(2) The nature and location of the communications facilities involved; and

(3) A full and complete statement of the facts concerning all previous applications, known to the individual authorizing the application, made to any judge for leave to intercept wire communications involving any person named in the application as committing, having committed, or being about to commit an offense, and the action taken by the judge on each such application.

(b) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(c) Upon such application the judge may enter an ex parte order granting leave to intercept wire communications at any place within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that there is probable cause for belief that—

(1) an offense for which such an application is filed under this Act is being, has been, or is about to be committed;

(2) facts concerning that offense may be obtained through such interception;

(3) no other means are readily available for obtaining that information; and

(4) the facilities from which communications are to be intercepted are being used or about to be used in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, a person who has committed, is committing, or is about to commit such offense. (d) Each order granting leave under this Act to intercept any communication shall specify—

(1) the nature and location of the communications facilities as to which leave to intercept is granted;

(2) each offense as to which information is to be sought;

(3) the identity of the agency authorized to intercept the communications; and

(4) the period of time during which such interception is authorized. (e) No order entered under this section may grant leave to intercept communications for any period exceeding forty-five days. Extensions of the order may be granted for periods of not more than twenty days each upon further application made in conformity to subsection (a) of this section and upon the findings required by subsection (c) of this section,

(f) The contents of an intercepted communication shall not be received in evidence or otherwise disclosed in any criminal proceeding in a Federal court unless each defendant, not less than ten days before the trial, has been furnished with a copy of the court order or other authorization pursuant to which the interception was made; except that such ten-day period may be waived by the Judge if he finds that it was not possible to furnish the defendant with the above information ten days before the trial, and that the defendant will not be prejudiced by the delay in receiving such information.

(g) Any defendant in a criminal trial in a Federal court may move in that court to suppress the use as evidence of the contents of any intercepted communication or any part thereof or evidence derived therefrom, on the ground that (1) the communication was unlawfully intercepted; (2) the order or other authorization pursuant to which it was intercepted is insufficient on its face; (3) in the case of an order of a court, there was not probable cause for believing the existence on the grounds on which the order was issued; or (4) the interception was not made in conformity with the order or other authorization. Such motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the ground of the motion, but the court in its discretion may entertain the motion at the trial or hearing. If the motion is granted the evidence shall not be admissible in any court or proceeding. (h) Applications made to a court and orders granted by the court pursuant to this Act shall be sealed by the court. They shall not be made public except in accordance with this Act or by order of the court.

COMMUNICATIONS ACT AMENDMENT

SEC. 6. Section 605 of the Communication Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) is amended to read as follows:

"UNAUTHORIZED PUBLICATION OF COMMUNICATIONS

"SEC. 605. No person receiving, or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect. or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; and, except as provided in the Federal Wiretapping Act, no person not being authorized by the sender shall intercept any such communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; Provided, That this section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress."

SHORT TITLE

SEC. 7. This Act may be cited as the "Federal Wiretapping Act”.

1

STATEMENT OF HON., EDWIN D. ESHLEMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. ESHLEMAN. Good morning."

Mr. ROGERS. We welcome you. You may proceed in your own

manner.

Mr. ESHLEMAN. Thank you, Mr. Chairman.

I want to thank you and the members of the subcommittee for this opportunity to express my views pertaining to the wiretapping issue. I will try to be fairly brief. We were recently informed and challenged by the report of the President's Crime Commission. That study provided evidence of a distressing situation. Crime is on the upswing. In my opinion, the best method for attaining crime prevention is to provide our law enforcement agencies with the modern equipment and techniques needed for battling all types of crime, from the smalltime punk to the organized syndicate. If law enforcement personnel are not permitted to use methodology such as the wiretap that would be helpful in capturing guilty parties in a crime, the police are, in effect, being handcuffed. We cannot possibly expect effective control under such circumstances. I feel if we permit hampering of police activity we are misreading the valuable evidence set forth by the Crime Commission.

Admittedly, the Commission's recommendations on wiretapping were not unanimous. All members did agree that private citizens should be prevented from snooping electronically, and in this proposal I concur. However, a majority opinion of the Commission also said that in the interests of crime prevention, wiretapping by law enforcement officers acting under court order and supervision should be permitted. The minority voiced a view which held that invasion of privacy was the controlling factor, and that the interests of crime prevention were not as vital as some supposed intrusion of individual privacy if and when the wiretap is used.

Certainly, the criminal uses any means that comes to hand to carry out his activities. For instance, anyone so inclined can buy a receiving set or listening device in order to tune in on police radio calls. While this is often innocent diversion, escaping criminals have been known to use it to advantage in fleeing patrols. Yet, some sectors of our society have claimed that the police should be restricted from utilizing much the same methodology by outlawing the use of the wiretap. Such thinking apparently does not recognize the value of wiretapping as a means for acquiring evidence to be used against guilty parties. When applied judiciously, by law enforcement agencies, tapping into telephone lines can serve the best interests of the public by providing the material used in convictions of criminals.

I have introduced a bill, H.R. 6710, known as the Federal Wiretapping Act, which would regulate the practice of wiretapping for the purpose of acquiring evidence for criminal prosecutions. The legislation contains four major propositions:

First, duly authorized law enforcement officers would be permitted the use of the wiretap. This would include persons empowered by law to conduct investigations of or to make arrests for violations of the law, and any attorney able under the law to prosecute or participate in the prosecution of violations of the law....

Second, the bill applies to enforcement officers of the United States, the individual States or political subdivisions of those States.

Third, provisions in the legislation state that the wiretap is permissible only by court order. The court order could be granted upon written application by an authorized person; an application which would set forth facts and circumstances, nature and location of the communications facilities involved, and a statement of facts concerning all previous applications. The order granted would state the nature and location of the communications facilities to be tapped, each offense on which information is sought, the identity of the agency given the authorization, and the period of time during which the interception is to be allowed.

The fourth proposal in the legislation provides that the court orders will be issued by the Federal courts and any State court designated by the supreme justice in the court system of each individual State.

There are some points that should be noted about this proposed law. It does allow information gained through wiretapping to be used as admissible evidence in a trial, but does not permit the use of information gained by unauthorized wiretaps. The proposal refers only to wiretapping by public law enforcement agencies, and would not allow private individuals to legally engage in the practice of wiretapping. I

am wholly in agreement that invasion of privacy is repugnant when used beyond the realm of criminal prosecution. Finally, the bill in-cludes only wire communications and does not permit the use of other forms of eavesdropping equipment.

I see nothing inconsistent with present law inherent in legalized wiretapping. We have a tradition of permitting the use of search warrants which are procured from the courts for probable cause. The wiretap, under court supervision, is simply an extension of the search warrant theory into the realm of modern-day technology. Obviously, when the search warrant concept was originated, wire communications were not even envisioned. In the present era, the telephone is a part of our advanced society. It is used as a vital communications link in organized crime enterprises, where written material is held to a minimum because of the possibility of seizure. Therefore, since criminal business, including planning of illegal activity and transmission of policy decisions, is transacted by phone, institution of an up-to-date method for determining probable cause in the form of wiretapping would seem not only desirable, but necessary as a weapon against

crime.

Wiretapping would also seem to have value as a deterrent to crime, as well as a weapon against it. The opponents of wiretap legislation have argued that if such legislation were enacted, criminal elements would stop using the telephone. I can thing of no better reason for prompt enactment. Since verbal communications are so vital to the crime interests, inability to use the telephone service would be a real handicap to their operations. In particular, the field of illegal bookmaking would be driven to almost complete catastrophe. Therefore, I feel the deterrent characteristics of the legislation are worthy of your close consideration.

I agree with the President's Crime Commission that the present status of the law with respect to wiretapping is intolerable. The cause of law enforcement is not served, nor is the interest of privacy. One side of the controversy, or the other, should be accepted and made into definitive law. I am hopeful that the judiciary committee will see fit to support the cause of law enforcement and recommend to the Congress that we provide our police with the 20th century weapon of legalized wiretapping in their never-ending fight against erime.

Thank you, Mr. Chairman, for the privilege of testifying.

Mr. ROGERS. We appreciate receiving your views, particularly as they relate to your own bill, H.R. 6710.

I understand that generally you are in favor of giving permission to any individual who has the authority to carry out the enforcement of the law.

Mr. ESHLEMAN. That is correct, yes.

Mr. ROGERS. That is set forth on page 3 of your bill where you say, "the term 'person' means any individual, including any officer or employee of the United States or any State or political subdivision thereof.”

Now, this is what puzzles me. Your bill also says: "and any partnership, association, joint company, trust, or corporation."

Who do you include in a "partnership"? Do you mean private detective agencies?

Mr. ESHLEMAN. No. The intent of the bill was limited to governmental officials. I would say—I am not sure of this, Mr. Chairman, but I would say it means partnership action between a Federal official and local officials, or State officials and local officials.

Mr. ROGERS. Is that what you have in mind also when you say "partnership, association, joint stock company, trust, or corporation?" You don't mean a regular corporation?

Mr. ESHLEMAN. I mean to limit it to governmental officials only in the field of law enforcement and maybe the wording is faulty there. I will have to look into that.

Mr. ROGERS. What you intend is that those who are enforcing the law should be given the authority?

Mr. ESHLEMAN. That is correct, yes.

Mr. ROGERS. Also in your bill you provide a method of making application to a judge of competent jurisdiction, as you say on line 15 of page 3. Of course, you refer to a judge of the U.S. district court or a U.S. court of appeals. Would you envision that a sheriff of a county could step into the Federal court and ask for an order from him to investigate or to wiretap some supposed crime?

Mr. ESHLEMAN. No. State and local officials would use-I also say further there in the bill

Mr. ROGERS. Well, the next one under (B), you say "a judge of any court of general criminal jurisdiction of a State who is authorized by the chief justice or a judge of the highest court of appeals in such State to enter orders granting leave to intercept wire communications. Do you mean if it is a State official authorized to enforce the law, that he should then make his application to a State court?

Mr. ESHLEMAN. Yes, that is the intention..

Mr. ROGERS. And a Federal official should make his application to the Federal Court?

Mr. ESHLEMAN. Yes, sir.

Mr. ROGERS. Does your bill provide in the event a Federal official gets an application approved by the Federal court, and he intercepts the communication, that in turn that interception could be used in the prosecution in a State court? I

Mr. ESHLEMAN, I am not sure if it provides that or not. It would be admissible evidence in whatever court had jurisdiction. I am a layman, not an attorney, so you have me at a disadvantage.

Mr. ROGERS, We are getting into a highly technical field. You are authorizing people to tap wires and to make use of it. I am just wondering what you think the bill provides in that regard-I don't know of any authority that the chief justice of my State has any right to issue an order to any of the judges or to direct them in any matter. I assume that in order for my State then to take advantage of this legislation, should it be approved, that the State legislature would have to authorize the chief justice of our State or some judge or all judges to issue the order. In other words, you cover two waterfronts. Mr. ESHLEMAN. Yes.

Mr. ROGERS. State and Federal.

I can not see how it could be uniformly enforced throughout the 50 States. Have you any comment on that, on the uniformity? Do you want uniformity?