implying a private cause of action for unauthorized publication of a telephone conversation in violation of 47 U.S.C.A. § 605
How later courts described this case
- implying a private cause of action for unauthorized publication of a telephone conversation in violation of 47 U.S.C.A. § 605
- 47 U.S.C. § 605, “publishing” a telephone message
- Section 605 of the Federal Communications Act, 47 U.S.C. § 605 imposes civil as well as criminal liability for “publishing” an intercepted telephone message
- “That the District Court had jurisdiction, if there was a civil right, is too plain for debate”
Written by the judges who cited it.
The opinion
CHASE, Circuit Judge
(concurring).
Because I do not believe that our decision in United States v. Polakoff, 2 Cir., 112 F.2d 888 has survived that of the Supreme Court in Goldman v. United States, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 , I do not think that Sec. 605 of Title 47 U.S.C.A., can now be given the meaning and scope then attributed to it. Accordingly I should affirm the judgment on the ground that no interception of the messages in violation of the statute was shown and, absent an unlawful interception, disclosure was not unlawful.
It seems to me that the opinion in the Goldman case makes it abundantly clear that, “The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation.” Page 133 of 316 U.S., page 995 of 62 S.Ct., 86 L.Ed. 1322. When this appellant sent the messages to the persons to whom he intended to talk in Louis Reit-meister’s office by means of the telephone connection to that office designated by a call number listed under Louis Reitmeister’s name the destination to which he sent them by the method he chose was one which included all telephone receivers in that office and when his messages were received, without previous diversion, at that destination the requirements of Sec. 605 were fulfilled. The protection covered the telephonic means by which the messages were carried in the form of electrical impulses to destination from the instant they started until the instant they arrived there and were reproduced by the receivers into audible messages. That was the method employed by the sender to carry his words beyond the reach of his voice unassisted and that method or means of com *698 munication was not interfered with in anyway. Thereafter the legal situation was the same as though he had himself been at the point of destination and there spoken without using any telephone at all.
That what was here done was not an interception of the messages within the meaning of the Communications Act seems to follow from-what was said in the Goldman case concerning the meaning of the term “intercept.” The language, found on page 134 of 316 U.S., on page 995 of 62 S.Ct., 86 L.Ed. 1322, is as follows: “As has rightly ‘been he.ld, this word indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.” At this point United States v. Yee Ping Jong, D.C., 26 F.Supp. 69, 70, a case we had declined to follow in our Polakoff decision, was cited in a footnote to show where the above had been rightly decided. And the instant case is, perhaps, even stronger against interception than that one for in it the receiving station was made a multiple outlet especially for the purpose of “recording” the message; while here the regularly installed telephone apparatus was not changed in any way. It is true that the facts in the Goldman case’ differ from those in the instant case, but if more is needed to show that the construction there given the statute is applicable here it is found in the sentence in that opinion immediately following the last above quotation from it. “The listening in the next room to the words of Shulman as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the Act, than would have been the overhearing of the conversation by one sitting in the same room.”
The “overhearing” by the recording instrument in the appellee’s office was no more the interception of a wire communication than the overhearing of the messages by a person at that place would have been. Because these messages ceased to be wire communications within the meaning of the statute as soon as they became audible at the receiving station called, the Communications Act did not thereafter apply to make their preservation an unlawful interception or their use an unlawful disclosure.