Admittedly, some latitude must be allowed when the security of the Nation is at stake, but only the most serious threat can justify use of hese measures. If each of us is to retain his peace of mind and his confidence in our vay of life, all of us must be guaranteed the right of privacy. I beieve the "Right of Privacy Act of 1967" provides such a guarantee. Thank you. The CHAIRMAN. Thank you very much, Mr. Eilberg. The meeting will now adjourn. (Whereupon, at 12:40 p.m., the subcommittee adjourned.) (Subsequently, the following letter was received for the record:) Hon. EMANUEL CELLER, COLUMBIA BROADCASTING SYSTEM, INC., Chairman, Committee on the Judiciary, House of Representatives, DEAR CHAIRMAN CELLER: Columbia Broadcasting System, Inc. respectfully subnits these comments on H.R. 5386, the proposed Right of Privacy Act of 1967 now being considered by your Subcommittee No. 5. This Bill was submitted by Ramsey Clark, as Acting Attorney General, in furtherance of the President's State of the Union Message and Crime Message to the Congress. In these, the President emphasized the importance of protecting the right of privacy. We share his concern on this vital subject. But we question whether it is necessary or desirable that legislation as extreme as H.R. 5386 be enacted in order to accomplish the President's purpose. In our opinion, the Bill goes too far in prohibiting the manufacture, assembly, advertising or interstate shipment of any "device, the design of which renders t primarily useful for the purpose of wire interception or eavesdropping." By prohibiting the manufacture and shipment of "devices," the Bill casts a pall over many types of mechanical and electronic equipment whose miniaturization or unique capabilities may make them potentially useful for invasions of privacy by wiretapping or eavesdropping, but whose normal use by pure and applied science and by industry, broadcasting, entertainment, the military, and ven by the public infringes no privacy interests. Attorney General Ramsey Clark, in his statement before Subcommittee No. 5 of the House Committee on the Judiciary on March 16, 1967, seemed to express confidence that a clear demarcation can be drawn between objectionable devices" and "innocent electronic equipment": "The limited approach taken in the statute to the manufacturing and distribution problem will not prevent persons from obtaining devices that may be easily adapted to eavesdropping and wiretapping. Nevertheless, the section will eliminate many objectionable devices now readily obtained on the market, such as the spike microphone, the cuff-link microphone, the notorious martini olive transmitter, and other devices whose design indicates that their primary purpose is to facilitate the surreptitious overhearing of private conversations. The section will not affect the manufacture or shipment of simple induction coils, tape recorders, or other innocent electronic equipment that may occasionally be adapted to wiretapping or bugging uses." (Italic supplied.) However, Section 2512(a) and Section 2512(b) as drafted ("any . . . device, the design of which renders it primarily useful for the purpose of... eavesdropping") need not be interpreted in so limited a fashion. Electronic devices are by themselves neither "innocent" nor "objectionable." CBS, for example, utilizes parabolic and shotgun directional microphones for its religious programming and for its coverage of political conventions, Presidential and NASA press conferences, other news events including battlefield reporting in Vietnam, and sports events (as in picking up the quarterback's call or the sound of the punt). The directional microphone, of course, has additional legitimate uses in the scientific, industrial and entertainment areas. Similarly, many types of wireless microphones (units having the combined capability of a sensitive microphone and a radio transmiter) are legitimately used by a large number of professional lecturers, entertainers, exhibitors, etc. for purposes of a voice amplification coupled with appearance and ease of move ment. None of these typical uses of directional and wireless microphones invades anyone's privacy. Yet, such devices are potentially quite useful to eavesdroppers. Rapid advances in equipment miniaturization, coupled with improvements in micro-technology, have already produced broadcast equipment that not only is technically superior to that hitherto available but also extends the scope and versatility of broadcast activities in such fields as news and sports. It is probable that the next generation of broacast equipment will be increasingly microminiaturized-and, of course, suitable for possible illegal use. But these advances in technology-with all that they promise for increased ability, ease and convenience for broadcasters in covering news events and otherwise serving the public-should not be stifled because they may also be used illegally or antisocially. Mere classification of devices according to some innate sense of innocence based on some unexpressed standard of design, size, and capability is not, we believe, an effective or fruitful way to proceed. We suggest, therefore, that the focus of any legislation in this area should be the prevention of undesirable uses of equipment possessing eavesdropping or wiretapping capabilities, without resort to product bans and prohibitions. Standards of conduct are needed; not standards of equipment design. Science has made available to any competent technician a capability to eavesdrop or to wiretap practically at will. Limiting (though not eliminating) this undesirable behavior by inhibiting technological advance and by prohibiting devices that have many admittedly beneficial uses seems to ignore the balancing process common in our society when complex and subtle issues are considered. We believe that as drafted this legislation may have unfortunate effects. In its zeal to protect some aspects of privacy from technological intrusions, it may prevent or curtail other, socially desirable uses of the technology and may, at the same time. threaten or inhibit scientific invention and discovery. We respectfully submit, therefore, that privacy legislation concerned with eavesdropping and wiretapping would better fulfill its purpose if it concentrated on the reprehensible uses to which electronic and other equipment may be put. The substance of these comments is also being furnished to Senator Edward V. Long, Chairman of the Senate Subcommittee on Administrative Practice and Procedure in connection with its consideration of S.928, the Senate counterpart of H.R.5386. We appreciate this opportunity to record our views. LEON BROOKS. The subcommittee met at 10 a.m., pursuant to call, in room 2141, Rayburn Building, Hon. Emanuel Celler (chairman of the subcommittee) presiding. Present: Messrs. Celler (chairman), Rogers, Corman, MacGregor, McClory, Railsback, and Biester. Staff present: Kenneth R. Harkins, counsel; and Donald E. Santarelli, associate counsel. The CHAIRMAN. The meeting will come to order. Our first witness is my esteemed friend, the gentleman from Virginia, Mr. Poff. Mr. Poff is a distinguished and valued member of our committee. Mr. Poff, we look forward to hearing your statement. STATEMENT OF HON. RICHARD H. POFF, REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA Mr. POFF. Mr. Chairman and colleagues of the subcommittee, I am grateful for the opportunity to appear before you today to offer my thoughts on the vital subject of crime and to suggest what the Congress should and must do to remedy the intolerable situation confronting our Nation because of crime. Immediately following release of the report of the President's Crime/ Commission, I spoke on the floor of the House to pay tribute to the Commission, its staff, its advisers and consultants. I want to reaffirm that tribute and to renew the compliment I paid the contribution the report made to the cause of law enforcement. It illuminated many dark corners in our system of criminal justice and laid the predicate for wholesome, productive dialog.. However, the Commission members themselves did not always agree. Criminologists, like legislators, often agree on ultimate goals but disagree on methodology. The President, who named the Commissioners, agreed with them in part and disagreed with them in part. I must assume the same posture. Yet, when I disagree, I am concerned not with goals but with methodology. Mr. Chairman, for purposes of this discussion, I am dividing the subject matter into three categories. The first includes those proposals made by the Commission and adopted by the President which I feel should be modified. The second includes those proposals made by the Commission which the President has not yet adopted. The third in cludes proposals which neither the Commission nor the President advanced but which I think should be considered by the Congress. CATEGORY I: COMMISSION PROPOSALS ADOPTED BY THE PRESIDENT WHICH SHOULD BE MODIFIED A A. WIRETAPPING AND EAVESDROPPING The Commission's proposals on wiretapping and eavesdropping were not unanimous. All members agreed that all surreptitious electronic surveillance by private citizens should be outlawed. The President adopted this proposal. I concur. A majority of the members of the Commission supported wiretapping by law enforcement officers acting under court order and supervision, both in national security cases and in criminal investigations. The President rejected the proposal so far as criminal investigations are concerned. I disagree with the President. Said differently, I agree with a majority of the Commission on this issue. In order fully to appreciate this issue, it is necessary to know something about its history. Since the telephone is of relatively recent origin, the history is brief. In 1928, the Supreme Court was first confronted with the question: "Is evidence obtained by law enforcement authorities by tapping the telephone of the accused from a point outside his premises admissible in a Federal criminal prosecution?" The accused contended that it was inadmissible and his argument was that the wiretap constituted an "unlawful search and seizure" as that clause is defined in the fourth amendment. The Court decided against the accused. Six years later in 1934, the Congress adopted section 605 of the Federal Communications Act. That section outlaws interception and disclosure of wire communications. In the years that followed, the Department of Justice interpreted the language of section 605 in such a manner as to permit wiretapping by law enforcement officers so long as the information acquired thereby was not disclosed outside the law enforcement agency. Pursuing the same interpretation of section 605 language, individual States have enacted laws legalizing wiretapping by law enforcement authorities under orders of State courts. However, Federal authorities have not had access to evidence accumulated under these State laws; State authorities are afraid to disclose that evidence for fear of polluting it in their own investigation. I applaud and share the President's concern for the cause of personal privacy. So far as possible, private citizens must be free from fear that their conversations, intended to be private, might be monitored by unknown, unauthorized strangers. This right of personal privacy surely incorporates the right of free speech. So long as the fear is plausable, a person's willingness to voice candid, critical or constructive ideas is inhibited. Whatever discourages dissent from the popular view slows the intellectual dialog from which new ideas and new concepts spring. Accordingly, and counting personal privacy among the dearest ingredients of personal liberty, I enthusiastically support the President's recommendation to outlaw wiretapping by unauthorized personnel. For this reason, I believe that police officers, acting under court orders, should be permitted to protect society by use of wiretap and eavesdropping devices in investigations of major crimes. To accomplish that purpose, I am preparing legislation. In the case of People v. Berger, however, the Supreme Court is currently considering the constitutional questions involved. How those questions are resolved will affect the bill I am writing and I shall defer its introduction pending a final decision, which I understand is imminent. FEDERAL GRANTS-IN-AID The Commission proposed a variety of Federal grants-in-aid to States, local and regional law enforcement agencies. Many of these the President incorporated in the draft bill he calls The Safe Streets and Crime Control Act of 1967. By way of shorthand terminology, it might also be called The 90-60-100 aid bill. This proposal has been introduced by Chairman Celler-H.R. 5037. Title I of the President's proposal would authorize the Attorney General to make grants to State and local governments for the preparation of plans for the improvement and coordination of law enforcement and criminal justice. For planning purposes, the Federal grant could be up to 90 percent of the total cost. Said differently, the grantee would a 10-percent investment in the plans. Title II authorizes Federal grants of up to 60 percent to finance the development of new methods of crime fighting, the development and acquisition of equipment, the promotion of better community relations (including public education relating to crime prevention), facilities for the processing and rehabilitation of offenders, and more and more effective manpower, including recruitment, education and training of law enforcement and criminal justice personnel. The latter embraces the payment of regular salaries, with the limitation that no more than one-third of the Federal grant can be used for that purpose. There is no such limitation with regard to salaries of personnel undergoing training and education. Title II also envisions construction grants to finance physical facilities for local police forces, provided that no more than half the Federal grant shall be used for such purposes. Title III authorizes grants up to 100 percent of the cost of functions similar to those presently authorized under the Law Enforcement Assistance Act of 1965. The President's Safe Streets and Crime Control proposal, like most grant-in-aid programs currently administered by the Federal Government, undertakes to write distribution formula. Like most such formulas, this one is too broad and too flexible; it is imprecise and inexact. Indeed, except for limitations heretofore noted and a stipulation that not more than 15 percent of the total appropriation shall be used in any one State, there is little in the President's draft fixing the share the several States may receive. Indeed, section 411 largely shuns the question by giving the Attorney General authority to "establish criteria to achieve an equitable distribution among the States of assistance under this act." This imprecision would not perhaps be quite so consequential but for the fact that section 407 empowers the Attorney General to withhold grants previously authorized and allocated when he determines that the grantee has somehow failed to comply with some provision |