In a noted dissenting opinion, Supreme Court Justice Holmes once described wire tapping as "dirty business." Whatever the moral force of Holmes' statement, wire tapping is apparently here to stay as a standard police procedure. More than thirty states allow the use of wire tap evidence in their courts and only two explicitly forbid it. Here in Massachusetts, the Attorney General and district attorneys can authorize the tapping of any telephone for any reason, restrained only by their own sense of propriety. The legislature again has the opportunity to correct that situation by approving Senate Bill 42, which provides effective safeguards against arbitrary wire tapping.
While police and state officials undoubtedly practice wire tapping now only for its legitimate purpose, the investigation of suspected criminal activities, the possibility of abuse is obvious. Attorney generals and district attorneys are politicians as well as legal officers. The power of unrestricted wire tapping could easily become a dangerous instrument in the hands of a man willing to misuse his office for political advantage. And indiscriminate tapping might offer a tempting means of blackmail, even against persons not guilty of criminal violations.
The current bill, proposed by Senator Mario Umana, would circumscribe wire tapping with strict judicial limitations. An Attorney General or district attorney wishing to institute a wire tap would be required to apply to a superior or supreme court justice for an official order. The applicant would have to swear that the wire tap was likely to obtain specific evidence of a crime. Opponents of the measure have claimed that it would impede police investigation. But it is difficult to see how the act would hinder the conduct of a legitimate investigation. The wire tap authorization would be kept strictly secret by the justice himself and there is little chance that word would leak out to the person under surveillance. And the bill contains the provision that in an emergency, when no judge is available, law enforcement officers may authorize wire taps on their own initiative and then secure court approval the next day.
Last year Governor Herter, after apparent indecision, vetoed a similar measure only a few minutes before it would have become law. Passage of the bill this year would show the legislature's determination to limit wire tapping and might force the Governor to re-examine the logic of such restrictions. Justice in Massachusetts will be on safer ground when final authority over wire tapping belongs to the judiciary alone.