higher right to which we should sacrifice this privacy. The equipment and practices in question are justified in the name of that vague and illusive business ideal "efficiency." What sins are committed in the name of efficiency! We are dealing here with people, and in my mind the presumption is that they use the telephone upon the expectation that that communication is private. The telephone instrument itself is designed for the use of a single person, and no more. other than the party at the opposite end. It does not have attached to it a loud speaker, and for good reasons. The parties intend the conversations to be private. And this privacy of communication obtains no less as to employees, and is not to be disregarded simply because employees are involved. Because these people work for and about the telephone company does not mean that they have any less right to privacy than anyone else on the street. If the employees who utilize business telephones and who work the telephones are that inefficient. I suspect the public will make its dissatisfaction known to the companies involved, and it can do so in generous proportions through the use of the SAM System (or a likeness) which I mentioned just previously. In any event, if the choice is between the ideal employee, destined to operate the telephone with unfailing efficiency, under unexpected surveillance, by virtue of eavesdropping, and avoiding unmonitored telephones, but retaining human dignity, I then would sacrifice the perfect world of electronics and efficiency for human dignity. As Justice William O. Douglas said: "The free state offers what a police state denies the privacy of the home, the dignity and peace of mind of the individual. A degree of inefficiency is a price we necessarily pay for a civilized, decent society." Thank you, gentlemen, for the opportunity of presenting CWA's position before your distinguished body. I would be delighted to answer any questions you may have regarding my testimony. ANTI-CRIME PROGRAM THURSDAY, APRIL 20, 1967 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 5, Washington, D.C. The subcommittee met at 10 a.m., pursuant to call, in room 2141, Rayburn Building, the Honorable Emanuel Celler (chairman of the subcommittee) presiding. Present: Messrs. Celler (chairman), Rodino, Rogers, Corman, McCulloch, Mathias, MacGregor, McClory, Railsback, and Biester. Staff present: Kenneth R. Harkins, counsel; Donald E. Santarelli, and John W. Dean III, associate counsel. The CHAIRMAN. The committee will come to order. Our first witness this morning is Prof. G. Robert Blakey, professor of law at Notre Dame Law School. Professor, we will be glad to hear from you. STATEMENT OF G. ROBERT BLAKEY, PROFESSOR OF LAW, NOTRE DAME LAW SCHOOL, NOTRE DAME, IND. Professor BLAKEY. Thank you, Mr. Chairman. I deeply appreciate this opportunity to appear and testify on the Right of Privacy Act of 1967. My name is G. Robert Blakey. I am a professor of law at the Notre Dame Law School. My subjects include criminal law and criminal procedure and a special seminar on organized crime. This past year I was also a special consultant to the President's Commission on Law Enforcement and the Administration of Justice in the area of Organized Crime. I am also a member of the American Civil Liberties Union. Mr. Chairman, I prepared a rather long statement and rather than burden the committee with the reading of it, I would like at this time simply to insert it in the record and for the committee's benefit summarize it. The CHAIRMAN. We will be glad to have you do that. In other words, put the entire statement in the record, and then you may summarize it. Professor BLAKEY. Yes. I might add there is an appendix. (Professor Blakey's prepared statement and appendix follow :) STATEMENT OF PROF. G. ROBERT BLAKEY, NOTRE DAME LAW SCHOOL Mr. Chairman, members of the committee, I deeply appreciate this opportunity to appear and testify on the Right of Privacy Act of 1967. My name is G. Robert Blakey. I am a professor of law at the Notre Dame Law School. My subjects include Criminal Law and Criminal Procedure and a special Seminar on Organized Crime. This past year I was a special consultant on organized crime to the President's Commission on Law Enforcement and Administration of Justice. I am also a member of the American Civil Liberties Union. Mr. Justice Frankfurter once observed of journeys in the law that often "where one comes out on a case depends on where one goes in". United States v. Rabinowitz, 339 U.S. 56, 69 (1950) And so it is in any examination of the many vexing problems associated with the use of modern electronic surveillance techniques. The use of these techniques by private and public hands involve considerations of both privacy and justice. Consequently, any analysis which begins with one value to the exclusion of the other will end up with a necessarily illiberal conclusion. We cannot afford to give undue weight to either value. “All government, indeed every human benefit and enjoyment, every virtue and every prudent act," as Burke says, " is founded on compromise and barter. We balance inconvenience; we give and take; we remit some rights that we may enjoy others * * *." Stanlis, The Selected Writings and Speeches of Edmund Burke 181 (1963). It is in this context, therefore, that we must examine this act. PRIVATE USE The wide-spread use of electronic surveillance techniques has been made possible by the tremendous scientific developments that have taken place in the last half century. Microminraturization in electronics and the invention of the magnetic tape stand out as the two most important events. As a result of these developments, the private use of electronic surveillance techniques has become an acute problem in two relatively sharply defined areas: commercial espionage and domestic relations investigations. Rightly so, the proposed act attempts to strike at these practices. Unfortunately, however, we see upon close analysis that it misses roughly half of the mark through a failure of imagination. It is not altogether clear that Section 605 of the Federal Communications Act of 1935, 48 Stat. 1103 (1934), 47 U.S.C. 605 (1958), which the act seeks to amend, is in so much need of "amendment" as it is in need of "reinterpretation". The statute, of course, prohibits wiretapping. It applies to private persons, United States v. Gris, 247 F. 2d 860 (2nd 1957), Federal agents, Nardone v. United States 302 U.S. 379 (1937) and state agents, Benonti v. United States, 355 U.S. 96 (1957). It covers interstate, Nardone v. United States, supra, and intrastate calls, Weiss v. United States, 308 U.S. 321 (1939). But for the interpretation of the Department of Justice, however, that both an "interception" and a “divulgence" is necessary to violate the statute, see, e.g., Testimony of Nicholas de B. Katzenbach, Hearing before the Subcommittee on Criminal Laws and Procedures of the Committee of the Judiciary, United States Senate, 89th Cong. 2nd Sess. 34 (1966), Section 605 would adequately prohibit all private and public wiretapping whatever the reason. Putting aside the question of justice, it is clear privacy would receive ample protection from private wiretapping in both the commercial espionage and domestic relations investigation areas if Section 605 was merely reinterpreted and enforced. The Supreme Court moreover, has expressly left open the validity of the Department's present construction of the statute. Rathbun v. United States, 355 U.S. 107, 108 n.3 (1957). There is thus no insuperable barrier to its reinterpretation. If it is private wiretapping in aid of commercial espionage or domestic relations cases that we wish to strike at, the proposed act is, therefore, not really needed. All that would be necessary would be a reinterpretation and enforcement of existing law. Yet rightly so, the act attempts to go beyond wiretapping. Anybody who knows anything about the private use of electronic surveillance techniques knows that wiretapping is actually old fashioned. There are many more sophisticated ways of getting better information with bugs and other similar electronic devices. The attempt of the bill to bring the use of these devices within the prohibition of federal law, therefore, is welcome. The proposed act, however, fails to do the job. Because it keys its coverage solely to the Commerce Power, it will not reach the vast majority of domestic relations situations. Most commercial espionage takes place between businesses involved in "interstate commerce" as that term has been so widely expanded by the Supreme Court, See, e.g., Wicker v. Filburn, 317 U.S. 111 (1942), so this aspect of the problem of private use will be adequately dealt with under the act as it is presently drafted. But this is not true in the domestic relations investigation, which involves, moreover, a far more objectionable invasion of privacy. It is, of course, one thing to overhear a business secret; it is a wholly different matter, however, to place under surveillance the marital relationship. Electronic surveillance by a private individual in another's bedroom cuts most sharply against the grain. But few, if any, of these investigations ever touch interstate commerce. A wired bug made intrastate using its own power source will not be covered by the act. It does not take a lot of imagination to figure this out, and the statute will thus have no impact in this crucial area. The problem of Congressional power to reach this sort of practice, while real, is, however, not insuperable. With a little imagination and willingness to try something new, it could perhaps, just perhaps, be done. There are a number of possible theories under which Congress might reach all electronic surveillance. For example, Section 5 of the Fourteenth Amendment gives Congress power to enforce through appropriate legislation the Amendment proper. The Amendment itself provides, in pertinent part, that "no state shall deprive any person of *** property without due process of law * * *." Most domestic relations investigations end in marital litigation and finally terminate in a divorce and a property settlement. There seems to be no reason why Congress could not declare that a property settlement incorporated in a court decree founded on evidence directly or indirectly obtained by electronic surveillance techniques deprives the aggrieved party of due process of law. Cf. Shelley v. Kramer 334 U.S. 1 (1965); Mapp v. Ohio, 367 U.S. 643 (1961). Based on the Fourteenth Amendment, Congress could then prohibit such an action by a court. To guarantee that this prohibition would not be undermined by the introduction of evidence indirectly obtained by these techniques-its seizure would probably be unknown to the victim and the court-Congress would be within its right then to prohibit criminally the use of these techniques for this purpose. At the time of the use, it would not, of course, always be possible to tell whether or not the party intended to use the product in court. Under the Necessary and Proper Clause, therefore, it might be permissible to outlaw all uses, for it would be necessary to outlaw the "good" with the "bad," so that the "bad" could be effectively reached. Compare, Weiss v. United States, 308 U.S. 321 (1939); Minnesota Rate Cases, 230 U.S. 352 (1913). Employing this approach, the statute would, therefore, have no legal loopholes. Naturally, there is no guarantee that this or similar imaginative new approaches would be upheld by the Supreme Court. Yet what President Roosevelt said in another context is relevant here: "Manifestly no one is in a position to give assurance that [it] will withstand constitutional tests, for the simple fact that you can get not ten but a thousand differing legal opinions on the subject. But the situation is so urgent and the benefits of the legislation so evident that all doubts should be resolved in favor of the bill, leaving to the courts, in orderly fashion, the ultimate question of constitutionality ***." (4 Public Papers and Addresses of Franklin D. Roosevelt 297-98 (1938).) The need here, too, is great. Private use of these techniques has little or no justification. They are an abomination in a free society. Now is the time to take effective action to outlaw them. If it is necessary to go outside the beaten path, Congress should have the courage to do so. PUBLIC USE: FEDERAL It is nothing short of incredible that this proposed statute is called a "Right of Privacy Act". It does not protect against the invasion of privacy. Indeed, it authorizes the wholesale, unlimited, unreviewed, unilateral use of these techniques. Section 2514, in pertinent part, provides: "Nothing * ** [herein] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power or any other serious threat to the security of the United States, or to protect national security information against foreign intelligence activities. No information obtained directly or indirectly, in the exercise of such power, by wire interception or eavesdropping otherwise prohibited by this chapter shall be received in evidence in any judicial or administrative proceeding. Neither shall such information be otherwise used or divulged except as necessary to implement such power." (Emphasis added.) This provision of the proposed act insofar as it deals with the foreign counter intelligence activity of the Federal government is unwise because it is not needed; it states no more than that which all would concede to be true anyway. The provision, however, is not so limited; it includes the undefined phrase: “any other serious threat to the security of the United States". Threats to the "national security" can, of course, be both "foreign" and "domestic". It is thus one thing to say that domestic malum prohibitum criminal legislation shall not bind the President in his conduct of foreign affairs as our Chief Executive; it is a wholly different thing, however, to say that domestically he is somehow above the law. What Mr. Justice Jackson said during the Nuremberg trails is relevant here: "We stand on the principle of responsible government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still under God and the law.' "With the doctrine of immunity of a head of state usually is coupled another, that orders from an official superior protects one who obeys them. It will be noticed that the combination of these two doctrines means that nobody is respon sible. Society as modernly organized cannot tolerate so broad an area of official irresponsibility." Report of Robert H. Jackson to the President in Trial of War Criminals, U.S. Department of State Pub. No. 2420 at 3, 4 (1945).) Consequently, far from protecting privacy, this provision authorizes its unbridled invasion. What does "national security" mean? Would it include a business conspiracy to monopolize broad areas of our economy? Would it include the deliberations of labor unions strategically located in national industries planning a nation-wide strike? Would it include examining the degree to which there might be Communist influence in the civil rights movement, the peace movement, the National Council of Churches, or any other similar body in our society. "Power, in whatever hand," Burke says, "is rarely guilty of too strict limitations on itself. . . ." Stanlis, op cit supra at 197. It would be a brave man who would assert that no future Attorney General would not unilaterally so construe the statute. The infamous Palmer raids of the last days of the otherwise liberal administration of President Woodrow Wilson have much to say on this score. At it is presently drafted, the act thus goes well beyond any proposal yet made to authorize wiretapping or bugging in the "national security" area. There is hardly a bill that has been laid before this body in the last thirty years that is not preferable to this proposal. There is no good reason why the use of these techniques in the domestic national security area cannot be brought under a court order system. It is not impossible to include in such a statute both safeguards for the people and for the security of the inquiry. Section 2514, in addition, contains within it a further “sleeper effect" equally objectionable. It provides that no judicial or administrative use may be made of the information gathered under the section. This probably does not make any difference when the information uncovered incriminates a communist or other diplomat having immunity from domestic prosecution. But what of his American counterpart? Section 2514, in effect, is thus a repeal of all of our statutes dealing with treason, espionage, or internal subversion. (Section 2514 will also repeal pro tonto 18 USC 2236, which presently outlaws Federal bugging. Compare, Silverman v. United States, 365 U.S. 505 (1961), with, United States v. South Eastern Underwriters Ass'n, 322 U.S. 533 (1944). Section 2236 is, of course, now ignored by the Department much as Section 605 has been "interpreted" away.) As a practical matter, these techniques must be used in these types of investigations. Consequently, most of the cases developed in these areas under Section 2514 will have to be handled by other than criminal prosecution. How they might be handled when the government will not be free to use the information in open court conjures up visions out of Franz Kafka's The Trial. We have traditionally been proud enough of our system of justice including within it the right on an adequate charge, the open court, confrontation and cross examination, exclusionary rules of evidence, and an independent judiciary and ultimate judgment of unbiased peers to think that this was the right way to handle anti-social conduct within our society. Section 2514 would, however, direct underground all "national security" matters. No bill which takes that course de |