DEAR MR. BAILEY:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R001000070075-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 15, 2016
• Document Release Date: October 24, 2003
• Sequence Number: 75
• Publication Date: October 15, 1947
• Content Type: LETTER

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YEDIRAL COMVUNICATIONS COMV1S8ION
WASKIVOTON 25 D.C.
October 13 7
?Bailey
t Director
lative Beferen e
Axeoutive Office of the PresIdent
Bureau of the Budget.
Dear Mr Bailey:
This is in further reference to your letters of August
26, 1947, submitting for our consideration and oomment two pro-
posals by the Departments of Navy, War and :ustice, for amendment
of Section 605 or the Communioations Act of 1934. It will be re-
Called. that Section 605 contains prohibitions against the unauthor-
ized interception and divulgence or use of wire or radio communi-
cations of a private nature, which would include, for example, wire
tapping and the use of information so obtained, and against the
Unauthorized divulgence by organizations, such as telephone and
telegraph oompanies, of the existence of contents of private com-
munications tranemlLted through their facilities. Enaotment of
either of the proposals advanced by the navy, War, and :ustioe
Departments as national security measures would have the effect,
inliz lilt, of making these prohibitions contained in Section 605
iiifflrable in inquiriea and investigations made by those De-
partments pertaining to the national security. The following
comments upon these proposals are submitted for your consideration.
Practices suoh as those prohibited under Section 605,
articularly wire tapping, have thus far been generally regarded
this country with great disfavor. Although the Supreme Court
v.thatted States 277 U.S.40 held that the use of
private toriMie conversations, intercepted by mean
orized wire tapping, did not constitute a violation of the
d Fifth Amendmends to the Federal Constitution, vigorous
events to this holding were registered by :vatic. holmes,Brandeis
Butler and Stone. Moreover, the policy underlying these dissents
was subsequently enacted into law by the adoption of Section 605 of
the Communioations Act and that policy has been continued in effect
until the present. In Nardone v.Inited States 302 U.S.379, the
Mores* Court in a strongly worded opinion latild that government
employees, inoluding law enforcement officials, were included among
the persons who were forbidden by Section 605 to engage in the
practice or wire-tappine. On numerous occasions, since enactment
et Section 603 and announcement of the decision in the
0.400 in 1937, legislation has been proposed under which ted
wire tapping and interception of radio communication by law en!.
fercealint officers would have been authorized (S.Res.97.77 Conn.;
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R.2266,77 Cong.; H.R.6919, 77 Cong.; LL4.228,77 Cong.;
273,77 Cong.; H.j.Res.283,77 Cong.; Ha.Res004,77 Cong 0.31;
77 Cong.; H.Z.Res.41,78 Cong.) None of these proposals *ere enaote,
and this was true even though in many of these bills far
stringent mrre
conditions were proposed to be attacted to the relaxation
of 3eotion 603 than is provided in the present proposals awt even
though at least six of the bills were introduced during the time
this country was actually at war, aeveral of which proposed the relax
ation of Section 605 for only a limited period--i.e. not beyond the
duration of the war and six months thereafter. It is thus clear that
there may be grave question 'whether conditions have so changed as to
require adoption of a policy for the oases covered by the proposed
amsadmeuto directly contrary to thet whioh has prevailed until now,
and having no obviously serious an impact upon basic) civil liberties
now protected by law.
In the event the note should show a recommendation to
relax the present provisions of Section 603 to be advisable, it is
believed that there are several aspects of the two proposals under
diseu.iofl which warrant particular attention. With respect to the
purposes for which aotion without revrd to the prohibitions con-
tained in Seotion 605 would be authorized and the limitations that
may be applicable to the taking of such action, the proposal of the
Navy Department provides very broadly that Section 603 of the Com-
cations Act would be inapplicable when "the interests of national
ity" are involved. Authority would be vested in the President
issue rules and regulations governing utilization by the several
authorized agencies of the authority that they would derive from the
proposed amendment. This language is so broad that in practice a
virtually complete nullification of Jeotion 603 would be possible.
The language in the proposal of the Department of Justice is some.
what more specific. Thus, under thut proposal the prohibitions in
asotion 605 would be inapplicable in connection with investigations
of interference with national security and defense by treason,
sabotage, espionage, seditious conspiracy, violation of NeutrIlity
Laws, violations of the Act requiring the registration of agents of
7*re-ten Prinoipa,Le, violations of the Aet requiring the registration
of organizations carrying on certain activities within the United
Statute "or in any other manner."
But for the catch-all words "or gtn any other manner" it
weld be apparent that the proposal of the Department of Justice is
designed to havu application only with respect to the investigation
Of specific offenses in violation of specific statutes. In past
bills dealing with the same subject matter as the proposals here
under dismission, resort to suoh practices as wire-tapping has been
proposed in certain categories of oases only upon reasonable
suspicion of a violation of law. Voreover, in order toavoid abuse
of this provision some of thee(' bills have contained the wided
rOq recent that the Attorney-General certify in each ease the
basis for any such suspioion, and that such oertification remain
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on recor4. If an amendment to Ssotion 605 is deemed sential, the
proposal of the Department of Zustice should be modified to eliiiriate
the catch-all provision and restrict the appliglation of that proposal
to oases in which there is a reasonable basis for suspecting viola-
tions of specific statutes referred to.
From the explanatory note contained in the eubmittal of the
Department Of Justice* the objective of that agency in advancing its
legislative proposal, insofar as Seetion 605 is concerned, appears
to be only to relieve the investigative agencies concerned from the
restrictions of Section 605 In the investigation of cases falling
within the scope of that proposal. It may be pointed out, however,
that actually the language of the :ustice proposal may be susceptible
of a much broader intorpretation. Even in the absence of Seotion 605*
persons having possession or knowledge of private communications
would be under no legal obligation to deliver such messages or in-
formation concerning them to investigators conducting a preliminary
inquire in a case which has not reached a more formal stage, such
as presentation of the case to a grsnd jury on the basis of specific
*barges. Uowever, under a broad interpretation of the languare con-
tained in the proposal of the Department of Justice, evidence and
Information concerning wire and radio oommunications believed by the
investigative agencies to pertain in some way to matters covered by
the proposal would, be treated differently from any other possibly
relevant evidence or information in that there would be a legal obliga-
tion upon the possessor to reveal and deliver the evidence with
respect to wire and radio communications to the investigative agen-
dies, even during the early preliminary stages of the investigation
and without the neceosity eta subpoena or search warrant. Of
course' such 4 requirement would go far beyond relaxation of the
prohibitions in section 605. Under this broad construction, for
example, it might also be contended that representatives of the
investigative agencies would be authorized to visit the home of
suspect and without a warrant or other authority require thet
copies of certain messages be turned over to them. Such a broad
interpretation would, of course, present basic questions of a
constitutional nature.
In aocorlance with your request, he enclosures ac-
companying your letters of August 26, 1947, are returned herewith
Please advise us of any further asietanee that we may render in
this matter.
by Direction of the Commis-i n
/1/ Charles R.Denoy
Charles R. Denny
Chairman
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