U.S. Supreme Court NARDONE v. UNITED STATES, 302 U.S. 379 (1937)

[Page 302 U.S. 379, 382]

acting the provisions of the Radio Act of 19274 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 section 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 wire-tapping 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. 379, 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 section 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. 8

[Page 302 U.S. 379, 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 wire-tapping 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. 379, 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. Footnotes

Footnote 1 Chapter 652, 48 Stat. 1064, 1103, U.S.C. Tit. 47, 605 (47 U.S.C.A . 605).

Footnote 2 90 F.2d 630. See, also, Smith v. United States (App.D.C.) 91 F.2d 556.

Footnote 3 Chapter 652, 48 Stat. 1064, 1100, U.S.C. Tit. 47, 501 (47 U.S.C.A . 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, 239; United States v. Herron, 20 Wall. 251, 263; United States v. American Bell Telephone Co., 159 U.S. 548, 554, 16 S.Ct. 69; United States v. Stevenson, 215 U.S. 190, 197, 30 S.Ct. 35; Title Guaranty & Surety Co. v. Guarantee Title & Trust Co. (C.C. A.) 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, Fed.Cas. No. 15,373, 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, 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, 184, 55 S.Ct. 666, 669. Compare Stanley v. Schwalby, 147 U.S. 508, 515, 13 S.Ct. 418; Donnelley v. United States, 276 U.S. 505, 511, 48 S.Ct. 400, 401.

Footnote 9 Balthasar v. Pacific El. Ry. Co., 187 Cal. 302, 202 P. 37, 19 A.L.R. 452; State v. Gorham, 110 Wash. 330, 188 P. 457, 9 A.L.R. 365.

Footnote 10 United States v. Knight, 14 Pet. 301, 315; United States v. Herron, 20 Wall. 251, 263; Black on Interpretation of Laws (2d Ed.) 97.