Finally, they concluded:

"If it should be said that at least the citizen would have the assurance that his own telephone would not be tapped, this would be of little comfort to him, because if the powers of the Police are allowed to be exercised in the future, as they have been in the past under the safeguards we have set out, the telephone of the ordinary law-abiding citizen would be quite immune * * *. [I]f it is said that when the telephone wires of a suspected criminal are tapped all messages to him, innocent or otherwise, are necessarily intercepted too, it should be remembered that this is really no hardship at all to the innocent citizen. This cannot properly be described as an interference with liberty; it is an inevitable consequence of tapping the telephone of the criminal; but it has no harmful results ***. The citizen must endure this inevitable consequence in order that the main purpose of detecting and preventing crime should be achieved. We cannot think, in any event, that the fact that innocent messages may be intercepted is any ground for depriving the Police of a very powerful weapon in their fight against crime and criminals * * *. To abandon the power now would be a concession to those who are desirous of breaking the law in one form or another, without any advantage to the community whatever." Id. at 491. (2) The report of the President's Commission on Law Enforcement and the Administration of Justice.

When the President called together his Commission on Law Enforcement and the Administration of Justice, he asked it "to determine why organized crime has been expanding despite the Nation's best efforts to prevent it." President's Report at 188. The Commission identified a number of factors, Id. at 198–200. The major problem, however, related to matters of proof. "From a legal standpoint, organized crime," the Commission concluded, “continues to grow because of defects in the evidence gathering process." Id. at 200. The Commission re viewed the difficulties experienced in developing evidence in this area in these terms:

"Usually, when a crime is committed, the public calls the police, but the police have to ferret out even the existence of organized crime. The many Americans who are complaint 'victims' have no incentive to report the illicit operations. The millions of people who gamble illegally are willing customers, who do not wish to see their supplier destroyed. Even the true victim of organized crime, such as those succumbing to extortion, are too afraid to inform law enforcement officials. Some misguided citizens think there is social stigma in the role of 'informer', and this tends to prevent reporting and cooperating with police.

"Law enforcement may be able to develop informants but organized crime uses torture and murder to destroy the particular prosecution at hand and to deter others from cooperating with police agencies. Informants who do furnish intellgence to the police often wish to remain anonymous and are unwilling to testify publicly. Other informants are valuable on a long-range basis and cannot be used in public trials. Even when a prosecution witness testifies against family members, the criminal organization often tries, sometimes successfully, to bribe or threaten jury members or judges.

"Documentary evidence is equally difficult to obtain. Bookmakers at the street level keep no detailed records. Main offices of gambling enterprises can be moved often enough to keep anyone from getting sufficient evidence for a search warrant for a particular location. Mechanical devices are used that prevent even the telephone company from knowing about telephone calls. And even if an enforcement agent has a search warrant, there are easy ways to destroy written material while the agent fulfills the legal requirements of knocking on the door, announ ing his identity and purpose, and waiting a reasonable time for a response before breaking into the room." Id. at 198-99.

The Commission then concluded, simply enough, that under "present precedures, too few witnesses have been produced to prove the link between criminal group members and the illicit activities that they sponsor." Id. at 200. It was in this context, therefore, that the Commission examined the testimony of law enforcement officials that electronic surveillance techniques were indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them. The Commission then reviewed the argunen's for and against the use of these techniques, examining in particular the New York experience, and concluded:

"All members of the Commission agree on the difficulty of striking the balance between law enforcement benefits from the use of electronic surveillance and the threat to privacy its use may entail ***

"All members of the Commission believe that if authority to employ these techniques is granted it must be granted only with stringent limitations * * All private use of electronic surveillance should be placed under rigid control, or it should be outlawed.

"A majority of the members of the Commission believe that legislation should be enacted granting carefully circumscribed authority for electronic surveillance to law enforcement officers to the extent it may be consistent with the decision of the Supreme Court in People v. Berger, and further, that the availability of such specific authority would significantly reduce the incentive for, and the incidence of, improper electronic surveillance.

"The other members of the Commission have serious doubts about the desirability of such authority and believe that without the kind of searching inquiry that would result from further congressional consideration of electronic surveillance, particularly of the problems of bugging, there is insufficient basis to strike this balance against the interest of privacy." Id. at 203. (Emphasis added.) The judgments of these two bodies would seem to be determinative of the issues of need and desirability. Note should be taken particularly of the Report's conclusion that limited authorization would aid in curtailing abuse.

The appendix to this statement contains a draft of a proposed bill which attempts, as I noted above, to meet all of the legitimate needs of justice and safeguard the right of privacy. It is here offered not with the idea that it embodies the final word but the text of a solution which could serve as a starting point for a meaningful dialogue. The text, of course, speaks for itself. Should any members of the Committee have questions about it now or in the future I shall be glad to discuss it with you.

Thank you.

APPENDIX: DRAFT STATUTE

A BILL To prohibit electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified categories of offenses, and for other purposes

Be it enacted by the Senate and House of Representatives of United States of America in Congress assembled,

SHORT TITLE

SEC. 1. This Act may be cited as the "Electronic Surveillance Control Act of 1967."

FINDINGS

SEC. 2. On the basis of its own investigations and of published studies, the Congress makes the following findings:

(a) Wire communications are normally conducted through the use of facilities which form part of an interstate network. The same facilities are used for interstate and intrastate communications. Effectively to protect the integrity of interstate communications and the privacy of parties to such communications, it is necessary for the Congress to prohibit interception of any wire communication using such facilities and to define on a uniform basis the circumstances and conditions under which such interception is permitted.

(b) Electronic, mechanical, or other intercepting devices are being used by public and private persons to overhear oral communications without the consent of one of the parties in private areas. The contents of these communications and evidence derived therefrom is being used by public and private persons as evidence in court and administrative proceedings. It is also being used by persons whose activities affect interstate commerce. The manufacture, distribution and use of these devices are facilitated by interstate commerce. Effectively to protect the integrity of these court and administrative proceedings to prevent the obstruction of interstate commerce, and to protect the privacy of these oral communications, it is necessary for Congress to prohibit the interception by public or private persons of all oral communications without the consent of one of the parties in private areas, to prohibit the manufacture, the distribution and the use of these devices, and to define on a uniform basis the circumstances and conditions under which such interception is permitted.

(c) Criminals make extensive use of wire and oral communications in their activities. The interception of such communications to obtain evidence of the commission of crime or to prevent its commission is an indispensable aid in the administration of justice.

PROHIBITIONS

SEC. 3. Title 18, United States Code, is amended by inserting immediately fol lowing section 2424 a new chapter, to be composed of sections 2510 through 2513 as follows:

"Chapter 120, Wire and Oral Communication Prohibitions

"SEC.

"2510. Interception of Wire and Oral Communications Prohibited.

"2511. Manufacture and Distribution of Wire and Oral Communication Intercepting Devices Prohibited.

"2512. Confiscation of Wire or Oral Communication Intercepting Devices. "2513. Immunity of Witnesses.

"§ 2510. Interception and disclosure of wire or oral communications prohibited. "(a) Except as otherwise specifically provided in Chapter 240 of Title 18, United States Code, any person who

"(1) willfully intercepts, attempts to intercept, or procures any other per son to intercept, or attempt to intercept, any wire or oral communication; or "(2) wilfully discloses, or attempts to disclose, to any other person the contents of any wire or oral communication if the person disclosing that in formation knows or has reason to know that the information was obtained through the interception of a wire or oral communication; or

"(3) wilfully uses, or attempts to use, the contents of any wire or oral communication if the person using that information knows or has reason to know that the information was obtained through the interception of a wire or oral communication;

shall be fined not more than $10,000, or imprisoned not more than five years, or both Provided, That good faith reliance on a court order shall constitute a complete defense.

"(b) (1) It shall not be unlawful under this Chapter for an operator of switchboard, or an officer, agent, or employee of any communication common carrier, whose facilities are used in the transmission of a wire communication to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident of the rendition of the service thereof or the protection of the rights or property of the carrier thereof.

"(2) It shall not be unlawful under this Chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of the Federal Communications Act, to intercept a wire or oral communication while it is being transmitted by radio, or to disclose or use the information thereby obtained.

"(c) Nothing in this Chapter shall be deemed to limit the constitutional power of the President to obtain information by such means as he deems necessary to protect the Nation from actual or potential attack or other hostile acts of a foreign power or to protect military or other national security information against foreign intelligence activities. The contents of any wires or oral communication intercepted by authority of the President in the exercise of the fore going power may be received in evidence in any judicial trial or administrative hearing only where such interception was reasonable, but shall not be otherwise used or divulged except as is necessary to implement that power or on a showing of good cause before a judge of competent jurisdiction.

❝g 2511. Manufacture and distribution of wire or oral communication intercepting devices prohibited.

"(a) Except as otherwise specifically provided in Chapter 240 of Title 18, United States Code, any person who

“(1) willfully sends through the mail, or sends, or carries in interstate or foreign commerce any electronic, mechanical, or other intercepting device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the interception of wire or oral com munications; or

"(2) willfully manufactures or assembles any electronic, mechanical, or other intercepting device, the design of which renders it primarily useful

for the purpose of the interception of wire or oral communications knowing or having reason to know that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or

"(3) willfully places in any newspaper, magazine, handbill or other publication any advertisement of

"(A) any electronic, mechanical, or other intercepting device, the design of which renders it primarily useful for the purpose of the interception of wire or oral communications; or

"(B) any other electronic, mechanical, or other intercepting device, where such advertisement promotes the use of such device for the purpose of the interception of wire or oral communications knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce; shall be fined not more than $10,000, or imprisoned not more than five years, or both.

"(b) It shall not be unlawful under this Chapter for a common carrier, or an officer, agent, or employee, or person under contract thereto, in the usual course of its business, or the United States, or any State, or political subdivision thereof, or any officer, agent, or employee, or person under contract thereto, in the usual course of its activities, to send through the mail, send, or carry in interstate or foreign commerce, or manufacture, or assemble, any electronic, mechanical, or other intercepting device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the interception of wire or oral communications.

"§2512. Confiscation of wire or oral communication intercepting devices.

"Any electronic, mechanical, or other intercepting device used, sent, carried, manufactured or assembled in violation of section 2510 or 2511 of this Chapter shall be seized and forfeited to the United States. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violation of the customs law; the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels, vehicles, mechandise, and baggage under the customs laws shall be performed with respect to seizures and forfeitures of electronic, mechanical, or other intercepting devices under this section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.

"§ 2513. Immunity of witnesses.

"Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence, by any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of this Chapter, or any conspiracy to violate such Chapter, is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section."

AUTHORIZATIONS AND LIMITATIONS

SEC. 4. Title 18, United States Code, is amended by inserting iminediately following section 3771 a new chapter, to be composed of sections 3800 through 3805 as follows:

"Chapter 240. Interception of Wire or Oral Communications Authorizations and

"SEC.

Limitations

"3800. Prohibition of Use as Evidence of Intercepted Wire or Oral Communications. "3801. Authorization for Interception of Wire or Oral Communications.

"3802. Authorization for Disclosure and Use of Intercepted Wire or Oral Communications. "3803. Procedure for Interception of Wire or Oral Communications. "3804. Reports Concerning Intercepted Wire or Oral Communications. "3805. Recovery of Civil Damages Authorized.

"3806. Definitions.

"3800. Prohibition of use as evidence of intercepted wire or oral communications.

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication or no evidence derived therefrom may be received in evidence in any proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the United States, or any State, or political subdivision thereof, if the disclosure of that information would be in violation of Chapter 120, Title 18, United States Code.

"§ 3801. Authorization for interception of wire or oral communications.

"(a) The Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge, after making the findings required by section 3803 (c) of this Chapter, may grant, in conformity with section 3803 of this Chapter, leave to permit the Federal Bureau of Investigation, or other Federal agency having responsibility for the investigation of the offense as to which such application is made, to intercept wire or oral communications when such interception may provide evidence of"(1) any offense punishable by death or by imprisonment for more than one year under chapter 37 (Espionage), 105 (Sabotage), or 115 (Treason), Title 18, United States Code, or sections 224 to 227, inclusive, of the Atomic Energy Act of 1954 (68 Stat. 921), as amended;

"(2) any offense involving murder, kidnapping, or extortion punishable under Title 18 of the United States Code;

"(3) any offense punishable under sections 201 (Bribery), 224 (Sports Bribery), 1084 (Transmission of Gambling Information), 1503 (Obstruction of Justice), 1751 (Injury to President), 1952 (Racketeering), or 1954 Welfare Fund Bribery), Title 18, United States Code;

"(4) any offense involving counterfeiting punishable under sections 471. 472, or 473, Title 18, United States Code;

"(5) any offense involving bankruptcy fraud, the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs or marihuana punishable under any law of the United States; or

"(6) any conspiracy to commit any of the foregoing offenses.

"(b) The attorney general of any State, or the principal prosecuting attorney of any political subdivision thereof, if such person is authorized by a statute of that State, enacted in conformity with this Chapter, to make application to a State court judge of competent jurisdiction for leave to intercept wire or oral communications, may apply for, and such State judge, after making the findings as required by section 3803 (c) of this Chapter, may grant, in conformity with section 3803 of this Chapter, leave to intercept wire or oral communications within that State when such action may provide evidence of the commission of the crimes of murder, kidnapping, gambling (if that offense is punishable as a felony), bribery, extortion, or dealing in narcotic drugs or marihuana punishable under any law of that State, or any conspiracy involving the foregoing offenses "§ 3802. Authorization for disclosure and use of intercepted wire or oral communications.

"(a) Any investigative or law enforcement officer who has obtained knowl edge of the contents of any wire or oral communication or evidence derived therefrom in accordance with this chapter may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is sp