Monday, Jan. 04, 1954
THE DEBATE ON WIRETAPPING
Congress Must Make New Rules for the FBI
Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.
IN those ringing words, pronounced by Justice Owen Roberts in 1937, the U.S. Supreme Court (Justices Sutherland and McReynolds dissenting) upset a smuggling conviction on the ground that essential evidence in the case against the smugglers had been obtained by wiretapping. Since then, the ban on wiretap evidence in federal courts has stuck, shielding not only smugglers but members of Communist espionage rings.
To Attorney General Herbert Brownell, it seems absurd and dangerous to let spies "go unwhipped of justice" behind that shield. Brownell's campaign for a law that "would allow the Government to use wiretap evidence to prove its espionage cases" has touched off a wiretapping controversy, and one result of it is likely to be the passage of a wiretapping bill at the next session of Congress.
The Taming of the Wolf. Congress has never really made up its mind about wiretapping, and the public attitude toward the practice is shifting and ambivalent. Obviously, wiretapping is, as Justice Holmes said, a "dirty business." Law enforcement got along without it for many centuries, and legalized wiretapping seems to many to be another gratuitous encroachment on the private lives of individuals.
On the other hand, law enforcement in other centuries was not up against contemporary problems. Technology, which works for everyone, does not discriminate against the criminal. The telephone greatly reduces the effectiveness of such old police methods as shadowing a suspect and checking on his contacts. It is hard to trail a criminal who uses the telephone for communication unless the police can follow him technologically, i.e., tap the wires over which his messages pass.
Further, the modern tendency toward elaborate organization, which works for everyone, does not discriminate against criminals. In earlier times, society usually had the criminal at a heavy disadvantage; he was likely to be a lone wolf or a member of a loosely knit mob with small resources, untrusting and untrustworthy, incapable of stable alliances with other criminals. The 20th century has seen an extraordinary shift to conspiratorial crime, which reached its first great flowering during Prohibition, e.g., the Capone gang. Some American gangs have maintained their continuity for a generation, enforcing discipline on their members and finding allies in respectable elements of the population.
The most dangerous of such conspirators are recruited on an ideological basis. The gangster is a lone wolf who has been domesticated by his boss; a rebel against society and morality, he is likely to break into rebellion against his overlord or to crack up under pressure of police questioning. But the American who becomes a Communist spy is not especially likely to have an unstable personality. Indeed, some of them have been able to produce impressive testimony that they seemed to fit very well into the way of life that they were secretly committed to destroy. Among conspirators of this category, there is a high degree of "honor." Many who have left the conspiracy refuse to tell on their fellows. Thus the police, in dealing with Communist conspiratorial crime, lose an ancient advantage. Inevitably they ask for new counterbalancing powers.
What powers should they get? Or is the danger from the Government in this field greater than the danger from the criminal conspirators? These are the questions Congress will have to answer.
The Poisonous Tree. Present law on wiretapping is confused and inadequate. The Supreme Court's first ruling on the subject (Olmstead v. U.S., 1928, a bootlegging case) held that wiretapping by federal agents was not a violation of the right, guaranteed in the Fourth Amendment, "to be secure . . . against unreasonable searches and seizures." Said Chief Justice Taft, delivering the majority opinion: "There was no entry of the houses or offices . . . The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world . . ." Four Justices, including Oliver Wendell Holmes, dissented.
In 1934 Congress passed the Federal Communications Act, Section 605 of which provided that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning ... to any person." Penalty: $10,000 fine or two years' imprisonment, or both. The history of the section indicates that Congress did not intend it to regulate wiretapping; the wording was lifted out of the Radio Act of 1927, where the apparent intent was to prevent pirating of messages by rival communications companies. But the Supreme Court applied Section 605 to wiretapping. The court ruled: .
P: In 1937 (Nardone v. U.S., smuggling), that wiretap evidence was inadmissible, because "the phrase 'no person' comprehends federal agents, and the ban on communication to 'any person' bars testimony to the content of an intercepted message.''
P:In 1939 (Nardone v. U.S., retrial), that evidence gathered as a result of wiretap leads was "fruit of the poisonous tree," and therefore inadmissible.
P: Also in 1939 (Weiss v. U.S., mail fraud), that the ban on wiretap evidence applied to intrastate as well as interstate messages, because "both sorts pass indiscriminately over the same wires."
These decisions so effectively barred wiretap evidence from federal courts that the Justice Department practically gave up even trying to get convictions where critical evidence had been obtained by wiretapping. But apart from making evidence inadmissible. Section 605 has been a flop as an anti-wiretapping law. Only in one case has anyone ever been convicted under the section, and that was not a wiretap case.* Since the FBI does a lot of tapping, the Justice Department has not even tried to enforce Section 605 against wiretappers. Courts have had little occasion to decide whom Section 605 prohibits from doing what. Many lawyers accept the Justice Department's view that the law does not prohibit the bare act of wiretapping, provided the information so gained is not "divulged or published."
To Catch a Bookie. While Section 605 has sat lumpishly on the books, serving mainly to bar wiretap evidence in federal courts, wiretapping has flourished. Technology has kept up with demand. Today a good tap sets up so little interference in the line that users do not hear it. A tapper can rig up a tape recorder and leave the scene, returning only once a day to change the tape. Induction apparatus makes it possible to tap a wire without hooking into it or even touching it.
The two biggest wiretapping agencies in the U.S. are the FBI, which on an average day has between 150 and 200 taps working, and the New York City Police Department. A state law allows any New York cop above the rank of sergeant to apply for a court order to wiretap, even when investigating misdemeanors. Orders are easy to get. Now & then, the cops tap public phones, listen in on hundreds of conversations in the hope of picking up leads on bookies or prostitutes.
Of the other 47 states, 34 outlaw wiretapping altogether, two (Louisiana and Massachusetts) permit tapping by law officers, and the rest neither forbid tapping nor permit it. Where state bans exist, they do not prevent police tapping, which occurs in all big cities with large nests of organized crime. Private tapping, too, goes on in every big city. Most of it is done by professional tappers hired by more or less law-abiding citizens. Prices run high. New York City's four or five private tappers charge about $300 a week to put a tape recorder on a line and service it. That is the price for a so-called "legal" tap on the client's own line (e.g., in gathering divorce evidence). For ''illegal" work, fees run much higher.
Breaching v. Bleaching. That private wiretapping goes unpunished while wiretap evidence is excluded from federal courts, no matter how serious the crime, seems grotesque. Four bills more or less designed to improve matters are under consideration by a House judiciary subcommittee. Two are noteworthy :
P: The Administration bill, submitted by Illinois Representative Chauncey Reed, would make admissible in federal courts wiretap evidence "heretofore or hereafter" obtained by the FBI "upon the express approval of the Attorney General" in national-security cases. That is all. The sole object of the bill is to make past and future wiretap evidence admissible.
P: The bill introduced by New York's Kenneth Keating would authorize the FBI and military intelligence services to wiretap in national-security cases--after obtaining a court order. The bill solves the admissibility problem by bleaching the color of illegality from future evidence.
Brownell objects to the Keating bill's court-order provision on the ground that it would conflict with the special need for secrecy in investigations of Communist conspiracy. But Brownell's weightier objection to the Keating bill is that it would make only future wiretap evidence admissible. Brownell wants to be able to use the wiretap evidence already on file.
The Electronic Menace. None of the bills before the judiciary subcommittee would do much toward curbing private wiretapping. Curbing is highly desirable, not only because private wiretapping is a clear and present abuse, but because of the broader problem of electronic surveillance.
Among technology's dubious gifts to the 20th century is an ever-growing array of devices for snooping: wiretapping refinements, tiny movie cameras, camera film that takes pictures in the dark, microphones so sensitive that they can pick up a whisper through a masonry wall, tape recorders so compact that they will fit into a coat pocket. Long before 1984, the state of affairs depicted by Novelist George Orwell in Nineteen Eighty-Four will be a technological possibility: "You had to live ... in the assumption that every sound you made was overheard . . . every movement scrutinized."
Sooner or later, free societies must deal with the danger that increasingly sensitive electronic eyes and ears may destroy personal freedom by annihilating privacy. This whole field of technological surveillance needs legislative attention. The Government cannot be given unlimited power to peep and pry. "The greatest dangers to liberty," wrote Supreme Court Justice Louis Brandeis with reference to wiretapping, "lurk in insidious encroachment by men of zeal." But the Government does need some power to balance the criminal's new advantages, especially the advantages to conspiracy against the national security.
A Middle Way. What is needed is not a universal ban on wiretapping or a law merely extending admissibility, but a comprehensive statute that would:
P: Authorize the FBI, and possibly a few other federal agencies, to wiretap in serious national-security cases where there is evidence of actual criminality.
P: Permit specified categories of law-enforcement officers, federal, state and local, to request court orders for wiretapping in cases of specified serious crimes. (State and local officers, of course, would still have to observe restrictions imposed by wiretapping laws in their own states.)
P: Forbid all other wiretapping. To make the ban effective, the law would have to provide stiff penalties, not only for tapping but also for procuring or hiring a wiretapper or possessing wiretap equipment.
Such a law would not satisfy either the anti-wiretap liberal or the pro-wiretap law enforcer. But a middle way between those two schools is probably the right track for a nation that has to deal with both the Communist conspiracy and the chilling potentialities of technological surveillance.
*In 1941 Jacob Gruber, a New York lawyer representing a client under investigation by the Securities and Exchange Commission, persuaded a switchboard operator in an SEC office to plug him in on calls to another SEC office. Sentence: a year and a day in prison, $1,000 fine. The operator drew a suspended sentence.
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