where it does not touch either interstate commerce or the use of interstate communication network. If the Congress was to make a judgment that they did not want to move into that area because the power was not clear, I can see that. Indeed, I tend to lean that way. On the other hand, we are dealing here with a broad problem that is closely interrelated, and perhaps when we begin to paint part of the picture we ought to paint the entire picture. I can see people's concern perhaps that the administration of a Federal statute in this area might be more effective than State statute.

Therefore, we ought to move against all private use of this but I would not press that either way.

Mr. CORMAN. If you have justified at all it would have to be on the theory that there is some Federal constitutional right to privacy; would that not be so?

Professor BLAKEY. Yes, something close to that. I think you can find that right of privacy in the 14th amendment.

Mr. CORMAN. Up to that point we have talked mostly about where we are going to put the ears of the policeman. Do you see any distinction between where we are going to put the ears of the policeman and where we are going to put the eyes of a policeman?

Professor BLAKEY. Yes, I do.

Mr. CORMAN. Why?

Professor BLAKEY. Well, I am inclined to think that a visual surveillance of certain areas might be more objectionable than aural surveillance and that the minimum necessary here would be to get the job done would be aural surveillance. Quite frankly, I have a good deal of distaste for the use of this equipment in any situation and it is only after a good deal of soul searching that I am willing to say that on balance we need it in certain areas. I think if we can get along with just aural surveillance, we do not need to go on to visual surveillance. Mr. CORMAN. Would you suggest a Federal statute which would prohibit visual surveillance or would you leave that decision to the States?

Professor BLAKEY. The present state of the art is such that the threat of trespatory visual surveillance is not simply current and not real whereas aural surveillance is. When the day comes, when the time comes that everybody can look in everybody's bedroom then perhaps it would be time to enact a statute or something like that.

Mr. McCLORY. Will the gentleman yield?

Mr. CORMAN. Yes.

Mr. McCLORY. Aren't there modern electronic cameras, infrared cameras that provide visual information which is not otherwise visible. They see through objects, do they not?

Professor BLAKEY. There is experimental equipment that might do some of this, but its availability to the general public or indeed even to law enforcement, is presently not such that this is an issue that we have to face today. I am not suggesting that we would not have to face it

tomorrow.

Mr. McCLORY. There would not be any objection on your part through use of such sophisticated equipment by law enforcement officials, would there? I mean, if they are able to detect a criminal or an intruder through the use of this equipment-is it an infrared camera, is that what it is called?

Professor BLAKEY. It would depend on where it was used and how it was used. I am thinking primarily now

Mr. McCLORY. Of the private use.

Professor BLAKEY. Well, even the public use of this equipment in private areas. I would have a very high objection to the law enforcement use of visual surveillance equipment in essentially private areas simply because I do not think it is needed. I think it could be done in an alternative way, with less invasion of privacy, and if an alternative way of doing it is available with less invasion of privacy that still gets the job done, I prefer the one with the least invasion.

The CHAIRMAN. You do have now in apartment houses what they call invisible cameras which are reflected in the superintendent's office. When you go to visit, say apartment 13 or 13A, as you go along even through the hall or in the elevators and get to 13A there are invisible cameras taking your pictures which are reflected in the superintendent's office. They know who goes into whose apartment, who does not go into whose apartment.

Professor BLAKEY. Of course, this is in a public way, Mr. Chairman. As a matter of fact, I am sure that most of the residents in that kind of apartment house want that kind of surveillance in the hallways, and it is in lieu of having the actual physical presence of a policeman in the hall. They probably would prefer to have a policeman there for physical protection, but if they cannot have that, they will take a camera. I think that kind of surveillance by consent in a public place is unobjectionable. Indeed, I am sure an awful lot of people in New York wish it were in more apartments.

The CHAIRMAN. May I ask you this: Under your proposed bill even with the court order, you would allow a tapping of a public telephone, would you not?

Professor BLAKEY. The answer to that is, "Yes," and the answer to that "Yes, but." The provision permits the tapping of a public telephone, but not on the same kind of showing that would be required for a private phone.

The CHAIRMAN. In any event, it would be possible to get a court order to tap a public telephone, your disclaimer notwithstanding. Now, we know, for example, the records show that in New York City in 1953 and 1954 there were 3,588 phones tapped in New York City and 1,617 of them, or almost half, were public telephones. Now, that means that New York City police on these 1,617 telephones were listening to all manner and kinds of conversations. Conceivably those conversations were in most instances of a private nature. They may have been conversations between husband and wife, conversations between a lawyer and client, between doctor and patient. There may have been other communications always deemed confidential. Yet presumably New York allowed that situation. Your bill could allow that situation. Professor BLAKEY. Not quite, Mr. Chairman.

The CHAIRMAN. So that the rights of privacy are unduly, in my estimation, invaded here and that is a very serious situation.

Professor BLAKEY. Well, Mr. Chairman, if I may comment on the sense in which this bill would permit tapping of a public telephone: it sets up what, in effect, would be a general rule which says that no public phones may be tapped. Now, on a special showing of peculiar need to tap that phone, a warrant could be issued, but in addition to showing that it was a special need to tap that phone, the police would have to make a showing that the innocent calls would be cut to a minimum. Let me give you an example. Suppose you knew that a certain

Cosa Nostra figure was using a public telephone to make a call on at, say, 3 o'clock in the afternoon. Now, under the existing New York procedure, you could get a tap that would cover 24 hours, and to get that one 3 o'clock phone call you would have to listen for 24 hours. Under my bill, or the bill that was prepared in behalf of the President's Commission, you could not get that kind of order. The only kind of order you could get would be to tap from, say, 2:30 to 3:30 and that the length of time that you could tap the public telephone would be limited.

The CHAIRMAN. Are you confident that the police in New York would limit themselves to just those few minutes?

I doubt it very much, knowing what I know.

Professor BLAKEY. I know it is a matter of fact that it has been, and is being done in New York. I recall one situation which was described to me where the supreme court justice refused to issue the warrant for a public phone until he was given assurance by the police that another policeman with a two-way radio would be stationed near the phone and that the only actual listening would be of the use by this one particular individual, and when he went in the phone booth the tap was turned on, and when he went out of the phone booth, the tap was turned off. It is that kind of consideration for individual rights that I think this bill contemplates.

The CHAIRMAN. Our judges in New York must have known when they issued these ex parte orders to tap these public telephones to the extent of over 1,600, they must have known that private conversations were going to ensue over those phones. Nonetheless, they did not limit the phone calls to from a quarter to 12 to a quarter to 1. They were permitted to tap those public telephones at will, at any time. That is a serious situation. I do not think we can skirt over it lightly.

Professor BLAKEY. Mr. Chairman, I would not skirt over it lightly, but I would suggest to you those figures are 1953 and 1954 figures and that is some 10, approaching 15 years ago. The practices and procedures that were followed then are, quite frankly, not the practices and procedures that are being followed now.

The CHAIRMAN. I do not have the records, I did not trace the records beyond that, but I imagine they would be just as revealing. I am old fashioned enough to still think that a man's home is his castle. This would give the right to invade the home and I have to view with a great deal of misgivings your bill and any bill that would permit widespread use of wiretapping. I think it was William Pitt who saidand he was a philosopher of the ages-"A man's home is his castle." He said "The poorest man may in his cottage bid defiance to all the forces of the Crown."

The tradition surrounding that statement and emanating from that statement-I might add that the Founding Fathers when they offered the fourth and fifth amendments preserved that tradition. In effect, we have to be mighty careful lest we invade those fourth and fifth amendments and that wonderful statement of William Pitt.

Professor BLAKEY. Mr. Chairman, I could not agree with you more except I would say the maxim which you cite derives from the Semayne's case decided in 1603. Yet it was held in that case, in addition, that the privilege of the castle did not obtain against the King and the lawful exercise of the criminal process. Traditionally, we have thus understood the fourth amendment, not only as prohibit

ing unreasonable searches and seizures, but as authorizing reasonable searches and seizures. It is true today that I can get a search warrant to invade, if you will, a castle by a showing of adequate probable cause. The CHAIRMAN. That is in the Constitution itself.

Professor BLAKEY. Pardon?

The CHAIRMAN. That is under the law, in the Constitution.
Mr. MATHIAS. Mr. Chairman?

The CHAIRMAN. Yes.

Mr. MATHIAS. I was interested in the colloquy a few minutes ago with the gentleman from Colorado and the effect that the administration's bill, which is before the committee, would have on State law. Of course, in States like New York it has the virtual effect of repealing the State law. I was sorry when the Attorney General was here that he declined to discuss in any way what would be the effect on law enforcement in a State such as New York when we, by Federal law, virtually repeal the New York statutes. I do not think we ought to put too heavy a burden of proof on Professor Blakey in view of the fact that the Attorney General has declined to assume any burden on this particular score. But I wonder if you would like to comment on this aspect of which the gentleman from Colorado inquired.

Professor BLAKEY. Congressman Mathias, I had the opportunity as a special consultant to the President's Commission to make a detailed study of the organized crime problem in New York, in Chicago, and then in Los Angeles. I am not, unfortunately, free to discuss the exact details of the information which I was made privy to. I can tell you this much, which is a general conclusion, it is that if Congress rolls back New York's wiretapping and electronic surveillance statute you will shut up shop on perhaps the only active, vigorous, prosecuting police units that are making successful cases against organized crime. You will turn the clock back, quite frankly, to the late 1930's and 1940's, at that time Manhattan, the county of New York, was literally in the grips of organized crime.

A man named Frank Costello, who has been identified as a member of Cosa Nostra, and a head of a family, literally controlled the politics of that community. He appointed judges, he dispensed with rights and duties and liabilities in that community as if he owned it. It was only through the vigorous prosecutive activity of, first, Special Prosecutor Thomas Dewey and his successor, Frank Hogan, that the back of the alliance, the corrupt alliance between politics and organized crime in New York County, was broken and it was made possible for an honest man to become mayor of New York and for organized crime to be reduced to a certain minimal level of activity. Instead of shutting those people up, we ought to be helping them and giving them more financial resources and aiding them in the use of these investigative devices, or any other number of things. The last thing we ought to do is shut up shop for those people.

Mr. MATHIAS. Of course, what we are doing here is, obviously, as we have to do in so many cases in legislation, balancing between important principles, rights that are protected by our Constitution, by our laws, by our society. So what you are really saying is that, in this balancing act that we are having to do, that the weight, in your judgment, is heavily in favor of the judgment reached by the President's Crime Commission, in favor of some activity in this area.

Professor BLAKEY. Absolutely, Mr. Mathias. I might say as I think this is literally the crucial issue, the question of need here, that it ought not to be entirely up to a witness who appears before you to make a showing of need. Congress has peculiarly within its own power the right and the power to find out whether there is a need here and, quite frankly, Mr. Mathias, if I may make a suggestion to you, if you really want to determine whether this stuff is needed there is a way it can be done. I am not telling tales out of school when I say this. The Department of Justice has acknowledged to the Supreme Court in the Black case that equipment has been used in organized crime cases on a selected basis in the last 6 or 7 years.

I know from the public record-and I am trying to be very careful to speak only from the public record-that the techniques used by the Department and I am speaking now primarily of the Kolod trialthat logs were kept of the kind of information that was obtained in this way. If Congress truly wants to determine whether this equipment can be used selectively and whether the kind of information that can be obtained by it is needed in the administration of criminal justice, all it has to do is call upon the Department of Justice to produce in executive session-I certainly would not want them to produce it publicly-but to produce in executive session those logs and read them. Mr. McCLORY. Would the gentleman yield?

Mr. MATHIAS. Just one moment. I have something at this point that I would like to point out, and it relates directly, if the gentleman does not mind.

Mr. McCLORY. I also have an observation right on the subject of logs, too.

Mr. MATHIAS. On the 30th of March of this year the New York Times published a story covering a meeting which was held in which James H. Gale, the Assistant Director in charge of the FBI's campaign against organized crime, made the statement that wiretapping and eavesdropping were useful investigative tools, and he stuck to that statement even after he was confronted with the official position of the Attorney General, which is in opposition to that. Now, this is the area to which you are referring?

Professor BLAKEY. Mr. Mathias, I am in a very delicate position at this point. I was a departmental attorney and a special prosecutor in the Department of Justice in the organized crime section for just about 5 years.

Mr. MATHIAS. I will not press that any further.

Professor BLAKEY. No, no; I want to answer it, though in this context. I was also a special consultant to the President's commission and there are certain things I am not at liberty to talk about simply because I was privy to information of a confidential character. But I can speak from the public record, and from the public record itself, it seems to me that if someone like myself comes up here and says based on the public record this equipment is useful, it is needed, it is indispensable, if people from New York who have used this equipment legally for some years say it is needed, it is necessary, it is indispensable, and somebody else comes up here and says it is not needed, not indispensable, you have a conflict of testimony that ought to be resolved. And what you do in that sort of a situation is you say. "Let me see the record." Call for those logs and read them, and if you determine after that time, it is not necessary, it is not needed, we will let it go at that.