*1 STATES. UNITED al. NARDONE et 20, 1937. December Argued November 1937. Decided No. Louis Halle and Messrs. Thomas Gallagher, O’Rourke *2 Joseph with whom Mr. P. Nolan was on the brief, petitioners. Barron, whom

Mr. William W. Solicitor General Reed, Attorney McMahon, and Assistant General Messrs. Smith, Reddan, John and T. M. W. Marvin Bates Booth brief, were on the for the United States. opinion delivered the of the Justice Roberts

Mr. Court. importance question involved, whether, —

view of the provisions §of 605 of the Communications 1934,1 Act of procured evidence a federal officer’s by tapping telephone messages wires and ad- intercepting missible in a trial criminal a United States District Court, grant us to the writ of certiorari. —moved

The indictment under which the were petitioners tried, sentenced, convicted, charged, separate counts, and alcohol, smuggling possession and concealment of smuggled alcohol, conspiracy smuggle and and con- ceal petitioners’ objection it. Over the and exception agents federal testified to the substance in- petitioners’ by terstate communications overheard witnesses who had intercepted messages by tapping telephone wires. though The court it below, found this evidence consti- part prosecution’s tuted such a vital proof that its admission, erroneous, amounted to reversible error, held admitted and affirmed properly judgment was conviction.2

Section 605 the Federal' Communications Act pro- who, an person employe, vides that no has to do with sending receiving any or interstate communication 1 1064, 1103; Ch. C. Tit. Stat. 605. § (2d) (2d) 90 F. 630. also See Smith v. United 91 F. it or its substance or divulge publish shall by wire repre- authorized than the addressee or his other anyone in re- fellow save employes, or to authorized sentative competent court of by issued subpoena sponse authority; other lawful demand of on jurisdiction by the sender shall inter- being authorized person “no the ex- divulge publish communication cept meaning effect or substance, purport, contents, istence, . . .” any person; communication intercepted of such knowing violation wilful penalizes Section imprisonment. fine and phrase person” compre- “no at face value the

Taken and the ban on communication agents, hends *3 an inter- to the content of testimony bars “any person” the is section application Such an message. cepted inter- concerning of the clause by comparison supported known to em- to those messages relating cepted may divulged not be carrier. The former ployes in to divulged be answer may the latter to person, subpoena. a lawful did intend Congress not contends that

The procure wires to evidence. tapping prohibit to in court, Olmstead v. this said that at law admissible common 438, held such evidence wire-tapping a state statute made fact that the despite proceeds that since the Olm argument and the crime; a government, departments of the decision stead extent, knowledge Congress, have, to a limited with the in aid of agents tap their to wires detection permitted shown that, spite criminals. It is and conviction of from the refrained knowledge practice, of its outlawing it, although bills, so pro legislation adopting Act, introduced. The Communications been viding, have reen only for purpose the claimed, passed was it is so 1064, 1100, Tit. U. C. 48 Stat. S. 3 Ch. § of the Radio Act acting provisions of 19274 so as the to wire applicable messages it to make to transfer radio and wire jurisdiction over communications to the Federal Communications newly Commission, constituted phraseology ought the of the statute therefore changing practically the identical pro be construed as subject a part the which was of the Radio on Act vision decided. the Olmstead case was when the fact that plain face the We nevertheless words of by authorized anyone, sender, 605 forbid unless § message, intercept equally direct that “no shall language person” divulge clear or pub- message “any or its substance to person.” lish To message in testimony recite the contents before divulge message. is to court conclusion that testimony forbids such the act seems us unshaken arguments. government’s that after this court’s True decision the Olm- case Congressional investigated stead committees agents. activities of federal wire-tapping Over a period years bills were introduced of several prohibit prac- all which An tice, pass. failed Act of 1933 included forbidding a clause this method of procuring evidence of violations of the National Prohibition Act.5 During 1934, however, 1933 and there was no discussion of *4 in Congress, the matter and we are without contemporary legislative history relevant to the passage of the stat- question. ute in It also is true that the committee re- in connection with the ports Federal Communications Act upon dwell the fact that the major purpose legis- of the jurisdiction lation was the transfer of over wire and radio communication to the newly constituted Federal Com- munications Commission. But these are, circumstances 23, 1927, 169,

4 Act of Feb. c. 44 Stat. 1162. 5Department Appropriation of Justice Act of March 1, 1933, 47 1381. Stat.

383 mandate plain to overbear the in our insufficient opinion, the statute. the section urged given is that a construction be agents improbable since is which would exclude the activities hamper impede intended to government punishment in the detection and is one of question policy. crime. The answer that the Congress may thought have it less that some important than that go unwhipped justice offenders should offi- should resort to methods inconsistent with cers deemed liberty. ethical standards and destructive of personal same may The considerations well have moved the Con- to adopt 605 as gress guaranty against prac- § evoked the procedures tices and violative of embodied privacy, Fourth and Fifth Amendments of the Constitution.

The canon that general words a statute do not government include the or rights affect its unless the construction be clear indisputable upon the text of act not aid the respondent. does cases which it has been fall applied into two classes. The first is an act, if so limited, where deprive would the sov ereign recognized of a prerogative established title or A interest.6 classical instance is exemption of the from the state operation statutes of limitation.7 The rule of of the exclusion sovereign less stringently applied operation where the upon law is agents or servants rather than on the sov ereign itself.8 6 Savings Dollar Bank United 239; 19 Wall. United Herron, 251, 263;

States v. 20 Wall. United States v. American Bell Telephone Co., 548, 554; 159 U. S. United v. Stevenson, States 190, 197; Guaranty Surety Title & Co. v. Guarantee Title & Co., 385, 388; Trust 174 Fed. Maxwell, Interpretation of Statutes (7th ed.) 121; Interpretation Black on (2d ed.) of Laws Hoar, States v. Mason 314-315. [against any prohibitions “The form except specified of action , , any, in the express implied either statute] others, are . *5 384 im- where officers are class, public

The second —that persons,— all language embracing from excluded pliedly would reading a would include such officers is which where as, for the absurdity example, application work obvious or a to a criminal policeman pursuing of law speed responding a fire to an alarm.9 engine the of driver raged the controversy respect has to years For to practice by of officers morality wire-tapping the many It has been view of that obtain evidence. wrong. In cir- practice grave light involves these think recognized we another well principle cumstances it is so application leads to the of the statute as written as include within its officers well as sweep federal sovereign That is principle others. is embraced by general prevent injury words a statute intended wrong.10 government. They may obligatory be on for the tax collectors. They any agents.” may prevent law such Dollar suit at officers States, Savings 227, provisions United 19 Wall. “These Bank v. 239. unmistakably part of disclose definite intention on the safeguard navigable against effectively rivers and other waters dams erection or other structures unauthorized therein so purpose plaintiff maintains that the restrictions whatsoever. The only by private parties. But no imposed apply to work undertaken implied. expressed, opinion are of that none we such intention prescribed rule adopted for the enforcement measures purport applicable be to all. No valid are in terms and they suggested why apply should reason has been can be officers. There is no private persons state and not to disciplinary regulatory and measures do not extend presumption that language pur Taken face value indicates officersi at to such employees govern officers and pose Congress to conduct its own Arizona, 174, 295 v. of others.” United States as well as that 515; Donnelley Stanley Schwalby, 508, v. 147 S. Compare U. 184. v. 511. 276 U. S. 9 Cal. 302; 37; Ry. Co., 202 Pac. Electric Balthasar v. Pacific 330; Pac. 457. Gorham, 110 Wash. v. State 315; Knight, Pet. v. United States United States ed.) (2d Interpretation Laws 263; Black on Herron, 20 Wall. *6 The judgment must be reversed re- cause manded to the District Court further in proceedings conformity with opinion. this

Reversed. Sutherland, Justice dissenting. Mr.

I think the “person” word in used this statute does not include an officer of the federal government, actually en- gaged in the detection of crime and the of enforcement the criminal of statutes the United States, good who has reason to believe a telephone that being, is about to be, an used as aid to the commission or concealment of a just crime. The decision will made necessarily have the effect of enabling depraved the most criminals to further their plans criminal over the in telephone, the secure knowledge that even these plans involve kidnapping and murder, their can conversations never be intercepted by officers the law and revealed in court. If Congress thus intended to tie hands of the govern- in ment effort to protect against its the people lawlessness character, the most serious it would a have said so in way ambiguous more definite than the use of the word “person.” Welosky, Commonwealth v. Mass. 177 N. E. 656. For that word 403-404, 406; has some- to include the its times been construed I sometimes not. am aware of case officials, and that inclusive effect a given where it has been situa- Obviously, here. tion such as we have the situation dealt Arizona, 295 U. S. quite with in States was a federal statute forbade construc- There, different. in any “until any bridge, etc., port, etc., tion of the con- . . shall have been obtained.” The sent . building designated structure, the absence mere consent, the statute. was violated There congressional here, anything as wé have term, such else ambiguous no language, requiring construction. in the between the case of manifest difference

There is a mo message from intercepts individual who private and that curiosity personal ends, or to further tives duty governmental official responsible engaged aof bringing justice. uncovering crime criminals here “person” the word fair to conclude not the lat intended to include the former but used was with the rule stated This accords well-settled ter. *7 Hoar, Story United States Mason by Justice “In 330: of the 314-315; general, 26 Fed. Cas. acts to and direct the acts and legislature regulate are meant ap and the citizens; reasoning of most cases rights very often applies different, to them with plicable and to itself. contrary appears to the force be founded in therefore, principles a safe rule the me, that law, of the common the words of statute rights, the government, not to include affect its ought upon clear and indisputable unless that construction be In the text of act.” And see Matter Will the the Gorham, 110 Fox, Y. State v. Compare 52 N. Ry. 457; Wash. 188 Pac. Balthasar v. Electric 330; Pacific Co., 37. A in point case 302, 305-308; Cal. Pac. Ct. 96 Misc. People (Sup. Y.), is that of v. Hebberd N. 162 N. S. 80. 617, 620-621; Y. committees, investigations congressional

In the it court, to in the that opinion appeared referred that General had no Attorney tapping the ordered the permitted personal wires should be without direction after the bureau, of the chief of consultation with Attorney charge General case; and Assistant only means were to adopted emergency that such be as an Attorney General himself appeared method. The before pointed the committees and out that crime had be- one of highly organized, strong political come connections illegal procedure; methods of that and des- gangsters criminals perate equipped every had themselves with invention; modern that gang- convenience modern regard life, property, decency sters have no or any- and he no thing else; they doubt that tapped had wires of the United to offices States find leading attorneys to what was being out done. He cited the of a case Bureau of Investigation agent who had been found shot death under circumstances which indicated that gang of narcotic traffickers him; had murdered and he posed question whether, appeared had that the perpe- trators of crime could be detected and brought justice by tapping their wires, nevertheless, that be ought done.

The answer of Congress question to the has been a pass any refusal to of the bills which comprehensively pro- posed forbid the practice.

My abhorrence of the odious practices of the town gossip, Peeping Tom, and the private eavesdropper is as quite strong any my brethren. But to put the sworn officers of law, engaged in the detec- apprehension of organized tion gangs of criminals, *8 category, in the same is to all lose sense of proportion. In safeguards against view of power abuse of furnished Attorney General, order and in light deadly constantly conflict being waged between the of law and order the desperate forces criminals who we land, may infest the well pause to consider whether application the rule which forbids an invasion of privacy communications is not being present point in the case to a carried where the necessity public protection against crime being submerged by sentimentality. overflow of an judgment

I think the below should be affirmed. McReynolds joins opinion. this Mr. Justice