Professor BLAKEY. The ultimate question is the policy question. If we really need to use this equipment the Constitution is broad enough to permit it. Without getting into any estimation of how the Supreme Court will decide Berger, which I think would be improper by me as counsel of record in that case, I would like to return to the central point which was your question in reference to the Attorney General. It seems to me if the Attorney General wants to overturn and outlaw the New York State statutes, the burden of proof is on him to show those statutes have not been successfully administered.

I would quite frankly say the President's Crime Commission looked into that question at some length, that is, the administration of the New York statute, and their conclusion was that that statute had troubles in its early days but is now well administered. It is protecting both the rights and privacy and of justice. If the Attorney General has information or studies to indicate that is not accurate, it seems to me it is incumbent upon him to introduce that information in the record.

The CHAIRMAN. I have to take exception. It strikes me that you as a witness must indicate to us that wiretapping is justified. You have the burden of proof. You are the witness that has to tell us. The Attorney General is not under obligation to prove the contrary.

Professor BLAKEY. This is certainly true as to the authorization of this equipment on the Federal level. That burden of proof I am willing to undertake.

Insofar as the proposed legislation would outlaw existing statutes on the State level, it seems to me the burden of proof is on the Attorney General on that score.

Mr. ROGERS. If the chairman would yield, isn't it possible that the Supreme Court, when it does make its decision on application of these wiretapping statutes of the various States, they can very well say that they were unconsititutional. The Supreme Court could say that regardless of what we pass here to permit the States to do it?

Professor BLAKEY. That is correct, Mr. Rogers. Conversely, the Court could also say that a court order procedure with stringent limitations is not constitutionally distinguishable from the search warrant procedure.

Mr. ROGERS. You provide in your bill in effect that the State attorney general would have to make a certain number of showings in order for the State to get a court order?

Professor BLAKEY. That is correct..

Mr. ROGERS. Why would you add that as an additional burden to the State if the State law is adequate and is upheld by the Supreme Court?

Professor BLAKEY. The question of the use of electronic equipment, particularly wiretapping, cannot really be considered entirely a State question. Insofar as a phone call is made from New York to California, it would seem to me that is part of the interstate network. The minimum levels under which it ought to be done would seem to me to be a Federal question. The citizen of California ought to have Federal protection insofar as he calls into New York from New York standards that are perhaps not as high as they ought to be.

I will be quite frank with you, I do not think the New York standards are as high as they ought to be.

Mr. ROGERS. Would you take it that these provisions in your bill when the attorney general of the State or the prosecuting officer of

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the State makes application to the State court and on complying with these sections of your law, would that mean that the Federa Government would completely preempt the field?

Professor BLAKEY. Preemption is perhaps a bad word. I think the Federal Government has a duty to set a certain minimal standard and the State can then at its own choice enact legislation, at least meeting those minimum standards, perhaps going higher or perhaps enacting no legislation.

Mr. ROGERS. Why did you say preempt is a bad word in this case, or not a proper word? The Federal Government can or cannot exercise its authority. They exercise it up to a certain point here if we were to adopt your provision.

Professor BLAKEY. That is correct.

Mr. ROGERS. But beyond that you would say that the Federal Government has nothing to do. Hence it does not preempt the entire field. Professor BLAKEY. I am thinking primarily in the context of administration of criminal justice. It has been one of our traditions that this has been peculiarly a matter of local concern. It seems to me that the Federal Government has minimal jurisdiction to interfere with the administration of criminal justice on the State level. Minimal jurisdiction is there and it is real, but I would look with disfavor on any general action by Congress to move into the State procedure level. The case before us is one of the peculiarly narrow areas where phone calls are interstate as well as intrastate and it has some authority here and ought to set minimal standards. As a general principle, I do not like the word preempt in the area of administration of criminal justice.

Mr. CORMAN. I think the reason for some Federal concern goes to the interstate nature of telephone communication. But I also assume that it would not be the concern of the Federal Government if devices used were to intercept oral communications other than telephone. Professor BLAKEY. Even in this area, Mr. Corman, in many, many situations it won't be possible to know beforehand who the person is, or rather, what kind of activity the person is involved in. For example, if we are dealing with a national corporation or a national union, and electronic equipment legitimately and lawfully was used against them, it would seem to me insofar as those activities do have a nationwide impact the Federal Government has some concern.

I am also concerned that there are minimal uniform standards in this one area. I admit that the question of jurisdiction is difficult; I concede that completely.

Mr. CORMAN. The desire for minimum uniform standards has never been justified.

Professor BLAKEY. No. I grant you the Federal Government's power, when it moves into the area of interception of oral communications, is considerably less clear than in the area of telephonic communications. If Congress was to make a judgment that it would not move in that area, that could be a sound and reasonable judgment, but one on which we might disagree.

Mr. CORMAN. What would be the justification for the Federal Government moving into the nonpublic use of devices that would have nothing to do with interstate communications? Why not leave those decisions to the States?

Professor BLAKEY. Again, Mr. Corman, I think you can make a reasonable argument either way on the private use of this equipment

where it does not touch either interstate commerce or the use of interstate communication network. If the Congress was to make a judgment that they did not want to move into that area because the power was not clear, I can see that. Indeed, I tend to lean that way. On the other hand, we are dealing here with a broad problem that is closely interrelated, and perhaps when we begin to paint part of the picture we ought to paint the entire picture. I can see people's concern perhaps that the administration of a Federal statute in this area might be more effective than a State statute.

Therefore, we ought to move against all private use of this but I would not press that either way.

Mr. CORMAN. If you have justified at all it would have to be on the theory that there is some Federal constitutional right to privacy; would that not be so?

Professor BLAKEY. Yes, something close to that. I think you can find that right of privacy in the 14th amendment.

Mr. CORMAN. Up to that point we have talked mostly about where we are going to put the ears of the policeman. Do you see any distinction between where we are going to put the ears of the policeman and where we are going to put the eyes of a policeman?

Professor BLAKEY. Yes, I do.

Mr. CORMAN. Why?

Professor BLAKEY. Well, I am inclined to think that a visual surveillance of certain areas might be more objectionable than aural surveillance and that the minimum necessary here would be to get the job done would be aural surveillance. Quite frankly, I have a good deal of distaste for the use of this equipment in any situation and it is only after a good deal of soul searching that I am willing to say that on balance we need it in certain areas. I think if we can get along with just aural surveillance, we do not need to go on to visual surveillance. Mr. CORMAN. Would you suggest a Federal statute which would prohibit visual surveillance or would you leave that decision to the States?

Professor BLAKEY. The present state of the art is such that the threat of trespatory visual surveillance is not simply current and not real whereas aural surveillance is. When the day comes, when the time comes that everybody can look in everybody's bedroom then perhaps it would be time to enact a statute or something like that. Mr. McCLORY. Will the gentleman yield?

Mr. CORMAN. Yes.

Mr. McCLORY. Aren't there modern electronic cameras, infrared cameras that provide visual information which is not otherwise visible. They see through objects, do they not?

Professor BLAKEY. There is experimental equipment that might do some of this, but its availability to the general public or indeed even to law enforcement, is presently not such that this is an issue that we have to face today. I am not suggesting that we would not have to face it

tomorrow.

Mr. McCLORY. There would not be any objection on your part through use of such sophisticated equipment by law enforcement officials, would there? I mean, if they are able to detect a criminal or an intruder through the use of this equipment-is it an infrared camera, is that what it is called?

Professor BLAKEY. It would depend on where it was used and how it was used. I am thinking primarily now

Mr. McCLORY. Of the private use.

Professor BLAKEY. Well, even the public use of this equipment in private areas. I would have a very high objection to the law enforce ment use of visual surveillance equipment in essentially private areas simply because I do not think it is needed. I think it could be done in an alternative way, with less invasion of privacy, and if an alternative way of doing it is available with less invasion of privacy that still gets the job done, I prefer the one with the least invasion.

The CHAIRMAN. You do have now in apartment houses what they call invisible cameras which are reflected in the superintendent's office. When you go to visit, say apartment 13 or 13A, as you go along even through the hall or in the elevators and get to 13A there are invisible cameras taking your pictures which are reflected in the superintend ent's office. They know who goes into whose apartment, who does not go into whose apartment.

Professor BLAKEY. Of course, this is in a public way, Mr. Chairman. As a matter of fact, I am sure that most of the residents in that kind of apartment house want that kind of surveillance in the hallways, and it is in lieu of having the actual physical presence of a policeman in the hall. They probably would prefer to have a policeman there for physical protection, but if they cannot have that, they will take a camera. I think that kind of surveillance by consent in a public place is unobjectionable. Indeed, I am sure an awful lot of people in New York wish it were in more apartments.

The CHAIRMAN. May I ask you this: Under your proposed bill even with the court order, you would allow a tapping of a public telephone, would you not?

Professor BLAKEY. The answer to that is, "Yes," and the answer to that "Yes, but." The provision permits the tapping of a public telephone, but not on the same kind of showing that would be required for a private phone.

The CHAIRMAN. In any event, it would be possible to get a court order to tap a public telephone, your disclaimer notwithstanding. Now, we know, for example, the records show that in New York City in 1953 and 1954 there were 3,588 phones tapped in New York City and 1,617 of them, or almost half, were public telephones. Now, that means that New York City police on these 1,617 telephones were listening to all manner and kinds of conversations. Conceivably those conversations were in most instances of a private nature. They may have been conversations between husband and wife, conversations between a lawyer and client, between doctor and patient. There may have been other communications always deemed confidential. Yet presumably New York allowed that situation. Your bill could allow that situation. Professor BLAKEY. Not quite, Mr. Chairman.

The CHAIRMAN. So that the rights of privacy are unduly, in my estimation, invaded here and that is a very serious situation.

Professor BLAKEY. Well, Mr. Chairman, if I may comment on the sense in which this bill would permit tapping of a public telephone: it sets up what, in effect, would be a general rule which says that no public phones may be tapped. Now, on a special showing of peculiar need to tap that phone, a warrant could be issued, but in addition to showing that it was a special need to tap that phone, the police would have to make a showing that the innocent calls would be cut to a minimum. Let me give you an example, Suppose you knew that a certain

Cosa Nostra figure was using a public telephone to make a call on at, say, 3 o'clock in the afternoon. Now, under the existing New York procedure, you could get a tap that would cover 24 hours, and to get that one 3 o'clock phone call you would have to listen for 24 hours. Under my bill, or the bill that was prepared in behalf of the President's Commission, you could not get that kind of order. The only kind of order you could get would be to tap from, say, 2:30 to 3:30 and that the length of time that you could tap the public telephone would be limited.

The CHAIRMAN. Are you confident that the police in New York would limit themselves to just those few minutes?

I doubt it very much, knowing what I know.

Professor BLAKEY. I know it is a matter of fact that it has been, and is being done in New York. I recall one situation which was described to me where the supreme court justice refused to issue the warrant for a public phone until he was given assurance by the police that another policeman with a two-way radio would be stationed near the phone and that the only actual listening would be of the use by this one particular individual, and when he went in the phone booth the tap was turned on, and when he went out of the phone booth, the tap was turned off. It is that kind of consideration for individual rights that I think this bill contemplates.

The CHAIRMAN. Our judges in New York must have known when they issued these ex parte orders to tap these public telephones to the extent of over 1,600, they must have known that private conversations were going to ensue over those phones. Nonetheless, they did not limit the phone calls to from a quarter to 12 to a quarter to 1. They were permitted to tap those public telephones at will, at any time. That is a serious situation. I do not think we can skirt over it lightly.

Professor BLAKEY. Mr. Chairman, I would not skirt over it lightly, but I would suggest to you those figures are 1953 and 1954 figures and that is some 10, approaching 15 years ago. The practices and procedures that were followed then are, quite frankly, not the practices and procedures that are being followed now.

The CHAIRMAN. I do not have the records, I did not trace the records beyond that, but I imagine they would be just as revealing. I am old fashioned enough to still think that a man's home is his castle. This would give the right to invade the home and I have to view with a great deal of misgivings your bill and any bill that would permit widespread use of wiretapping. I think it was William Pitt who said— and he was a philosopher of the ages-"A man's home is his castle." He said "The poorest man may in his cottage bid defiance to all the forces of the Crown."

The tradition surrounding that statement and emanating from that statement-I might add that the Founding Fathers when they offered the fourth and fifth amendments preserved that tradition. In effect, we have to be mighty careful lest we invade those fourth and fifth amendments and that wonderful statement of William Pitt.

Professor BLAKEY. Mr. Chairman, I could not agree with you more except I would say the maxim which you cite derives from the Semayne's case decided in 1603. Yet it was held in that case, in addition, that the privilege of the castle did not obtain against the King and the lawful exercise of the criminal process. Traditionally, we have thus understood the fourth amendment, not only as prohibit