going to commit a crime. They asked him, 'How did you know?", and he said, "Well, I had an informer who led me down there and said, 'Here he comes,' and then the informer ran off." He disappeared; but he cooperated with the police. The defense wanted to identify the informer to challenge whether there was probable cause to bring about the search. The Supreme Court has said the officer did not have to tell who the informant was.

Mr. GRUMET. He did not?

Mr. ROGERS. That is right. And they let the convictions stand.
Mr. GRUMET. That is unusual for the Supreme Court.

Mr. ROGERS. I think they handed that down just the other day.
Mr. SANTARELLI. Five to four.

Mr. GRUMET. Five to four?

Mr. ROGERS. Suppose you got the same situation in connection with an application for a wiretap?

Mr. LANE. We cannot predict what the judge will do in that situation, Mr. Chairman.

Mr. ROGERS. What I am trying to get at is how can you write a statute which would protect both sides that you outlined should be protected?

Mr. LANE. I think as far as we would be concerned in that case, while a judge might not force you to put down the name of the informer, if and when the case came to trial and there was some question on it, I do not think we would be too concerned about revealing the name of the informer. You have to have some limits here, you know. Mr. ROGERS. Thank you.

Mr. LANE. Can I just cite one more example that we had where using wiretaps was rather unusual? We had in New York several years ago a bingo game going on where the American Legion and different social eleemosynary organizations were used.

Mr. ROGERS. Fraternal organizations and otherwise?

Mr. LANE. Yes. Through a complaint we got from the State police we found out it was being run by a bunch of racketeers. I mean actually men who we looked up and had found that they had gone to jail; one for mail fraud, another for gambling. They actually went out and got the law passed to make bingo legal in the State. They were the ones that were putting up the money for the lobby because once the law was passed these racketeers took over. In other words, they would go to some organization and say: "We will give you $15 a night for the use of your name and we will run the whole thing." They were making-well, the organization might make $15 a night and the racketeers were taking out maybe $1,000 or more. It was through a wiretap, as I say, that we got the information on this and eventually the Governor, as a result of our investigation, called a special session of the legislature, changed the bingo law entirely, and we got rid of that particular situation.

Mr. ROGERS. We have just exactly the reverse in my State. The people approved it by a referendum and bingo is legal, but it is licensed. I do not think the racketeers have moved into it. Most of the organizations that were in favor of it have continued to conduct the games, legitimately under the law.

Mr. LANE. I cite that just as an example of where wiretapping helped out tremendously in the public interest.

Mr. ROGERS. Let's analyze the permit a little further. Someplace along the line you got some information that gangsterism had taken over and you had to have somebody to make an affidavit to get the permit?

Mr. LANE. That is right.

Mr. ROGERS. That is, the permit to tap the wire. Now, who did you produce in that case?

Mr. LANE. I do not know exactly, but I think it probably was a State trooper

Mr. ROGERS. A State trooper?

Mr. LANE (continuing). Who actually was in plain clothes and got into one of these games and saw what was going on.

Mr. McCLORY. I would like to say this: That I think an analogy might be made between the example given by Mr. Lane of the gangster group supporting legalized bingo, which a number of well-meaning and well-thought-of organizations were supporting and in this legislation where a great many individuals who are concerned with the rights of privacy, of private individuals, are concerned about legalized wiretapping going too far and the organized criminal, hoodlums who are the ones who would be most adversely affected by this legislation and so would also be the most opposed to any effective, meaningful legislation which would authorize wiretapping or electronic surveillance under court order, as my legislation and that of Senator McClellan and certain others would provide. Now, I would like to just make this observation, too, that I am sure it would be your opinion that even though crime has increased in the city of New York, and I do not doubt also in the cities of Chicago and Detroit and other metropolitan areas, the increase would have been far greater had it not been for the authority which the city of New York has and the State of New York has provided for electronic surveillance of crime. Is that right? Mr. LANE. Definitely. You have touched on a point right here which I think this committee ought to give a great deal of thought to, and that is about narcotics, in relation to what you have just said. You know that narcotics is one of the two sources of the treasury of the underworld. There is no question about that. It is a very interesting thing that in New York we have close to 50 percent of the narcotic problem of the entire United States. Think of that. Now, 98 percent of all narcotic addicts-and we went into this rather thoroughlyare heroin addicts. Heroin is not manufactured in this country. It comes from outside. To my way of thinking, the problem of keeping narcotics out of this country is a Federal problem. It belongs to the Federal Government. I think as far as the Bureau of Narcotics goes, it does a good job. No question about it. But they do not even begin to do the job in New York. Here is a situation where, because of the failure of the Federal Government, and I mean the Congress, to take the proper steps to keep out of the State of New York and the city of New York is saddled with all of these narcotic addicts. As you know, addiction to narcotics is one of the chief sources of crime in the State. It seems to me that the Federal Government, the legislature, the Congress has not passed effective laws to stem this. Now maybe they cannot. Maybe it is beyond their powers.

Mr. ROGERS. May I

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

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