1. The provision of § 605 of the Communications Act of 1934,
that
"no person not being authorized by the sender shall intercept
any communication and divulge or publish the existence, contents,
substance, purport, effect, or meaning of such intercepted
communication to any person,"
applies to intrastate as well as to interstate and foreign
communications (over wires used for both kinds), and bars admission
in trials in the federal courts of evidence obtained by
interception of such intrastate telephone communications. P.
308 U. S.
329.
2. As Congress has power, when necessary for the protection of
interstate commerce, to regulate intrastate transactions, there is
no constitutional requirement that the scope of the statute be
limited so as to exclude intrastate communications. P.
308 U. S.
327.
3. The broad and inclusive language of the second clause of §
605, quoted
supra, is not to be limited by construction so
as to exclude intrastate communications from the protection against
interception and divulgence. P.
308 U. S.
329.
4.
Held: Evidence of intercepted intrastate telephone
communications which had been recorded by stenograph and phonograph
was inadmissible in a trial in the federal court, and it was
prejudicial error for the court to admit such evidence either by
permitting the parties to the telephone conversation, who had
turned state's evidence, to read the stenographic transcript, or by
allowing the prosecutor to put the stenographic transcripts and
phonograph records in evidence upon identification by the parties
to the conversation. The divulgence of the communications under the
circumstances here was not "authorized by the sender" within the
meaning of § 605. Pp.
308 U. S. 329,
308 U. S. 331.
103 F.2d 348 reversed.
Certiorari, 307 U.S. 621, to review the affirmance of
convictions and sentences of the petitioners upon indictments for
using the mails to defraud and for conspiracy.
Page 308 U. S. 324
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioners were indicted, with five others, in the District
Court for the Southern District of New York for using the mails to
defraud and for conspiracy so to use them. [
Footnote 1] The alleged scheme was to cheat insurance
companies by inducing them to pay false claims for disability,
health, and accident benefits to three of the defendants, Nelson,
Berger, and Spitz. These three pleaded guilty and testified for the
Government. Three defendants who were physicians -- Messman,
Goldstein, and Krupp -- were alleged to have assisted by furnishing
policyholders false medical certificates and instructing them how
to simulate illness. Messman pleaded guilty and testified for the
Government. The other two stood trial. Two lawyers, Joseph J.
Weiss, and Alfred L. Weiss, and an investigator, Gross, were
charged with having furthered the claims knowing them to be false.
Alfred L. Weiss was granted a severance; Joseph J. Weiss and Gross
stood trial. Each of the petitioners was convicted and sentenced.
The judgments were affirmed by the Circuit Court of Appeals.
[
Footnote 2]
The conspiracy and scheme charged covered a period extending
from January 15, 1934, to July 30, 1937, the date of the
indictment. The principal issue of fact was whether the petitioners
participated in making false claims with guilty knowledge. Over
objection and exception,
Page 308 U. S. 325
the trial judge admitted evidence of seventy-six intercepted
telephone communications.
For months prior to the finding of the indictment, telephone
messages over the wires leading into the offices of Weiss and
Messman in New York City were intercepted. The wires were tapped by
a policeman acting under instructions of a United States Post
Office Inspector. The intercepted messages were taken
stenographically, and were also simultaneously recorded on
phonograph discs by employees of a detective agency acting under
the same instructions. Each night, the records and stenographic
transcripts of communications intercepted during the day were
delivered to the United States Attorney or his representative.
Interstate calls were made from Weiss' office, and the tapped wires
were the conduits of both interstate and intrastate communications.
Every call, whether interstate or intrastate, to or from Weiss'
office, was intercepted and recorded.
It appeared at the trial that one of the defendants who pleaded
guilty had been confronted with the phonographic records and had
then decided to plead guilty and become a witness for the
Government. Others who had been informed of the Government's
possession of the records did likewise. In the preparation for
trial, one of the defendants, who was to testify for the
prosecution, held a typed copy of the stenographic transcript of a
telephone conversation in which he had participated while a
phonographic record of the conversation was played to him. He
corrected the typed manuscript to make it conform to the words
emitted from the phonograph. He then marked the phonographic record
and the script for identification.
The Government's procedure at the trial in proving the
communications was to call as a witness one of the defendants who
had pleaded guilty, and to hand him a transcript
Page 308 U. S. 326
he had marked for identification. After he had testified that,
on a given date, he held a telephone conversation with one of the
other defendants, he was asked whether he could repeat the
conversation verbatim. Upon his stating that he could not do so
without the use of the typed transcript, he was permitted to read
it to the jury. Subsequently the Government offered the identified
phonograph records and typewritten transcripts in evidence, and
they were admitted. Certain of the records were played to the jury
while each juryman held a copy of the typewritten transcript of the
conversation. All of the communications in question are conceded to
have been intrastate, save one which, however, was not shown to
have been interstate.
The petitioners' objections to the admission of this evidence
were that it would violate § 605 of the Federal Communications Act
of 1934; [
Footnote 3] would
violate the Fourth and Fifth Amendments of the Federal
Constitution, and would be in the teeth of § 1423, subdivision 6,
of the Penal Law of the New York, [
Footnote 4] making wire tapping a crime.
Because of conflict of decision in the Circuit Courts of Appeal,
[
Footnote 5] we granted
certiorari, limited to the "question whether the trial court
properly received in evidence intercepted telephone
communications." [
Footnote
6]
In
Nardone v. United States, 302 U.
S. 379, it was decided that § 605 of the Federal
Communications Act prohibited the reception in a federal court of
evidence of interstate communications obtained by federal agents by
tapping telephone wires. The petitioners assert, and the
Page 308 U. S. 327
respondent denies, that the section bars evidence of intrastate
communications similarly obtained. The Government further claims
that, even if the section would otherwise bar the evidence, it does
not have that effect in this case, because interception and
divulgence of the messages put in evidence was "authorized by the
sender" within the meaning of the section.
The section consists of four clauses separated by semicolons.
The pertinent one is the second:
"and no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person."
Plainly the interdiction thus pronounced is not limited to
interstate and foreign communications. And, as Congress has power,
when necessary for the protection of interstate commerce, to
regulate intrastate transactions, [
Footnote 7] there is no constitutional requirement that
the scope of the statute be limited so as to exclude intrastate
communications.
The petitioners and the Government alike refer to the context of
the critical clause, and the legislative history of the
Communications Act, the former to demonstrate that all
communications are protected from interception and divulgence, the
latter to prove that the language of the Act must be more narrowly
interpreted to cover only interstate and foreign
communications.
In support of the petitioners' view, it is pointed out that each
clause of § 605 is complete in itself; that, in the first and third
clauses, which deal with divulgence of messages by persons engaged
in receiving or transmitting them, the communications are specified
as "any interstate or foreign communication," whereas, in the
second and fourth
Page 308 U. S. 328
clauses, which deal with interception and divulgence of
communications, the phrases used are "any communication" and "such
intercepted communication." It is argued that the difference in
phraseology must have significance, and, in support of the
assertion that the variety of expression was not due to
inadvertence, the petitioners call attention to the fact that § 605
was taken over from § 27 of the Radio Act of 1927, [
Footnote 8] which, referring to radio
messages, used uniformly, in each clause, the term "communication"
or "message," and nowhere qualified the designation by the use of
the phrase "in interstate or foreign commerce."
The petitioners further urge that there is good reason for the
distinction in the phrasing of the clauses in § 605, since persons
employed by communication companies can distinguish between
interstate and intrastate messages which they handle, whereas,
inasmuch as messages of both sorts pass indiscriminately over the
same wires, the intercepter cannot make a similar distinction, and
the only practicable way to protect interstate messages from
interception and divulgence is to prohibit the interception of all
messages.
The Government argues that a reading of the whole section makes
it plain that to give the second clause the scope contended for by
the petitioners will lead to incongruities and inconsistencies in
the operation of the section. We find none such as are sufficient
to countervail what appears to be the plain meaning of the second
clause.
The Government correctly asserts that the main purpose of the
Communications Act of 1934 was to extend the jurisdiction of the
existing Radio Commission to embrace telegraph and telephone
communications as well as those by radio. We are asked to hold
that, if Congress
Page 308 U. S. 329
had intended to make so drastic a change as to regulate
intrastate as well as interstate communication, both the
legislative history of the Act and its phraseology would so
indicate, whereas there is nothing in either to emphasize any such
extension of authority. We think, however, that the legislative
history does not serve to explain the difference in the wording of
the various clauses of § 605. In making the alterations in the
phraseology of the similar section of the earlier act, the Congress
must have had some purpose. We cannot conclude that the change in
the wording of two of the four clauses of the section was
inadvertent.
The Government further contends that the Act, viewed as a whole,
indicates an intent to regulate only interstate and foreign
communication. The title and §§ 1 and 2, with a single exception
which serves to emphasize the distinction, expressly so declare.
But we think these considerations are not controlling in the
construction of § 605. The Commission's regulatory powers and
administrative functions have to do only with interstate and
foreign communications. But § 605 delegates no function and confers
no power upon the Commission. It consists of prohibitions,
sanctions for violation of which are found in § 501. [
Footnote 9] We hold that the broad and
inclusive language of the second clause of the section is not to be
limited by construction so as to exclude intrastate communications
from the protection against interception and divulgence.
We come, then, to the Government's second proposition -- that
disclosure of the intercepted communications was "authorized by the
sender" within the meaning of the clause. It is true that one or
both of the parties to each of the admitted communications attested
in the manner we have indicated to the intercepted conversations.
This
Page 308 U. S. 330
is said to amount to a consent to the divulgence of the subject
matter and to satisfy the statute in that respect. We think the
position is untenable. The Act contemplates voluntary consent, and
not enforced agreement, to publication. The participants were
ignorant of the interception of the messages, and did not consent
thereto. The contents of the stenographic transcripts and
phonographic records were, prior to the trial, made available to
Government agents and United States attorneys. This divulgence was
not consented to by either of the parties to any of the telephone
conversations. In the absence of such divulgence, the Government
would have been without the evidence embodied in the messages.
It is said, however, that when some of the defendants pleaded
guilty, elected to take the stand and to testify to the contents of
the messages, they gave the authorization contemplated by the
statute. We have already adverted to the method by which this
supposed authorization was obtained. Certain of the defendants who
were participants in the telephone conversations were informed of
the Government's possession of the contents of their
communications. Under the stress of this situation, they determined
to turn state's evidence. Messman's license to practice medicine
has not been revoked; he was not required to plead to the
indictment; he was paid a salary by the Government, first of $65
per week and later of $100 per week, amounting, in the total, to
$3,237.12. Nelson's sentence was suspended. He was paid a salary of
$50 per week. Berger's sentence was suspended. Spitz's sentence was
suspended.
Statement of these facts is convincing that the so-called
authorization consisting of the agreement to turn state's evidence,
by some of the defendants after they had been apprized of the
knowledge of their communications by the Government's
representatives, and in the hope of leniency, was not that intended
or described by the statute, and emphasizes the offensive use which
may be made of intercepted messages, whether interstate or
intrastate. It is not too much to assume the interdiction of the
statute was intended to prevent such a method of procuring
testimony.
We hold that § 605 rendered the communications inadmissible, and
that it was prejudicial error for the trial court to admit them
either by permitting the defendants who turned state's evidence to
read the transcripts or allowing the prosecutor to put the
transcripts and phonographic records into evidence upon
identification by the parties to the conversations.
We have no occasion to consider or decide the questions raised
by the other objections of the petitioners to the admission of the
evidence.
The judgments are reversed, and the cause is remanded to the
District Court for further proceedings in conformity with this
opinion.
Reversed.
[
Footnote 1]
Under U.S.C. Tit. 18, §§ 338 and 88.
[
Footnote 2]
103 F.2d 348.
[
Footnote 3]
C. 652, 48 Stat. 1064, 1103, U.S.C.Tit. 47, § 605.
[
Footnote 4]
Thompson's Laws of New York, 1939, Part I, p. 1909.
[
Footnote 5]
Valli v. United States, 94 F.2d 687;
Diamond v.
United States, 94 F.2d 1012, and opinion on petition for
rehearing, 108 F.2d 859;
Sablowsky v. United States, 101
F.2d 183.
[
Footnote 6]
307 U.S. 621.
[
Footnote 7]
Shreveport Case, 234 U. S. 342,
234 U. S.
351-352;
United States v. Louisiana,
290 U. S. 70,
290 U. S. 75;
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 38.
[
Footnote 8]
Act of Feb. 23, 1927, 44 Stat. 1162, 1172.
[
Footnote 9]
48 Stat. 1100, 47 U.S.C. § 501.