TheWire Episode 5 Does Usage Of Wire Tapping Justified? The characters on this show face many challenges of living in an urban environment – poverty, crime | Homework Answers
TheWire Episode 5 Does Usage Of Wire Tapping Justified? The characters on this show face many challenges of living in an urban environment – poverty, crime, lack of access to quality healthcare and education, food blight, violence, and easy accessibility to many substances that lead to addiction, etc. Do you see a sense of hopelessness in the episodes? Do you see a sense that conditions will ever improve? You need to discuss the reading each week. American Academy of Political and Social Science
Is Wire Tapping Justified?
Author(s): Patrick Murphy Malin
Source: The Annals of the American Academy of Political and Social Science, Vol. 300, Internal Security
and Civil Rights (Jul., 1955), pp. 29-35
Published by: Sage Publications, Inc. in association with the American Academy of Political and Social
Science
Stable URL: http://www.jstor.org/stable/1030896
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Is Wire Tapping Justified? By PATRICK MURPHY MALIN
THE Fourth Amendment to the federal Constitution reads: “The rigohftsecurity cases?” 2
to use intercepted evidence in the trial
of the people to be secure in their per-In dealing with this problem, I shall sons, houses, papers, and
effects, agaifnirsstt refer briefly to the extent and me- unreasonable searches and seizures, shcahllanics
and legal status of wire tapping. not be violated, and no Warrants shThaleln I shall outline the
arguments for issue, but upon probable cause, saunpd- against legalized police wire tap- ported by Oath
or affirmation, and ppairn-g, and my conclusions.
ticularly describing the place to be EXTENT AND MECHANICS OF
searched, and the persons or things to WIRE TAPPING be seized.”
In 1928, in a dissenting opinion from No one knows how much wire tapping within the minority of four
in the Olmt-here is-official and unofficial, legal and
stead prohibition wire-tapping case, theillegal. But occasional formal and in- late Justice Brandeis said:
“The makersformal revelations-of which the most
of our Constitution . . . conferred, rasecent widely publicized one is that of against the Government, the
right to btehe privately organized New York City let alone-the most comprehensive ofAnti-Crime
Committee-indicate that
the rights of man and the right mosetach day there are many thousands of valued by civilized men.” 1
He had nowtire taps in operation throughout the forgotten what often seem to be thceountry, most of
all in the larger cities. most forgotten amendments, the Ninth As for mechanics, it is apparently still and
Tenth, which not only conclude thetrue that there is only one way to tap Bill of Rights but also succinctly
dea- telephone secretly, and that is by clare the American faith in a free sohaving an expert cut into the wire it- ciety with a limited government: “Thseelf some distance from the
instrument.
enumeration in the Constitution, of ceBr-ut there are already electronic devices tain rights, shall not be
construed wtohich, despite difficulty of concealment deny or disparage others retained baynd other
imperfections, considerably the people” and “The powers not delef-acilitate the practice. And the phone
gated to the United States by the Cotna-p need not now have a listener taking stitution, nor prohibited
by it to thneotes, but may be connected to an States, are reserved to the States reautomatic wire recorder. A recording spectively, or to the people.” can be edited by deletion, rearrangeBut in 1954, Attorney General Brownm-ent, or even addition of words or even
ell posed this question: “How can wesyllables; and thus may increase the possibly preserve the safety
and libertpyroblem of false evidence to terrifying of everyone in this Nation unless wperoportions. But I
am dealing here, pull Federal prosecuting attorneys out
of their strait-jackets and permit them 2 “Statement by Honorable Herbert Brown- ell, Jr…. Prepared for
Testimony before a
1Olmstead v. United States, 277 U. S. 438, Subcommittee of the [Senate] Judiciary Com478 (1928).
mittee, April 20, 1954,” p. 3.
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29
30 THE ANNALS OF THE AMERICAN ACADEMY
not with that related problem, but with states is illegal. But it has not yet ex- wire tapping itself, even if
the evidence plicitly said so, and it has explicitly said is accurate and fair. that evidence obtained in
violation of
Section 605 is admissible in state courts
-because Congress did not intend to Consideration of the legal status ofenact a rule of evidence for such
courts,
wire tapping may begin with the 5 to 4which often admit evidence obtained in decision of the United
States Supremeviolation of even their respective state Court in the 1928 Olmstead case, which laws
regarding wire tapping or other
methods. held that official federal wire tapping
did not violate the Fourth Amendment, Moreover, though the Department of
the late Chief Justice Taft said: “The to operate on the basis of a narrow inLEGAL STATUS
and that evidence so obtained could
Justice in 1940 announced its complete constitutionally be used in federal abandonment of wire
tapping, it almost courts. In handing down that decision, at once reversed itself, and it continues
Amendment does not forbid what was
done here. There was no searchingti.me of the late Robert Jackson onhearing and that only. There wasgnenoce and that sharing of wire-tap in- entry of the houses or offices
of thefdoer-mation among officials of a single
fendants.” 3 Literalism won, but bgyovaernment is not divulgence from one slim margin, and not for
long. “person” to another “person”! (No
Opposition to that decision, aswotnoder there has been only one federal prohibition enforcement
practices gepnro-secution of even unofficial wire tap- erally, led Congress, when it passed tphineg, and
only a few state prosecutions.) Communications Act of 1934, to pWriot-h all the respect I can muster for
vide in Section 605 that “. .. no psuecrh-arguments, I must say that I find son not being authorized by the
senthderSupreme Court more convincing in shall intercept any communicationitasnidnterpretation: “We
nevertheless face divulge or publish the existence, mtehaenf-act that the plain words of Section ing,
[etc.], of such intercepted co6m0-5 forbid anyone… to intercept a munication to any person. .. .” 4
telephone message.”
There was no seizure. The evidence
ward, it has argued that wire tapping was secured by the use of the sensies foofrbidden only if followed
by divulThat is still the law, and on its basis the United States Supreme Court has
VALUES AND RISKS
So much for extent and mechanics held that wire tapping-though not unterpretation of Section 605. From the
constitutional-is illegal and that eavnid- legal status. Let me now outline dence so obtained (or even
evidencethoeb-arguments for and against legalized tained upon clues discovered by wpiorliece wire
tapping, and my conclusions. tapping) is inadmissible in federal In doing so, I hope it will be clear from
courts. The Supreme Court has also the beginning that-though I am on held that Section 605 extends to
intrabalance strongly opposed to all wire state communications, and thus woultdapping-I take that position,
not in
seem to have made assurance doubldyisregard of its risks, but in considered sure that even such wire
tapping as icshoice of those risks as against the risks
authorized by the laws of a half-dozen5Nardone v. United States, 302 U. S. 379, 3 Olmstead v. United
States, 277 U. S. 4383,82 (1937); the “first Nardone case.” Also
464 (1928).
447 U. S. C. ?605 (1952). (S. D. N. Y. 1950).
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United States v. Coplon, 88 F. Supp. 921, 925
note that I have some excellent comWe see no need for chipping away at the
IS WRE TAPPING JUST’1r1u??
31
involved in even a small amount of wire
tapping. Also, I hope everyone will them, and it is forbidden; this may
nal, which has said this in a recent editorial:
jeopardize national security, as in the pany-including the Wall Street Joucars-e of Judith Coplon. Next to
naMr. J. Edgar Hoover, the director of the rights and privileges of people who are not
Communists in order to catch Commu- Federal Bureau of Investigation, says: nists. Perhaps the latter
can be more “I dare say the most violent critic of easily trapped through wiretapping; cer-the FBI would
urge the use of wire- tainly it will make the job of our police tapping techniques if his child were kideasier …. The job of the police would napped and held hostage.” 8
be made easier also if they could go about
arresting anyone they chose and if theyLittle-danger argument
could break down any door and if they Even among persons who fully recogcould hold in prison a suspect as long as nize the risks involved in wire tapping, they wished. But
restraints were placed there are those who believe that the
the only way to obtain evidence against
tional security, the most frequently em- phasized area of need is the prevention and punishment of
kidnaping; about it,
on Government and on police so that these
things could not happen.6 actual danger of abuse is slight. They
point out that our federal and state anid Put it another way: All life is a choice
local governments are kept reasonably among values, and among risks; and a
trustworthy by a combination of the free society-to remain free-must take
almost all of its risks on the side of freedom.
ARGUMENTS PRO
ballot and freedom of speech and the press. They also stress that police offi- cials have not thus far been
guilty of much abuse of power, and are unlikely to be so guilty in the predictable future.
The arguments for legalized wire tap- ping may be conveniently grouped un- der three headings:
ARGUMENTS CON
No-novelty argument
The arguments against legalized wire tapping may also be conveniently
Attorney General Brownell points tgorouped under three headings:
the fact that the law already admits
Immense-difference-in-degree argument evidence obtained by an informer, an
eavesdropper, or a policeman hidden in Many opponents turn Mr. Brownell’s
a closet; even evidence obtained byargument against him by pointing out means of a transmitter
concealed on an that even some other methods of obagent’s person. And, he says, “There taining and admitting evidence, now is little, if anything, to
distinguish be- fully approved by the courts, are bad tween these approved methods of ob- and should
be eliminated; then, they taining and admitting evidence, and point out, how much more should wire
wiretaps which are not admissible.” 7 tapping be opposed. As Justice Hofstadter of the Supreme Court of New
Great-need argument
Mr. Brownell points to the fact that this year:
criminals may go free if wire tapping is
8 “Wiretapping: The Pros and Cons,” New York Times Magazine, November 29, 1953,
6 January 19, 1955.
7″Statement by . . . Brownell . . . ,” p. 5. p. 32.
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York County said on January 11 of
32 THE ANNALS OF THE AMERICAN ACADEMY
A tapped wire is the greatest invasion ofapprehension and conviction but also privacy possible…. A
telephone inter- that other methods can be sufficiently ception is a far more devastating
measureeffective. Remember that it was only than any search warrant. A search war- one of the two
Coplon cases in which rant is confined to a definite place and tothe conviction was upset because the
specific items, or, at least, to items of a government’s evidence derived from stated class or description.
Those in pos- wire tapping; in the other case, there session of the searched premises know thewas a
conviction on non-wire-tap evi- search is going on and, when the officer has
completed his search, whether successfullydence, and it was upset only because or not, he departs. Not
so in the case of of a post-arrest wire tap on telephone telephone interception. The interception
conversations between the defendant order is obtained ex parte, and the personand her lawyer.
whose line is to be tapped is, of course, in As for kidnaping, even opponents of
ignorance of the fact. The tap is main-wire tapping acknowledge that the na- tained continuously, day
and night. Every-ture of the crime allows more scope for
thing said over the line is heard, howeverthe use of the telephone, and therefore foreign to the stated
objective of the law-the possibility of greater help to be enforcement officers. The most intimate
conversations, personal, social, professional, gained from wire tapping in apprehenbusiness, or even confidential, of an unlim- sion and conviction. But they point
ited number of persons may be laid bare. out that, even if there were known to
In effect, the line of everyone who is calledbe absolutely no wire tapping of any
from or makes a call to the tapped line atsort, the mails would probably still be any time is being tapped
during the main-the chief means employed in attempts
tenance of the tap. When a line in a pub- to extort ransom; and that, as would be
lic telephone booth is tapped, as has ontrue of police interception without con- occasion been done, the
conversations of sent of the mail received or dispatched
people having no relation of any kind to by the distraught parents of a kid- the operator of the place in
which thenaped child, the problem for a free
booth is situated or the person whose line
is tapped are overheard.9 society in the use of wire tapping is
whether the gains would sufficiently Thus, as Brandeis said in 1928, evenoverbalance the losses.
“general warrants are but puny instruments of tyranny and oppression when free society faces in regard to what I
compared with wire tapping.”
suspect is the fundamental reason why
Inadequate-result argument many of our law officers argue so Many opponents have pointed
outstrenuously for wire tapping: namely, that, even if there were known to be to keep track generally of
the doings of
suspected criminals, to discover and de- absolutely no wire tapping of any sort, velop leads in run-ofthe-mill crimes.
the very nature of espionage and sabo-Here again it is pertinent to quote Jus- tage would cause spies
and saboteurs totice Hofstadter:
do practically all their work by personal The application now made follows the
presence and contact; and that the rec-general pattern of like applications hereto- ords of espionage
and sabotage cases
suggest, not only that little actual help fore made to me, which also, in the main, has been gained from
wire tapping in had as their objective the detection of
gambling in some form …. Some years
ago I instituted the requirement that . .. text of opinion, New York Law Journal, Janu- written reports of
the results obtained from ary 12, 1955, p. 2. any interception ordered be thereafter subThis content downloaded from 139.102.182.70 on Thu, 12 Jan 2017 15:12:59 UTC All use subject to
9 “In the matter of an application . . ,”
That is the very problem which a
Is WIRE TAPPING JUSTIFIED? 33
mitted to me. . . . These showed some arrests and fewer convictions and then rarely,
if ever, for a heinous offense. … It is cial and legal wire tapping. We may melancholy to behold [our city]
rife with thank our lucky stars that the present violence, an admittedly lawless commu- head of the FBI
is a man of integrity, nity, its inhabitants no longer safe by and no alarmist; but some future head night
or day, in their persons or theirof that bureau might not be so scrupuhomes. To be redeemed as part of the lous and intelligent. The way in which great American
community, its police de-
partment needs external aid, i.e., a larger a policeman uses his gun can be pretty force, with more pay
for the men, and a well checked on by the citizens who
renewed spirit from within . but not more wire-taps! 10
Overwhelming-danger argument
employ him and authorize him to use it in guarding public order; the way in which he uses wire tapping
can scarcely be checked on at all. Nor is it only
without bothering to get court orders or
Justice Brandeis said: “The makers of
even to let their captains know they’re
our Constitution undertook to secure
tapping.” Not all police, and certainly
conditions favorable to the pursuit of not all private investigators, limit their use
happiness. They recognized the signifi- of eavesdropped talks to those conversations they set out to hear. Blackmail andcance of man’s spiritual nature, of his
sale of business secrets, though incidentalf,eelings and of his intellect. They
have been found lucrative to crooked opk-new that only a part of the pain,
erators.11
pleasure and satisfactions of life are
wire tapping, say the opponents, we should be in for bad trouble with offiMany opponents start by pointing police wire tapping, and the enormous
out that,,given technological ingenuityamplification of dossiers implied in it,
and human nature, we should be in forwhich constitute an incalculably large
bad trouble with unofficial and illegal threat to the private citizens of a free
wire tapping, even if the official and society. Wire-tapping surveillance has
legal variety were completely removedalready been considerably employed,
from our society; and that official andmore or less legally, in public affairslegal wire tapping accentuates such for example, by a Congressional comtrouble by stimulating technological de- mittee and by a governor checking on
velopment and by teaching more per- a mayor.
sons how to wire tap. Even now, ac- This “dirty business,” say the opcording to Charles Grutzner of the New ponents in quotation from the late JusYork Times:
tice Holmes, is-in quotation from the
happily quite alive though retired Jus- Federal wiretapping is nothing compared
tice Roberts 12-“inconsistent with ethi- to that of local police and private investical standards and destructive of personal gators across the country. A former law
enforcement officer told this writer a fewliberty.” It tends to corrode the morale days ago: “Detectives
use wiretaps onand morality of a free society. Justice maybe half of all the important policHeofstadter
says: “As evil as an actual cases in New York, and many use wire- interception is the fear bred in the
mind taps as a routine thing to pick up leads on
bookmaking, prostitution and other crimes
any time become the victim of one.”
of the average citizen that he may at
Even if we could measurably solveto be found in material things. They sought to protect Americans in
their bethe problem of unofficial and illegal
10 Ibid., pp. 1, 2.
11 February 27, 1955. NOTE.
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12 This paper was read before Mr. Owen J. Roberts death on May 17, 1955.-EDITOR’S
34 THE ANNALS OF THE AMERICAN ACADEMY
liefs, their thoughts, their emotions and wires should be tapped only with their their sensations.” Justice
Frankfurter prior consent.)
has warned us: “The contrast between
morality professed by society and imfo-r wire tapping should be vested in one morality practiced on its
behalf makfesderal judge assigned by the Supreme for contempt of law.” And J. EdgaCrourt for a tenyear period for each Hoover said in 1940: “The discredit district.
and suspicion of the law-enforcing 3. Only the Attorney General should
branch, which arises from the occasional be allowed to apply directly to the
use of wiretapping, more than offsets judge for permission to tap a wire. All
the good which is l…
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