Wiretapping by Members of the Naval Intelligence Service ( 1941 )

Wiretapping by Members of the
Naval Intelligence Service
In this letter, Attorney General Jackson advises the Secretary of the Navy not to approve and adopt the
position taken by the Judge Advocate General of the Navy that records may legally be made of
private communications sent or received by use of telephone facilities controlled by the Navy, with a
view to the use of such records in prosecutions involving espionage, sabotage, and subversive
activities.
June 9, 1941
LETTER FOR THE SECRETARY OF THE NAVY
Reference is made to the letter of Acting Secretary Forrestal, of May 28, trans-
mitting to me a copy of a confidential opinion of the Judge Advocate General of
the Navy, of May 24, 1941, on the subject “Wiretapping by Members of Naval
Intelligence Service.” The Judge Advocate General makes certain suggestions
respecting methods and means whereby he believes that records may legally be
made of private communications sent or received by use of telephone facilities
controlled by the Navy, with a view to the use of such records in prosecutions
involving espionage, sabotage, and subversive activities. My comment and advice
are requested regarding these suggestions.
In view of the decisions of the Supreme Court and of other courts, discussed at
length in the enclosed memorandum prepared in this Department, I am unable to
advise that the suggestions be approved and adopted by you.
ROBERT H. JACKSON
Attorney General
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June 7, 1941
MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL
The question raised by the Secretary of the Navy is whether, despite section
605 of the Communications Act of 1934,1 the commandant or commanding officer
of any naval station or establishment has authority to tap telephones within the
confines of his station for the purpose of obtaining information regarding espio-
nage, sabotage and subversive activities; and also whether, if such conduct is not
lawful, information obtained from such wiretapping can be admitted as evidence in
criminal trials of civilian employees and non-employees.
The relative portion of section 605 of the Communications Act of 1934 reads as
follows:
[A]nd 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 communi-
cation to any person . . . .
47 U.S.C. § 605 (1940).
Section 605 has been discussed in three decisions of the Supreme Court and in
a number of lower federal court decisions. The answer to the Secretary’s question
requires a brief consideration of these cases.
The first case reaching the Supreme Court was Nardone v. United States, 302
U.S. 379 (1937) (“Nardone I”). The question involved was whether evidence
procured through the tapping of telephone wires by federal officers was admissible
in a criminal trial in a United States district court. The Court held that the tapping
of telephone wires by a federal officer was a violation of section 605 and that the
evidence so obtained was inadmissible.* Justice Roberts, speaking for the majority,
stated:
1
Pub. L. No. 73-416, § 605, 48 Stat. 1064, 1103–04 (codified at 47 U.S.C. § 605 (1940)).
*
Editor’s Note: Decisions of the Supreme Court after Nardone I appeared to regard it as an open
question whether section 605 prohibited the mere interception of wire communications. See, e.g., Rathbun
v. United States, 355 U.S. 107, 108 n.3 (1957); Benanti v. United States, 355 U.S. 96, 100 n.5 (1957). With
the exception of a three-month period during 1940, when Attorney General Robert Jackson “prohibited all
wiretapping by the Federal Bureau of Investigation,” Final Report of the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, bk. III, 279 (1976)
(“Church Comm. Rep.”), the Department interpreted section 605 as not “prohibiting the interception of
wire communications per se, [but] only the interception and divulgence of their contents outside the
federal establishment.” Id. at 278; accord Interception of Radio Communication, 3 Op. O.L.C. 240, 245
(1979). This approach was consistent with President Roosevelt’s directive to Attorney General Jackson on
the use of wiretaps, see Church Comm. Rep. at 279 (quoting a memorandum from the President to the
Attorney General, dated May 21, 1940), and statements to Congress by Attorneys General Jackson and
Biddle, see id. at 280–81; Authorizing Wire Tapping in the Prosecution of the War: Hearings on H.J. Res.
283 Before the H. Comm. on the Judiciary, 77th Cong. 2 (1942).
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Wiretapping by Members of the Naval Intelligence Service
Taken at face value the phrase “no person” comprehends federal
agents, and the ban on communication to “any person” bars testimo-
ny to the content of an intercepted message. Such an application of
the section is supported by comparison of the clause concerning in-
tercepted 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.
302 U.S. at 381.
In answer to the government’s contention that the legislative history of section
605 showed no intention on the part of Congress that wiretapping by federal
officers be prohibited, Justice Roberts stated:
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 testi-
mony seems to us unshaken by the government’s arguments.
Id. at 382.
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 of-
fenders should go unwhipped of justice than that officers should re-
sort to methods deemed inconsistent with ethical standards and de-
structive of personal liberty. The same considerations may well have
moved the Congress to adopt § 605 as evoked the guaranty against
practices and procedure violative of privacy, embodied in the Fourth
and Fifth Amendments of the Constitution.
Id. at 383.
Justices Sutherland and McReynolds dissented on the ground that the word
person, as used in the Act, did not apply to federal officers and that Congress had
not intended to tie the hands of government enforcement agencies by such
restrictions. Id. at 385.
The Nardone case came back to the Supreme Court two years later. Nardone v.
United States, 308 U.S. 338 (1939) (“Nardone II”). This time the issue was
whether section 605 not only forbade the introduction of evidence obtained
directly by wiretapping, but also prohibited the admission of evidence procured
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through the use of knowledge derived from the wiretapping. The Court upheld the
latter interpretation. Reversing the court below, Justice Frankfurter, speaking for
the majority, stated:
We are here dealing with specific prohibition of particular meth-
ods in obtaining evidence. The result of the holding below is to re-
duce the scope of § 605 to exclusion of the exact words heard
through forbidden interceptions, allowing these interceptions every
derivative use that they may serve. Such a reading of § 605 would
largely stultify the policy which compelled our decision in [Nar-
done I]. That decision was not the product of a merely meticulous
reading of technical language. It was the translation into practicality
of broad considerations of morality and public well-being. This
Court found that the logically relevant proof which Congress had
outlawed, it outlawed because “inconsistent with ethical standards
and destructive of personal liberty.” [302 U.S. at 383.] To forbid the
direct use of methods thus characterized but to put no curb on their
full indirect use would only invite the very methods deemed “incon-
sistent with ethical standards and destructive of personal liberty.”
What was said in a different context in Silverthorne Lumber Co. v.
United States, 251 U.S. 385, 392 [(1920)], is pertinent here: “The es-
sence of a provision forbidding the acquisition of evidence in a cer-
tain way is that not merely evidence so acquired shall not be used be-
fore the court, but that it shall not be used at all.” See Gouled v.
United States, 255 U.S. 298, 307 [(1921)]. A decent respect for the
policy of Congress must save us from imputing to it a self-defeating,
if not dangerous purpose.
Id. at 340–41.
Justice McReynolds dissented without opinion. Justice Reed did not participate.
Id. at 343.
The third case decided by the Supreme Court is Weiss v. United States, 308
U.S. 321 (1939). Here the issue was whether section 605 applied to the intercep-
tion, not only of interstate communications, but also of intrastate communications.
The Court held that the Congress had the power to, and intended to, prohibit
interception of both interstate and intrastate communications. Justice Roberts,
writing for a unanimous Court, stated:
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 intra-
state transactions, there is no constitutional requirement that the
scope of the statute be limited so as to exclude intrastate communica-
tions.
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Wiretapping by Members of the Naval Intelligence Service
....
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 in-
trastate communications from the protection against interception and
divulgence.
Id. at 327, 329 (footnote omitted).
The government likewise made the claim in the Weiss case that the disclosure
of the intercepted communications was “authorized by the sender” and therefore
admissible. It appeared that certain of the defendants, upon being told that their
conversations had been intercepted, turned state’s evidence and testified to the
conversations. The Court rejected the government’s contention, pointing out that
the conversations had been intercepted before consent was given and that, in any
event, the consent was not voluntary but “enforced”:
Statement of these facts is convincing that the so-called authoriza-
tion 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 emphasi[ze] the offensive use which may be made of intercepted
messages, whether interstate or intrastate. It is not too much to as-
sume the interdiction of the statute was intended to prevent such a
method of procuring testimony.
308 U.S. at 330–31.
There have been a number of decisions on section 605 by the lower federal
courts, but only three cases have any direct bearing on the issue here. In United
States v. Polakoff, 112 F.2d 888 (2d Cir. 1940),* it appeared that the defendants
had approached one Kafton, who was under indictment, and offered to procure a
light sentence for him if Kafton would pay them a sum of money. Kafton reported
this to the District Attorney, who sent him to the FBI. Through a telephone in the
FBI office, Kafton talked with the defendants, and the conversations were recorded
on a machine fixed to an extension of the telephone that Kafton was using.
Subsequently, the defendants were tried and convicted for the conspiracy to
obstruct justice, and the question on appeal was whether or not the telephone
conversations had been properly admitted. The government argued that the
conversations were admissible because Krafton was the “sender” and had given his
*
Editor’s Note: Polakoff was later overruled by Rathbun v. United States, 355 U.S. 107 (1957). The
Court in Rathbun held that it did not constitute an “interception” under section 605 for law enforce-
ment, with consent from one party, to employ a regularly-used telephone extension to listen in on a
conversation. Id. at 107–11.
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consent to the recording, and because, in any event, the message had not been
“intercepted.” The court rejected both contentions and held the conversations
inadmissible. On the first point, the court ruled that in a telephone conversation
each party must be deemed the “sender” within the meaning of section 605, and,
therefore, both must give consent to the interception. As to the second point, Judge
Learned Hand stated:
Moreover, the recording was an “interception.” It is true that in
the three decisions in which the Supreme Court has interpreted [sec-
tion] 605, . . . the prosecuting agents had physically interposed some
mechanism in the circuit as it had been constructed for normal use; at
least that is what we understand by a “tap.” That was not the case
here; the recording machine was merely fixed to an existing “exten-
sion” of the familiar kind in an adjoining room. We assume that the
situation would have been no different, had the agent merely listened
at the extension, and taken down what he heard by shorthand. The
statute does not speak of physical interruptions of the circuit, or of
“taps”; it speaks of “interceptions” and anyone intercepts a message
to whose intervention as a listener the communicants do not consent;
the means he employs can have no importance; it is the breach of
privacy that counts. We need not say that a man may never make a
record of what he hears on the telephone by having someone else lis-
ten at an extension, or, as in the case at bar, even by allowing him to
interpose a recording machine. The receiver may certainly himself
broadcast the message as he pleases, and the sender will often give
consent, express or implied, to the interposition of a listener. Party
lines are a good illustration; and it would be unwise to try in advance
to mark the borders of such implications. Here, however, we need
not be troubled by niceties, because, no matter what the scope of any
such implied consent, it cannot extend to the intervention of prose-
cuting agents bent upon trapping the “sender” criminally. Violation
of the privilege, we are admonished, is so grave a dereliction as to be
“destructive of personal liberty” [(Nardone I, 302 U.S. at 383)] and if
it is not to be sham and illusion, it must protect its possessor at least
against such intrusions. “A decent respect for the policy of Congress
must save us from imputing to it a self-defeating, if not disingenuous
purpose.” [Nardone II, 308 U.S. at 341.] United States v. Yee Ping
Jong, [26 F. Supp. 69 (W.D. Pa. 1939)], is to the contrary, but does
not persuade us.
Id. at 889–90.
Judge Augustus Hand concurred. Id. at 890. Judge Clark dissented in a long
opinion, saying:
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Wiretapping by Members of the Naval Intelligence Service
There can be no real distinction—there is none suggested in the stat-
ute or by common sense—between these recordings and a transcrip-
tion made by a private secretary over the telephone in an outer office,
or by a servant on an upstairs extension in a house, or even by a per-
son listening at the telephone receiver held by the party to the con-
versation. Nor can it be of importance whether the transcriber or the
party first makes the suggestion for the recording; in either event it is
the party who has the power to direct or prohibit its transcription.
Neither is it important whether evidence of the conversation comes
from the mechanical device of a record or from testimony of those
directed to listen in, except that the mechanical device gives the more
trustworthy evidence. Indeed, in the Fallon case the agents them-
selves testified as to what they had overheard, testimony which must
be considered objectionable under the decision here.
Id. at 891.
In a companion case, the court ruled the same way in a situation where the
conversations had been intercepted by the installation of the recording device in
the house of the chief witness and with his consent. United States v. Fallon, 112
F.2d 894 (2d Cir. 1940) (per curiam).
In United States v. Yee Ping Jong, 26 F. Supp. 69 (W.D. Pa. 1939), a federal
district court reached a somewhat different conclusion from the Second Circuit in
the Polakoff case. In the Yee Ping Jong case, federal agents employed one Loui
Wong as an informer and an interpreter, and at the direction of the agent Loui,
Wong called the defendant on the telephone from a house belonging to an
associate of the agent. A recording of the conversation was made by a device
attached to an extension of the “phone.” The court held the intercepted conversa-
tion admissible on the ground that the recording did not constitute an “intercep-
tion” within the meaning of the statute, saying:
The call to the defendant was made by Agent White, and the conver-
sation between his interpreter and the defendant was not obtained by
a “tapping of the wire” between the locality of call and the locality of
answer by an unauthorized person, but was, in effect, a mere record-
ing of the conversation at one end of the line by one of the partici-
pants. It differed only in the method of recording from a transcription
of a telephone conversation made by a participant. We are of opinion
that the admission of the record in evidence was not error.
Id. at 70.
In the Polakoff case, Judge Learned Hand stated that the Yee Ping Jong case
was inconsistent with the majority decision and refused to follow it. 112 F.2d at
890. It should be noted, however, that the Yee Ping Jong case might be distin-
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guished from the Polakoff case on the ground that Loui Wong acted merely as
interpreter for the federal agent, rather than on his own initiative.
There is nothing in the history of section 605 which throws any light on the
issue here presented. Indeed, it is not clear from the legislative history that
Congress intended section 605 to prohibit wiretapping by government officers at
all. That issue, however, is, of course, settled otherwise by the Supreme Court
decisions, just mentioned.
Viewed in the light of the foregoing decisions, it seems to me rather clear that
section 605 prohibits the tapping of telephone wires even within the confines of a
government building. As the Supreme Court pointed out in the first Nardone case,
that statute provides that “no person” shall intercept any communication and
divulge it to “any person.” Certainly the interception of calls by a member of the
Naval Intelligence Service and the divulging of the contents thereof to a superior
would fall within the literal terms of the statute. Neither the fact that one of the
parties to the call was an employee of the Navy Department, nor the fact that the
call was made to or from a government building, would seem to afford the
interception immunity from the precise terms of the act. Nor would an authoriza-
tion of the interception by the government employee involved justify such
interception in the absence of authorization by the other party. *
The Supreme Court has shown every disposition to give the words of the statute
their strict literal meaning. It is difficult to see, therefore, how the action of the
Secretary of the Navy can be sanctioned under the Supreme Court decisions.
Moreover, the Polakoff case seems even more in point. For in that case, the call
was actually made from a government office and was intercepted by a device
attached to an extension phone in the government office.
The Judge Advocate General of the Navy suggests in his memorandum that a
member of the Naval Intelligence Service (or presumably any other employee of
the Navy Department) employed as a switchboard operator should be permitted to
divulge to a superior officer the contents of a conversation which he has received,
assisted in receiving, or transmitted while assigned to duty at the switchboard. For
the reasons just stated, such an interception would seem clearly prohibited by that
portion of section 605 which has heretofore been considered. The Judge Advocate
General argues, however, that interception in this manner would be justified under
the first clause of section 605, which reads as follows:
No person receiving or assisting in receiving, or transmitting, or
assisting in transmitting, any interstate or foreign communication by
wire or radio shall divulge or publish the existence, contents, sub-
*
Editor’s Note: Later, in Rathbun, the Supreme Court held that one-party consent was sufficient in
some circumstances to permit the government to monitor and divulge communications without
violating section 605. 355 U.S. at 108–11. See also United States v. Hodge, 539 F.2d 898, 905 (6th Cir.
1976) (“It is well settled that there is no violation of the Act if the interception was, as here, authorized
by a party to the conversation.”).
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Wiretapping by Members of the Naval Intelligence Service
stance, purport, effect, or meaning thereof, except through authorized
channels of transmission or reception, to any person other than the
addressee, his agent, or attorney, or to a person employed or author-
ized to forward such communication to its destination, or to proper
accounting or distributing officers of the various communicating cen-
ters over which the communication may be passed, or to the master
of a ship under whom he is serving, or in response to a subpena is-
sued by a court of competent jurisdiction, or on demand of other law-
ful authority.
47 U.S.C. § 605.
It seems clear, however, that the purpose of the clause just quoted is to protect
persons employed as telephone and telegraph operators whose duties as such
require disclosure of communications to other persons. The suggestion of the
Judge Advocate General contemplates the disclosure of communications by agents
of the Naval Intelligence Service not in their capacity as switchboard operators,
but in their capacity as wiretappers. The interception would, therefore, not seem
justified under the provision quoted.
The Judge Advocate General argues that the words “on demand of other lawful
authority” in the clause above cited includes the demand of a superior in the
Department. This phrase, however, quite clearly refers to demands by administra-
tive bodies, legislative committees and the like, not to demand by a superior for
purposes not in connection with the receipt or transmission of the communication.
In fact, the Judge Advocate General’s interpretation—in effect permitting the
superior officer of a telephone or telegraph operator to obtain and disclose any
communication—would make the entire clause meaningless.
The Judge Advocate General also suggests in his memorandum that, since the
government may permit the use of its telephone lines and equipment by persons
outside the government on whatever terms it sees fit, it can by regulation, pub-
lished in the Federal Register, stipulate as a condition for the use of its phones that
all conversations be recorded and reported to lawful authority. It is argued that in
this way any person voluntarily using the telephone would be deemed to have
accepted the conditions and thereby “authorize” the recording and divulging of the
conversation. My own feeling is that this proposal is a subterfuge which should not
be approved for the following reasons:
1. The device proposed, if sanctioned, might well lead to a total breakdown of
section 605. If the government can obtain constructive authorization in this way,
presumably other users of the telephone can do the same thing. Thus any corpora-
tion, organization, or individual would be empowered to announce a similar
condition; or the telephone or telegraph companies themselves would have
authority to limit the use of their lines or wires on such terms. If the practice
became widespread, the safeguards of section 605 would, of course, be entirely
negatived.
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2. I am inclined to doubt that, in view of the nature of the interests protected by
section 605—the right to privacy—mere constructive notice of a regulation would
be sufficient to imply authorization for interception of the communication. It is
hard to see how an invasion of the right to privacy can be authorized by an
individual who does not have actual knowledge of the invasion.
3. The device suggested would seem to be unquestionably unlawful in certain
situations. Thus, where an individual was called from a government building
without being aware of the fact that the call originated in such building, there can
hardly be doubt that the interception would be prohibited by the statute. It would,
of course, be impossible to separate out such calls from other calls which were
being intercepted. On the theory of the Weiss case, which is based on the inability
to separate intrastate calls from interstate calls, the device would not seem to be
warranted.
Justice Holmes, dissenting in the Olmstead case, characterized wiretapping as
“dirty business.” Olmstead v. United States, 277 U.S. 438, 470 (1928). And Justice
Roberts in the first Nardone case referred to it as a device “inconsistent with
ethical standards and destructive of personal liberty.” 302 U.S. at 383.
The Supreme Court has interpreted section 605 strictly in the light of this view
of wiretapping. It does not appear, therefore, that the Court would approve any
attempt to evade the comprehensive purpose of the statute, either by permitting the
practice in government buildings or by attempting to secure constructive authori-
zation.
I have talked informally with Mr. Telford Taylor, General Counsel of the Fed-
eral Communications Commission, and he agrees with the conclusions above
expressed.
T.I. EMERSON*
Attorney-Adviser
Office of the Assistant Solicitor General
*
Editor’s Note: The author of this memorandum was Thomas I. Emerson, who later became a
professor at Yale Law School, successfully argued the petitioner’s case in Griswold v. Connecticut, 381
U.S. 479 (1965), and wrote a significant treatise on the First Amendment, The System of Freedom of
Expression (1970). See Glenn Fowler, Thomas I. Emerson, 83, Scholar Who Molded Civil Liberties
Law, N.Y. Times, June 22, 1991, at 21.
456