Hanna v. United States/Dissent Fortas

by Abe Fortas

United States Supreme Court

394 U.S. 1015

Hanna  v.  United States

Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS joins, dissenting.

The recording instrument was used for about three weeks. The FBI was then informed of the recordings, and the recordings were turned over to a grand jury in response to a subpoena. Using the recorded information, the FBI obtained a warrant and conducted a search of petitioner's home.

Section 605 of the Federal Communications Act, 47 U.S.C. § 605, prohibits the interception and divulgence of telephone messages. ^[1] It is argued-and the Fifth Circuit held-that the information was not unlawfully obtained because § 605 excludes from its prohibitions certain divulging of telephone messages by '[a] person * * * transmitting, or assisting in transmitting' conversations.

In a similar case, Bubis v. United States, 384 F.2d 643 (C.A. 9th Cir.1967), the Ninth Circuit held that under § 605 the telephone company was not allowed to continue tapping its subscribers' lines to detect fraud 'after ample evidence had been secured of the illegal use of the company's facilities.' 384 F.2d, at 648. The tap in Bubis recorded the whole conversation and not merely the first part, but an essential fact-that the interception was more extensive than necessary to detect fraud-is the same in both cases.

I would grant certiorari in this case to resolve the area of conflict between circuits and to determine whether § 605 permits the telephone company to intercept and divulge personal communications which are used in the expectation of freedom from 'the uninvited ear.' Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). ^[2]

Notes

1. This tap was installed without a trespass, but if placed by law enforcement officers, it would clearly have violated the protections of the Fourth Amendment, as defined by this Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The tap was, however, installed before the decision in Katz was announced. This Court has determined that it will not consider the constitutionality of non-trespassory invasions which took place prior to Katz. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969). Accordingly, I consider only statutory questions here.
2. The Government argues that the applicability of § 605 to events such as this is now of only academic interest because of the recent reactment of § 802 of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197,2 13-224, 18 U.S.C. § 2511(2)(a). That argument is untenable. The new statute declares:

'It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.'

It is by no means clear that the new statute would authorize this kind of conduct if a similar case occurred today. Unless it did, § 605 would still apply and the same problems that exist in this case would arise again.