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Rathbun v. United States, 355 U.S. 107 (1958)
Rathbun v. United States, 355 U.S. 107 (1958)
107
78 S.Ct. 161
2 L.Ed.2d 134
Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, determined that
information obtained and divulged by state agents in violation of Section 605 of
the Federal Communications Act2 is inadmissible in federal court. The
pertinent portion of Section 605 states:
'* * * 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 *
* *.'
Since there was a divulgence of the contents of a communication, the only issue
on the facts before us is whether there has been an unauthorized interception
within the meaning of Section 605.3 The federal courts have split in their
determination of this question. Some courts have held that the statute proscribes
the use of an extension telephone to allow someone to overhear a conversation
without the consent of both parties.4 Others have concluded that the statute is
inapplicable where one party has consented.5 We hold that Section 605 was not
violated in the case before us because there has been no 'interception' as
Congress intended that the word be used. Every statute must be interpreted in
the light of reason and common understanding to reach the results intended by
the legislature. Cf. Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct.
511, 36 L.Ed. 226; American Security & Trust Co. v. Commissioners, 224 U.S.
491, 32 S.Ct. 553, 56 L.Ed. 856. That principle would be violated if we
attributed to Congress acceptance of the results that would occur here from the
position argued by petitioner.
The telephone extension is a widely used instrument of home and office,6 yet
with nothing to evidence congressional intent, petitioner argues that Congress
meant to place a severe restriction on its ordinary use by subscribers, denying
them the right to allow a family member, an employee, a trusted friend, or even
the police to listen to a converation to which a subscriber is a party. Section 605
points to the opposite conclusion. Immediately following the portion quoted
above, the statute continues:
'* * * no person not being entitled thereto shall receive or assist in receiving any
interstate or foreign communication by wire or radio and use the same or any
information therein contained for his own benefit or for the benefit of another
not entitled thereto * * *.'
The clear inference is that one entitled to receive the communication may use it
for his own benefit or have another use it for him. The communication itself is
not privileged, and one party may not force the other to secrecy merely by
using a telephone. It has been conceded by those who believe the conduct here
violates Section 605 that either party may record the conversation and publish
it.7 The conduct of the party would differ in no way if instead of repeating the
message he held out his handset so that another could hear out of it. We see no
distinction between that sort of action and permitting an outsider to use an
extension telephone for the same purpose.
The error in accepting petitioner's argument is brought into sharper focus by the
fact that Section 605 is penal in nature, the first violation being punishable by a
fine of not more than $10,000 or by imprisonment for a term not exceeding one
year, or both.8 For example, it follows from petitioner's argument that every
secretary who listens to a business conversation at her employer's direction in
order to record it would be marked as a potential federal criminal. It is
unreasonable to believe that Congress meant to extend criminal liability to
conduct which is wholly innocent and ordinary.
10
Affirmed.
11
12
Although this Court had, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct.
564, 72 L.Ed. 944, decided that neither the Fourth Amendment nor the general
judicial principles governing over criminal trials in United States courts barred
evidence obtained through interception of telephone communications by lawenforcing officers without the consent of the sender, the Congress a few years
later provided that
13
'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 *
* *.' 605, Federal Communications Act of June 19, 1934, 48 Stat. 1064, 1104,
47 U.S.C. 605, 47 U.S.C.A. 605.
14
If the judicial attitude that lies behind the phrase 'strict construction of a
statute', i.e., in favor of an accused, can have an emphatic illustration, it is
found in the two Nardone cases, in which the quoted provision of 605 was
first given effect by this Court. We there held that the implications of that
section bar even the most relevant and persuasive evidence obtained, without a
sender's authorization, through interception by law officers, and likewise bar
independently secured evidence obtained as a result of leads afforded by such
interception. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed.
314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. 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 page 385, 58
S.Ct. at page 278. 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 page 382, 58 S.Ct. at page 276.
15
16
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,
18
the overheard conversation when they testified in court. Cf. Benanti v. United
States, 355 U.S. 96, 78 S.Ct. 155.
4
United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607; James v.
United States, 89 U.S.App.D.C. 201, 191 F.2d 472; United States v. Hill, D.C.,
149 F.Supp. 83; see Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691.
United States v. White, 7 Cir., 228 F.2d 832; Flanders v. United States, 6 Cir.,
222 F.2d 163; United States v. Sullivan, D.C., 116 F.Supp. 480, affirmed, 95
U.S.App.D.C. 78, 219 F.2d 760; United States v. Lewis, D.C., 87 F.Supp. 970,
reversed on other grounds, Billeci v. United States, 87 U.S.App.D.C. 274, 184
F.2d 394, 24 A.L.R.2d 881; cf. Rayson v. United States, 9 Cir., 238 F.2d 160;
United States v. Bookie, 7 Cir., 229 F.2d 130; United States v. Pierce, D.C.,
124 F.Supp. 264, affirmed, 6 Cir., 224 F.2d 281.
For example, in 1934 the Bell Telephone System, including affiliates, had
1,315,000 extension telephones ou of a total of 13,378,000. In 1956 the System
had 8,465,000 extension telephones out of a total of 50,990,000. Exhibit 1364
of the Federal Communications Commission Special Telephone Investigation;
Federal Communications Commission, 'Statistics of the Communications
Industry in the United States for the year ended December 31, 1956.'