Section 99B.

Any justice of the supreme judicial court, or a justice of the superior court, may, upon proper application by either a district attorney or the attorney general of the commonwealth grant an ex parte order allowing such officer to order an electronic eavesdrop or a wiretap.

(1) Such application to be proper, must satisfy the judge that the following requirements have been substantially met.

(a) It must be personally signed by either a district attorney or the attorney general of the commonwealth, unless it can be shown that that official is unavailable and that delay would endanger either human life or the public safety. In such case, the application must be signed by the highest ranking official available, within the office applying for the warrant.

(b) It must contain a full and complete statement of the facts and circumstances relied on by the applicant including but not limited to: the crime or crimes involved; the information expected to be obtained; the results of previous investigation which led to the application; and the sources of the information leading to the application, unless such sources are confidential.

(c) It must state the nature and location of the premises which are to be eavesdropped upon, or the wire to be tapped, and the person or persons whose conversations are to be overheard or intercepted. In the case of eavesdropping, the application shall specify as precisely as possible the building, and the particular rooms in a building, to be where the eavesdrop is to take place. In the case of a telephone, the exact number of the line must be specified, as well as the names of the individuals to whom the phone is listed, and who regularly use the phone if known to the persons applying or

(d) It must state all previous applications in the same matter which involved the same premises, facilities or individuals, and the action taken by the judge on each application.

(e) It must allege that other methods of investigation have proven to be or are presumptively inadequate and that there is a reasonable cause to believe that eavesdropping or a wiretap will be successful. In enforcing the laws of the Commonwealth.

(2) If the judge is not satisfied that the application substantially complies with the requirements of Part A, he may require the applicant to furnish additional information in support of the application.

(3) If the judge is satisfied that the application substantially complies with Section I of this part, and specifically, that other methods of investigation would be inadequate, he may enter an ex parte order granting leave to the applicant to eavesdrop or wiretap in conformance with the terms of the order. Such order shall only be granted where there are reasonable grounds to believe that :(a) It is necessary to save human life; or,

(b) In the case of a wiretap, where communications facility itself is an instarumentality of the crime alleged; or,

132A (c). That evidence of homicide, kidnapping, rape, arson, armed robbery, aggravated assault, extortion, crimes involving the security of the Commonwealth or endangering public safety, and/or crimes of attempt or conspiracy to commit the same.

(4) Such order shall limited to sixty days, at which time it shall be renewable, in the discretion of the judge, for additional periods of thirty days. An application for renewal must be filed which shall contain as much information as the judge shall deem necessary.

(5) Such order shall describe or identify the person or persons who are authorized to implement it, or the person or persons under whose supervision it shall be implemented.

(6) An order to eavesdrop shall specify with as much preciseness as possible, the building, and the particular room or rooms in a building, where the eavesdrop is to take place. An order to wiretap shall specify the particular wire to be intercepted, if a telephone, by its number.

(7) Such order shall specify the purpose for which it has been granted.

(8) A warrant may in the discretion of the Judge be amended to include any matters which would have been properly includable if known at the time of the issuance of the warrant. Any such amendment must take place within a reasonable period of time.

(B) When an order is granted in accordance with this part, it shall be the responsibility of the signer of the application as well as anyone connected with implementing the order, to see that it is implemented in a way entirly consistent

with the provisions of the order, and that utmost respect is given to the constitutional rights and the privacy of those persons whose conversations are overheard or intercepted by virtue of the order.

(1) When any criminal prosecution is brought which involves a defendant who has been the subject of a court order under section I of this part A, the state must furnish the defendant with a copy of the order and an accurate transcript of the material proposed to be used as evidence, at least thirty days before the commencement of the trial. If the defendant has any objections to the order having been granted, or the manner in which it was implemented, he must make them known to the court at least ten days before the commencement of the trial.

(2) No material obtained in a manner inconsistent with the provisions of any court order granted under section 2 of this part, shall be admissible as evidence in any judicial proceeding in the commonwealth.

(3) It shall be unlawful for any person to edit, alter, or tamper with any tape, transcript, or other recording of any kind of any conversation overhead or intercepted by a court order granted under Section I of this part, and then to present such material in any judicial proceeding, or any proceeding under oath, without fully indicating the nature of all changes made and the original state of the material. Any person violating this paragraph shall be punished by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

(4) Any law enforcement official who obtains or misuses in a grossly negligent or malicious manner, the powers given him by a court order under this section, shall be liable in an action for damages by any person aggrieved by, or as a result of such action. The minimum award for such injury shall be one thousand dollars.

(c) In order to protect innocent parties it is essential to preserve the secrecy of any tapes, transcripts or other recordings of any kind intercepted or overheard under a Part A order, and to insulate the entire proceedings from unauthorized view.

(1) No application or order under Part A shall be made public by the court, or the applicants, or by any person with knowledge of its existence or contents, until a true indictment is returned against the individual or individuals named as the subjects in the application or order.

(2) The court shall seal and keep in the custody of the court as the official record, a true copy of each application and order. The order itself shall be delivered to and retained by the applicant as authority for its implementation.

(3) Any tapes, transcripts or other recordings of any kind of conversations intercepted or overheard under a Sec. I order shall be deemed to be in the custody of the court, but may be kept in the possession of the applicant at the discretion of the court.

(4) All tapes, transcripts or other recordings of any kind of conversations intercepted or overheard under a pursuant to this Section order must be returned to the possession of the court either at the conclusion of the trial of a defendant who was the subject of such order, or at the end of one year from the date of the expiration of the order, whichever is later.

212A. In no case will the tapes be destroyed prior to the expiration of the Statute of Limitations for the crime specified on the warrant. Where there is a criminal proceeding resulting in the conviction of a defendant, the tapes and transcriptions etc., which are admitted in evidence shall not be destroyed until the termination of any sentence imposed.

The time may be extended upon a showing by the office securing the warrant that there is evidence which may be admissible in a judicial proceeding and that there is another applicable statute of limitations which is longer-in which case the longer statute of limitations shall apply.

(5) All tapes, transcripts or other recordings of any kind of conversations intercepted or overheard under this section of this order shall be destroyed by the court five years after the date on which they are returned to the possession of the court under paragraph 4.

(6) Any person who has been damaged by a violation of this section, may sue the violator or violators therefor and shall recover the damages by him sustained, and the cost of the suit, including a reasonable attorney's fee, and no award shall be less than one thousand dollars.

2224C. No Federal Officer obtaining evidence contrary to the provisions of this Chapter but pursuant to the Statute of the United States Government shall be

liable under this section, any evidence legally obtained by the Federal Officer will be admissable in a State proceeding if such evidence could have been obtained in accordance with the requirements of this section.

(D) A commission on electronic surveillance shall be created. Its members shall consist of the chief judge of the supreme judicial court, or his appointed representative, who shall be the chairman; the governor, or his appointed representative; the attorney general, or his appointed representative; a representative appointed by the Massachusetts bar association; and a member of the faculty of a Massachusetts law school, to be appointed by the chairman. The commission shall meet at least once every year following the passage of this section and by the end of the fifth year after passage, it shall file a written report to the general court giving its evaluation of how well the provisions of sections 99, 99A and 99B have been carried out in practice, and recommending any changes it believes will improve the functioning of these sections. The commission shall have subpoena power, including the power to inspect all applications and orders under this Act. One year from the date of submission of such report, the commission shall terminate as an official body, unless renewed at that time by act of the general court.

SECTION 2. This act shall take effect ninety days after passage.

Mr. RICHARDSON. Briefly, this legislation begins by the prohibition of both eavesdropping and wiretapping and makes it a crime to violate these provisions of the law, punishable by not more than 5 years of imprisonment or a fine of no more than $10,000, or both. It provides a right of civil action for treble damages against any person who has been damaged by violation of these prohibitations. It then goes on to provide for court orders authorizing eavesdropping or wiretapping for law-enforcement purposes, and here the search-warrant analogy already described by Mr. Martin in his specifications for his legislation on this subject is followed in our own pending bill.

The applicant for a court order must be either a district attorney or the attorney general of the commonwealth. The application must contain a full and complete statement of the facts and circumstances relied on by the applicant, including but not limited to the crime or crimes involved, the information expected to be obtained, the results of previous investigation which led to the application, the sources of the information leading to the application, unless such sources are confidential. It must state the nature and location of the premises which are to be eavesdropped upon or the wire to be tapped and the person or persons whose conversations are to be overheard or intercepted. It must also state all of the previous applications in the same matter which involve the same premises, facilities, or individuals. It must allege, and this was a point also touched on by Mr. Martin, that other methods of investigation have proven to be or are presumptively inadequate and that there is a reasonable cause to believe that eavesdropping or wiretap will be successful. If the judge is not satisfied that the application substantially complies with these requirements, he may direct the applicant to furnish additional information. If the judge is satisfied, he may enter an ex parte order granting the application but only where there are reasonable grounds to believe that it is necessary to sae a human life, where, in the case of a wiretap, communication facilities themselves are an instrumentality of the crime alleged, where evidence of a felony may thus be obtained, or where the security of the commonwealth or the public safety is endangered. The order would be limited in effect to 60 days, after which it would have to be renewed by the judge. It further would be provided that before any evidence thus obtained could be used, notice would have to be given to

the defendant in order that it could be considered with reference to any possible motion to suppress.

In conclusion, Mr. Chairman and members of the committee, I would like to touch just briefly on the question of Federal versus State authority in this field. It seems to me, most basically, that it should be approached in the recognition that there must necessarily be concurrent responsibility for law enforcement as between the Federal Government and the States and their local subdivisions. It would therefore seem to me to follow that regulation of this subject should contemplate the availability to State and local law enforcement authorities of appropriate court-granted authority to engage in eleetronic surveillance on essentially the same basis that we now have Federally authorized search warrants and State-authorized warrants. It seems to me, further, that while there should be concurrent jurisdiction and concurrent regulation, this regulation should, as largely as possible, be consistent in approach. Insofar as there is an area available for preemption by the Federal Government, it would seem to me that within that area any exercise of concurrent authority by the States acting under their own legislation should be circumscribed in a manner requiring consistency with the standards set forth in the Federal legislation. But within those limits, it seems to me appropriate that both State and Federal legislation should be enacted and coexist side by side.

For this reason, finally, I believe, that we at the State level should be seeking to enact legislation that does, so far as possible in our own best judgment, safeguard the two major public concerns with which such legislation must be involved; protection, on the one side, of the right of privacy and, the enhancement, on the other, of the efficacy of law enforcement.

Mr. ROGERS. Thank you. Are there any questions?

Mr. McCLORY. Yes. Thank you, Mr. Chairman. I compliment you, Mr. Richardson. I would like to ask your opinion as to the comment that the Attorney General made when he appeared before the committee here, indicating that in those jurisdictions where wiretapping authority was in effect and where wiretaps were utilized that there appeared to be a less effective elimination of organized crime than in those jurisdictions where they did not use wiretaps. Now, you mentioned in one part of your testimony that without the use of the wiretap you could not have secured the conviction of a narcotics ring. How would you appraise the U.S. Attorney General's view of the efficacy of wiretap evidence?

Mr. RICHARDSON. Congressman McClory, I would say as to this there are, it seems to me, two pertinent observations to be made. First of all, as has been pointed out in the brief Mr. Martin referred to in the Berger case, in which I joined with the attorney general of the State of Oregon and with the National District Attorneys Association in urging essentially the position that I have stated here-it is pointed out in this brief, which was in fact written, as Mr. Martin said, by Professor Blakey of the Notre Dame Law School, that it is extremely difficult, indeed virtually impossible, to develop adequate statistical data with respect to the efficacy of electronic surveillance. This is true because of the variables that apply to differing situations.

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These variables are so numerous and so complex that comparison between such distinctions is essentially meaningless.

This leads me to the other half of my comment: One would have to know a lot about what kind of an effort was being conducted to deal with organized crime not only through the utilization of electronic surveillance but in other respects also, to be able to make any real judgment as between jurisdictions.

Again, the most significant thing to be said here, as the National Crime Commission report itself makes clear and as I believe virtually anyone who has spent any considerable amount of time dealing with the problem of organized crime would corroborate, law enforcement generally has not been effective against organized crime at all. What we are faced with, therefore, is the necessity for assembling a combination of weapons against it. In my own State, for example, while I can point to an example of electronic surveillance in uncovering a narcotics ring, I could equally point to the fact that no really major racketeer in the Commonwealth has been convicted of anything, in my memory. I have just appointed the assistant director of the National Crime Commission for Organized Crime as the chief of the organized crime unit in my department. I hope with the help of an additional appropriation from the State legislature to be able to make this an effective unit. If I succeed in this, it will be the first time there has ever existed at the State level in the Commonwealth any law enforcement unit concerned primarily with the problem of organized crime. I say this simply to emphasize that I find persuasive the testimony of people such as the district attorney, Mr. Hogan, of New York, County. I might add that special counsel to Governor Rockefeller of New York, Eliot Lombard, also former counsel to the Special Commission on Crime in New York-which largely devoted itself to the problem of organized crime has said that wiretaps strike right at the heart of the relationship between organized crime and political corruption. His own investigation made extensive use of them. Perhaps, if he hasn't already testified before this committee, he might be a useful witness on this subject, since his experience with it is very wide and very deep. He is the organizer of the so-called Oyster Bay Conferences on Organized Crime.

What it amounts to is that I do not believe one can respond directly to statements about the efficacy of electronic surveillance. I believe one must put substantial weight upon the experience of those law enforcement authorities who have accomplished most, and I think, finally, we must recognize that if this Nation and its States and local authorities are effectively to do anything in this area they must assemble a more effective arsenal of weapons, including this one, than any they have heretofore brought to bear.

Mr. McCLORY. It is true, I gather, from your testimony and from your quotation or reference to the statement of District Attorney Hogan of New York, that organized crime operates in a way which makes it necessarily essential to employ electronic surveillance devices? In other words, these conspirators do not get together in a single room. or do their business in face-to-face conversation or written messages, but they employ the telephone, they employ other means for communicating so that you need this type of authority in order to combat, in order to detect, in order to investigate the activities of these characters who are carrying on these activities.