MAINE STATE OF MAINE, DEPARTMENT OF THE ATTORNEY GENERAL, Augusta, April 19, 1961. DEAR 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, MARYLAND FRANK E. HANCOCK, Attorney General. STATE OF MARYLAND, Dear Mr. ErvIN: The Honorable Thomas B. Finan, attorney general of the State of Maryland, has referred to me your recent letter pertaining to wiretapping 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 requirements 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 fine 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, MASSACHUSETTS ROBERT F. SWEENEY, Assistant Attorney General. THE COMMONWEALTH OF MASSACHUSETTS, DEAR 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, 1959 Reversing a policy of the attorney general's office of long standing, Attorney General Edward J. McCormack, 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 The Statute, General Laws, 1959, ch. 272, sec. 99, regulates wiretapping and eavesdropping under court order, and is reprinted at pp. 49-50, "State Statutes on Wiretapping." with the legislature would require these officials to obtain a court order in advance of a tap, or, in case of emergency, a court order validating the tap within 72 hours after it is made. In addition some of the bills would make illegally obtained wiretapped evidence inadmissible as evidence in State court proceedings. In past years attempts to pass such amendments, though receiving strong support both from inside and outside of the legislature, have failed largely on account of opposition from the preceding administrations of attorneys general. "As Mr. Justice Holmes once wrote," the attorney general observed, “wiretapping is a dirty business.' Only the prevention or solution of a major crime could possibly justify its use." The most eloquent statement against wiretapping, he said, was that of Mr. Justice Brandeis in his great dissent in the Olmstead case, where he wrote: "The makers of our Constitution *** conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the fifth." I place myself squarely behind those words. MICHIGAN STATE OF MICHIGAN, DEAR SENATOR ERVIN: This will acknowledge your recent letter as chairman of the Constitutional Rights Subcommittee, making inquiry regarding Michigan law on wiretapping and eavesdropping. Wiretapping in Michigan is a circuit court misdemeanor under the provisions of section 28.808, Michigan Statutes Annotated, being section 750.540, Compiled Laws of 1948, which provides as follows: "Any person who shall willfully and maliciously cut, break, tap, or make any connection with or read, or copy, by the use of telegraph or telephone instruments, or otherwise, in any unauthorized manner, any message, either social or business, sporting, commercial or other news reports, from any telegraph or telephone line, wire or cable so unlawfully cut or tapped in this state; or make unauthorized use of the same, or who shall willfully and maliciously prevent, obstruct or delay by any means or contrivance whatsoever the sending, conveyance or delivery, in this state, of any authorized communication, sporting, commercial or other news reports, by or through any telegraph or telephone line, cable or wire under the control of any telegraph or telephone company doing business in this state, or who shall willfully and maliciously aid, agree with, employ, or conspire with any other person or persons to do any of the aforementioned unlawful acts, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars." We have no statute in Michigan covering eavesdropping. However, in the recent case of People v. Maranian, 359 Mich. 361 (Oct. 15, 1959), our Supreme Court made some rulings on wiretapping. This case involved the making of extortion threats over the telephone. The recipient of these threats gave his consent to a police lieutenant to place a tape recorder on his telephone. Our high court held in that regard as follows: "The recording in exact words of a voice or voices of those engaged in communicating the threats of injury to the victim by placing a recording device on the receiver's own telephone does not constitute wiretapping any more than would the listening in on an extension phone." The court then cited a number of U.S. Supreme Court decisions which upheld the admission in evidence of tape recordings. In the Maranian case our court also held that the existence of section 605 of the Federal Communications Act does not render inadmissible the recordings employed in this State criminal prosecution. The court also held that the admission of such recordings did not violate the statute which we have quoted in full above. It will be noted that in this case the police had the consent of the recipient of the extortion threats but not the consent of the sender. Consequently, it is quite evident that under our Supreme Court rulings, the consent of the sender is not necessary in order for these recordings to be admitted in evidence. If we can be of any further assistance to you, kindly call upon us. Very truly yours, PAUL L. ADAMS, Attorney General. MISSISSIPPI STATE OF MISSISSIPPI, DEAR SENATOR ERVIN: Replying to your letter of the 13th with respect to your present examination of the problems raised by wiretapping and eavesdropping and the extent to which Federal legislation on these subjects may be desirable or practical, there are no decisions of the Supreme Court of Missisippi nor are there any statutes of Mississippi on this subject. Therefore, while I am very much interested in the outcome of your investigation and in what your recommendations might be, not having had the problem presented directly to me, I have not made the critical study into all the ramifications of the problem that would be necessary to intelligently advise with you. Suffice it to say, however, I am definitely of the opinion that such things 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 in this electronics age in which all the laws, statutory and judicial, seem to be in favor of the criminal element and in limitation of the investigative methods of law enforcement agencies. Respectfully yours, JOE T. PATTERSON, Attorney General. Assistant Attorney General. MISSOURI ATTORNEY GENERAL OF MISSOURI, Jefferson City, June 23, 1961. DEAR SENATOR ERVIN: * I shall now attempt to answer your questions as to Missouri law on wiretapping, eavesdropping, etc., and my opinion as to the desirability of Federal legislation. Missouri has no statute either permitting or prohibiting wiretapping or eavesdropping. Back some years ago legislation was introduced in the general assembly which would have legalized wiretapping by police officers, but such legislation was defeated. Further, we have no case law regarding the admissibility of wiretap evidence in a court proceeding or whether such evidence would constitute an illegal search and seizure under the Missouri constitution. In short, Missouri is totally devoid of any authority, statutory or case law, on wiretapping and eavesdropping. As to my opinion on the desirability of Federal legislation, I should like to state that I am opposed to legalized wiretapping and eavesdropping and hence, I am opposed to S. 1086, S. 1221, and S. 1495. I would favor the strengthening of section 605 of the Federal Communications Act so as to make the prohibition more explicit and clear up the ambiguity over "intercept *** AND divulge." I have consistently registered my opposition to legalized wiretapping at rious meetings of the National District Attorneys Association during the time ite, ded such meetings as the circuit attorney of St. Louis. On May 22, 1958, I testified before Constitutional Rights Subcommittee (of which the late Senator Hennings served as chairman) and expressed my opposi tion. I enclose a copy of the statement which I made to the committee at that time. This statement still represents my thinking on the subject.1 Mr. Eagleton's testimony and statement appear in part 2, "Wiretapping, Eavesdropping and the Bill of Rights," p. 259. On June 14, 1961, I attended the annual conference of the National Attorneys General Association. A resolution was introduced and ultimately passed which favored enactment of S. 1086. On behalf of the State of Missouri, I voted against the resolution as did the States of Massachusetts, Rhode Island, Utah, and Virginia. I hope the foregoing is of help to you. If you desire any further information, please do not hesitate to call on me. Yours very truly, MONTANA THOMAS F. EAGLETON, Attorney General. STATE OF MONTANA, OFFICE OF THE ATTORNEY GENERAL, Helena, April 18, 1961. DEAR SENATOR ERVIN: In reply to your letter dated April 13, 1961, wherein you requested me to outline the Montana laws concerning wiretapping and eavesdropping, I submit the following information: The question of wiretapping has only been before the courts in Montana indirectly. In State v. Porter, 125 Mont. 503, 242 P. 2d. 984 (1952) the use of wiretap evidence was attempted to be used for impeachment purposes. The lower court refused to allow the recordings, and the Supreme Court of Montana held this evidence to have been improperly refused. There are three statutes in Montana that might be used should a good test case arise. The first of these is section 94-3203, Revised Codes of Montana, 1947, which provides : "Any person who willfully and maliciously displaces, removes, injures, destroys, or obstructs any telegraph, telephone, or electric light line, wire, cable, pole, or conduit belonging to another, or the material or property appurtenant thereto, or maliciously and wilfully cuts, breaks, taps, or makes any connection with any telegraph or telephone line, wire, cable, or instrument belonging to another, or maliciously and wilfully reads, takes, or copies any messages, communication, or report intended for another passing over any such telegraph or telephone line, wire, or cable, in this state, or who wilfully and maliciously 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 permit or cause to be done, any of the acts hereinbefore mentioned shall be deemed guilty of a misdemeanor ***." The above statute does not seem to contemplate protecting persons whose lines are tapped, rather it seems to protect the public communications system. An express statute dealing with wiretapping is section 94-35-220, RCM, 1947, which provides: "Every person who, by means of any machine, instrument, or contrivance, or in any other manner, wilfully and fraudulently reads, or attempts to read, any message, or learn the contents thereof, while the same is being sent over any telegraph line, or wilfullly and fraudulently, or clandestinely, learns or attempts to learn the contents or meaning of any message, whilst the same is in any telegraph office, or is being received thereat or sent therefrom, or who uses or attempts to use, or communicates to others, any information so obtained, is punishable as provided in the preceding section." These statutes have not been amended since 1895. Consequently, the Montana court may follow the California courts and hold these statutes should be interpreted to include telephone lines or telephone messages. The California court said the rule of strict construction would not apply in a situation as was presented. In Montana the same result might be reached with the use of section 94-101, RCM, 1947, which provides: "The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice." |