|>308 U.S. 338
. The whole point of the vigorous dissent in the first Nardone
case was directed against literal application of the phrase "no person," thereby
"enabling the most depraved criminals to further their criminal plans over the telephone, in the secure knowledge that even if these plans involve kidnapping and murder, their telephone conversations can never be intercepted by officers of the law and revealed in court."
Mr, Justice Sutherland, dissenting in Nardone v. United States,
302 U.S. at 302 U. S. 385
. The Court's opinion gave a short and decisive answer:
"We nevertheless face the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person
' shall divulge or publish the message or its substance to 'any person.'"
302 U.S. at 302 U. S. 382
Page 355 U. S. 113
In this case, petitioner's conviction was based on the testimony of a police officer who listened in on a telephone communication made by petitioner, and such listening-in was not "authorized by the sender," to-wit, the petitioner. It is suggested that the interception, for such it was, in the clear meaning of the term for carrying out its function -- an intrusion by way of listening to the legally insulated transmission of thought between a speaker and a hearer -- does not fall within the prohibition of § 605, because it was carried out by means of "a regularly used telephone extension with the consent of one party." But surely the availability of a "regularly used telephone extension" does not make § 605 inoperative. The fact that the Court relies on "the consent of one party" evidently implies that it would not be without the purview of § 605 for a police officer to conceal himself in a room of a house or a suite of offices having several "regularly used telephone extensions" and surreptitiously to utilize such an extension to overhear telephone conversations.
It is said that the overhearing in this case was "with the consent of one party." But the statute is not satisfied with "the consent of one party." The statute says "no person not being authorized by the sender." Since this Court, in Nardone,
read "no person" to mean no person, it is even more incumbent to construe "sender" to mean sender, as was the petitioner here, and not to read "sender" to mean one of the parties to the communication, whether sender or receiver. It is further suggested that Congress must have been aware of the wide use of telephone extensions and the practice of listening-in on extensions. In the first Nardone
case, this Court rejected the argument that Congress had knowledge of the employment of federal agents "to tap wires in aid of detection and conviction of criminals." 302 U.S. at 302 U. S. 381
. But the Court refused to qualify the rigorous policy of Congress as expressed by its enactment. And today, in Benanti v.
Page 355 U. S. 114
the Court rejects -- and, if I may say so, rightly -- the plausible contention that the well known legislative authorization of wiretapping by some of the States ought to be deemed to have qualified the strict purpose of Congress.
It is suggested, however, that it is one of the accepted modes of carrying on business in our time to have secretaries listen in on conversations by their principals. A secretary may fairly be called the employer's alter ego. And so a secretary is fairly to be deemed as much of an automatic instrument in the context of our problem as a tape recorder. Surely a police officer called in to facilitate the detection of crime is not such an alter ego. His participation in telephone communications when not authorized by the sender occupies precisely the same position that it occupied in the Olmstead
case when this Court sanctioned the practice, and in the Nardone
cases where this Court rigorously enforced the prohibition by Congress of what theretofore was a lawful practice.
Sharing the views expressed by Judge Learned Hand in United States v. Polakoff,
112 F.2d 888, and Reitmeister v. Reitmeister,
162 F.2d 691, I would reverse the judgment.