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STATE OF HAWAII,
Honolulu, June 27, 1961. DEAB SENATOR ERVIN: My sincere apologies for not having replied earlier to your letter of April 13, requesting a summary of our State laws on wiretapping and eavesdropping. At that time, our State legislatore was having its first general session and we were in the midst of reorganization and legislative problems.
In checking our local law, I find wiretapping and eavesdropping problems have been very minor and have not been of sufficient consequence to require as yet litigation within Hawaiian courts. There has not been any legislation on either wiretapping or eavesdropping in Hawaii.
As I am a member of the Criminal Law Committee of the National Association of Attorneys General, my views and comments on the matter of wiretapping and eavesdropping and related subjects, including the advisability of the establishment of a National Advisement Committee on Interstate Crime, will be reflected in the report submitted by that committee to your body. Very truly yours,
SHIRO KASHIWA, Attorney General.
STATE OF ILLINOIS,
Springfield, May 18, 1961. DEAR SIR: I enclose herewith a copy of the statutes of Illinois relating to eavesdropping and wiretapping in accordance with your request of April 13, 1961.'. I regret the delay in replying but through inadvertence your letter was mislaid. Yours very truly,
WILLIAM G. CLARK, Attorney General.
STATE OF INDIANA,
Indianapolis, April 21, 1961. MY DEAR SENATOR ERVIN: This is to acknowledge receipt of your letter dated April 13, 1961, requesting information concerning existing Indiana law with reference to (1) wiretapping, and (2) eavesdropping.
The only statutory enactment currently in existence with reference to wiretapping is the acts of 1905, chapter 169, section 630, as found in Burns' "Indiana Statutes" (1956 Repl.), section 10_4901, which reads as follows:
"Whoever, being an operator, clerk, servant, messenger, or employee of any telegraph company or telephone company, discloses the contents of any dispatch or message sent or received from any office of such company, or any conversation or communication between persons over the line of any such telephone company, except to a court of Justice, or to a person authorized to know the same, shall, on conviction, be fined not less than ten dollars ($10.00] nor more than five hundred dollars ($500.00)."
In addition to the above, the 92d session of the general assembly passed H. 388, which act will become effective when published and promulgated by the secretary of state. This act concerns the unlawful procurement of telecommunication services, and insofar as pertinent, reads as follows:
"SECTION 1. Any individual, corporation, or other person, who, with intent to defraud or to aid and abet another to defraud any individual, corporation, or other person, of the lawful charge, in whole or in part, for any telecommunications service, shall obtain, or attempt to obtain, or aid and abet another to obtain or to attempt to obtain any telecommunications service:
• Statutes, prohibiting all wiretapping and eavesdropping, reprinted at pp. 29–32, "State Statutes on Wiretapping."
“ (d) by installing, rearranging, or tampering with any facilities or equipment, whether physically, inductively, acoustically, or electronically; shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be imprisoned not exceeding one year or fined not exceeding one thousand dollars, or both, in the discretion of the court."
You will note that the above requires intent to defraud of the lawful charge for telecomununications service. In my opinion, therefore, it is not strictly a “wiretapping" law.
We have in this State no statute concerning "eavesdropping" as such. The only judicial determinations bearing on this subject appear to be with relation to testimony by a third person concerning privileged communications. The decisions to which I have reference concern third persons present when such communications were made.
I have been unable to find any decisions treating instances of conscious, secretive eavesdropping.
One decision, Davis v. State (1928), 200 Ind. 88, 161 N.E. 375, held that where identity bas been established, a telephone switchboard operator could properly testify as to a telephone conversation between codefendants in a prosecution for conspiracy to explode a bomb in a hotel in which strikebreakers were housed. This decision would appear to relate more to "eavesdropping" than to "wiretapping," but since it treated a telephone conversation, I bring it to your attention.
I have no specific recommendation concerning the desirability or need for Federal legislation in this area since the problem has not arisen as yet in Indiana. Sincerely,
EDWIN K. STEERS, Attorney General of Indiana.
STATE OF IOWA DEPARTMENT OF JUSTICE,
Des Moines, April 21, 1961. DEAR SENATOB EBVIN: This will acknowledge receipt of your letter of April 13, 1961, in which you request information concerning the law of Iowa on wire tapping and eavesdropping.
Section 716.8, 1958 code of Iowa, provides :
"Any person who shall wrongfully or unlawfully tap or connect a wire with a telephone or telegraph wire of any person, company, or association engaged in the transmission of messages on telephone or telegraph lines between the states or in this state shall be fined not more than $500 or imprisoned in the county jail not exceeding six months."
There are no reported Iowa cases dealing in any way with this statute, and we are therefore unable to provide any specific information with regard to the position of our supreme court on wiretap evidence. Our court has, however, stated its position on the admissibility of evidence obtained illegally, as follows:
"Assuming, but not holding, that the search was illegal since it was done without benefit of a search warrant, the articles obtained thereby are admissible in evidence if otherwise admissible. This is the established rule in this state. State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Rollinger, 208 Iowa 1155, 225 N.W. 841 ; State ex rel Kwle v. Bisignano, 238 Iowa 1060, 28 N.W. 2d 504." State v. Smith, 247 Iowa 500, 503, 73 N.W. 2d 189 (1955).
On the basis of the above decisions, it appears quite likely that the Supreme Court of Iowa would hold wiretap evidence admissible in the courts of this State. As chief law enforcement officer of this State, I am in full accord with this position. It would certainly seem that the public policy served by punishing those who obtain evidence illegally would not be served by excluding such evidence, otherwise admissible in criminal prosecutions.
If the exclusion of such evidence in the Federal courts is merely a judicially created rule of evidence, Congress could of course, make such evidence admissible by statute. I believe that such action would be desirable and would certainly recommend that it be taken. Very truly yours,
Evan HULTMAN, Attorney General of Iowa.
STATE OF KANBAS,
Topeka, Kans., April 26, 1961. DEAR SENATOR ERVIN: This is to acknowledge your letter of April 13, 1961. You there asked after the laws of the State of Kansas concerning (1) wire tapping, and (2) eavesdropping. As to No. 1 you are advised that we have no State statutes relating directly to the subject of wiretapping. As to eaves. dropping, this office is not certain as to the nature of the information desired by you thereon. You are advised that our legislature has not deemed it needful to legislate in this area for the people of Kansas. We have no common law crimes in this State.
If I can be of further assistance in this inquiry, I shall be most happy to furnish you such information as possible upon request. Very truly yours,
WILLIAM M. FERGUSON,
COMMONWEALTH OF KENTUCKY,
Frankfort, May 4, 1961. DEAR SENATOR ERVIN: My apology for the delay in acknowledging your letter of the 13th of last month in connection with wiretapping and eavesdropping legislation under consideration by your committee, but I have delayed hoping that the pressure of events would ease suficiently to make it possible for me to assign the subjects for the study and review their importance deserves. Unfortunately this has not been possible and I am, therefore, afraid that this office will not be able to make a contribution at this time.
I am attaching, for your information, a copy of KRS 433.430, concerning wiretapping. We fail to find any statute covering eavesdropping. With every best wish, I am, Sincerely yours,
JOHN B. BRECKINRIDGE,
STATE OF LOUISIANA,
Baton Rouge, April 18, 1961. MY DEAB SENATOR: As requested in your letter of April 13, there is enclosed herewith copy of our Louisiana wiretapping statute.
I will advise you further as soon as possible on the subject matter of letter of April 13. Yours very truly,
JACK P. F. GREMILLION,
The statute penalizes interference with telegraph or telephone lines. Reprinted, p. 39, "State Statutes on Wiretapping."
6 The statute, sec. 332, uitle i4, Louisiana Revised Statutes Annotated, probibits wire tapping and provides that the section shall not be construed to prevent officers of the law, while in actual discharge of their duties, from tapping in on wires for the purpose of obtaining Information to detect crime. It is reprinted at p. 40, "State Statutes on Wiretapping."
STATE OF MAINE,
Augusta, April 19, 1961. DEAB SENATOR ERVIN: In reply to your letter of April 13, please be advised that the State of Maine has no statutes relating to wiretapping or eavesdropping.
These methods are sometimes used by law enforcement authorities here to gain information to aid in investigation, but have never been used as evidence. I, therefore, do not feel qualified to render any constructive comments on the desirability or need of Federal legislation in this field. Sincerely yours,
FRANK E. HANCOCK,
STATE OF MARYLAND,
Baltimore Md., May 3, 1961. DEAR MR. ERVIN : The Honorable Thomas B. Finan, attorney general of the State of Maryland, has referred to me your recent letter pertaining to wire tapping and eavesdropping. I am pleased to summarize for you the Maryland law regarding those matters. Article 35, section 92, of the Annotated Code of Maryland sets out that the interception and divulgence of a private telephonic or telegraphic communication by any person not a party thereto is contrary to the public policy of this State and it shall not be permitted except by court order in unusual circumstances. The sections immediately following set out the re quirements for obtaining such a court order and make it a misdemeanor for any person to engage in wiretapping without first having obtained same. Excepted from this statute, of course, are officers, employees, or agents of a telephone or telegraph company when performing the duties necessary for construction or maintenance of telephonic and telegraphic service, and agents or officials of the Federal Bureau of Investigation or any other Federal investigating agency.
The statute sets out that an ex parte order for wiretapping may be issued by any judge of the Circuit Court of the State of Maryland upon the application of the attorney general or any State's attorney or any duly constituted police officer. The application must state that there are reasonable grounds to believe that a crime has been committed or is about to be committed, that there are reasonable grounds to believe that evidence will be obtained essential to the solution of such a crime or which might prevent such a crime and that there are no other means readily available for obtaining such information.
If the statements in the application are made solely upon the information and belief of the applicant, the grounds for the belief must be given and the applicant must state whether any prior application has ever been made to obtain a wiretapping permit on the same instrument or from the same person. The application and any order issued under this section must identify as fully as possible the particular line from which the information is to be obtained and the purpose thereof and the court has the right to examine upon oath or affirmation the applicant and any witness the applicant desires to produce or the court requires to be produced. No order issued under this section shall be effective for a period longer than 30 days, but the court may upon application, and in its direction, renew or continue the order for an additional 30 days.
No other wiretapping evidence than that obtained in conformity with the provisions of this statute shall be admissible in evidence, and then only in the prosecution for the crime or crimes specified in the court order and then it shall be used only in the circuit courts of this State or in the criminal courts of Baltimore City.
Punishment for tapping wires in any other manner than that prescribed in this statute may be a fine of not more than $1,000, or imprisonment for not more than 90 days, or both.
Maryland does not have a statute nor any other stated policy pertaining to eavesdropping. Baltimore City, however, has an ordinance (No. 231 of the “Ordinances and Resolutions of the Mayor and City Council of Baltimore, 1955–56") making it a misdemeanor for any person in the city of Baltimore to use any electronic device or other device or equipment of any type whatsoever in such manner as to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent of that other person, without having first applied to any of the judges of the supreme bench of Baltimore City by means of a formal ex parte petition for the issuance of an order authorizing the use of the said electronic devices or equipment. The right to apply for such a permit is restricted to the duly authorized public law enforcement officers of the city of Baltimore, who are required to make oath in the said petition that there is probable cause to believe that a crime may be or is being committed or has been committed, and that the authority sought in the application is necessary to prevent the crime or to apprehend the wrongdoer. The other provisions for obtaining such a permit are similar to those prescribed by the State in the statute described above. This ordinance does not except the Federal Bureau of Investigation or any other Federal investigating agency from its provisions.
Violations of that ordinance are punishable by a ine not exceeding $500 or imprisonment not exceeding 1 year, or both.
I hope that this information is satisfactory for your purposes, but if we can be of any further assistance, please do not hesitate to call on us. This office has no specific recommendations to make to your committee on the question of Federal legislation in these matters, but we will watch further developments with a great deal of interest. Very truly yours,
ROBERT F. SWEENEY, Assistant Attorney General.
THE COMMONWEALTH OF MASSACHUSETTS,
Boston, April 27, 1961. DEAB SENATOR ERVIN : Thank you for your letter of April 13.
I am pleased to enclose a copy of the Massachusetts law on eavesdropping,' in whose enactment I played a leading role 2 years ago, and a press release I issued shortly before its passage.
I think that the best summation of my views on the matter can be found in the proceedings of the National Association of Attorneys General. With all best wishes. Very truly yours,
EDWARD J. MCCORMACK, Jr.,
FROM THE OFFICE OF THE ATTORNEY GENERAL, STATE HOUSE, Boston, FEBRUARY 4,
Reversing a policy of the attorney general's office of long standing, Attorney General Edward J. MeCormack, Jr., has announced his support of legislation which would amend the present eavesdropping statute to require court permission for prosecuting officials to make a wiretap.
“In imposing this type of restriction on indiscriminate wiretapping," said the attorney general, “I am certain that the preservation of the basic right of privacy of the individual can be maintained without detriment to effective law enforce ment."
The attorney general presented his views in person to the joint committee on rules of the legislature at a meeting to consider the amendments held at the statehouse on February 3.
The present law allows the attorney general or any district attorney to make a tap at any time on his own initiative. The various proposed amendments filed
6 The Statute, General Laws, 1959, ch. 272, sec. 99, regulates wiretapping and eaver dropping
under court order, and is reprinted at pp. 49–60, "State Statutes on Wiretapping."