(4) the number of applications made, and the number of orders granting leave entered, for the interception of wire communications within each State, indicating separately (A) the number of applications made, and the number of orders granting leave entered, for the interception of communications within each municipality or other political subdivision of each State, and (B) with respect to each classification of criminal offenses as to which information is furnished under paragraph (3); the number of applications made, and the number of orders granting leave entered, within each State, and within each municipality or other political subdivision thereof; and (5) such other information as may be requested in writing from time to time by the chairman of the Committee on the Judiciary of the Senate or of the House of Representatives, or by the chairman of the Committee on Interstate and Foreign Commerce of the Senate or of the House of Representatives. COMMUNICATIONS ACT AMENDMENT SEC. 8. The proviso contained in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) is amended to read as follows: "Provided, That this section shall not apply to (a) the intercepting, receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress, or (b) the interception of any wire communication, or the divulgence or disclosure of the existence, contents, substance, purport, or meaning thereof, if such interception, divulgence, or disclosure is declared by section 3 of the Federal Wire Interception Act not to be in violation of that Act." [S. 1822, 87th Cong., 1st sess.] A BILL To amend title 18 of the United States Code to authorize certain communications to be intercepted in compliance with State law, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 223 of title 18 of the United States Code is amended by adding at the end thereof the following: " 3501. Evidence of intercepted communications "No law of the United States shall be construed to prohibit the interception by any law enforcement officer or agency of any State or any political subdivision thereof in compliance with the provisions of any statute of such State, of a wire or radio communication, and the divulgence, in any proceeding in any court of such State, of the existence, contents, substance, purport, effect, or meaning of the communication so intercepted if such interception was made after determination by a court of such State that probable cause existed for belief that a crime has been, or is about to be, committed and that a particular telephone or telegraph instrument is being, or will be, used in furtherance of the commission of that crime pursuant to which leave was granted to intercept such wire or radio communications transmitted by that telephone or telegraph instrument for a reasonable period of time not to exceed thirty days." Senator ERVIN. Eleven witnesses have testified before the committee in the course of its investigation on wiretapping and eavesdropping. Five days of public hearings were held on May 20, and 22, 1958, and July 9, December 15 and 16, 1959. In addition, written statements were received from 34 individuals and organizations. The resulting testimony, statements and background materials have been printed in 6 volumes totaling 2,008 pages. The basic questions which motivated the subcommittee's study were: How do eavesdropping, wiretapping, and similar invasions of privacy affect our constitutional rights, and are present-day laws sufficient to protect the rights of the individual? In order to obtain information for forming an opinion on these questions, the subcommittee previously invited witnesses to describe wiretapping and how it is done; eavesdropping and methods of using it; the arguments in favor of their use, the arguments against their use the status of the applicable law; and proposals, if any, for changing the law. Selected law professors were also asked to submit their opinions on the legal and constitutional issues involved. A distinct and comprehensive definition of eavesdropping and wiretapping was suggested to the subcommittee by the Pennsylvania Bar Association's report of this subject. The study used the term "wiretapping" as a specialized form of eavesdropping. Eavesdropping was said to be the "use of any device which will affect individual privacy by surreptitious fact finding." The technical aspects of wiretapping and eavesdropping were described at length for the subcommittee by a technical communications engineering expert and a private investigator. Previously the major arguments in favor of the use of wiretapping devices and the passage of wiretapping legislation were presented to the subcommittee by four witnesses-a professor of government, a State law enforcement officer, a former Federal law enforcement officer, and a private investigator. These witnesses were primarily concerned with the necessity for using wiretapping devices, and with the need for legislation controlling wiretapping. Their views were supported in varying degrees by a majority of the law professors polled by the subcommittee. Major opponents of wiretapping who appeared before the subcommittee were concerned with the preservation of individual liberties guaranteed by the Constitution and the Bill of Rights. Two law enforcement officials and a defense attorney, who had argued some of the outstanding wiretapping cases, were among those who presented arguments against wiretapping. Two national organizations shared similar views. In Olmstead v. U.S. (277 U.S. 438 (1928)), the Supreme Court held, in a closely divided decision of 5-4, that wiretapping per se is not unconstitutional under the fourth or fifth amendments. Six years after the Olmstead decision, in 1934, Congress enacted the Federal Communications Act. The portion regarding "unauthorized publication or use of communications," section 605, reads as follows: No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. Since the passage of this legislation, a considerable body of literature has developed on the subject of wiretapping as a result of judicial decisions pertaining to section 605 of the Federal Communications Act of 1934 and related State statutes. A subcommittee print released this week on "State Statutes on Wiretapping," indicates that State and Federal laws dealing with this subject are diverse and often conflicting. Section 605 of the Federal Communications Act prohibits interception and divulgence of any wire or radio communication-a seeming prohibition of all wiretapping. Nevertheless, the subcommittee print shows that 6 States purport to authorize wiretapping under certain circumstances, 33 impose total bans on wiretapping, and 11 States have no definitive statutes on the subject. I have written to the attorneys general of the various States and asked each one to summarize the law in his State and express his views on the important matters of wiretapping and eavesdropping. Attorney General Wade Bruton, from my own State of North Carolina, indicated that he would like the subcommittee to confine its 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 pending therein. However, the attorney general of New Mexico in expressing his view, said: * with respect to eavesdropping and wiretapping, I most sincerely hope that neither will be authorized or condoned by Federal legislation. I regard both as being contrary to our way of life; perhaps they are suitable in a police state. They are neither necessary nor desirable in the United States. A third view on these matters was expressed by the attorney general of Maine. He advised the subcommittee 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 (the information) has 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. These hearings will explore further the proposals and problems presented by the pending bills before the subcommittee and seek to determine to what extent Federal legislation may be desirable or practical in the area of wiretapping and eavesdropping. The Chair is glad to have present with the committee and as a member of the subcommittee, Senator Keating of New York, who has probably given more time and energy to the study of this subject than any other Member of Congress. The Chair would be delighted to hear the statement from Senator Keating at this time. STATEMENT OF HON. KENNETH B. KEATING, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator KEATING. Mr. Chairman and members of the subcommittee, the present situation with regard to wiretapping and eavesdropping is dangerous, confused, and illogical. I am hopeful that these hearings will demonstrate the need for prompt congressional action to restore some measure of balance and sanity to our treatment of this subject. I. STATE WIRETAPPING (S. 1086) Separate problems are involved at the State and Federal levels. At the State level this is the situation. At present the divulgence in a State trial of wiretap evidence violates section 605 of the act and constitutes a crime under the act, even if the tapping was authorized by a State court order. Nevertheless, under a recent Supreme Court decision, a State is free to adopt a policy admitting such evidence in criminal prosecutions. Thus under the present law, a New York trial judge commits no error in admitting wiretap evidence in a criminal trial. But in allowing such evidence to be admitted, he is tolerating, if not aiding, the commission of a Federal offense. The State district or prosecuting attorneys who are sworn to uphold the law, actually are in jeopardy of Federal prosecution even though they fully comply with required State procedures. Some judges in New York State, confronted with this dilemma, have refused to admit wiretap evidence in State court prosecutions even though the evidence was obtained under a court-approved warrant. As a result of this practice and the general uncertainty which now prevails as to what is permissible in this area, I am advised that in my own State, New York State, alone hundreds of prosecutions are being held in abeyance and important cases have been dismissed. I mention this to emphasize that we are not dealing with an academic problem. There is no doubt that effective law enforcement has been stymied as a result of present conditions and that only the Congress can remedy this situation. The remedy we devise must, of course, be fair as well as effective. There are many people who are strongly opposed to wiretapping under all circumstances. I understand their viewpoint even though I do not agree with it. There is no doubt that wiretapping is a dirty business and that it has been subject to abuse. Nevertheless, I cannot subscribe to the position that telephone conversations are sacred and must be immune from Government surveillance under all circumstances. None of our constitutional rights enjoy such absolute immunity and even freedom of speech, and religion, are sometimes restricted. Threats of bodily harm, for example, even though verbal are an offense under almost every criminal code, as is slander and blackmail. And in a famous example, no one would be permitted to falsely shout "fire" in a crowded theater in the name of free speech. Nor do we tolerate sacrific or polygamy in the name of religion. A man's home is his castle, yet law enforcement authorities armed with a warrant can invade our homes and search every nook and corner of our abode. Under the same conditions they can even empty our pants' pockets and seize evidence of crime. I have never been of the view that wiretapping should be permitted without control but I regard as equally untenable any claim that all wiretapping should be barred. The task of fighting crime is difficult enough under any conditions; the obstacles would become insuperable in some cases if we sanctioned the uncontrolled use of the telephone as a privileged communications system for criminal activities. Perhaps the greatest obstacle to a balanced appraisal of this problem has been the emotional reliance on Mr. Justice Holmes' alleged comment in the Olmstead case (277 U.S. 438) that wiretapping is a dirty business. This dictum is repeatedly cited in critical commentaries on proposals to permit wiretapping in any form. Because of the widespread misunderstanding of the Olmstead case, a review of that decision may be useful to the subcommittee. The case grew out of a prosecution for conspiracy to violate the National Prohibition Act. The conspiracy involved international smuggling and sales of more than $2 million annually. Much of the evidence was obtained as a result of wiretapping in the State of Washington by Federal agents. A State statute in Washington at that time made it a misdemeanor for any person to intercept *** the sending of a message over any telegraph or telephone line. 85952 O-62-2 There was no Federal statute on the subject, this being prior to the enactment of the Federal Communications Act in 1934. The opinion of the Court was delivered by Chief Justice Taft. His opinion is clearly based on two grounds; first, that the fourth amendment did not apply to wiretapping; and secondly, that evidence obtained in violation of a law was admissible in Federal prosecutions. Since Chief Justice Taft's first point was based on a literal reading of the fourth amendment, it may be helpful to quote the provisions of the amendment. The fourth amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Chief Justice Taft reasoned that the object of a search covered by the fourth amendment must be a material thing— the person, the house, his papers, or his effects. He pointed out that the description in the warrant necessary to make the proceeding lawful is that it particularly describe-- the place to be searched, and the persons or things to be seized. He concluded that under no practical meaning of houses, persons, papers, and effects could the fourth amendment be construed to prohibit the obtaining of evidence by "hearing" such as is involved in listening into conversations by wiretapping. On the second point, Chief Justice Taft relied on the common law rule that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. He explained that the Supreme Court had departed from this principle only where a violation of the Constitution was involved and not where the evidence was obtained by unethical or otherwise unlawful practices. In his words: A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by Government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it. It is very significant that the opinion by Mr. Justice Holmes does not reach the question of whether the fourth amendment is applicable to wiretapping. His reasoning is that "apart from the Constitution" the Government ought not to use evidence obtained by a criminal act. In his famous-but often misconstrued sentence: If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such inequities to succeed. There is nothing either in Holmes' or Taft's opinions in the Olmstead case which suggests either approval or disapproval of a proposal that the Federal Government permit wiretapping under court supervision in a procedure analagous to that applicable to search and seizures. All Taft says is that the Constitution contains no such requirement. And all Holmes says is that as long as wiretapping is against the law, Federal courts should not admit wiretapping evi |