1. In view of the provisions of § 605 of the Communications Act
of 1934, 47 U.S.C. § 605, evidence obtained by federal agents by
tapping telephone wires and intercepting messages is not admissible
in a criminal trial in the federal district court. P.
302 U. S.
382.
2. In 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; . . . ,"
the phrase "no person" embraces federal agents engaged in the
detection of crime, and to "divulge" an intercepted communication
to "any person" embraces testimony in a court as to the contents of
such a communication. P.
302 U. S.
383.
3. Evidence in congressional committee reports indicating that
the major purpose of the Federal Communications Act was the
transfer of jurisdiction over wire and radio communication to the
newly constituted Federal Communications Commission, and other
circumstances in the legislative history of the Act,
held
insufficient to negative the plain mandate of the provisions of §
605 forbidding wiretapping. P.
302 U. S.
382.
4. Whether wiretapping as an aid in the detection and punishment
of crime should be permitted to federal agents is a question of
policy for the determination of the Congress. P.
302 U. S.
383.
5. The canon that the general words of a statute do not include
the Government or affect its rights unless that construction be
clear and indisputable from the language of the Act is inapplicable
to this case, but applicable is the principle that the sovereign is
embraced by general words of a statute intended to prevent injury
and wrong. Pp.
302 U. S.
383-384.
90 F.2d 630 reversed.
Certiorari,
post, p. 668, to review a judgment
affirming a judgment of conviction on an indictment charging
violation of the Anti-Smuggling Act and conspiracy.
Page 302 U. S. 380
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The importance of the question involved -- whether, in view of
the provisions of § 605 of the Communications Act of 1934,
[
Footnote 1] evidence procured
by a federal officer's tapping telephone wires and intercepting
messages is admissible in a criminal trial in a United States
District Court -- moved us to grant the writ of certiorari.
The indictment under which the petitioners were tried,
convicted, and sentenced, charged, in separate counts, the
smuggling of alcohol, possession and concealment of the smuggled
alcohol, and conspiracy to smuggle and conceal it. Over the
petitioners' objection and exception, federal agents testified to
the substance of petitioners' interstate communications overheard
by the witnesses who had intercepted the messages by tapping
telephone wires. The court below, though it found this evidence
constituted such a vital part of the prosecution's proof that its
admission, if erroneous, amounted to reversible error, held it was
properly admitted, and affirmed the judgment of conviction.
[
Footnote 2]
Section 605 of the Federal Communications Act provides that no
person who, as an employee, has to do with the sending or receiving
of any interstate communication
Page 302 U. S. 381
by wire, shall divulge or publish it or its substance to anyone
other than the addressee or his authorized representative or to
authorized fellow employees, save in response to a subpoena issued
by a court of competent jurisdiction or on demand of other lawful
authority, 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."
Section 501 [
Footnote 3]
penalizes willful and knowing violation by fine and
imprisonment.
Taken at face value, the phrase "no person" comprehends federal
agents, and the ban on communication to "any person" bars testimony
to the content of an intercepted message. Such an application of
the section is supported by comparison of the clause concerning
intercepted messages with that relating to those known to employees
of the carrier. The former may not be divulged to any person, the
latter may be divulged in answer to a lawful subpoena.
The government contends that Congress did not intend to prohibit
tapping wires to procure evidence. It is said that this Court, in
Olmstead v. United States, 277 U.
S. 438, held such evidence admissible at common law
despite the fact that a state statute made wiretapping a crime, and
the argument proceeds that, since the
Olmstead decision,
departments of the federal government, with the knowledge of
Congress, have, to a limited extent, permitted their agents to tap
wires in aid of detection and conviction of criminals. It is shown
that, in spite of its knowledge of the practice, Congress refrained
from adopting legislation outlawing it, although bills so providing
have been introduced. The Communications Act, so it is claimed, was
passed only for the purpose of reenacting
Page 302 U. S. 382
the provisions of the Radio Act of 1927 [
Footnote 4] so as to make it applicable to wire
messages and to transfer jurisdiction over radio and wire
communications to the newly constituted Federal Communications
Commission, and therefore the phraseology of the statute ought not
to be construed as changing the practically identical provision on
the subject which was a part of the Radio Act when the
Olmstead case was decided.
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." To recite the contents of the message in testimony
before a court is to divulge the message. The conclusion that the
act forbids such testimony seems to us unshaken by the government's
arguments.
True it is that, after this Court's decision in the
Olmstead case, Congressional committees investigated the
wiretapping activities of federal agents. Over a period of several
years, bills were introduced to prohibit the practice, all of which
failed to pass. An Act of 1933 included a clause forbidding this
method of procuring evidence of violations of the National
Prohibition Act. [
Footnote 5]
During 1932, 1933, and 1934, however, there was no discussion of
the matter in Congress, and we are without contemporary legislative
history relevant to the passage of the statute in question. It is
also true that the committee reports in connection with the Federal
Communications Act dwell upon the fact that the major purpose of
the legislation was the transfer of jurisdiction over wire and
radio communication to the newly constituted Federal Communications
Commission. But these circumstances are,
Page 302 U. S. 383
in our opinion, insufficient to overbear the plain mandate of
the statute.
It is urged that a construction be given the section which would
exclude federal agents, since it is improbable Congress intended to
hamper and impede the activities of the government in the detection
and punishment of crime. The answer is that the question is one of
policy. Congress may have thought it less important that some
offenders should go unwhipped of justice than that officers should
resort to methods deemed inconsistent with ethical standards and
destructive of personal liberty. The same considerations may well
have moved the Congress to adopt § 605 as evoked the guaranty
against practices and procedures violative of privacy embodied in
the Fourth and Fifth Amendments of the Constitution.
The canon that the general words of a statute do not include the
government or affect its rights unless the construction be clear
and indisputable upon the text of the act does not aid the
respondent. The cases in which it has been applied fall into two
classes. The first is where an act, if not so limited, would
deprive the sovereign of a recognized or established prerogative
title or interest. [
Footnote 6]
A classical instance is the exemption of the state from the
operation of general statutes of limitation. [
Footnote 7] The rule of exclusion of the sovereign
is less stringently applied where the operation of the law is upon
the agents or servants of the government, rather than on the
sovereign itself. [
Footnote
8]
Page 302 U. S. 384
The second class -- that where public officers are impliedly
excluded from language embracing all persons -- is where a reading
which would include such officers would work obvious absurdity, as,
for example, the application of a speed law to a policeman pursuing
a criminal or the driver of a fire engine responding to an alarm.
[
Footnote 9]
For years, controversy has raged with respect to the morality of
the practice of wiretapping by officers to obtain evidence. It has
been the view of many that the practice involves a grave wrong. In
the light of these circumstances, we think another well recognized
principle leads to the application of the statute as it is written
so as to include within its sweep federal officers, as well as
others. That principle is that the sovereign is embraced by general
words of a statute intended to prevent injury and wrong. [
Footnote 10]
Page 302 U. S. 385
The judgment must be reversed, and the cause remanded to the
District Court for further proceedings in conformity with this
opinion.
Reversed.
[
Footnote 1]
Chapter 652, 48 Stat. 1064, 1103, U.S.C. Tit. 47, § 605.
[
Footnote 2]
90 F.2d 630.
See also Smith v. United States, 91 F.2d
556.
[
Footnote 3]
Chapter 652, 48 Stat. 1064, 1100, U.S.C. Tit. 47, § 501.
[
Footnote 4]
Act of Feb. 23, 1927, c. 169, 44 Stat. 1162.
[
Footnote 5]
Department of Justice Appropriation Act of March 1, 1933, 47
Stat. 1381.
[
Footnote 6]
Dollar Savings Bank v. United
States, 19 Wall. 227,
86 U. S. 239;
United States v.
Herron, 20 Wall. 251,
87 U. S. 263;
United States v. American Bell Telephone Co., 159 U.
S. 548,
159 U. S. 554;
United States v. Stevenson, 215 U.
S. 190,
215 U. S. 197;
Title Guaranty & Surety Co. v. Guarantee Title & Trust
Co., 174 F. 385, 388; Maxwell, Interpretation of Statutes (7th
Ed.) 117, 121; Black on Interpretation of Laws (2d Ed.) 94.
[
Footnote 7]
United States v. Hoar, 2 Mason 311, 314, 315.
[
Footnote 8]
"The prohibitions [against any form of action except that
specified in the statute], if any, either express or implied . . .
are for others, not for the Government. They may be obligatory upon
tax collectors. They may prevent any suit at law by such officers
or agents."
Dollar Savings Bank v. United
States, 19 Wall. 227,
86 U. S.
239.
"These provisions unmistakably disclose definite intention on
the part of Congress effectively to safeguard rivers and other
navigable waters against the unauthorized erection therein of dams
or other structures for any purpose whatsoever. The plaintiff
maintains that the restrictions so imposed apply only to work
undertaken by private parties. But no such intention is expressed,
and we are of opinion that none is implied. The measures adopted
for the enforcement of the prescribed rule are in general terms,
and purport to be applicable to all. No valid reason has been or
can be suggested why they should apply to private persons and not
to federal and state officers. There is no presumption that
regulatory and disciplinary measures do not extend to such
officers. Taken at face value, the language indicates the purpose
of Congress to govern conduct of its own officers and employees as
well as that of others."
United States v. Arizona, 295 U.
S. 174,
295 U. S. 184.
Compare Stanley v. Schwalby, 147 U.
S. 508,
147 U. S. 515;
Donnelley v. United States, 276 U.
S. 505,
276 U. S.
511.
[
Footnote 9]
Balthasar v. Pacific Electric Ry. Co., 187 Cal. 302,
202 P. 37;
State v. Gorham, 110 Wash. 330, 188 P. 457.
[
Footnote 10]
United States v.
Knight, 14 Pet. 301,
39 U. S. 315;
United States v.
Herron, 20 Wall. 251,
87 U. S. 263;
Black on Interpretation of Laws (2d Ed.) 97.
MR. JUSTICE SUTHERLAND, dissenting.
I think the word "person" used in this statute does not include
an officer of the federal government, actually engaged in the
detection of crime and the enforcement of the criminal statutes of
the United States, who has good reason to believe that a telephone
is being, or is about to be, used as an aid to the commission or
concealment of a crime. The decision just made will necessarily
have the effect of 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. If Congress thus intended to tie the
hands of the government in its effort to protect the people against
lawlessness of the most serious character, it would have said so in
a more definite way than by the use of the ambiguous word "person."
Commonwealth v. Welosky, 276 Mass. 398, 404, 404, 406, 177
N.E. 656. For that word has sometimes been construed to include the
government and its officials, and sometimes not. I am not aware of
any case where it has been given that inclusive effect in a
situation such as we have here. Obviously the situation dealt with
in
United States v. Arizona, 295 U.
S. 174, was quite different. There, a federal statute
forbade the construction of any bridge, etc., in any port, etc.,
"until consent of Congress . . . shall have been obtained." The
mere building of the designated structure, in the absence of
congressional consent, violated the statute. There was no ambiguous
term, such as we have here, or anything else in the language,
requiring construction.
Page 302 U. S. 386
There is a manifest difference between the case of a private
individual who intercepts a message from motives of curiosity or to
further personal ends and that of a responsible official engaged in
the governmental duty of uncovering crime and bringing criminals to
justice. It is fair to conclude that the word "person," as here
used, was intended to include the former but not the latter. This
accords with the well settled general rule stated by Justice Story
in
United States v. Hoar, 2 Mason 311, 314, 315:
"In general, acts of the legislature are meant to regulate and
direct the acts the rights of citizens, and, in most cases, the
reasoning applicable to them applies with very different and often
contrary force to the government itself. It appears to me therefore
to be a safe rule, founded in the principles of the common law,
that the general words of a statute ought not to include the
government or affect its rights unless that construction be clear
and indisputable upon the text of the act."
And see In the Matter of Will of Fox, 52 N.Y. 530, 535.
Compare State v. Gorham, 110 Wash. 330, 188 P. 457;
Balthasar v. Pacific Elec. Ry. Co., 187 Cal. 302, 305-308,
202 P. 37. A case in point is that of
People v. Hebberd,
96 Misc. 617, 620, 621, 162 N.Y.S. 80.
In the investigations of the congressional committees, referred
to in the opinion of the court, it appeared that the Attorney
General had ordered that no tapping of wires should be permitted
without the personal direction of the chief of the bureau, after
consultation with the Assistant Attorney General in charge of the
case, and that such means were to be adopted only as an emergency
method. The Attorney General himself appeared before one of the
committees and pointed out that crime had become highly organized,
with strong political connections and illegal methods of procedure;
that gangsters and desperate criminals had equipped themselves with
every
Page 302 U. S. 387
modern convenience and invention; that modern gangsters have no
regard for life, property, decency or anything else, and he had no
doubt that they tapped wires leading to offices of the United
States attorneys to find out what was being done. He cited the case
of a Bureau of Investigation agent who had been found shot to death
under circumstances which indicated that a gang of narcotic
traffickers had murdered him, and he posed the question whether, if
it had appeared that the perpetrators of the crime could be
detected and brought to justice by tapping their telephone wires,
nevertheless, that ought not to be done.
The answer of Congress to the question has been a refusal to
pass any of the bills which comprehensively proposed to forbid the
practice.
My abhorrence of the odious practices of the town gossip, the
peeping Tom, and the private eavesdropper is quite as strong as
that of any of my brethren. But to put the sworn officers of the
law, engaged in the detection and apprehension of organized gangs
of criminals, in the same category is to lose all sense of
proportion. In view of the safeguards against abuse of power
furnished by the order of the Attorney General, and in the light of
the deadly conflict constantly being waged between the forces of
law and order and the desperate criminals who infest the land, we
well may pause to consider whether the application of the rule
which forbids an invasion of the privacy of telephone
communications is not being carried in the present case to a point
where the necessity of public protection against crime is being
submerged by an overflow of sentimentality.
I think the judgment below should be affirmed.
MR. JUSTICE McREYNOLDS joins in this opinion.