                         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 directing state courts to file reports with federal officials.

                                                                                      February 26, 1962

            MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL

    One question presented by the Department’s wiretap bill is the constitutional
authority of Congress to prescribe a rule of evidence 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 reports with federal officials.
    Congress’s power to do all of these things rests primarily on its power to regu-
late interstate commerce. The nation’s telephone and telegraph systems are
integrated networks, used for the transmission of messages across state lines.
Congress has the power to preserve the integrity of those systems, and hence to
prohibit interception of both interstate and intrastate communications. Weiss v.
United States, 308 U.S. 321 (1939). In so doing, it may prohibit action by state
officers pursuant to state law. Benanti v. United 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 “impinge severely on the liberty of the individ-
ual.” Schwartz v. Texas, 344 U.S. 199, 205 (1952) (Douglas, J., dissenting). The
fear of such tapping may be a deterrent to free expression. Hence, while the Fourth
Amendment is inapplicable, Olmstead v. United States, 277 U.S. 438 (1928),*
unregulated wiretapping by public officials might well raise constitutional issues
under the Due Process Clauses 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.”).




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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 regulatory authority under the Commerce Clause, 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. For 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 congressional committee);

       Kalb v. Feuerstein, 308 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

       Testa v. Katt, 330 U.S. 386 (1947) (requirement that state courts en-
       force 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 Immigra-
tion 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 clerks of state courts to file certain reports with the Attorney
General (8 U.S.C. § 1450 (1958)). Similarly, in numerous cases in state courts
under the Federal Employers’ Liability Acts, 45 U.S.C. §§ 51 et seq. (1958), and
the Jones Act, 46 U.S.C. § 688 (1958), the courts have held that various state rules
of evidence and practice—such 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’ Liability Cases, 223 U.S. 1 (1912); Cent.
Vt. Ry. v. White, 238 U.S. 507 (1915); Bailey v. Cent. Vt. Ry. 319 U.S. 350 (1943);
Brown v. W. Ry. of Ala., 338 U.S. 294 (1949); Dice v. Akron, Canton & Youngs-
town R.R., 342 U.S. 359 (1952); Cox v. Roth, 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
inadmissible 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 Congress




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would not be presumed to have thwarted a state rule of evidence “in the absence of
a clear indication to 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 holding, in Mapp, that the Fourth and Fourteenth Amendments
require the exclusion in state courts of evidence derived from an unlawful search,
the Court 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 657–58). These considerations are essentially applica-
ble 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 appropri-
ate means of enforcing the statutory prohibition of unlawful wiretaps.

                                          NICHOLAS deB. KATZENBACH
                                             Assistant Attorney General
                                              Office of Legal Counsel




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