THE WIRETAPPING PROBLEM TODAY

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP67B00446R000300210004-2
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• Document Page Count: 8
• Document Creation Date: December 15, 2016
• Document Release Date: November 5, 2003
• Sequence Number: 4
• Publication Date: May 4, 1965
• Content Type: OPEN

May 4?1965
Approved eurtfekmomi2Nesikito21WERW6R0003002'10004-2
I mow as welt as any social worker that
the deplorable homes in our urban centers
are breeding and multiplying indolence, il-
legitimacy, disrespect for law. I know, too,
that the collection of relief checks is becom-
ing one Of the big occupations in this coun-
try. I believe strongly that a moral at-
mosphere in the home should be a factor in
determining eligibility for welfare. An im-
moral home should not be subsidized.
I grew up in Oklahoma and earned my first
Money from prizes for my 4-H vegetable
garden. Earning this money was enormOusly
important to me. My mother and father al-
ways worked harder than they had to, and
they taught me the value of work. To this
day, my mother, who is 81, works in her
garden. And when I go home to visit, she
still repeats to me?although I am now 46?
the same maxim she spoke over and over to
me as a child.
"Juanita," she says, "make yourself useful."
I want no more and no less for every Amer-
ican than the fulfillment of my mother's ad-
vice to "make yourself useful." If we have
lost certain parents in this generation be-
cause of the dependency bred of our wel-
fare programs, let us not also rob so many
of our youngsters of this heritage, this privi-
lege?this right to usefulness.
Mr. MANSFIELD. Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. MANSFIELD. Mr. President, I
ask unanimous Consent that the order for
the quorum call be rescinded.
The PRESIDING OleACER. With-
out objection, it is so ordered,
TRIBUTE TO MRS. HARVEY FLETCH-
ER, AMERICAN MOTHER OF THE
YEAR
Mr. MOSS. Mr. President, it is a
pleasure today to make a part of the
CONGRESSIONAL RECORD a note of the fine
achievements of a Utahan who has
gained national recognition.
I speak of Mrs. Lorena Chipma
Fletcher, the wife of Dr. Harvey Pletcher
a distinguished scientist and educator a
Brigham Young University in Utah.
Mrs. k''letcher has just been selected as
American Mother of the Year during
ceremonies in New York City.
She is the second Utah mother to re-
ceive this honor.
Mrs. Pletcher has 6 children, and 26
grandchildren. All of her sons and
daughters have distinguished themselves.
One son, James, is currently president of
the University of Utah. In a family dis-
tinguished by brilliance and diligence,
Ph. D. degrees are the norm for the chil-
dren of Mrs. Fletcher.
This wonderful lady is representative
of the excellent qualities of motherhood
which are part of our heritage in Utah, a
heritage which stretches over 100 years
when the Mormon pioneers made their
trek across the plains and mountains to
Utah.
the selectiop ,as Athericau Mother of
the Year brings deserved recognition of
the many fine qualities Mrs. Fletcher has
shown during her life.
To quote Mrs. Fletcher's comments on
her children yesterday *hen she re-
marked about her selection for this
honor:
They are really the ones who brought this
honor to me.
Mrs. Fletcher is modest. Without her
training and diligence and love as a
mother, her children might not have
achieved the honors gained by each in
his own right.
I congratulate Mrs. Fletcher on her
achievement.
POLISH CONSTITUTION DAY
Mr. BAYH. Mr. President, it is ap-
propriate that we pay attention to the
observance of Polish Constitution Day.
On May 3, 1791, the people of Poland
adopted a constitution which in some
ways resembled our own. Unfortu-
nately, there was no opportunity to put
this 1791 constitution to an adequate
test. By 1795 Poland had been con-
quered and partitioned and her govern-
ment had been destroyed.
The Polish people deserve great credit
for pioneering efforts to establish re-
sponsible constitutional government.
This experiment, although not long-
lasting, helped show the way for other
freedom-loving peoples.
A fundamental concept inherent in the
Polish Constitution was the sovereignty
of the people. This was stated as
follows in a significant passage:
All power in civil society should be derived
from the will of the people, its end and
object being the preservation and integrity
of the state, the civil liberty and the good
order of society, on an equal scale and on a
lasting foundation.
Although Poland has not yet achieved
its full measure of freedom, it is well
known that the Polish people remain
firm in their as.h .tions for liberty and
justice one day fhee 1;14es
ill .
/
X.-
E WIRETWING PROBLEM
TODAY
Mr. LONG of Missouri. Mr. President,
I ask unanimous consent to have printed
at this point in the RECORD a remarkably
good new article, entitled "The Wire-
tapping Problem Today," by an eminent
law professor at Euffalo School of Law.
The author is Herman Schwartz, for-
merly assistant counsel on Estes Kefau-
ver's Antitrust and Monopoly Subcom-
mittee. The article which is very cur-
rent was written for the American Civil
Liberties Union and contains a wealth of
factual information. It should be of con-
siderable interest to the Senate.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
THE WIRETAPPING PROBLEM TODAY
(NOTE?This report, originally approved
by the board of directors of the American
Civil Liberties Union on May 1, 1961, was pre-
pared by Herman Schwartz, associate profes-
sor of law, State University of New York at'
nuffalo, SchOO1 'of taw: The 1965 revisions
relate primarily to factual updating.)
Wiretapping and other forms of electronic
eavesdropping are recognized by even their
most zealous advocates as encroachments on
the citizen's right of privacy, aptly charac-
terized by Justice Louis D. Brandeis as "the
most comprehensive of rights and the right
most valued by civilized men."
8989
Recently, presSure to authorize such en-
croachments has intensified? This is partly
in reaction to legislative and judicial efforts
to curtail wiretapping and other forms of
unlawful and unconstitutional police prac-
tices, partly because of a serious and appar-
ently growing crime problem, and partly be-
cause modern technology has made these
types of surveillance both more penetrating
and less expensive. The problem is often
posed as one of the perennial dilemmas fac-
ing our country today: how can one fight
organized crime without unnecessarily in-
vading the citizen's privacy? Put this way,
the problem seems resolvable only by some
type of "compromise" "balanced" solution,
such as that currently being supported by
a few articulate prosecutors: A limited
amount of wiretapping restricted to the in-
vestigation of a few major crimes, and closely
supervised and controlled by the courts in
all but national security cases. Such a nar-
rowly restricted invasion of privacy seems a
small price to pay for smashing organized
crime, especially since, as is often noted, we
are dealing primarily with the privacy of
criminals.
Unfortunately, this reasonable "compro-
mise" is no compromise at all. Physical and
other inherent factors virtually preclude any
meaningful limitations; moreover, the inva-
sion of privacy is far greater than first ap-
pears. These same factors preclude effective
supervision by the courts; indeed, experience
has shown that many courts don't even try
to exercise any control.
Further, there are indications that the so-
called dilemma is more apparent than real
and that wiretapping may not be quite as
indispensable as often claimed.
The American Civil Liberties therefore be-
lieves that the present ban on all wiretap-
ping must not only remain in force but it
must be strengthened. The enactment of
legislation permitting 'wiretapping would be
a staggering blow to the right of privacy,
both symbolically and in practice. Symboli-
cally, because our society will thereby have
approved unlimited and unlimitable intru-
sions by the police into the citizen's personal
life, contrary to basic constitutional prin-
ciples. In practice, because innumerable in-
nocent people will have their privacy invaded
by officials, who, as Justice Brandeis said,
at their best are "men of zeal, well-meaning
but without understanding," and, at their
worse, susceptible to graft, corruption, ex-
tortion and other imlixoprieties.
I. SOME HISTORICAL BACKGROUND
Anglo-American history reflects a long and
persistent conflict between the individual's
right to be let alone and the impulse to en-
croach on that right in order to protect
society against its lawbreakers.
In 16th century England, the Stationers'
Co. was granted authority to search for
and seize seditious libel ard writings "con-
trary to the form of any statute, act or
proclamation made or to be made." The
Stationers, who were authorized to search
anywhere, any time, for seditious matter,
used these general warrants on behalf of the
state to seek out and destroy Puritan and
other dissenting literature. Subsequent
1In the 1961 congressional session, four
separate bills authorizing wiretapping and
electronic eavesdropping were introduced in
the Senate: S. 1495, S. 1086, S. 1822, S. 1221,
87th Cong., 1st Sess. S. 1086 was reported
out favorably by the Subcommittee on Con-
stitutional Rights, with certain amendments,
but died there. In the 1962 congressional
session, an Administration-backed bill, S.
2813, was introduced, and in 1963, was rein-
troduced as S. 1308, 88th Cong., 1st Sess. In
February 1965, the Senate Government Op-
erations Committee called for legislation to
authorize wiretapping, in its Report on the
"VaIachi Hearings" and the Cosa Nostra.
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courts could consider wiretap evidence ob-
tained by State officials even though such
wiretapping was illegal. This decision was
based upon an analogy with the then con-
trolling decision of Wolf v. Colorado" which
held that State courts could consider evi-
dence seized by State officials even though
such seizure was unconstitutional. And in
Rathbun v. United States" the Supreme
Court further declared that permission to
eavesdrop by one party to a telephone conver-
sation was sufficient to legalize a detective's
listening in on an extension phone.
Even before the Supreme Court's more
permissive attitude the U.S. Department of
Justice served notice that it would tap.
Originally, in the late twenties and thirties,
U.S. Attorneys General, FBI Director J.
Edgar Hoover, and other Federal officers
stated that they disapproved of wiretap-
ping and did none." However, in 1941,
Under wartime pressure the Department of
Justice declared that wiretapping itself was
not illegal under section 605 so long as there
was no divulgence of the information so ob-
tained. The Department then construed
transmission of wiretap evidence by a Fed-
eral law enforcement officer to his superior
as not a divulgence." This interpretation
ignored the express- prohibition in section
605 of any "use" of the information so ob-
tained.
The Department's position and the Su-
preme Court's rulings have resulted in a
complete nullification of the prohibitions of
section 605, at least insofar as wiretapping by
law enforcement officials is concerned. Many
State and local officials have continued to
tap to this day, with complete impunity.
Indeed, despite the clear prohibition of sec-
tion 605, New York and other States have
enacted statutes purporting to authorize law
enforcement wiretapping and the use of the
evidence so obtained.
In 1957, however, a Supreme Court decis-
ion struck a.blow at State wiretapping. In
Benanti v. United States," the Court flatly
stated that State legislation permitting wire-
tapping was in conflict with section 805 "
New York City prosecutors such as Edward
S. Silver, of Kings County, and Frank S.
Hogan, of New York County, responded with
vigorous complaints that their entire opera-
tions would be crippled if section 605 were
enforced against them. These complaints
grew louder after a concurring opinion in a
decision of the U.S. Court of Appeals in New
York called upon the U.S. attorney to indict
and prosecute any use of wiretap evidence
by State law enforcement officers."
In June, 1961, the Supreme Court over-
ruled Wolf v. Colorado," the decision relied
upon in Schwartz v. Texas, and held that
State courts could not admit evidence ob-
tained by an illegal search and seizure. This
decision has raised hopes that the Court will
similarly prohibit State courts from ad-
mitting illegally obtained wiretap evidence?"
So far, such hopes have not been realized.
During the last 25 years many Federal
and State legislative hearings have been held
In an attempt to resolve the problems. Al-
though State legislative committees in Cali-
fornia and New Jersey have concluded that
there is no need for any wiretapping author-
regimes in 16th, 17th and 18th century
England reaffirmed these powers or their
own purposes until the 1760's, when such
powers were held unlawful. ,
While these practices were being curbed
in England. Parliament granted colonial
revenue officers complete diaeretien to search
in suspected places for smuggled goods by
means of writs of assistance. The struggle
against these writs was described by John
Adams as "the first act of pposition to the
arbitrary claims of Great Britain." Revul-
sion against general warrants and write of
assistance led the Founding Fathers to in-
clude in the fourth amendment to the Con-
stitution this express ban on general war-
rants: "no warrants shall issue, but upon
probable cause * * * and particularly de-
scribing the place to be searched and the
person or things to be seized,"
The Supreme Court has ?refined this and
has developed the corollary doctrine that a
search can he made only to obtain certain
objects: tools of crime, fruits of crime, con-
traband or goods on which an excise duty
should have been paid. mother words, the
Court has refused to allow police officers to
search a person's home merely to obtain
evidence of crime. For example, in a murder
case, a policeman my obtain a search war-
rant to starch for and seize the murder
Weapon but not the victim's bloodstained
Shirt."
Tapping of telephone communications ap-
peared shortly after the telephone's inven-
tion. Police officers were reported to be wire-
tapping as early as 1895. The practice flour-
ished during prohibition and in 1928 pro-
duced the most important Supreme Court
decision in the area, Olmstead v. United
States.' In that case, over the vigorous dis-
sents of Justices Brandeis and Holmes, and
by a 5-to-4 vote, the Supreme Court held that
telephone conversations were not protected
by the fourth amendment against wire-
tapping because a tap was neither a physical
trespass into the home ner a seizure of
tangible materials.
In 1934, Congress passed the Federal Corn-
nannications Act, section 60 of which pro-
hibited the interception of any communica-
tion, and the divulgence or use of such cool-
inunication. This was construed by the
Supreme Court in 1937 to prohibit wiretap-
ping 4 and to exclude from Federal trials any
eeldence obtained through the, use of a wire-
tap, either directly or Indirectly.' A subse-
Vent decision established that the prohibi-
tion applied to intrastate as well as to inter-
state telephone communications.'
in 1942, however, the Supreme Court began
to show a more permissive attitude toward
wiretapping and other fornis of electrenic
eavesdropping. It first ruled that a defend-
ant could not object to the use of wiretap
evidence by the Government, unless he was
a party to the conversation,' and then, that
a detectaphone placed against a wall in an
adjoining room to hear one side of a tele-
phone conversation was not covered by sec-
t= 605.8 Justices Frankfurter, Stone and
Murphy dissented in each case, stating a
willingness to overrule the Olmstead de-
cision. In 1952 the Supreme Court, in
Schwartz v. Texas,9 further held that State
2 The reasoning underlying this distinction
will be explained later in the report.
? 277 U.S. 438 (1928) .
ANarclone v. United States, 302 U.S. 379
(1n7).
Nardone v. United States, 308 U.S. 338
(1939).
Weiss v.. United States, 308 U.S. 321
(1939).
Goldstein v. United States, 316 U.S. 114
(1942).
'Goldman v. United States, 316 U.S. 129
(1942).
? 344 U.S. 199 (1952)
"938 U.S. 25 (1949) .
11 355 U.S. 107 (1957) .
"See Westin, "The Wiretapping Problem,"
52 Columbia Law Review 165, 173-74 (1952).
"See Dash, Schwartz and Knowlton, "The
Eavesdroppers," 394 (1959) (hereinafter cited
as "The Eavesdroppers") .
14355 U.S. 96 (1957).
" 355 U.S. at 105.
16Pugach V. Bollinger, 277 F. 2d '739, 746
(1960), aff'd, 365 U.S. 458 (1961).
"See Mapp V. Ohio, 367 U.S. 643 (1961) .
"See Note, 75 Harvard Law Review 80, 167
(1981).
May
4:
1965,
ity, steady pressures have been exerted by
District Attorneys Hogan, Silver, and O'Con-
nor, of New York, Chief of Police Parker, of
Los Angeles, and others, for such authority.
In hearings held in May 1961, before the
U.S. Senate Subcommittee on Constitutional
Rights " the Department of Justice also sup-
ported legislation authorizing both Federal
and State wiretapping, and in January 1962,
proposed a comprehensive bill authorizing
both Federal and State wiretapping in cer-
tain circumstances." Hearings on this bill
were held in 1962,', and the bill was reintro-
duced in 1963. Three other bills have ,iso
been introduced. The pressures now are
so great that despite many prior unsuccess-
ful attempts to persuade Congress to adopt
such legislation, the current drive may be
successful."
II. THE THREAT TO LIBERTY FROM WIRETAPPING
AND CYFHER ELECTRONIC EAVESDROPPING DE-
VICES
An essential difference between the totali-
tarian state and the free society is that the
totalitarian state seeks to deprive the citizen
of his privacy by trying to observe all his
movements, words, and even thoughts. Fear
and insecurity permeate every aspect of life
and pursuit of happiness is merely a
ph
Recognizing this, as Mr. Justice Brandeis
has said: "The makers of our Constitu-
tion sought to protect Americans in their
beliefs, their thoughts, their emotions, and
their sensations. They conferred as against
the Government, the right to be let alone--
the most comprehensive of the rights of nian
and the right most valued by civilized
men.""
And in 1894, the first Mr. Justice Harlan
declared: "We said in Boyd v. United States
(116 U.S. 818, 630)?and it cannot be too
often repeated?that the principles that em-
body the essence of constitutional liberty raid
security forbid all invasions on the part of
the government and its employees of the
sanctity Of a man's home, and the privacies of
his life. As said by Mr. Justice Field in Re
Pacific R. Commission (32 Fed. Rep. 241.
250), 'of all the rights of the citizen, few are
of greater importance or more essential to
his peace and happiness than the right of
personal security, and that involves, not
merely protection of his person from assault,
but exemption of his private affairs, books,
and papers from the inspection and scrutiny
of others. Without the enjoyment of this
right, all others would lose half their
value.' "?,
Privacy does not, however, mean solitude.
Each man must communicate and exchange
Subcommittee19 on Constitutional Rights
of the Senate Judiciary Committee. This
was the last set of hearings conducted by this
committee which began its inquiry in May,
1958. The subcommittee hearings prior to
1961 are cited as "Hearings," the May. 1981
hearings are cited as "1961 Hearings."
"S. 2813, 87th Cong., 2d sees. (1962) .
"Hearings on Wiretapping?The Attorney
General's program before the Senate Judici-
ary Committee, 87th Cong., 2d sess., cited as
"1982 hearings."
22 As part of this pressure, New York Dis-
trict Attorney Hogan recently found it nec-
essary to dismiss an indictment against seven
narcotics peddlers on the ground that the
U.S. Court of Appeals in New York had held
that it was a Federal crime to introduce wire-
tapping evidence, New York Times, Nov. 15.
1961, even though this has been common
knowledge for many, many years. This tac-
tic was timed to coincide with consideration
of S. 1086 by the United States Senate Judi-
ciary Committee, and "was designed to in-
crease the pressure for congressional action."
New York Times, December 18, 1961.
"Olmsted v. United States, 277 U.S. at 478.
21/.C.C. v. Brimson, 154 U.S. 447, 479.
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May 4, 1965
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thoughts and ideas with others?his wife,
his children, his doctor, his lawyer, his re-
ligious adviser, his business acquaintances
and associates, his friends, his constituents.
Often this must be confidential. The growth
and complexity of modern society have made
the telephone probably the major instrument
for such intercourse, for it provides instan-
taneous, direct, spontaneous, and ostensibly
private communication.
To permit law enforcement authorities to
wiretap, even under limited circumstances,
would seriously impair this privacy so neces-
sary to a free society. Awareness by the
public of the power to wiretap is alone suffi-
cient to reduce drastically the sense of secu-
rity and privacy so vital to a democratic
society. The mere thought that someone
may be eavesdropping on a conversation with
one's wife or lawyer or business associate
will discourage full and open discourse.25
Indeed, government officials who are in office
for a, period of time can build up a substan-
tial body of information on other public
officials and representatives, which can
seriously impair the working of representa-
tive democracy..
The rapid and multiple development of
other forms of electronic eavesdropping only
aggravates the threat of this fundamental in-
vasion of personal liberty. In a recent case,
Silverman v, United StateSp a spike was in-
serted into a wall and became a giant micro-
phone picking up all conversations on two
floors of a house. The Supreme Court held
that this violated the 'fourth amendment.
There are now other eavesdropping devices
Which, can record eonVersations at great dis-
tances or behind cIosed'eloors easily and in-
expensively. The Supreme Court expressed
shock anol dismay at the microphone in the
bedroom installed by California police in
Irvine v. Ocifforrtia.01 By these devices the
most private and intimate utterances, often
deliberately Confined to `one's home, are ex-
posed to the ears of listening police. In-
evitably, miniature television and image
recording instruments will soon be developed
and the omnipresent' telescreen of George
Orwell's "1984" will be with us.
The ACLU believes that all such types of
such electronic eavesdropping violate the
fundamental rights protected by the fourth
amendment te the Constitution. The found-
ers of our Nation established the protections
of the fourth amendment because they had
seen their homes subjected to unlimited in-
vasions and searches by the authority of gen-
eral warrants and writs of assistance; theY
sought to insure that such unlimited searches
and general warrants would never be re-
peated. Government officials were to be al-
lowed only specific warrants, particularly
describing, in the words of the fourth amend-
,
45 Simply being aware of the possibility of
electronic eavesdropping destroys one's sense
of security. This was ironically demon-
strated by the U.S. Attorney's office in Wash-
ington, D.C., in 1963, when a hidden micro-
phone was' found in a room in the Mayflower
Hotel. Shortly 'thereafter it was reported
in the Washington Post that "the U.S. At-
torney's office which is investigating the
mysterious Mayflower 'bugging' case has
had some quiet checks made of its own tele-
phone lines against electronic eavesdropping.
* * *. The security drive has spread to al-
most everyone connected with the Mayflower
case. Lawyers and private detectives in the
case have had their telephones checked or
have checked them personally in search of
tapping devices."
?3?For reports of such tapping, see Fairfield
and Clift, "The Wiretappers," The Reporter,
19-22 (Dec. 23, 1952), and the recent hear-
ings before the Senate Administrative Prac-
tices and Procedures Subcommittee, Febru-
ary 1965.
365 U.S. 505 (1961).
M7 U.S. 123 (1954).
ment, the "place to be searched" and the
"thing to be seized." 29
Electronic eavesdropping cannot be so lim-
ited. Any authorization for such practices
would necessarily be general, rather than a
specific warrant limited to specific objects
and places, for it would necessarily permit a
general exploratory search for evidence in
aid of prosecution. This is because such de-
vices inevitably pick up all the conversations
on the wire tapped or room scrutinized, and
nothing can be done about this. Thus, not
only is the privacy of the telephone user in-
vaded with respect to those calls relating to
the offense for which the tap is installed, but
(1) all his other calls are overheard, no mat-
ter how irrelevant, intimate, or otherwise
priviliged, and thus all persons who respond
to his calls have their conversations over-
heard; (2) all other persons who use his tele-
phone are overheard, whether they be family,
business associates, or visitors; and (3) all
persons who call him, his family, his business,
and those temporarily at his home are over-
heard.'
Any assumption that wiretapping and
eavesdropping affect only criminals is thus
totally unwarranted. The recently proposed
Federal bills and existing 'State statutes do
not limit the eavesdropping even to persons
suspected of crime. They permit installa-
tion of eavesdropping devices wherever "evi-
dence of crime" in general, or of certain spe-
cific crimes, may be obtained, whether it be
on the home or business telephone of a wit-
ness, or merely an acquaintance of the sus-
pect, witness, or even victim. In testimony
on February 5, 1965, before the Illinois Crane
Commission, a high New York City police
officer showed how widely taps may reach
when he referred to "a telephone call to
friends of a criminal [which] was inter-
cepted." Such friends may be totally inno-
cent of any wrongdoing, and yet an order
may issue for a tap on their line.
And what about the suspect himself? We
must always keep in mind that the funda-
mental principle of American justice is that
everyone is presumed innocent until he is
actually proven guilty beyond a reasonable
doubt. A large proportion of people sus-
pected of crime are not even arrested, much
less found guilty, yet their -Privacy and the
privacy of many others will have been fla-
grantly violated if their wires are tapped.
The ban on general warrants, particu-
larly in cases touching upon the first
amendment, was recently reaffirmed in Stan-
ford v. Texas, ? U.S. ? (Jan. 18, 1965),
whre the Supreme Court unanimously struck
down as too general a search warrant author-
izing the seizure of "books, records, pam-
phlets, cards, receipts, lists, menioranda, pic-
tures, recbrdings, and other written instru-
ments concerning the Communist Party of
Texas, and the operations of the Communist
Party in Texas." "
'? "In the course ?of tapping a single tele-
phone a police agent recorded conversations
involving at the other end, the Julliard
School of Music, Brooklyn Law School, Con-
solidated Radio Artists, Western Union, Mer-
cantile National Bank, several restaurants,
a drug store, a garage, the Prudential In-
surance Co., a health club, the Medical
Bureau to Aid Spanish Democracy, dentists,
brokers, engineers, and a New York police
station." Cited in Westin, "The Wiretapping
Problem," 52 Columbia Law Review 165, 188,
n. 112 (1952).
The Queens County District Attorney had
called for wiretapping authority in criminal
abortion cases. 1961 Hearings 327. If such
authority were granted, confidential com-
munication between a suspected physician
and all of his patients?whether abortion
patients or not?would be overheard. Such
interceptions have already taken place in
New York. See People v. Cohen, 248, N.Y.S.
2d 339 (Sup. Ct. Kings 1964).
8991
Wiretapping's broad sweep is most appar-
ent where public telephones are tapped. Of
3,588 telephones tapped in 1953-54 by New
York police, 1,617 were public telephones, or
almost half.. It is inevitable that in these
cases only an infinitesimal number of the in-
tercepted calls are made by the suspect or by
anyone even remotely connected with him;
yet, the privacy of numerous other callers is
invaded, many of whom may have resorted
to a public telephone precisely in order to
obtain a privacy not obtainable at their
homes or businesses.
Because of this dragnet quality, wire-
tapping and other forms of electronic eaves-
dropping cannot be regulated by controls
similar to search warrants; the object to be
seized or the premises to be searched simply
cannot be limited or even specified, because
the very nature of a wiretap or spike micro-
phone is to catch all calls and conversations.
Indeed, the proponents of wiretapping them-
selves admit that the process is indiscrimi-
nate, because one of the alleged benefits of
wiretapping is that evidence of one crime has
occasionally been uncovered when policemen
were looking for evidence of another crime..
Such claims would explain why the police
frequently put a tap on the line of anyone
whom they believe to be suspicious.. New
York State Assemblyman Anthony P. Sava-
rese, a vigorous proponent of authorized law-
enforcement wiretapping, made this very
clear, saying:
"All they (law-enforcement officers) want
to do is to exercise surveillance over his (a
known criminal's) phone. That is the whole
purpose of law-enforcement tapping. If they
know that a certain crime is going to be
committed, there is no point in tapping his
wire. It is to find out what this known
criminal is going to do that you want the
surveillance over his phone."
Such surveillance searches and wiretaps are
inherently and necessarily general searches,
not specific, and they are thus clearly and
flagrantly in violation of fourth amendment
standards.
That wiretaps are general and not specific
searches is also reflected in the very language
of statutes to legalize the practice. Existing
and proposed statutes permit wiretapping to
"obtain evidence of the commission of a
crime," 35 or of specific crimes,3? without re-
quiring, as does the fourth amendment, spe-
cification of "the things to be seized," the
particular conversations. Indeed, the Attor-
ney General's bill goes even further, for it
permits a tap if "facts concerning (any speci-
fied) offense may be obtained through such
interception," and the phone intercepted is
"commonly used by" the suspect. A public
telephone in a frequently visited bar or rail-
road station, or a private telephone of 'a
friend, one's lawyer or a relative -all satisfy
these criteria.
The language of these provisions is, of
necessity, the language of a general warrant
and no more specifically is possible, for it
cannot be determined in advance what con-
versations will be intercepted. Nor can it
be specified what "place (is) to be searched"
by citing the specific telephone number, for
also intercepted are calls emanating from the
telephone numbers of all others who call the
intercepted number, a totally indefinable
class.
Indeed, most of these statutes do not be-
gin to meet other constitutional standards
for a valid search under the fourth amend-
Note, "Wiretapping in New York," 31 New
York University Law Review 197, 210, n. 96
(1956).
32-The Eavesdroppers," 211, 278.
33 "The Eavesdroppers," 66.
'4 1961 hearings 163.
S. 1086, 87th Cong., 2d sees.; N.Y. Code
Grim. Proc. sec. 813a.
3?S. 1308, 88th Cong., 1st sees.
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went. Under a valid search warrant, the
police can only search for articles involved
in the commission of the crime, fruits of
the crime, contraband, or items en which ex-
cise duties should have been paid. Such
limitations are reflected 'rattle Federal Bolles
of Criminal Procedure, rule 41(b). Thapro-
posed wiretapping statutes, on the ether
hand, permit a search for and seizure of mere
evidentiary matter, pieces of evidence to as-
sist in prosecution and conviction. The su-
preme Court has recently held that "private
papers desired by the Government merely
for use as evidence may not he aeized? no
matter how lawful the search that discovers
them." 37
The underlying principle?one of the most
fundamental to personal security in a free
society?is clear: a person has an absolute
right of privacy against any police invasions
for all of his papers and effects except in a
few special cases: (1) those things he has no
to have in the first place, such as fruits of
crime of contraband; (2) those where he
has not given the community its lawful share
of the value (dutiable goods); and (3) those
which he has used to break the law and to
Which he has thereby forfeited his rights.
Everything else, no matter how intereSting
or Useful it may be as evidence, is immune
to a search warrant."
One of the Major pressure points in the
current drive for Federal wiretapping legis-
lation is to give States the right to use wire-
tapping for the detection of crime, a prac-
tice which a few States already authorize.
?Granting the States the right to Use wire-
tapping for some or all crime la especially
unwise. In the first place. telephone com-
munication is frequently interstate; permit-
ting each State to decide for itself whether
to authorize its law enforcement officers to
wiretap will inevitably result in wiretapping
the telephone conversations of people who
reel* in States where law, enforcement. offl-
etre may not wiretap. This, if a Senator or
Congressman, In the District of Colunabia,
Illinois, Pennsylvania, California, or Utchi-
gan is called by someene trkes a call to
ecarleone New Yorit er achnsetts,:and
the latters telephone is being tapped,. the
privacy of the Senator or Congressman has
been invaded even though he did notloing but
answer or place a telephone call, and no Mat-
ter how irrelevant the conversation to the
Inorpose of the-tap.
Moreover, the record Is full qf abuses oLthe
right to wiretap by State and local offigials.
Most of the bills as/plc:rising State wiretap-
ping set either no limit or the' broadest of
limits on the crimes for which a tap may be
_ ,
fa Abel v. United States, 362 U.S. 217, 235
(1960); see also cases cited therein; and
United States v. Lefkowitz, 285 U.S. 452, 465-
66 (1932). Indeed, the Attorney General's
bill would permit wiretapping merely to ob-
tain "facts" of certain national security, of-
fenses which is apparently meant to include
material which would not be admissible in
evidence. See S. 1308, sec, 5(a). See also
see. 8(c) (2) which authorizes a judge to is-
sue an order where he has reason to think
"facts coneerning [any offense for which
wiretapping is permitted under the act] may
be obtained through such interception."
" The Supreme Court has not yet dealt with
the question whether this restrictions will be
Imposed on State law enfercement officers
under Ker v. California, 374 U.S. 23 (1963).
Compare the 1962 amendments to the New
'Fork Code of Criminal Procedure sec, 792(4)
which permits a search for and seizure of
"property constituting evidence of crime or
tending to show that a particular person
corritnitted a crime." A recent lower court
decision in New York, however, held that a
State cannot constitutionally authorize elec-
tronic eavesdropping because such eavesdrop-
ping inevitably intercepts merely evidentiary
matter. People v. Grossmitn, N.Y. Law J.
(sings Co.) Mar, 2, 1965, PP. 17-18 (Sobel J.).
imposed. Thus, one recent proposal permits
.Stateagiretapping for crimes "involving gam-
bling, liquor, narcotics, or prostitution or
any crime punishable by a maximum sen-
tence of 5 years or longer." " If an unpopu-
lar group IS suspected of violating one of the
many technicalities of a State,liquor law at
a benefit party, even though `such charges
turn out to be baseless, a tap may be put on
the telephones of that group. And recent
experience in the South shows that there are
many, ancient penal statutes which carry
severe penalties and which can be dusted off
to obtain wiretapping authority.
It was also reported at the recent JJinois
Crime Commission hearings that telephones
were tapped during the racial disorders in
New York City in the summer of 1964. Since
some disorder is possible in every civil rights
demonstration, this would seem to indicate
that civil rights groups are now a legitimate
target of police wiretapping.
The South offers an example of how wire.,
tapping can be utilized to strengthen exist-
ing racial segregation. A Federal grand jury
in New Orleans, La., has indicted three men,
including a Louisiana State senator, for wire-
tapping the telephones of three religious
leaders. These leaders, a Baptist, a Jew and
a Quaker, were among some 53 Baton Rouge
ministers who had earlier issued an "Marrs
tion of religious principles" that "discrimi-
nation on the bests of race is a violation of
the divine law of love," Another Raton
Rouge minister declared in an anonymous
interview that the purpose of the tapping
was "to take these recordings to key mem-
bers of our congregations and stir up trouble
against us. The two chief targets were
Mackie (Quaker) and Reznikoff (Jewish), in
order to stir up all the .latent hatred for
anti-aenaitism which you can find in aseMall
minority in any church congregation." The
minister added that he had been told flatly
that the ultimatespurpose of the tappers was
"to run out of town every clergyman who
signed this document, within the space of
the next 2 years."
Thia alleged wiretapping occurred at about
the same time as the formation of a Southern
Association of Intelligence Agents, represent-
ing police officials of nine southern States.
The purpose of this organization is to ferret
out "subv.ersion," les integrationist efforts."
Legal/god wiretapping could become a major
weapon in the armory of such groups.
Moreover, the legitimation of wiretapping
will inevitably produce an increase in the
number of States ,where wiretapping is used.
At present. most States prohibit law enforce-
ment and other wiretapping. Testimony be-
fore the, Senate Judiciary Committee in 1962
Indicated, however, that if the bill passed,
wiretapping authority would immediately be
sought in other States, such as Pennsylvania,
Florida and Connecticut." The reductio ad
absurdum was reached when a district at-
torney from Iowa testified that although
there was no real problem of organized crime
in his State, wiretapping "would be a valu-
able tool in Iowa to help us in Solving some
of the mimes that we have." 43 Nor is there
any reason to think that the limitation to
specified crimes will be meaningful. The bill
introduced by the Attorney General in 1962
would permit the Federal Government to use
wiretapping for offenses involving national
security?including the Smith Act "?mur-
21 S. 1086, 87th Cong., 1st sees. (1961), as
reported by the Senate Subcommittee on
Constitutional Rights.
"Baton Rouge State-Times, Oct. 23, 1981.
See also Washington Post Sz Times Herald,
Oct. 10, 1961.
"See New York Times, Nov. 27, 1961.
" 1961 hearings 211, 217, 258.
"Id. at 265.
The dangers to freedom of speech have
been pointed out frequently. See e.g., Don-
nelly, "Electronic Eavesdropping," 38 Notre
Dame Lawyer 667, epe (1963) .
der, kidnapping, extortion, narcotics, larieery,
:transmission of gambling information or
racketeering. It would authorize the States
to permit wiretapping for murder, kidnap-
ping, extortion, bribery and narcotics.
Whatever one may say about these choices
this limitation will inevitably be eroded as
pressure builds up to permit wiretapping for
other offenses. Such pressure has already
begun. At the hearings on the bill in 1962,
attempts were made to include counterfeit-
ing, robbery, gambling, abortion, and lar-
ceny by fraud. Although indicating a desire
to maintain limitations, the Attorney Gen-
eral also showed a willingness to expand the
list, saying "I would think that an argument
Could be made for counterfeiting * * I
think that a strong argument can be made
for including robbery and perhaps we should
have included it." "
Proponents of wiretapping say that abuses
can be avoided by State courts applying .a
court order system. But some State judges
cannot be depended on too heavily, especi-
ally in areas where the rights of either un-
popular minorities or -unpopular individuals
are concerned. For example, a State officer
enforcing a segregation statute would be en-
titled to a wiretap order for enforcing this
law, at least until the law was held uncon-
stitutional. There is also the hard reality
that State courts often seem less solici-
tous of the rights of the individual. Thus,
many of the most fundamental Supreme
Court opinions in the area of individual lib-
erty have been decisions reversing State
courts. Also, some State judges seem less
' than immune to pressure from prosecutors
and their staffs, especially with respect to law
enforcement investigatory techniques. Con-
sequently, judge shopping is resorted to and
"it is practically unheard of for a judge to
Sail to grant a wiretap order for the district
attorney." 46 New York prosecutory and ju-
dicial personnel support this statement.
Thus former New York Judge Ferdinand Pe-
cora has stated that although he sometimes
refused to grant police' department applica-
tions in situations where other means were
available (which generally involved taps on
the wires of individual prostitutes) he never
refused an application where gambling was
concerned. And, as the evidence below
shows, there are many instances of fraud
and misrepresentation.
Because of the unlimited and unlimitable
invasion of the fundamental rights protected
by the fourth amendment, wiretapping and
other forms of electronic eavesdropping must
be prohibited. Even though a bare majority
of the Supreme Court did declare in the Olm-
stead case that the fourth amendment does
not directly protect telephone conversations
against wiretapping, this decision has been
sharply criticized by almost all legal com-
mentators and greatly weakened. Indeed,
Senator Kenneth Keating, of New York,
sponsor of a bill to exempt from section
605 State wiretapping pursuant to a court
order, has declared that his bill reflects the
Brandeis dissent in Olmstead."
.UI. rue asaussanss FOR wurgraeanse
Prosecutors and police authorities who fa-
vor permissive wiretapping assert that in
'6 1962 hearings at 22, 23.
46 "The Eavesdroppers," 45; of his experi-
ence as a New York assistant district attor-
ney former U.S. Attorney General William P.
Rogers said, "I don't recall any difficulty in
getting the permission of the court. My own
experience is that it's pretty easy." Hearings
on H.R. 408 before Subcommittee No. 3 of the
House Committee on the Judiciary, 83d.
Cong., 1st Less., ser. 7 at 37 (1953). See also
Sobel, "Current Problems in the Law of
Search and Seizure," 111 (1964).
" 1961 hearings 13.
4' Few arguments have been seriously pre-
sented for the use of any other electronic
eavesdropping devices. But see sec. IV infra.
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act they do very little tapping and that it is
indispensable where used. Neither of these
contentions is supported by the record.
The extent of wiretapping
The statistics published by the district at-
torneys of New York and Kings Counties
show an average of about 110 orders per year
for the period 1950-59, with 21 orders in 1964
in Kings County covering 29 phones. The
New York City police obtained 124 orders in
1958, 225 in 1959, 451 in 1963 and 671 in
1964.49 The enormous increase in police wire-
tapping is obvious and startling. Thus, at
least 335 orders were obtained in New York
City in 1959, covering more than 500 tele-
phones, for an order frequently covers more
than one te1ephone.99 Since one tap catches
many, many people per day, especially taps
on business and public telephones, and per-
haps 45 to 50 percent of the telephones
tapped are public phones 6,--these orders
produced an invasion of the privacy of
thousands of people every day.
Moreover, there is ample evidence of much
unauthorized police wiretapping throughout
the country.92 As New York Assemblyman
Savarese's remarks indicate, much of this
unauthorized eavesdropping is resorted to as
surveillance and sampling tapping, on the
basis of which an application for an order
can be framed if the tap turns up useful
information, Indeed, the very vigor of the
claims for the indispensability of wiretapping
by New York Distridt Attorneys Hogan, Silver
and O'Connor makes it difficult to under-
stand their claims of infrequent use. At
one point, District Attorney Hogan called
wiretapping "die single most important
weapon in the fight against organized crime"
and declared that without it "law enforce-
ment in New York is virtually crippled in the
area of organized crime." He then submitted
a table showing use in only 20 to 22 investiga-
tions a year for 10 years, even though his
office handled some 34,000 matters a year
during this period.99 It is thus quite easy to
understand Congressman EMANUEL CELLER'S
trenchant comment: "If you have a method
which is so easy * * * I cannot conceive how
in ordinary circumstances the police wouldn't
avail themselves of that very facile method
of detecting crime." 54
Nor is it likely that the amount of wire-
tapping or electronic eavesdropping can be
significantly reduced or even controlled by a
court order system, either State or Federal.
With the vast amount of unauthorized official
wiretapping that goes on, is it at all likely
that any court control which seriously at-
tempts to limit and reduce the amount of
wiretapping will be successful? If the police
find the limitations chafing, they can ignore
them as much as they ignore the present
49 The figures for 1950 through 1959 appear
in hearings on the current wiretapping dilem-
ma in New York State created by Federal
court decisions, 10-14; 62 (1960) . (Here-
after cited as "N.Y. hearings.") The figures
for 1963 and 1964 appear in testimony by
New York City Assistant Chief Inspector
John F. Shanley and Kings County Chief
Assistant District Attorney Elliott Golden be-
fore the Illinois Crime Commission, on Feb.
5, 1965. The latter's testimony is reprinted
in N.Y. Law J. (Mar. 1, 2,4965) .
9? See statistics for Kings County, N.Y.,
which show 1,7 telephones per order. N.Y.
hearings at 62.
SI See
P. 10, above.
99 "The Eavesdroppers," 39-73, 122, 151, 168,
217, 247; Fairfield and Clift, "The Wiretap-
pers," the Reporter, Dec. 23, 1952, Jan. 6,
1953; Westin, "Wiretapping: The Quiet Revo-
lution," Commentary, May 1960, 333, 337;
Westin, "The Wiretapping Problem," 52 Co-
lumbia Law Review, 195-196; of. Attorney
General Kennedy, Look magazine, Mar. 28,
1961, p. 25.
" 1961 hearings 437, 440.
9, Quoted in "The Eavesdroppers," 43.
absolute prohibition. The only result would
be to make the practice legal and respectable
and to sanction the admission of wiretaps in
evidence, thereby removing one of the few
deterrents to such improper conduct.99
Indeed the possibility of getting an order
rendering the wiretap evidence admissible
will only encourage sample tapping to see
whether it is worthwhile to apply for an
order.
Finally, the protections contemplated by
a preliminary showing that the wiretap will
turn up evidence of a crime are futile. As
the Attorney General of New Mexico recently
stated "these procedures are of necessity ex
parte and lend themselves to star chamber
tactics. Any time a judge hears only one
side of a controversial question he is at a
distinct disadvantage in reaching a just de-
cision." 99 Review of such proceedings is a
meaningless formality, for it can only be of a
cold printed record long after the fact, and
few appellate courts will be inclined to over-
rule the discretion of the lower court judge
who issued the order. Moreover, in most
instances the tap will turn up nothing useful
and no one but the judge and the investigator
will know of it. Thus, not only will the ap-
plication be ex parte, but unlike a search
warrant, there will never be an opportunity
to review the propriety of the order for in
most cases, no adversary interest will know
about the tap.
The opportunities for challenge are re-
duced even further by the fact that very few
taps are directly introduced in evidence. In
part, this is because in court, the tap can
be challenged for veracity and accuracy and
much wiretap evidence would prove inad-
missible. Instead, taps are used primarily as
leads to other evidence and the defendant
must try to ferret out whether any of the
evidence used against him is derived from
wiretapping. According to a Yale Law Jour-
nal study some years ago, Federal judges
have been very reluctant to permit such an
inquiry, and the rule excluding wiretap evi-
dence from the Federal courts has proven an
illusory safeguard.91 There is no reason to
think defendants have been more successful
in tracing wiretap evidence in State courts.99
Indeed, conversations with defense attorneys
In New York indicate that except where the
police or prosecutor voluntarily discloses the
existence of a wiretap, it is almost impossible
to learn whether a wiretap has been used and
to challenge its issuance.
The small probability of a challenge to
the propriety of a wiretap order invariably
makes for lax judicial scrutiny of the appli-
cation, especially where judges are over-
worked or otherwise unable to make a close
study of papers. Some judges are, of course,
more prosecution-minded than others, and
practicing lawyers know that careful judge-
shopping is one of the most important and
vridely practiced skills of any successful law
practice. This may be one reason why New
York and Queens district attorneys assert
that, although they have occasionally been
required to modify their supporting papers,
they have never been denied a wiretap order.
99 It is also debatable 'whether a Federal
court can grant wiretap orders, because ap-
plications for such orders may not come
within the definition of "case or contro-
versy" under article III of the Constitution.
Such orders are not merely ex parte, but most
will never be tested, because they will not
produce useful evidence. Thus as Justice
Jackson observed, even the power of a Fed-
eral court to attempt to limit wiretapping
"raises interesting and dubious" constitu-
tional questions. "The Supreme Court and
the American System of Government," 12
(1955) .
961961 hearings 483.
Comment, 61 Yale L. J. 1221 (1952).
'8 Cf. People v. Seardaecione, 245 N.Y.S. 2d
721 (Sup. Ct. Kgs. 1963) ; see Sobel, op. cit.
supra n. 46 at 112-13.
Nor does experience with a court system
provide any basis for faith. Such systems
have been in effect in New York and a few
Other States for several years. One experi-
enced New York judge has observed that the
papers in support of the applications fre-
quently contain little more than the "formal
matters presented by the Statute;" 99 and
there have even been demonstrated instances
of false affidavits.99
An extensive 2-year study concluded that:
"The experience of the statutes through-
out the country providing for judicial super-
vision has been very bad. Law enforcement
officers have had no difficulty obtaining a
court order when they wanted it. Judges
who are tough are just bypassed.
"In addition, police officers have shown
complete impatience with the court order
system and more often have engaged in wire-
tapping without a court order than with a
court order." 61
In sum, the court order system provides far
too meager a protection for so great and
dangerous an invasion of privacy.
Is there really a need for wiretapping?
Despite the clamor for wiretapping by cer-
tain prosecutors no clear case has yet been
made for its necessity. In the first place,
many prosecutory officials either deny or re-
fuse to assert that wiretapping is so indis-
pensable as to outweigh the danger to per-
sonal liberty. In response to inquiries from
the Senate Subcom.mittee on Constitutional
Rights only some 13 out of 45 attorneys gen-
eral called for wiretapping authority. Most
of the responses refused to express an opinion
(approximately 26) and 6 came out flatly
against wiretapping, including the attorney
general of such a populous State as Califor-
nia.92 At other hearings the attorney general
of Pennsylvania condemned wiretapping and
the State's attorney in Cook County, Ill., a
State where wiretapping is totally outlawed,
declared: "I do not think one can honestly
say that wiretapping is a sine qua non of af-
fective law enforcement.", Especially sig-
nificant is the fact that so many State attor-
neys general did not consider it necessary to
call for wiretapping authority, although in
some cases at least, this was probably because
wiretap evidence is admissible even if ille-
gally obtained.
State legislative investigating committees
in New Jersey .4 and California 69 have re-
cently found that the need for wiretapping
does not outweigh the damage to individual
liberty and judges who have issued wiretap
orders, such as New York Justices Samuel
Hofstadter and Nathan Sobel and New York
Special Sessions Judge Frank Oliver have dis-
paraged its value.99 Indeed, as shown by the
155 "Matter of Interception of Telephone
Communications," 207 Misc. 69, 136 N.Y.S. 2d
612, 613 (Sup. Ct. N.Y. 1955).
69See report of the Kings County Grand
Jury, summarized in Westin, 52 Columbia
Law Review at 195-96; cf. testimony of Prof.
Alan Westin, 1961 hearings 206.
51 Dash testimony, 1961 hearings 104-05.
A recent report by a Bronx County Bar As-
sociation committee concluded that search
warrants were frequently granted on false
affidavits. New York Times, Mar. 10, 1965,
p. 51. This is even more likely with wiretap
applications because of the low probability
that they will be challenged.
921961 hearings 539-575.
1961 hearings 400.
0, Report of New Jersey Joint Legislative
Committee to Study Wiretapping and Other
Unauthorized Recording of Speech, 27 (No-
vember 1958) , reprinted in hearings 1783-
1834.
99Hearings before the Senate Judiciary
Committee of California (1956) summarized
in "The Eavesdroppers," 192-98.
99 For Judge Oliver's remarks in 1948, see
Westin, 52 Columbia Law Review at 195. For
Judge Sobel's views see Sobel, op. cit. supra
n. 46 at 109-10.
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1961 study and compilation by the Senate
Subcommittee on Constitutional Rightist 33
States, inCliseling Illinois, Michigan, Penn-
sylvania, California, Florida and other popu-
lous and industrialized jurisdictions have
completely outlawed wiretapping and in some
instances its fruits. This was done both by
statute (Wisconsin, 1961, Pennsylvania and
Illinois in 1957) and by judicial decision
(California, Florida, and New Jersey, within
the last 6 years, and Michigan earlier).
On the Federal level, until recently, there
has also been less enthusiasm for wiretapping
than might be expected. The Department of
Justice has recently proposed legislation au-
thorizing broad Federal and State wiretap-
ping and endorsed a similar, bill at the hear-
ings in May 1961. However, in March 1961
Attorney General Robert F. Kennedy declared
that he "would not be in favor of its Use
under any circumstances-Leven with the
court's permtssiori?except in certain capital
offenses," which he listed as 'murder, treason,
and kidnapping." ff7 Similarly, although FBI
Director J. Edges Hoover now appears con-
verted to the cause of wiretapping, at various
times in the last 30 years, he has called it
"unethical," 88 inefficient, and "a handicap to
the development of sound investigational
techniques." oe In 1940, he said: "The dis-
credit and suspicion of the law-enforcing
branch which arises from the occasional use
of wiretapping more than offsets the good
which is likely to come of it."
Of late, however, the Department of Jus-
tice and recent Attorneys General have ,as-
serted that wiretapping is necessary in in-
ternal security cases. At first blush, this
argument is indeed appealing, for internal
security has become so paramount a value
in America today that its mere invocation
is often enough to silence defenders of all
other values. But a free society does not
give its police officers enormous powers
without requiring a demonstration from
them that such powers are necessary. No
such showing has yet been made. No evi-
dence has been submitted of a single ease
where the FBI's illegal wiretapping was in-
dispensable, or where the leek of wiretapping
authority significantly hampered operations.
Indeed, will sensible espionage agents ever
use the telephone? Of course, there have
been many statements and representations
that the lack of wiretapping authority is a
serious hindrance in this area but . no
demonstration with examples and analysis
has yet been made.
We cannot afford to emulate the police
states in giving prosecution and police such
penetrating and cisngeroua powers when-
ever they merely demand it. A free society
guards its liberties jealously, and permits re-
strictions only upon a clear demonstration
of urgent necessity.
The results of wiretapping where it has
been used extensively, are not conclusive or
even impressive. Thus, District Attorney
Hogan claims that between 1950 and 1959, he
obtained some 727 orders (including re-
newals) for 219 investigations, which prob-
ably covered some 1,250 telephones. These
orders, according to Hogan, were involved in
some 458 arrests and 335 convictions. Kings
County statistics show 275 orders, 362 tele-
phones and some 179 convictions during the
"period 1950 to 1955. New York City Police
Department figures show that in 1954, 1,081
telephones were tapped with 395 arrestq in
1963 there were 451 orders with 221 arrests
Involving 969 people, and in 1964, 671 orders,
and 297 arrests involving 1,022 persons. The
police department supplied no figures for
1963 or 1964 relating to the number of
67 Look magazine, Mar. 28, 1961, p. 25.
ea Quoted in Westin, 52 Colitbihia Law Re-
view at 173n. 44.
? See Note, 31 New York University Law
Review at 213n. 103.
telephones tapped or the number of con-
victions nbtained.
It is difficult to assess these statistics with-
out data as fp (I) the type and quantity of
each of the offenses involved; (2) the indis-
pensability of the wiretap evidence to "those
convictions that were obtained; and (3) with
respect to the police department figures how
many of those arrested were found guilty or
even charged with a crime. As to the first,
the evidence is rather clear that wiretapping
is used most extensively in the "morals"
area, vine, and bookmaking.70 Are convic-
tions in this area worth giving the police
such dangerous powers, especially since 'these
are the areas of greatest abuse? 77 In New
York, for example, gambling and vice are
only misdemeanors. And even in these
areas, wiretapping does not seem overly
effective, according to judges who have
Issued wiretap orders. Justice Samuel Hof-
stadter of New York declared that his record
of the fruits of wiretapping orders "showed
some arrests and fewer convictions and then
rarely, if ever, for a heinous offense," 72 and
as noted, New York Special Sessions Judge
Frank Oliver made similar observations.
Insofar as gambling and vice are generally
operations of organized crime, the problem
is not that the investigative techniques are
Inadequate but that the public is indifferent
and law enforcement either inept or corrupt.
There is no reason to think that the laws
against gambling and vice are better en-
forced in New York, which permits wiretap-
ping, than in Pennsylvania, which does not.
Indeed, a recent study in New York, although
calling for wiretapping authority, attributed
the ineffectiveness of efforts to suppress or-
ganized gambling primarily to the "absence
of integrated effort" among law enforcement
agencies, as well as to lax police work and
public indifferenceSs And the same causes
can be seen elsewhere.74
Insofar as some of the leaders of organized
crime have been brought to justice, this has
been more through the efforts of Federal law
enforcement agencies who claim they do not
wiretap in such cases.
As Mr. Justice Frankfurter said, dissenting
in On Lee v. United States:
"Suppose it be true that through 'dirty
business' it is easier for prosecutors and
police to bring an occasional criminal to heel.
It is most uncritical to assume that unless
the Government is allowed to practice 'dirty
business' crime would become rampant or
would go unpunished.
"In the first place, the social phenomena
of crime are imbedded in the texture of our
society. Equally deep seated are the causes
of all that is sordid and ineffective in the
administration of our criminal law. These
are outcroppings, certainly in considerable
part, of modern industrialism and of the
prevalent standards of the community, ra-
lated to the inadequacy in our day of early
American methods and machinery for law
enforcement and to the small pursuit of
_ 70 See Note, 31 New York University Law
Review at 203 (1956); cf. testimony of As-
semblyman Savarese, 1961 hearings 465. See
Sobel, op. cit. supra n. 46 at 110.
a Prof. Alan F. Westin cited gambling,
bookmaking and prostitution as areas "where
I think wiretapping is least needed and is the
greatest attraction to misuse of wiretapping
authority." 1961 hearings 206. See also
testimony of Bell Telephone System execu-
tive W. Coles Hudgins, 1961 hearings 251.
72 "Matter of Interception of Telephone
Communications," 207 Misc. 69, 136 N.Y.S.
2d 612, (113 (Sup. Ct. N.Y. 1955).
D a Report on syndicated gambling in New
York State, 100-110 (1961).
74 "The Eavesdroppers," 128 (New Orleans),
280 (Nevada); New York Times, Nov. 29, 1961
(Boston. Mass.).
scientific inquiry into the causes and treat-
ment of crime.
"Of course we cannot wait on the slow
progress of the sociological sciences in illu-
minating so much that is still dark. Nor
should we relax for a moment vigorous en-
forcement of the criminal law until society,
by its advanced civilized nature, will bege
an atmosphere and environment in which
crime will shrink to relative insignificance.
My deepest feeling against giving legal sanc-
tion to such 'dirty business' as the record
in this case discloses is that it makes for
lazy and not alert law enforcement. It puts
a premium on force and fraud, not on imag-
ination and enterprise and professional
training." 75
Moreover, one cannot overlook the alseses
to which the power to wiretap may be sub-
ject. Doctoring of tape recordings is not WY -
limit, as has been demonstrated many times.
There have also been many instances of ex-
tortion and shakedown based on informa-
tion obtained by wiretapping, especially in
the gambling area where wiretapping is most
used?, A grant jury investigation in Kings
County in 1950 unearthed much corruption,
including false supporting affidavits in sap-
port of the application for a court order,
and vague, conclusory pro forma applications
in other instances.77 Other recent examples
of police shakedown and corruption in New
York City and elsewhere preclude optim sm
that city police officers will not abuse this
weapon.
While any device or weapon can be abused,
the secrecy and scope of the tap makes it es-
pecially prone to abuse. The tapper who
is at all unscrupulous or Weak is seveiely
tempted. The problem is aggravated by the
absence of any effective check on how the
tapper obtains and uses his information.
Thus, if he does pick up blackmail material,
he can use it without even revealing how he
obtained this material, and there is no way
of checking. The person blackmailed will
generally want to avoid the publicity attend-
ing a private suit or a complaint to the
authorities.
/V. A NOTE ON E'LECTRON/C EAVESDROPPING
Earlier in this study, it was said that legiti-
mation of wiretapping would be a great sym-
bolic blow to the right of privacy. A reason
in addition to those set forth above is that
it would set a precedent for electronic eaves-
dropping and thereby justify such devices as
concealed or contact microphones which,
placed next to a part of a house such as a
room or the plumbing or a heating duct, can
pick up every word spoken in the entire
house. Parabolic microphones exist which
can overhear conversations hundreds of feet
away. Such devices have been used by police
officers. A forthcoming survey by the Asso-
ciation of the Bar of the City of New York
depicts even more startling devices, most of
which are designed for and bought by Gov-
ernment agencies.
Recent history shows that the legitimation
of wiretapping leads to the legitimation of
these other devices, as well. Thus, the New
York,78 Nevada.,7 MassachusettsSo and Ore-
75343 U.S. 747, 760-61 (1952).
76 "The Eavesdroppers," 52-62, 219, 280;
Westin, "Wiretapping: The Quiet Revolu-
tion." Commentary, May 1960, p. 337; Westin
testimony, 1961 hearings 206.
77 See Westin, 52 Columbia Law Review at
95-96; see also remarks of Justice Hofstader,
136 N.Y.S. 2d at 618.
7. Code Criminal Procedure sec. 810-a,
813-b. As noted at n. 38 supra, these previ-
sions were recently held unconstutional by
a lower court in New York City. The deci-
sion will undoubtedly be appealed.
7. Nev. Rev. Stat. 200.660, 200.670 (1959).
"Mass. Gen. L. Ann. c. 272, sec. 9 (1959
- Supp).
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gob. statutes, originally limited to wiretap-
ping, now permit eavesdropping of all con-
verlatione. In 1961 Senator Kenneth Keat-
ing,, of New York, introchicetrahirl td permit
States to-legaliae not only Wiretapping, but
all other type's of electronic eavesdropping.'
On e such eavesdropping is legitimated, the
n
e y retain -viill shrink to the vanishing
ni
owing enclave Of privacy which we pres-
point. ? - - - - - ,
V. EttCOIVilniql3ATIONS
, ?ilL one 'respect, those who call for wiretap-
? ping legislation are right: the present situa-
tion is bad. But this is not because the stat-
ute is vague 'and ' the- p`roa-edutor does not
knpvi what he may and May not do. Sec-
t1 pn 605 flatly bans all' Wiretapping, and it is
61early unlawful fer-Stateliidges and prose-
cutory officials to partici-pate-in the commis-
liort of c_i,,'ederal crime by p-rocuring wiretap
information and admitting:it into evidence.
Section 605 should therefore he tightened as
follows: ' -
1. All evidence Obtained directly or indi-
rectly from a Wiretap shouldl)e rendered in-
admissible in any court, to eliminate the
apettacle of a court swornto uphold the
Laws of :the 'United States participating in
- comraission of " a Vretterar -crime hy aiding
abetting the difidgenee-Of illegally oh-
ted and illegally did-aloe-ad evidence.
'..The'slaw Eihoiild Toe Changed to make it
perfectly clear 'that an aferise Is cbinniitted
kg either interception or divulgence. The
statute does in fact say as much now, but
,yyl-thin the DePartment of austice and other
agenCies"; it has been :interpreted to allow in-
terce,ptiOn so long as the information is not
divulged outside the agency.
,4, A defendant should be permitted to ob-
ject to the admission in wildelibe of wiretap
ovldence even though he is not a party to
tb,e conversation, for ami -persona adversely
affected has the right`ta -protest the commis-
sisaa, of 4- Federal 'offense 'By-a' courtP
' ? Grand Auflei sli-dtild be convened WI-
? cally'to inquire into the enforcement of
the jaw against wiretapping. Because of the
-r4Ord Of unanthorized use '61 wiretapping,
the blackmail temptation and other corrup-
Jim.). facilitated _*4_ this- Rractice, and the
ever-increasing growth of new eavesdropping
devices, there &Mat be "eoliatant review of the
electronic eavesdrOppirig. problem.
t; A private remedy for Unlawful wiretap-
?ping should be -statutorily established with
minimum punitive damages plus counsel
fees. If the ,possibility of financial loss to
the wiretapper exists, unlawful wiretapping
, C9,n. bedeterred. ' ? ? ' '
6. The various telellfone-cbrivatiies should
'be reqUired fo Ida all-fee-der and terminal
boxes and to report -all instances of wiretap-
P-itig iininediatell to Ilia Federal authorities.
' ffn a free society, the end of law enforce-
11?itent 'eldes not Iiiddly tidy' and 'all means.
Evert ,ig far' more donVictions could be ob-
*tined Through the iiirofench "dirty busi-
ness" We should' not choose to use them. ,
Siakce the case for wiretapping and other
forms of electronic -ea'vedEli'opping-is so weak,
and irreparable injury to freedom and secu-
rity so serious add certain, there is no justi-
fication for any such authority.
.STAELISR1VIENT' '6-0 'A ' ti './ikm-
_ . _ .
. , .. .. , _ _
MARSKJOLD MEMORIAL RED-
' WOOD. GROVE -El CALIPORNIK
. _ _
Mr.- KIICIIEL. Mr. President, I ask
AnlantnauS , ?agent _,tha.t the pending
'business Be .feiii-Pollilli- laid- aside and
0r9, Rev.-Slat. 141, MO (1659).
S.1.221, 67th sell. (1961).
Ba Gzicistei n v; Milted Slates, 316 U.S. 114
22 (1952) (dissent)". '
No.79 5
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kTE May 1964
will plague and handicap many genera-
tions of Americans yet unborn. He al-
ludes, of course, to the winner-take-all,
bloc-system, of voting presently em-
ployed in our electoral college; a device
designed to give some individual voters
In America as much as 14 or 15 times the
vote authority and individual power in
a presidential election as equplly intelli-
gent and patriotic citizens living in a
different State. More than any literacy
test, poll tax, or complicated registration
system our electoral college system is
rigged to elevate the stature of an in-
dividual voter in one State and to down-
grade the influence of another voter?it
could be his twin brother?in another
State solely because of the accident of
geographic residence.
THE STATE OF DELAWARE FIGHTS BACK
Delaware, is a proud and important
little State, Mr. President, and every
American should applaud the action by
Attorney General David P. Buckson, of
Delaware, in the 'suit he is bringing into
Federal Court to outlaw this outrageous
and iniquitious electoral college count-
ing procedure and to replace it with the
one-man, one-vote concepts which the
U.S. Supreme Court enunciated in the
Alabama reapportionment case.
Equality of voting opportunity in the
United States of America will remain an
Illusion and a myth until our electoral
collage procedures are rectified. I pro-
pose we adopt and approve Senate
Joint Resolution 12 as the optimum
answer to a problem which has for
too long plagued and injured Amer-
ica. Until we do that, any voting rights
legislation we pass this session will
scratch only the surface?it will continue
to ignore a major source of discrimina-
tion in our voting.
I ask unanimous consent that the Wil-
son column appear as part of my re-
marks.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
THE LITTLE FELLOW
(By Lyle C. Wilson)
There is one road only toward political
salvation for the unaffiliated litte fellow and
his folks who live in a little town or on a
family-size farm far removed from the com-
plex centers of urban civilization.
This road leads to amendment of the U.S.
Constitution to give the country folk an
honest count in the election of a President
of the United States or it lies in judicial
remedy.
The present system is rigged like a crooked
carnival wheel. The system is rigged against
rural and smalltown citizens and in favor
of the city slickers. These city citizens are
organized and affiliated by race, color, re-
ligion, and occupation.
Some press for change merely for the sake
of change. One result is that political con-
servatism is being squeezed out of the cities.
Political conservatism is becoming concen-
trated in little rural dikes of opposition to
the massive ground swells generated by the
pulsating activity of big town pressure
groups.
But these are feeble dikes, as demonstrated
by national elections over the past 30 years.
In terms of music and physical force, the
present method of electing a President sim-
ply hamstrings the country folk, the conserv-
atives. What to do?
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