Authority of National Telecommunications and Information Administration to Monitor Radio Communications

Authority of National Telecommunications and Information
Administration to Monitor Radio Communications
T h e N atio n al T e le c o m m u n ic a tio n s an d In fo rm atio n A d m in istratio n ( N T IA ) m ay m o n ito r
ra d io c o m m u n icatio n s to th e ex ten t reaso n ab ly necessary to d isc h a rg e its functions
u n d e r 47 U .S .C . § 305(a) an d 15 U .S .C . § 272(12) & (13).
T itle III o f th e O m n ib u s C rim e C o n tro l a n d S afe S tre ets A c t o f 1963 p ro h ib its N T IA
fro m a u ra lly m o n ito rin g c o m m u n ic a tio n s b etw e e n a rad io an d a land-line telep h o n e.
February 12, 1980
M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL,
D E PA R T M E N T O F COM M ERCE
This responds to your request for our views on the authority o f the.
National Telecom m unications and Inform ation Adm inistration (N T IA )
to m onitor certain radio transmissions. You specify that N T IA will
m onitor these com m unications only to the extent necessary to perform
its authorized functions, and that it will not divulge the contents or the
existence o f any particular intercepted message. Similarly, you say,
N T IA will not attem pt to decode coded messages.
F o r the reasons we state below, w e believe that, with one exception,
N T IA may conduct these m onitoring activities to the extent they are
reasonably necessary to discharge N T IA ’s statutory functions under 47
U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13). T he one exception is
that N T IA may not aurally m onitor com m unications between a radio
and a land-line telephone.
I. NTIA Authority to Monitor Radio Communications
N T IA derives its authority from the Secretary o f Com merce. No
statute explicitly em powers the Secretary to m onitor radio com m unica­
tions, but w e believe that tw o statutes implicitly authorize the Secretary
to m onitor in certain situations. First, § 305(a) o f the Com munications
A ct o f 1934, 47 U.S.C. § 305(a), provides that “ [r]adio stations belong­
ing to and operated by the United States . . . shall use such frequen­
cies as shall be assigned . . . by the President.” As you know, when
the function o f assigning frequencies to governm ent stations was vested
in the Office o f Telecom m unications Policy (OTP), see Reorganization
Plan No. 1 o f 1970, 84 Stat. 2083, we expressed the opinion that O T P
was “implicitly authorized to conduct m onitoring activities related to
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its statutory responsibilities under § 305(a).” We reasoned that O T P ’s
functions w ere analogous to those of the Federal Com m unications
Commission, which assigns frequencies to radio stations not ow ned by
the governm ent and regulates certain aspects o f their transmissions.
United States v. Sugden, 226 F.2d 281, 284 (9th Cir. 1955), a f f d per
curiam, 351 U.S. 916 (1956), held that the Commission can m onitor
radio com m unications in order to carry out its duty o f assigning fre­
quencies, because “ [e]xcept by listening, how can the Commission tell
with certainty that a station is using its assigned frequency?” Id. By
analogy, we concluded, O T P was authorized to m onitor radio transm is­
sions in the course o f perform ing its function o f assigning frequencies to
stations owned by the governm ent. In 1977, this function was trans­
ferred to the Secretary of Commerce. Reorganization Plan No. 1 o f
1977, as amended, § 5(B), 91 Stat. 1633. You tell us that the Secretary
has delegated this responsibility to N TIA . Plainly, then, N T IA has the
same authority as O T P had to m onitor radio com m unications to the
extent reasonably necessary to carry out its statutory responsibilities
under § 305(a).
T he second statutory source o f N T IA ’s authority to m onitor is 15
U.S.C. § 272(12) & (13). These subsections provide:
T he Secretary o f Com m erce . . . is authorized to under­
take . . .
* * * * *
(12) the investigation o f the conditions w hich affect the
transmission o f radio waves from their source to a
receiver;
(13) the com pilation and distribution o f inform ation on
such transmission o f radio waves as a basis for choice of
frequencies to be used in radio operations.
You tell us that the Secretary o f C om m erce has also delegated these
functions to N TIA . W e believe that the reasoning o f Sugden applies
here as well; to the extent that the m onitoring you describe is “ reason­
ably ancillary to the effective perform ance o f [these statutory] responsi­
bilities,” United States v. Southwestern Cable Co., 392 U.S. 157, 178
(1968), we believe that N T IA is implicitly authorized to conduct it. See,
e.g., Permian Basin Area R ate Cases, 390 U.S. 747, 777, 780 (1968).
Your letter appears to assume that Executive O rder No. 12046 con­
fers on N T IA additional authority to m onitor radio communications.
T hat executive order does not purport expressly to authorize the Secre­
tary of Com m erce to monitor. Y our letter seems to suggest, how ever,
that such authority is implicit in the executive o rd er’s instruction that
the Secretary “serve as the President’s principal adviser on telecom ­
munications policies,” § 2-401, conduct econom ic and technical analy­
ses o f telecomm unications policies, § 2-412, represent the Executive
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Branch in dealings w ith the Federal C om m unications Commission, § 2-
407, and perform similar tasks. But as a general m atter,1 an executive
o rd er cannot enlarge the pow er o f the Executive Branch beyond w hat
C ongress has granted. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 585 (1952). T herefore Executive O rder No. 12046 does
not expand N T IA ’s pow er to m onitor beyond w hat can reasonably be
inferred from 47 U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13).2
Partly because your letter assumed that Executive O rder No. 12046
provides an independent source o f authority to m onitor, you did not
make clear the extent to w hich N T IA needs to conduct the sorts o f
m onitoring activities your letter describes in order to fulfill its statutory
responsibilities. Thus w e cannot specify w hich am ong the kinds of
transmissions you mention in your letter may be m onitored. In general,
we believe that N T IA has authority to m onitor both electrical impulses
and voices on nongovernm ent frequencies; but it may m onitor them
only to the extent that such m onitoring is reasonably necessary to
enable N T IA to assign frequencies to governm ent stations, and to
perform the functions incident to assigning frequencies, or to investigate
the conditions affecting the transmission o f radio waves and to compile
and distribute inform ation about radio w aves “as a basis for choice o f
frequencies to be used in radio operations.” This authority is, o f course,
subject to the statutory restrictions to w hich w e turn next.
II. Statutory Limits on NTIA’s Authority to Monitor
A t first glance, tw o statutes appear to restrict N T IA ’s authority.
Section 605 o f the Com m unications A ct o f 1934, 47 U.S.C. §605,
provides, in relevant part, that “ [n]o person not being authorized by the
sender shall intercept any radio com m unication and divulge or publish
the existence, contents, substance, purport, effect, o r meaning o f such
intercepted com m unication to any person.” T he D epartm ent o f Justice
has consistently taken the position that since § 605 is phrased in the
conjunctive—“ intercept . . . and divulge” (emphasis added)—a gov­
ernm ent agency may intercept radio com m unications so long as it does
not disclose inform ation about them to any person outside the G overn­
’ N o inherent presidential pow ers, derived d irectly from the C onstitution, appear to be involved in
N T IA m onitoring. See generally United Stales v. United States District Court, 407 U.S. 297, 308-12
(1972); Fleishm an & Aufses, Law and Orders: The Problem o f Presidential Legislation. 40 L aw &
C ontem p. Probs., Sum m er 1976, at-1, 11-13. In any event, as w e noted, E xecutive O rder No.. 12046
does not expressly attem pt to authorize the S ecretary o f C om m erce to m onitor, and w e are reluctant
to assume that inherent executive pow ers have been invoked by implication.
2 A s you note, E xecutive O rd e r N o. 11556 assigned to O T P m any functions similar to those
assigned to the Secretary in Executive O rd e r No. 12046, and § 5(B) o f Reorganization Plan No. 1 o f
1977 transferred “ (a]ll . . . functions o f the O ffice o f T elecom m unications Policy and o f its D irector,”
w ith exceptions not relevant here, to the Secretary o f C om m erce. But for the reasons w e have given,
E xecutive O rd e r No. 11556 could not have expanded O T P ’s pow ers beyond w hat w as granted by
statute, and in any event a-reorganization Mmay not have th e effect o f . . . authorizing an agency to
exercise a function w hich is not expressly authorized by law at the time the plan is transm itted to
C ongress." 5 U.S.C. § 905(a)(4). T h u s R eorganization Plan No. 1 o f 1977 does not give N T IA any
additional statu to ry authority.
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ment. See Office o f Legal Counsel M em orandum for the D irector,
Federal Bureau o f Investigation, May 29, 1979, 3 Op. O.L.C. 240, 245
(1979) (hereinafter “ 1979 O LC M em orandum ”) H.R. Rep. No. 1283,
Pt. 1, 95th Cong., 2d Sess. 15 (1978). See also United States v. Butenko,
494 F.2d 593, 623-24 (3rd Cir.) (Aldisert, J;, concurring and dissenting),
cert, denied, 419 U.S. 881 (1974). M oreover, as the language o f §605
suggests, only divulging the contents o r existence o f a particular “com ­
munication” is prohibited. In our view, N T IA would not violate § 605
if, after monitoring, it divulged only aggregate statistics about the use
o f radio frequencies. You stipulate that you will not reveal the contents
o f communications to any other party; so long as “contents” is under­
stood broadly to include the “existence” and “purport, effect, o r m ean­
ing” o f the particular communication, w e believe that N T IA ’s m onitor­
ing will not run afoul o f 47 U.S.C. § 605.
Title III o f the Omnibus Crime C ontrol and Safe Streets A ct o f 1968,
as amended, 18 U.S.C. §§ 2510-2520, presents a more complex question.
It provides that with certain exceptions, “any person
who . . . willfully intercepts, endeavors to intercept, o r procures any
other person to intercept or endeavor to intercept, any wire or oral
com m unication . . . shall be fined not m ore than $10,000 o r im pris­
oned not more than five years, o r both.” 18 U.S.C. § 2511(1 )(a). A
“wire com m unication” is defined as:
any com m unication made in whole or in part through the
use o f facilities for the transmission o f com m unications by
the aid o f wire, cable, o r other like connection between
the point o f origin and the point o f reception furnished or
operated by any person engaged as a com m on carrier in
providing or operating such facilities for the transmission
o f interstate o r foreign communications.
18 U.S.C. §2510(1). An oral com m unication is defined as “any oral
communication uttered by a person exhibiting an expectation that such
communication is not subject to interception under circum stances justi­
fying such expectation.” 18 U.S.C. §2510(2). Radios contain wires, but
the wires are not “connection[s] between the point o f origin and the
point o f reception furnished o r operated by . . . a com m on carrier.”
F o r this reason, we have previously expressed the view that com m uni­
cations betw een tw o radios are not “wire com m unications” within the
meaning o f Title III. 1979 O L C M emorandum, 3 Op. O.L.C. at 242.
T he Ninth Circuit has reached the same conclusion. United States v.
H all, 488 F.2d 193, 196-97 (9th Cir. 1973).
On the basis o f the legislative history o f Title III, see e.g., S. Rep. No.
1097, 90th Cong., 2d Sess. 66, 75, 89-90 (1968); see also United States v.
Hall, 488 F.2d at 198, w e have previously concluded, 1979 O LC
M emorandum, 3 Op. O.L.C. at 242 & n.2, that when Congress limited
the definition o f “oral com m unication” to com m unications by a person
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w ho has “an expectation that such com m unication is not subject to
interception under circum stances justifying such expectation,” it in­
tended to include only those com m unications made with a “reasonable
expectation o f privacy” in the sense in w hich that term is used in
defining a “search” under the F ourth Am endm ent, see, e.g., K atz v.
United States. 389 U.S. 347, 351-53 (1967). See also United States v.
United States District Court, 407 U.S. 297, 302 (1972). 1979 O L C M em o­
randum, 3 Op. O.L.C. at 242 & n.2. W e have also previously concluded
that radio users have no reasonable expectation o f privacy in ordinary
radio transmissions. We reasoned that the “ease of interception, the
widespread availability o f the technology required for interception, and
the ease o f access for the user to m ore private means o f com m unica­
tion” all suggested that one cannot reasonably expect ordinary radio
com m unications to remain private. Id. at 243.3
It follows from these conclusions we have previously reached that
ordinary com m unications by radio are not “oral com m unications”
within the meaning o f Title III.4 As we have said, communications
betw een radios are also not “ wire com m unications.” Thus Title III, like
§ 605, does not prohibit N T IA from intercepting ordinary com m unica­
tions between radios. W e know o f no other statute that applies.
Title III does, how ever, prohibit N T IA from m onitoring com m unica­
tions betw een a party using a mobile telephone or other radio and a
party using a land-line telephone. “ W ire com m unication” is defined by
Title III as “any com m unication made in whole or in part . . . by the
aid o f ’ wire or cable facilities furnished or operated by a common
carrier. 18 U.S.C. §2510(1) (emphasis added). In.the legislative history,
Congress noted that this definition is intended to be “com prehensive.”
S. Rep. No. 1097, 90th Cong., 2d Sess. 89 (1968). Otherwise, the
legislative history seems to give no indication o f how Congress wished
to treat com m unications between a radio telephone and a land-line
telephone. In these circum stances, we must follow the language o f the
statutory definition; since com m unications betweeen a radio telephone
and a land-line telephone are made “in part through the use of facilities
for the transmission o f com m unications by the aid of wire, cable, or
o ther like connection . . . furnished or operated by . . . a common
carrier,” we must conclude that they are “w ire com m unications” under
T itle III. T he Ninth Circuit, apparently the only court to have consid­
ered the issue, reached the same conclusion. United States v. Hall, 488
F.2d at 197-98. Title III prohibits “any person” from “intercept[ing]”
wire com m unications w ithout a w arrant; it contains some exceptions,
3 As the quoted language suggests, w e assume that N T IA proposes to intercept only ordinary radio
transmissions, not transmissions m ade by sophisticated means designed to prevent the transmission
from being intercepted by devices that are generally know n to exist.
4 Since radio users have no reasonable expectation o f privacy in ordinary radio transmissions,
intercepting such transmissions w ould not violate the F o u rth A m endm ent.
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but none applies to N T IA .5 As you know, we have previously said that
m onitoring electrical impulses alone—w ithout translating them to voice
impulses—does not violate Title III. T herefore Title III does not pro­
hibit N T IA from monitoring the electronic impulses o f com m unications
betw een radios and land-line telephones. But N T IA may not aurally
m onitor a transmission if any party to the transmission is using a land-
line telephone. With this restriction, we believe that N T IA is author­
ized to m onitor radio communications in the categories you identify in
your letter, when such m onitoring is reasonably necessary if N T IA is to
perform its functions under 47 U.S.C. § 305(a) and 15 U.S.C. § 272(12)
& ( 13).
L arry A. H am m ond
D eputy Assistant Attorney General
Office o f Legal Counsel
8 T he statute partially exem pts “an officer, em ployee, or agent o f the Federal Com m unications
Commission, in the norm al course o f his em ploym ent and in discharge o f the m onitoring responsibil­
ities exercised by the C om m ission" from these prohibitions. 18 U.S.C. § 2511 (2)(b). As you know , we
previously concluded that this exem ption did not em brace em ployees o f N T fA ’s predecessor, O TP.
W e reasoned that w hen Congress enacted the Om nibus C rim e C ontrol A ct, it was aw are that certain
agencies had responsibility for governm ent com m unications corresponding to the Federal C om m unica­
tions C om m ission’s responsibilities for private com m unications; yet C ongress exem pted only the
Commission from T itle III. W e noted that the case law confirm ed this view. See, e.g.. United States v.
Sugden, 226 F.2d 281, 285 (9th Cir. 1955), a f f d per curiam. 351 U.S. 916 (1956). F o r these same
reasons, N T IA is not exem pted from the restrictions contained in T itle III. N o other exem ptions are
relevant.
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