I am advised by the Bureau of the Budget that there is no objection to the submission of this report. Sincerely yours, ROBERT H. JACKSON, Attorney General. (The opinion of the Attorney General regarding H. R. 3099.) Hon. HATTON W. SUMNERS, FEBRUARY 11, 1941. Chairman, Committee on the Judiciary, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: This acknowledges your request for my views concerning a bill (H. R. 3099), relating to the interception of wire and radio communications. The subject matter of the bill is the same as that covered by another measure (H. R. 2266) in respect to which hearings have been conducted by a subcommittee of the Committee on the Judiciary. My views as to the desirability of such legislation are discussed in detail in my communication to you in respect to H. R. 2266, dated February 10, 1941. The two bills differ in some essential particulars: 1. H. R. 2266 would permit the interception of messages in connection with the investigation of any felony cognizable under any law of the United States. On the other hand, H. R. 3099 is limited to felonies relating to the national defense. The last-mentioned limitation is highly undesirable, in view of the fact that there are a number of felonies not relating to national defense, such as kidnaping and extortion, in respect to which this type of investigation is essential. 2. H. R. 2266 would require as a safeguard a certificate of the head of the executive department to which the investigative agency is attached as authority for interception of messages in any case. H. R. 3099 proposes to substitute for such safeguard the requirements that a permit be issued by a Federal or State judge or a United States commissioner. As a basis for issuing such permits, it is proposed to require the submission of affidavits or written depositions to the officer to whom application for a permit is made. This requirement is likely to hamper and at times defeat the purposes of the legislation, since it may result in delays in securing the necessary permits at times when procrastination may render nugatory any permit that may be issued. Moreover, in view of the large number of judicial officers who would be empowered to issue permits, an undesirable variety of rulings as to what constitutes reasonable cause is likely to develop, giving rise to confusion. On the other hand, from the standpoint of the individual whose messages are to be intercepted, a requirement that such action be authorized by a member of the President's Cabinet, as would be the case with H. R. 2266, would be a much more efficacious safeguard. In view of the foregoing considerations, I recommend the enactment of H. R. 2266, rather than of H. R. 3099. Sincerely yours, ROBERT H. JACKSON, Attorney General. (Letter from Hon. Robert H. Jackson:) OFFICE OF THE ATTORNEY GENERAL, Hon. HATTON W. SUMNERS, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: It would make the discussion of the proposed wiretapping legislation more clear if those who fear that the proposed legislation would deprive them of their "right of privacy" would first learn just what "“right of privacy" they now have. There is no Federal statute that prohibits or punishes wire tapping alone. The only offense under the present law is to intercept any communication and divulge or publish the same. Any person, with no risk of penalty, may tap telephone wires and eavesdrop on his competitor, employer, workman, or others, and act upon what he hears or make any use of it that does not involve divulging or publication. To use evidence obtained by wire tapping for the protection of society against criminals often requires that it be divulged in open court. It is this divulging in law enforcement that court decisions hold to violate the statute. The courts do not stop people from tapping wires-no one has ever been or under present law could be convicted of that by itself. What has been stopped is the use of the evidence to enforce the laws against criminals. Many uninformed persons, and some who ought to know better, are thinking that these decisions protect their telephone privacy. They do nothing of the sort. They only protect those who engage in incriminating conversation from having them reproduced in court. These decisions lay down rules of evidence. But since our use of this method would have as its chief purpose the proof of a case against criminals, the practical effect of these decisions is to make wire tapping unavailing to law-enforcement officers, although still useful to those who make private use of it. For this reason it was discontinued by the Department of Justice. Let me give you an actual example of the way the present law works in practice: A short time ago a small child was kidnaped in California. There was reason to expect that demands would be made upon the parents by telephone. If the voice making such a call were recorded, preserving its accents, its peculiarities of speech, and its exact words, it would be a scientific means of identification not subject to the faults of hearing or of memory which so often make identification weak. It might me decisive in saving the life of the child, or in convicting the kidnaper, and it might be equally decisive in clearing an innocent person unfortunate enough to be under suspicion. At that point Mr. Hoover came to me for instructions. In June 1940 the Circuit Court of Appeals for the Second Circuit had held that the Communications Act prohibits use as evidence of a telephone conversation mechanically recorded with the consent of one party but without the knowledge and consent of the other., (United States v. Polakoff, 112 F. (2d) 888.) So neither the distracted parents nor the United States Government could obtain valid evidence by recording a criminal telephone conversation unless the kidnaper consented. That is the state of the law at this moment. Of course, I directed Mr. Hoover to put a recording device on that line. The child was recovered before the criminal reached the place from which he expected to operate. But even if he had called and we had obtained scientific identification of him, we could not have used it in court under that decision. I am well aware of the dangers of unrestricted wire tapping. I have always maintained, and I so stated in my annual report, that unrestrained and uncontrolled wire tapping, even on the part of law-enforcement officers, would be intolerable. I have always felt that a bill to permit wire tapping by properly authorized Government officers should be balanced by carefully drawn safeguards to prohibit the indiscriminate tapping of wires and the indiscriminate use of information obtained in that way. On the other hand, my present concern is with the very practical work of protecting decent citizens, and indeed the Nation itself, against criminals, spies, and saboteurs. Such persons, under existing law, have one great method of communication which they may use without fear of leaving incriminating trails the telephone and telegraph. If a criminal writes a letter he runs the risk that it will fall into the hands of the law. If he transacts his illegal business in person, he may be overheard by an eavesdropper. If he sends a confedrate to act for him, the confedrate may betray him. All such evidence is good in court against him. But so long as he uses the telephone or telegraph, he is sheltered against law-enforcement officers. Criminals today have the free run of our communications systems, but the law-enforcement officers are denied even a carefully restricted power to confront the criminal with his telephonic and telegraphic footprints. Unless we can use modern, scientific means to protect society against the organized criminal movements of the underworld, the public cannot look to its lawenforcement agencies for the protection it has a right to expect. Legislation should not only make clear the rights of law-enforcement officers and their limitations as well but might very wisely put an end to private or public wire tapping which, unless accompanied by divulging, is now permitted. I would suggest 1. That the Department of Justice be authorized to obtain and use in court evidence obtained by wire tapping in connection with four offenses-viz, espionage, sabotage, kidnaping, and extortion. These are the offenses which are accomplished or accompanied by extensive use of the telephone. 2. That such wire tapping be done only on the written authorization of the Attorney General. His authorization will then have to be proven as a foundation for admission of any such evidence. He should also be required to keep a permanent record of each such authorization. I am confident no Attorney General would make abusive use of this power under such circumstances. I do not favor the search warrant procedure which would authorize some 200 judges and 500 United States commissioners to authorize wire tapping. Such procedure means loss of precious time, probable publicity, and filing of charges against persons as a basis for wire tapping before investigation is complete which might easily result in great injury to such persons. A centralized responsibility can easily be called in question by the Congress, but you cannot interrogate the whole judiciary. 3. Except as so authorized for law-enforcement purposes it should be made a crime for any person, whether or not divulging the communication, to tap any wire, or install any recording or listening device thereon. This would be a real protection of the right of privacy which is not now protected at all. If I can be of further help, I will be glad to respond to your request. The amendments contained in the committee print of H. R. 2266 appear satisfactory. There is also enclosed a proposed amendment to carry out the suggestion contained in the preceding paragraph. Sincerely yours, ROBERT H. JACKSON, SUGGESTED AMENDMENT TO H. R. 2266 It is suggested that the following section be added at the end of H. R. 2266: "SECTION 2. Section 605 of the Communications Act of 1934, approved June 19, 1934 (48 Stat. 1103; U. S. Code, title 47, sec. 605), is hereby amended by inserting the word 'or' in lieu of the word 'and' between the words 'communication' and 'divulge.'' (The letter from Hon. Alexander Holtzoff:) Hon. JOHN H. TOLAN, House of Representatives, Washington, D. C. FEBRUARY 5, 1941. MY DEAR MR. CONGRESSMAN: At the hearing before subcommittee No. 1 of the Committee on the Judiciary, held on Monday, February 3, in respect to the bill (H. R. 2266) relating to wire tapping, you requested me to furnish you a list of investigative agencies attached to the several executive departments. As far as I am aware, the following are the principal investigative agencies of the executive departments. This list does not include investigative agencies that may be attached to the several independent establishments, since the bill under consideration is limited to those agencies which form parts of executive departments. Department of the Treasury: Coast Guard; Bureau of Customs; Intelligence Unit, Bureau of Internal Revenue; Alcohol Tax Unit, Bureau of Internal Revenue; Bureau of Narcotics; Secret Service Division. Department of War: Military Intelligence Division. Department of the Navy: Office of Naval Intelligence. While I have endeavored to make the foregoing list as complete as possible, it may be that some agencies have been inadvertently omitted. With best regards, Sincerely yours, ALEXANDER HOLTZOFF, Special Assistant to the Attorney General. STATEMENT OF HON. SAM HOBBS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA Mr. TOLAN. The committee would be pleased at this time to hear Mr. Hobbs, the author of the bill. Mr. HOBBS (reciting): Mother, may I go out to swim? Yes, my darling daughter; Hang your clothes on a hickory limb, That is the attitude of the opposition in this case. They do not want anybody to swim, apparently, especially where, by the wildest stretch of the imagination, it could affect any nefarious practice that someone might sometime indulge in. These gentlemen who are appearing here in opposition to the bill don't want to go near the water, neither do their organizations, but here you have the Government in three coordinate branches, one of which is charged with the enforcement of the laws we write, and the only effective way they can function in the detection and the prevention of crime is to get the information. Modern science, in practice, and the modern world has new ways of doing what used to be done by word of mouth, by feet, and by the horse and buggy. Now it flashes through the air by radio, telephone, and telegraph wires, which aid the nefarious business for those who are plotting crimes, and we have, strangely enough, in an act passed by Congress what the Supreme Court has held in one case, and in one case only, and I think mistakenly, to be an infringement upon personal liberty. Frankly, I doubt if the interpretation should be of general application, and for fear that it might be expanded this bill is drawn, and for what purpose? To authorize those agencies of the Federal Government whose sole responsibility is to enforce the laws that we write, to do their job. These gentlemen are not going to be oppressed and they are not going to be touched. Their zeal is commendable in conjuring up possibilities that might arise, but nobody is after them, nor anybody like them. What we are after is the felon. I want to show you gentlemen just from the act itself how strained is the construction that their fears dictate. The use of this listening in, on, intercepting, or wire tapping, or whatever you might want to call it, is limited by the requirement that only the head of any executive department of the United States who has reasonable ground for believing, and he must so certify. I do not care what party is in power, the executive head of any executive department of this Government, no matter what administration he may be serving, is a responsible gentleman who has some respect for his oath of office and for the law that he is sworn to enforce. course, there have been exceptions, but shall we, because there is one spot on an apple, or a rotten apple in a barrel, deny to the law-enforcement agencies of our Government their only chance to thwart or to detect a felony? Of Mr. ROBSION. Right there, in connection with that, would there be any greater opportunity there to do anybody, or any innocent person wrong, than there is in the use of the search warrant at present? Mr. HOBBS. No; certainly not, sir. Mr. ROBSION. What is that, sir? Mr. HOBBS. Certainly not, sir. Mr. ROBSION. Would it likely be in effect as often as the search warrant is? Mr. HOBBS. Oh, yes, sir; I think it would be a great deal more often, and I think it would be very properly so. Mr. ROBSION. Oftener than the search warrant? Mr. HOBBS. Yes, sir. Mr. ROBSION. The use of a search warrant is a common proceeding in every community. Mr. HOBBS. I think this would be used a great deal more, and very properly so. He must certify that he has reasonable ground for believing, which, of course, would be based upon the disclosure to him of what the investigatory agency, which is a part of his department, would disclose to him. He would read the file or he would read the affidavits, made by those who had been investigating, showing the facts, and then he has got to certify as a matter of solemn public record, and, of course, it is private in that it never would be disclosed except in aid of a criminal prosecution, but he has got to certify that he has reasonable ground for believing that a felony is being committed, or is about to be committed, or has been committed, or that it was in the process of being committed. Then, and then only, are the people in his investigatorial agency, already established or set up for the purpose, given the right to do these things. Mr. MICHENER. You made reference to the labor people who are opposing this. Assume, for instance, that the C. I. Ó. is attempting to organize the Ford motor industry, and the head of the C. Î. O., the man in Washington, is giving instructions to an organizer in Detroit, and, assume at the same time that Mr. Ford was in Florida and he was communicating by telephone with the directing head in Detroit, under this bill would it be proper to intercept the messages of either side? There is a case where both sides are involved and a very bitter fight is raging. Would the Federal Government be permitted to intercept Mr. Ford's messages on one side and Mr. Pressman's messages on the other? Mr. HOBBS. Certainly not. If, however, the bitterness had gotten to the point where Mr. Pressman, in good faith, impressed on the F. B. I., for instance, that he bona fide believed that Mr. Ford had issued instructions to kill such and such a man who was actively engaged in that attempt, and that a felony was being plotted, the murder of a C. I. O. organizer, then, of course, that would be within the purview of this act, and it ought to be. Mr. MICHENER. Now, turning around, assume there were certain men attempting to go to work in a factory in Michigan, that is, on a defense order, and the C. I. O., or any other labor organization, was conducting a picket line to prevent men from going to work there, and it was thought that this picket line had been instructed from Washington to use such force as was necessary or such intimidation as would prevent the men going to work, in that case could the message of the labor organization be intercepted by virtue of this bill? Mr. HOBBS. You used the word "thought." Mr. MICHENER. Well, "reasonable cause to believe," using the language of the bill. |