization should be only to a licensed public utility to perform the tapping and to report to court, and not to a police agency. Very truly yours,
STANLEY MOBK, Attorney General.
THE STATE OF COLORADO,
DEPARTMENT OF LAW
Denver, April 26, 1961. SENATOR ERVIN: In response to your letter of April 13, 1961 regarding the Colorado law on wiretapping and eavesdropping, please be advised that the following is the only Colorado statute which we have found which is directly in point. Colorado does not have a statute on eavesdropping.
The statute in point is found in the Colorado Revised Statutes, 1953, 40-4-17 and reads as follows:
“Any person who wilfully displaces, removes, injures or destroys any telegraph or telephone line, wire, cable, pole or conduit belonging to another, or the material or property appurtenant thereto, cuts, breaks, taps or makes any connection with any telegraph or telephone line, wire, cable or instrument belonging to another, and wilfully reads, takes or copies any message, communication or report intended for another passing over any such telegraph or telephone line, wire or cable in this state; or who wilfully prevents, obstructs or delays, by any means or contrivance whatsoever, the sending, transmission, conveyance or delivery in this state of any message, communication or report by or through any telegraph or telephone line, wire or cable; or who uses any apparatus to unlawfully do, or cause to be done, any of the acts hereinbefore mentioned: or who aids, agrees with, employs or conspires with, any person to unlawfully do or permit or cause to be done, any of the acts hereinbefore mentioned, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one hundred dollars, por more than one thousand dollars, or imprisonment in the county jail not exceeding one year, or both, in the discretion of the court. Very truly yours,
DUKE W. DUNBAR, Attorney General.
STATE OF CONNECTICUT,
Hartford, April 25, 1961. DEAR SIR: We have before us your letter of April 13, 1961, wherein you request information re wiretapping legislation.
Please find enclosed copy of our wiretapping statute, section 53–140, General Statutes of Connecticut, Revision of 1958, and copies of four bills on this subject presently before our legislature.
As the attorney general's office does not have criminal jurisdiction in Connecticut, we do not venture an opinion as to the desirability or need for Federal legislation in this area. Very truly yours,
ALBERT L. COLES, Attorney General.
STATE OF DELAWARE,
Wilmington, Del., April 20, 1961. DEAR MR. ERVIN: We have your letter of April 13, 1961, concerning your subcommittee's examination of the problem raised by wiretapping to determine to what extent Federal legislation on wiretapping may be desirable or practical.
This State has adopted the following statute on wiretapping:
"Whoever taps or makes connection with any telegraph or telephone line, wire, cable, or instrument belonging to a telegraph or telephone company; or
“Whoever reads, takes copy, makes use of, discloses, publishes or testifles concerning, any dispatch or message, communication or report intended for another passing over such telegraph or telephone line, wire, or cable, in this State: or, whoever aids, employs or conspires with any person unlawfully to do, or permit or cause to be done, any of the acts hereinbefore mentioned
"Shall, for each such offense, be fined not less than $500 or imprisoned not more than 1 year, or both.
"Nothing in this section shall apply to an employee or authorized agent of a telegraph or telephone company.” 11 Del. C., 8757, as amended.
This office has informally interpreted the above statute to apply to members of the various police departments of this State and to this office. Consequently, wiretapping has not been used in this State with official sanction. Our predecessors in this office submitted a wiretapping statute to the State legislature
1 Reprinted in Senate Judiciary Committee print, "State Statutes on Wiretapping," compiled by the Subcommittee on Constitutional Rights, 87th Cong., 1st sess.
which failed of passage. When we took office we did not resubmit our predecessor's bill or one of our own. We feel that a properly drawn bill on wiretapping would be of great help in the prosecution of gambling cases. However, because any wiretapping bill is subject to abuses, we do not believe Federal or State legislation on the subject is desirable. We should add that our views are not shared by all of the law enforcement officials of this State. If we can be of further assistance to you, please do not hesitate to call upon us. Sincerely,
CLEMENT C. WOOD.
STATE OF FLORIDA,
Tallahassee, May 1, 1961. DEAR MR. ERVIN : This will acknowledge receipt of your letter of April 13, 1961, with regard to wiretapping and eavesdropping.
Florida law, constitution or statute, does not specifically condemn eavesdropping as such, that is to say that while a certain activity (admittedly eavesdropping) might be condemned by one of our appellate courts for any one of several reasons, the mere fact that it might be eavesdropping would not itself be sufficient as the basis for condemnation.
Section 822.10, Florida Statutes," a tearsheet copy of which is enclosed, is specifically designed to afford a measure of protection to the utility companies rather than the protection of the privacy of the general citizenry. The only decisions touching on section 822.10, supra, are the cases of Perez v. State, 81 So. 2d 201 ; Williams v. State, 109 So. 2d 379; Griffith v. State, 111 So. 2d 282; and Chacon v. State, 102 So. 2d 578. In one degree or another the aforesaid cases constitute the only existing judicial pronouncements anent the subject in Flordia.
At this writing I have no particular comments, specific or otherwise, on the need for any Federal legislation in this particular area. Trusting I have been of some service to you, I am. Sincerely,
RICHARD W. ERVIN, Attorney General. P.S.—I would not want to set up by Federal law any further protection for gamblers in the communication of racetrack results.
THE DEPARTMENT OF LAW,
STATE OF GEORGIA,
Atlanta, April 21, 1961. DEAR SIR : This is to acknowledge receipt of your letter of April 13, 1961, the fourth paragraph of which reads as follows:
“We are writing to ask whether you as State attorney general, would submit a brief description of your State law covering (1) wiretapping and (2) eavesdropping. Furthermore, the subcommittee would appreciate having your comments on the desirability or need, if any, for Federal legislation in this area, as well as any specific recommendations you might care to make."
The State of Georgia has no statute upon the questions as to (1) wiretapping, or (2) eavesdropping. I would prefer not to make any comments on the desirability or need for Federal legislation upon the questions, nor do I at this time have any recommendations. Sincerely,
The Attorney General,
Assistant Attorney General.
* Reprinted at pp. 23–24, “State Statutes on Wiretapping."