248 

### Authority of Congress to Regulate Wiretapping by the States

Congress has authority under the Commerce Clause to regulate state wiretapping practices by prescribing a rule of evidence in state courts, limiting the authority of state officials to tap wires and to disclose and use information thereby obtained, prescribing the grounds and findings on which a state court may issue wiretap orders, and direc ting state courts to file reports with federal officials.

February 26, 1962

M EMORANDUM O PINION FOR THE D EPUTY A TTORNEY G ENERAL

One question presented by the Department ’ s wiretap bill is the constitutional authority of Congress to prescribe a rule of eviden ce in state courts, to limit the authority of state officials to tap wires and to disclose and use information thereby obtained, to prescribe the grounds and findings on which a state court may issue wiretap orders, and to direct state courts to file repor ts with federal officials. Congress ’ s power to do all of these things rests primarily on its power to reg ulate interstate commerce. The nation ’ s telephone and telegraph systems are integrated networks, used for the transmission of messages across state lin es. Congress has the power to preserve the integrity of those systems, and hence to prohibit interception of both interstate and intrastate communications. Weis s v. United States , 308 U.S. 321 ( 1939 ) . In so doing, it may prohibit action by state

officers pursuant to state la w

. Ben anti v. Uni ted States , 355 U.S. 96 ( 1957 ). Since Congress can prohibit all interceptions of wire communications, it can also permit interception on such terms and conditions as it deems appropriate to protect the public interest. In particular, it can adopt appropriate safeguards to protect the privacy of users of the telephone and telegraph systems. To aid in enforcing these

limitations

, it can remove an incentive to unlawful wiretapping by making inadmissible any evidence derived therefrom. And to enable Congress to review the effectiveness of its legislation

, it can require reports. Unregulated wiretapping would “ i mpinge se verely on the liberty of the indivi dual .” Schwa rtz v. Te xas , 344 U.S. 199, 205 ( 1952 ) (Douglas, J., dissent ing). The fear of such tapping may be a deterrent to free expression. Hence, while the Fourth Amendment is inapplicable, Olmste ad v. U nited States , 277 U.S. 438 ( 1928 )

, * unregulated wiretapping by public officials might well raise c onstitutional issues

under the D ue P rocess C lauses of the Fifth and Fourteenth Amendments. Hence

* Editor’ s Note: Olmstead was subsequently overruled in relevant part by Katz v. United States , 389 U.S. 347 (1967); see also Berger v. New York , 388 U.S. 41, 64 (1967) (Douglas, J., concurring) (“I join the opinion of the Court because at long last it overrules sub silentio Olmstead v. United States , 277 U.S. 438, and its offspring and brings wiretapping and other electronic eavesdropping fully within the purview of the Fourth Amendment.”).Authority of Congress to Regulate Wiretapping by the States

249 the provisions of the bill restricting state action can also be sustained as an exercise of Congress ’ s power to enforce the Fourteenth Amendment. Where Congress has r egulatory auth ority under the C ommerce C lause, the war power, etc., the Supreme Court has frequently sustained limitations on state courts

and other state officials as “ necessary and proper ” to carry into execution the granted powers. U.S. Const. art. I, § 8, cl. 18. Fo r example:

Ullmann v. United States , 350 U.S. 422 (1956) (immunity from prosecution in a state court);

Adams v. Maryland , 347 U.S. 179 (1954) (prohibition against use in state court of evidence given before c ongressional c ommittee);

Kalb v. Feuerstein , 30 8 U.S. 433 (1940) (prohibition against state court foreclosure proceeding);

Farmers Educ. & Coop. Union v. WDAY, Inc.

, 360 U.S. 525 (1959) (immunity from state libel action); and

Test a v. K att , 330 U.S. 386 (1947) (requirement that state courts e nforce federal act).

In situations in which Congress has required state courts to enforce federal rights, it has prescribed state practice in considerable detail. Thus

, in the Immigr ation and Nationality Act of 1952

, Congress conferred jurisdiction to naturalize persons as citizens of the United States on state courts of record (8 U.S.C. § 1421(a) (Supp. II 1959

– 60) ) ; prescribed in detail the form of petitions, the procedure on hearings, and the form of certificates (8 U.S.C. §§ 1445

– 1449 (1958) ) ; and required cle rks of state courts to file certain re ports with the Attorney

General (8 U.S.C. § 1450 (1958) ). Similarly, in numerous cases in state courts

under the Federal Employ ers’ Liability Act s , 45 U.S.C. §§ 51 et seq. (1958) , and

the Jones Act, 46 U.S.C. § 688 (19 58) , the courts have held that various state rules

of evidence and practice

— s uch as burden of proof of contributory negligence, rules of construction of pleadings, right to directed verdict or to judgment notwithstanding the verdict, and statutes of limitation

— have been superseded by

the federal act. E.g

., Second Employers ’ Li ability Cases , 223 U.S. 1 ( 1912 ) ; Cent

. V t. Ry . v. White, 238 U.S. 507 ( 1915 ) ; Bail ey v. Ce nt

. V t. Ry

. 319 U.S. 350 ( 1943 ) ;
Bro wn v. W

. Ry

. of Ala

. , 338 U.S. 294 ( 1949 ) ; Di ce v. Akron, Canton & Young stown R. R

. , 342 U.S. 359 ( 1952 ) ; C ox v. R oth , 348 U.S. 207 ( 1955 )

. In Schwartz v. Texas , 344 U.S. 199, 203 ( 1952 ), the Court reserved decision on whether Congress had power to render evidence obtained by illegal wiretapping

inadmissibl e in a state court. However, in Benanti v. United States , 355 U.S. 96,

101 ( 1957 ) , the rationale of the Schwartz decision was stated to be that CongressSupplemental Opinions of the Office of Legal Counsel in Volume 1

250 would not be presumed to have thwarted a state rule of evidence “ in the absence of

a clear indication t o that effect. ”

The Schwartz decision rested in part (344 U.S. at 201) on Wolf v. Colorado

, 338 U.S. 25 ( 1949 ), which has since been overruled by Mapp v. Ohio

, 367 U.S.

643 (1961)

. In holdin g, i n Mapp , that the Fourth and Fourteenth A mendments require the exclusion in state courts of evidence derived from an unlawful search,

the C ourt relied on the following practical considerations: (1) the exclusionary rule

is the only effective means to enforce the prohibition against unlawful searches,

since it removes the incentive to disregard it ( 367 U.S. at 656); (2) by admitting evidence unlawfully seized

, the states encourage disobedience to the Federal Constitution ( id. at 657); (3) the coexistence of two different rules of evidence in

federal and state courts is productive of confusion and mischief, and an invitation to evasion of the law ( id. at 657

– 5 8). These considerations are essentially applic able to the rule of evidence proposed in section 3 of the present bill. Since the Court

deemed the exclusionary rule an appropriate means of enforcing the constitutional prohibition against unlawful seizures, Congress can properly deem it an appropr iate means of enforcing the statutory prohibition of unlawful wiretaps.

NICHOLAS deB. KATZENBACH Assistant Attorney Genera l Office of Legal Counsel