302 U.S. 379 (1937), 190, Nardone v. United States
|Citation:||302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314|
|Party Name:||Nardone v. United States|
|Case Date:||December 20, 1937|
|Court:||United States Supreme Court|
Argued November 15, 1937
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT
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. 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. 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. 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. 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. 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.
ROBERTS, J., lead opinion
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 1934,1 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.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
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 5013 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
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 § 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.5 During 1932, 1933, and 1934, however, [58 S.Ct. 277] 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,
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...
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