Mr. LANE. Just one more point. At least, I think you owe it to the State and the city of New York to permit them to have a weapon where they can at least take steps to try to cut this down.

Mr. ROGERS. I think that we passed a piece of legislation to rehabiltate these narcotics addicts. Anybody charged with a crime who is a narcotic could get special treatment. The last Congress approved that. We tried to help not only New York but the rest of the country to help meet that problem. Does wiretapping increase or decrease the chance of keeping them out?

Mr. LANE. If you do not permit wiretapping, Mr. Chairman, I predict that instead of having 50,000 addicts in New York City or in New York State you are going to have 100,000.

Mr. GRUMET. May I also add that there many reasons which you cannot go into now-I would love to spend the rest of the day pointing out why there has been an increase in crime. But to merely relate the increase in crime to wiretapping I think is a fallacious argument. I would like to underscore one other thing, that if New York State, as it apparently does, as indicated by the overwhelming defeat in the State legislature a month ago, if the State of New York would like to have this weapon, then in all fairness why shouldn't we have it, particularly when, as Congressman McClory pointed out, all the law-enforcement officials almost unanimously are asking for it and those who are opposed, unfortunately do not have the experience that some of the gentlemen who have been referred to here have, and even our Commission, who have spent many, many years in law enforcement do have.

Mr. ROGERS. If we left it alone do you think the Supreme Court would sustain convictions based on wiretapping?

Mr. GRUMET. Would it?

Mr. ROGERS. Yes; that is my question.

Mr. LANE. Well, you have to give them a chance to do it, Mr. Chairman.

Mr. GRUMET. That is right. Why not legislate and see?

Mr. ROGERS. That is a legitimate question because if the Supreme Court says that wiretapping does not accord with due process, and you have to have due process under the 14th amendment, then it doesn't make any different what we do here. Maybe we will have to wait until the Supreme Court hands down its decision. What is this case from New York City that they argued over there?

Mr. LANE. The Berger case. That is on bugging.

Mr. GRUMET. I was about to say that Mr. Dooley once said the Supreme Court follows the elections. After all, there is going to be a vacancy on the Court. You never can tell. There is still hope.

Mr. McCLORY. If I may conclude my questioning, I do have one more question that I wanted to put, which is: Would it not be your opinion, too, gentlemen, that legislation which would authorize wiretapping or electronic surveillance, would have a deterrent effect in this respect, that as soon as the criminal element knows that you have that authority, that it is operating, they are going to change their way of doing business, undoubtedly, but it is going to interfere with their operations; it is going to limit their activities; and it is going to have a deterrent effect on criminal activity to the extent that we find such a deterrence; is that correct?

Mr. GRUMET. I would say that is a fair statement.
Mr. McCLORY. Thank you very much.

Mr. ROGERS. Any further questions?

(No response.)

Mr. ROGERS. Thank you, gentlemen. We appreciate your statements. You may be excused, and we hope you get back to New York on time.

Mr. GRUMET. Thank you very much. I want to again express our appreciation.

Mr. ROGERS. We will now recess until 2:15.

(Whereupon, at 12:45 p.m., the subcommittee recessed, to reconvene at 2:15 p.m., the same day.)

AFTERNOON SESSION

Mr. ROGERS. The committee will come to order. The witness for this afternoon is Mr. Schwartz. Will you come forward, Mr. Schwartz?, I understand you have a prepared statement.

Mr. SCHWARTZ. Yes, I do, sir.

Mr. ROGERS. Proceed in your own manner.

STATEMENT OF PROF. HERMAN SCHWARTZ, PROFESSOR OF LAW, STATE UNIVERSITY OF NEW YORK AT BUFFALO; ACCOMPANIED BY LAWRENCE SPEISER, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON OFFICE

Mr. SCHWARTZ. First I would like to identify myself. I am a law professor appearing on behalf of the American Civil Liberties Union as their spokesman in connection with H.R. 5386 and H.R. 5470. I specialize in criminal law and procedure at the State University of New York at Buffalo. Do I have to talk into this thing?

Mr. ROGERS. It will help us to hear you. It may keep us awake. Mr. SCHWARTZ. I am not sure that I can do that, even with the aid of electronic devices.

Mr. ROGERS. We will not wiretap it.

Mr. SCHWARTZ. With me is Mr. Lawrence Speiser, the Director of the American Civil Liberties Union's Washington office, and consequently I am sure he is well known to members of this committee.

Mr. ROGERS. Mr. Speiser is well known to members of this committee, having testified before us on many occasions, and giving us much information on civil liberties matters.

Mr. SPEISER. Thank you.

Mr. SCHWARTZ. I will assume, because of that, that I do not have to identify the ACLU, either.

Mr. ROGERS. No, not for me.

Mr. SCHWARTZ. First, we would like very much to commend the President and the Attorney General for their courageous leadership in pointing to the dangers and dispensability of wiretapping and eavesdropping. Although there are a surprisingly large number of prosecutors who agree with the Attorney General's statement, as we will show, most of the more vocal prosecutors have consistently followed the law enforcement agency party line: wiretapping and eavesdropping are necessary, safe, and sparingly used. Instead, Attorney

General Clark has returned to the views of some of his most illustrious predecessors, such as Harlan F. Stone and Robert Jackson, at various times, who also found wiretapping not only offensive but dispensable. We therefore wish to indicate, right at the outset, our support for the general prohibitory principles of S. 928 and H.R. 5386, although we have some concerns and suggestions about some of the specific details, to which I shall return shortly.

Our statement is in three parts: first, some reflections on privacy and its current threats; second, an analysis of some of the arguments for and against wiretapping; and third, some analysis and suggestions concerning the specific bill before you. I hope I am not too longwinded and, if I am, that you will cut me off.

Now, once upon a time and this is the way I start stories of a golden age when I tell such stories to my little boy-once upon a time, a man could retire into his house or office, free from prying eyes and ears, with distance between him and his neighbors. That time is gone. Wiretaps, bugs, parabolic microphones, hovering and infrared cameras, data banks and computers, psychological tests, polygraphs, apartment house living itself all these and many more, some as yet unknown, have made it almost impossible to get away from a determined eavesdropper or spy. The right of privacy, the most comprehensive of the rights of man and the right most valued by civilized men, a right protected by the common law and the Constitution, now requires special legislation and extraordinary scientific devices to preserve its remaining vestiges.

These encroachments result from the pressures of a complex society and the apparently unlimited possibilities of modern eelctronics. Also, concern about a growing crime problem and fear of external enemies have presented us with the perennial problem facing every free society: when should and can we interfere with liberty in order to achieve more security? In a sense, the problem is made even more difficult when, as here, there is much dispute as to whether the needs of security do in fact require such encroachments. I would like to take just a few minutes to explore with you in an abstract sense and I guess that is the prerogative of law professors-just why the right of privacy is the most comprehensive of all rights the right most valued by civilized men. For present purposes, the right to privacy is the right to prevent some or all others from learning or disclosing facts about a person. In this broad sense, no member of an organized community can have an absolute right to privacy, for much that affects him also affects others. The problem is therefore to determine how much privacy is necessary and how much can be given up.

Justice Brandeis said in the Olmstead case, certainly one of the most. significant and eloquent opinions ever written by any man on the Supreme Court bench, that "liberty is the secret of happiness and courage is the secret of liberty." Here he went back to Pericles' funeral oration. The reason for that, is that liberty necessarily includes liberty to differ and difference always frightens those in authority, whether that authority is formal or informal, singular or plural. But courage by definition is difficult

Mr. MCCLORY. Could I interrupt at this point to make this inquiry: We are concerned, of course, primarily with the subject of combating crime and when we talk about the right to differ we, of course, are not

77-540 0-67—————61

contemplating the right to commit any offenses against the law. Although the bill before us is directed against private use of electronic surveillance, its primary impact and the primary purpose of this full hearing or the whole series of bills is to provide tools and ammunition. and legislation to assist in the fight against crime. It seems to me that when you are making reference to the right to differ and the right to depart from convention, we certainly are not contemplating any unlawful conduct.

Mr. SCHWARTZ. I think the point that we are trying to make is that any infringement of the right to privacy, particularly the kind of devices which are involved in wiretapping and bugging, inevitably cuts down on the right of free speech and necessarily the right to differ. I do not think one can separate out organized crime. One cannot say that a wiretap put on to fight organized crime does not chill free dis cussion or free discourse or exchange between people just as much as if it were put on for anything else.

Mr. McCLORY. Is that one of your points?

Mr. SCHWARTZ. That is one of the points we make because a wiretap. and a bug even more so, is inherently uncontrollable, unlimitable. Therefore, one cannot fragment, cannot say that we are just going to use this in one context, because that is just not the kind of weapon are dealing with. This is not a search warrant; this is not the conven tional search; this is a very important point which I think must be made.

We

Mr. ROGERS. What do you mean it cannot be controlled? Haven't the mechanical engineers, those who deal in electrical devices, beer able to control exactly what comes over the wire?

Mr. SCHWARTZ. Let me give you this possibility: Suppose you are suspected of some kind of crime. They put a tap on your phone. Every call you make, every person who calls you, every person who uses your phone has his conversation overheard and there is no way of avoiding that. Suppose they suspect that something is going on in your office that is suspicious. Every conversation, every event in your office. whether relevant or irrelevant, is overheard.

Mr. ROGERS. Your objection, then, is that everybody who may call you on the telephone is tapped. They also will be heard. But that does not mean that the control itself has broken down, does it?

Mr. SCHWARTZ. With all due respect, I think it does.

Mr. ROGERS. How? Do you mean that the mechanical recording of what conversation may have been transpiring is not controlled?

Mr. SCHWARTZ. It is not controlled because everybody has been heard, everything has been heard, the right of privacy of everybody who has called has been invaded.

Mr. ROGERS. Maybe you do not understand what I have reference to, as to control.

Mr. SCHWARTZ. Perhaps not.

Mr. ROGERS. When I refer to control I mean the device itself, in the hands of skilled technicians. Now, the fact that it is in the hands of skilled technicians who place it there, they have it under control, as to what they hear. That is one thing. If they may hear something that has no relation whatsoever to the crime or suspected crime, that is something else, but it is still controlled and they know what is being

said. What you object to, as I take it, is the listening in on anything other than the crime.

Mr. SCHWARTZ. That is right.

My point is that if we are going to follow the analogy of search warrant, with the search warrant you go in, you look for the specific thing you are looking for and you leave when you find it. The basic hallmark of the fourth amendment, the bedrock requirement of the fourth amendment is specificity. The main purpose of the fourth amendment was to prevent general exploratory searches of the kind that the British made for smuggling, seditious literature, and everything else. They wanted to avoid police just going in and seeing what they could find, picking up everything in sight. The wiretap and the bug do precisely that and there is no way of avoiding that. If you are suspected of one thing and you call somebody else, you call your lawyer, for example, in connection with something totally different, that conversation is overheard and nobody can do anything about it. Mr. ROGERS. But it is still controlled.

Mr. SCHWARTZ. Yes, but it is a control that does not reach— Mr. ROGERS. The control is extended, the thing that may be heard is still controlled. That is the point I am trying to make. That is what I am trying to find out, what you mean by control. Do you mean, as an example, that the technician may be able to control an electrical device so that it will not reflect what may have taken place between the individual? If you mean that

Mr. SCHWARTZ. No; I do not mean that.

Mr. ROGERS. That is one of the criticisms of wiretapping.
Mr. SCHWARTZ. Yes; that is a possibility.

Mr. ROGERS. That it is possible for the technician who operates it to transplant or interpose different words in certain places to reflect a different meaning than was actually put in the conversation itself.

Mr. SCHWARTZ. I quite recognize that that is one of the problems but it seems to me that it is a side problem. The control that I am talking about is essentially the kind of control that the fourth amendment contemplates on law enforcement agencies.

Mr. ROGERS. You make reference to the question of society, that it is up to society as to just how much privacy is necessary and how we can give up. You say that in your statement. We start out, I think, from the concept of civilized man. One of the things that he has been able to accomplish by working together with each other is that the cooperation and working together leads to the protection of the lives of the individuals.

Isn't that the general concept of what civilization may be?

Mr. SCHWARTZ. Put that generally, that is one of the general concepts, yes, and it depends on the kind of life you want.

Mr. ROGERS. We have learned that if we do not protect ourselves by cooperating with each other we are not likely to exist very long. That has been the history of man. Would you not agree that that is a proper approach to it?

Mr. SCHWARTZ. Yes.

Mr. ROGERS. The question then arises, is it better that we try to protect ourselves against crimes that may result in injury to society through these devices that man has been able to create? Do you think that they should be used to help protect us against crimes?