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Comments and Caveats on the Wire Tapping Controversy, 63 Yale Law Journal 799 (1954)


A recent and carefully documented study of wire tapping concluded that although it "is a crime in almost every state, and although there is a federal law prohibiting the interception and divulging of the contents of telephone communications, wire tapping is carried on virtually unimpeded in the United States today." This state of affairs is the culmination of many years of wire tapping history. Except for a one year interlude during World War I, wire tapping was a common practice both in and out of government until 1924 when Attorney General Stone banned tapping by the FBI as "unethical tactics."' The Stone policy continued in the Department of Justice until 1931 when Attorney General Mitchell announced that the Department would approve wire tapping when requested by the director of the bureau concerned. For the next nine years the Department of Justice countenanced wire tapping but only in criminal cases of "extreme importance" and never "in minor cases nor on Members of Congress, or officials, or any citizen except where charge of a grave crime had been lodged against him."' Finally, in 1940, after the Department had lost three test cases under Section 605 of the Federal Communications Act, Attorney General Jackson announced a return to the Stone policy of 1924 forbidding wire tapping by the FBI. "Under the existing state of the law and decisions," Jackson concluded, wire tapping "cannot be done unless Congress sees fit to modify the existing statutes." But this policy of prohibition lasted for less than a year. In March, 1941, in a letter to the House Judiciary Committee urging the adoption of pending wire tapping legislation, Attorney General Jackson reversed himself with the pronouncement that the "only offense under the present law [Section 605] is to intercept any communication and divulge or publish the same. Any person, with no risk of penalty, may tap telephone wires . . . and act upon what he hears or make any use of it that does not involve divulging or publication."

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