Mr. SILVER. Well, I say I have no objection to any language which

Senator HRUSKA. I am searching out now

Mr. SILVER. Which requires us

Senator HRUSKA. I am searching out some grounds on which we might anticipate some real or fancied objections to language which might be considered too broad and too loose, and that is why I inquire of you if there would be any objection if proper language could be found.

Mr. SILVER. There was no objection to language used in the New York statute which says "identifying the particular telephone number or telegraph line involved." We will have no objection to that because we have lived with it for 20 years.

Senator HRUSKA. And used it in that sense?

Mr. SILVER. I can't conceive of asking a judge to give me an order to intercept any telephone that this person might be using. I don't want that. As a matter of fact, I would oppose such a statute in my State.

Senator HRUSKA. Well, that is fine. Thank you very much, Mr. Chairman.

Senator CARROLL. Would this include a public pay station?

Mr. SILVER. Yes. Public pay stations have been intercepted on rare occasions. A criminal may suspect that his own telephone is being tapped will make the use of a particular phone booth. After he is being surveyed for a number of days, we see that he goes into a particular telephone booth and makes calls. If he goes to various phone booths, we can't get the order. It would be impossible for us to accomplish the physical task. It is only where he makes it a habit to go to a particular telephone rather than his own where we would get an order, but that is very rare.

I am sure if you took orders procured over a period of 10 years, I doubt whether you would find 1 percent of public phones being tapped.

I want to say that section 813a (N.Y. Code Crim. Proc.) saysmay be obtained and particularly describing the person or persons whose communications, conversations, discussions are to be overheard or recordedand, in the case of a telephone or telegraph, identifying the particular telephone number or telegraph line involved.

Senator CARROLL. How would you establish contact in a PBX telephone in a large hotel?

Mr. SILVER. Well, of course, you know, I want to say this: In New York State we also have the same requirement for an order with regard to what is normally known as bugging, putting a microphone in the room. We must also get an order. In other words, you cannot put a microphone in the room without an order, with the exception that you may do it for 24 hours because in many cases we have found that you may be on the telephone conversation and you might learn that a group of people engaged in crime are suddenly going to meet at a particular place so that you don't have an opportunity to get an order for bugging, that is, when one is in "hot pursuit."

We have been given a lapse of 24 hours, though the order must cover the first 24 hours. You must disclose to the court that you have been

there the day before if you don't get the order before you "bug." But otherwise we require an order with regard to bugging as well.

New York State now covers both interception and bugging. It covers both situations.

Now, what do we do in a hotel!

Senator CARROLL, On interception.

Mr. SILVER. We have to get the particular-I am not sure of that. I am not certain.

I think we have to get the particular extension that we want to tap because we couldn't possibly-I doubt whether physically you could tap a board unless you also created another board, the same as the board that you are tapping. In otherwords, in a hotel let us say they had 100 rooms. You couldn't tap room 42 without getting a specific order with regard to extension 42 unless you created a switchboard with 100 connections so that each time a room number was called it would be plugged into an apparatus which would be almost-it can be done theoretically but it becomes an impossible thing to do as a practical matter. It has been done where there are two or three extensions, but it would be impossible where there is a large switchboard.

Senator CARROLL. You refer

Mr. SILVER. I mean practically impossible. Let me put it that way to be more accurate.

Senator CARROLL. You refer somewhere in your statement-I think it is on page 5-to the crime of bribery. Could you get a court order to bug the office of any official?

Mr. SILVER. I don't see why under the statute we couldn't.

Senator CARROLL. The court itself issues the order upon a showing of reasonable grounds. We know there has been a legal definition for probable cause. What is the legal definition for reasonable grounds!

Mr. SILVER. I would say that a court, in order to sign an order based on reasonable cause, reasonable grounds or probable cause, would have to be satisfied that the applicant for the order has sufficient facts at hand to indicate that the person whose wire he wants to intercept or whose hotel room or someplace he wants to bug is being used by a specific person engaged in unlawful activities and that the order would give us further evidence of that unlawful activity, evidence of crime. I submit the section says that.

Senator CARROLL. So I understand now that in the New York statute you not only can intercept messages; you can also bug.

Mr. SILVER. Well, previously, before we amended the statute lately, you could bug without an order. There was no limitation as to bugging. This was included in the statute to limit law enforcement agents from bugging without a court order.

Senator CARROLL. You mean there had been a custom previous to this?

Mr. SILVER. No, not a custom but it was not unlawful. A district attorney before the limitation of bugging was put in section 813 (a) or (b), whichever may have been added-813(b)-I am not certain at the moment-there was no limitation on a law enforcement agent if he could do it to put a bug any place he saw fit to do.

Senator KEATING. In other words, the criminal order on wiretapping did not cover bugging. Is that what you mean?

Mr. SILVER. That is right. It has been added to the statute lately. Senator CARROLL. But now you have to get a court order to bug an office or home on the proper showing?

Mr. SILVER. On the proper showing.

Senator CARROLL. On the proper showing?

Mr. SILVER. Yes.

Senator CARROLL. You can bug, therefore, any place or home, office; any official of any branch of the Government on proper showing? Mr. SILVER. Yes.

Senator CARROLL. And by the New York statute you can intercept any message of any individual, any official, any branch of the Government upon a proper showing?

Mr. SILVER. Upon a proper showing except I want to say this, that I think Senator Carroll will agree with me that in the last analysis no law is much better than the person who has to administer the law, and I know for a fact not only with regard to public officials is it a rare thing, this situation would have to be a burning situation before a district attorney in our State would even attempt to get an order to intercept a lawyer's telephone or a doctor's telephone because of the confidentiality of his type of business.

In 14 years I think there was only one lawyer whose wire was intercepted. But I can't think of any public official whose wire was tapped. I mean so far as my own office is concerned. And I am quite sure it is true of my colleagues. I can't think of any public official's wire that has ever been intercepted or an order asked for it. It is the rarest thing that anyone who has a confidential relationship with others has had his wire tapped.

I am sure, for example, that never has a cleric's wire been tapped, even though technically under the statute it is a possibility. But it is just not done.

Senator CARROLL. What about this? Doesn't this put a tremendous power into the hands of the judge who, upon showing which is not shown as probable cause but upon reasonable grounds

Mr. SILVER. As I say—

Senator CARROLL. It puts it in his hands to issue an order to bug or to intercept a conversation

Mr. SILVER. Senator

Senator CARROLL. May I finish for the record, please?

Mr. SILVER. I'm sorry.

Senator CARROLL. It puts it into his hands the power to permit the law-enforcement officers to bug a house of a man who has been elected by the people, a man who is on the Supreme Court, or in any branch of government?

I recognize the great problems of law enforcement. I have had years of experience in the field. And, in the Senate Juvenile Delinquency Subcommittee hearing in Los Angeles, Calif., it made me ill to see the amount of heroin coming over the border, the amount of marihuana coming over the border, and I am not opposed to the use of interception to keep informed on such illegal activities. This is a power that can be very, very easily abused, it would seem to me. Even my office as a Senator could be bugged.

Men exercise power, and men sometimes abuse power, and I thinkas, in the words of Justice Holmes, "It is a dirty business." This is what worries people.

On the other hand, men like you who have difficult problems of law enforcement, how are you to meet them?

So this, again, is why I raised the question. If we are going to go into this field, it would seem to me we have got to have very strict surveillance. If we modify the Federal law we then have an obligation to set up strict surveillance standards, even over the Federal Government itself!

I have talked to my own district attorney at home. I have talked to my police department at home. They know this is difficult. Their problems are not like your problems. Your problems are a hundred times more difficult than ours in an area of a city the size of Denver. For many reasons you have got very, very difficult problems. For my part, your testimony has been very, very helpful this morning, and I thank you for it.

Senator HRUSKA. Mr. Silver, I am wondering-of course, there is a great deal of responsibility that would be cast upon a judge if this bill became law, and there is a great deal of responsibility for the New York judges who now and for the last 20 years have been concerned with these intercepted wires. But isn't it true and hasn't it been true for many years, that the judges have had responsibility for searches of premises so that the residence of a person, or the quarters and offices of a public official have been subject to searches and seizures upon proper court order being issued? That is the fact, isn't it? Mr. SILVER. That is right.

Senator HRUSKA. It has been for centuries.

Mr. SILVER. That is correct.

Senator CARROLL. Is there a difference-will the Senator yield?

Is there a difference in the type of proof you get with a search order?

Mr. SILVER. I am just trying to get the words here. It is difficult. "Reasonable ground" are the words we use in our statute, not "probable cause." As I said before, I wasn't sure about it. And I wanted to make sure.

It says here than an ex parte order for eavesdropping, as I find this in subdivision 1 which takes care of bugging as well, and section 813(a) (N.Y. Code Crim. Proc.), that it may be issued by any Justice of the Supreme Court or judges of the county court upon oath on affirmation of the district attorney or attorney general or officer above the rank of sergeant of any police department of the State or any political subdivision thereof, that there is reasonable ground to believe, and so forth.

Senator HRUSKA. I just can't understand that anyone called upon to judge reasonable grounds for wiretapping would be under greater temptation to use it than he is in the case of seizures. Certainly as against the proposition of depending upon the integrity of the judge on the one hand, and, on the other hand, putting up with a lawless community that is allowed to go forth and inflict its depredations on the community at large, I know where my sympathies would be. They would be on the side of trusting these people who are carefully selected as judges and law-enforcement officers. Therein lies that

balance between the constitutional rights and liberties of the individual and the rights of the individual to be protected against lawless elements in his communities.

Mr. SILVER. May I, Senator, respectfully say this: I am just as concerned as you would be with any breakdown of the free use that a man wants to make of anything he wants to do in our country. And the Senator has depicted a rather rough picture about public officers and Senators and judges that may be tapped. But I only want to say this:

We have had, as I said before, a fairly good laboratory. We had 20 years in our State, like New York State which has a variety of populations that covers almost every part of this country, rural areas, villages, towns, small and large cities. Never have the things that you have depicted happened in 20 years.

If one would look at the debates when our own Constitution was being considered and discussed for adoption, which we are now concerned with preserving, the Bill of Rights and our own Constitution, some of our greatest patriots-Patrick Henry and others got up and said that they would rather have a House of Lords and a Queen than this document, our Constitution, which is now being put to them. Our Founding Fathers had great minds. Concerned with our liberties, they conjured up all sorts of dangers that might happen to their freedom if this Constitution was put into being.

I recall that Patrick Henry said that nobody is going to tell him that New York and Pennsylvania aren't going to send down a large number of troops and make his State subservient to theirs.

I am not finding fault with the great patriots. When one is concerned with freedom, it is only right that they concern themselves with anything that might endanger that freedom. But we have a laboratory in New York State and those imaginary ills don't exist. Twenty years is a long time to carry on an experiment.

Senator CARROLL. Mr. Silver, now there is a great distinction between getting a search warrant and a wiretap order. A search warrant is for a specific place, to move in quickly, and it is normally executed within a very short time. Is that not so?

Mr. SILVER. There are distinct differences between a search warrant and an interception of a telephone, yes.

Senator CARROLL. A wiretap may go on a long period of time. What I am trying to say is that, somehow, we have got to bridge this gap. We want law enforcement. We want law-enforcement officers to gather information. And the question of Federal surveillance is raised by this committee's report here.

I am not only talking about New York now. I am talking about if we were to modify this law so that it extends into the Federal agencies, too. How do we do this?

Mr. SILVER. Senate 1086, I submit respectfully, would not affect the Federal Government.

Senator KEATING. That is right, Mr. Chairman. There are separate bills here.

Senator CARROLL. Is there some reason why we grant this power to the State and not to the Federal Government and their law-enforcement agencies?

Senator KEATING. There are other bills, several bills dealing with the Federal picture, but S. 1086 is designed only as something in the