Debate on Wiretapping and the Surveillance Laws — From 1962

Surfing around the Internets I came across a really cool 1962 Reader’s Digest debate on amending the wiretapping and surveillance laws. Think of it as C-SPAN many years before C-SPAN. If you’re a surveillance law nerd — and who isn’t? — it’s pretty fascinating. The panelists are Senator Kenneth Keating of New York; Senator John Carroll of Colorado; Virgil Peterson, then the Director of the Chicago Crime Commission; Frank O’Connor, Queens County District Attorney; and Lawrence Speiser, then the Director of the ACLU’s DC office.

A little background is in order. Back in 1962, wiretapping was not yet regulated by the Fourth Amendment. Instead, wiretapping was governed primarily by the a New-Deal-era statute, the 1934 Communications Act, 47 U.S.C. 605. The Communications Act was passed in great haste, however, and it had been interpreted to adopt an exceedingly weird rule: All acts of wiretapping itself were totally legal, but disclosure of the fruits of any wiretapping outside law enforcement was flatly forbidden in federal court even if the government had obtained a warrant. The suppression rule was total: Indeed, the memorable Fourth Amendment phrase “fruit of the poisonous tree” was actually from a statutory case interpreting the Communications Act which ensured that not only the actual recording, but its fruits, were suppressed. See Nardone v. United States, 308 U.S. 338 (1939).

If you think about it, this was a rather ridiculous rule. On one hand, J. Edgar Hoover could tap all he wanted without any restriction. But on the other hand, the government couldn’t ever get a wiretap order to allow the admissibility of wiretapping in court even if the government had probable cause. It was a very sorry state of affairs. Several states had enacted state wiretap laws that regulated wiretapping with a court order: This was particularly important in New York, where wiretapping was widely used to investigate organized crime. But the lawfulness of the state procedures was still rather uncertain, and Congress was considering a federal approach that might also define the proper allowances for state wiretapping.

The panel features Senator Keating of New York, who had submitted a proposal for such a new federal wiretap act. Notably, Senator Keating wouldn’t be in the Senate in 1968 when Congress finally enacted such a law. Keating was defeated by Bobby Kennedy in the 1964 New York Senate race. Keating would see the wiretapping issue again, though. He became a judge on the New York Court of Appeals, and he wrote at least one opinion that touched on it, People v. Munger, 24 N.Y.2d 445 (1969). Senator Carroll would also be out, as he lost his bid for reelection that fall, in 1962.

Finally, if you want to really geek out on the details of the law at the time, check out this 1960 essay in the ABA Journal, “Eavesdropping and the Law.” Great stuff.