Oregon Advisory Opinions January 01, 1955: OP 2912

Advisory Opinion Text

Wire-tapping is not a crime in Oregon; evidence obtained by wire-tapping is admissible in criminal proceedings.

No. 2912 January 6, 1955 Honorable Don Husband State Senator

You have requested my opinion on the admissibility of evidence obtained through wire-tapping by law enforce­ment officers in a criminal proceeding.

Modern law of wire-tapping is re­corded as beginning with the decision of the supreme court in Olmstead v. United States, (1928) 277 U.S. 438, that wire-tapping is not an unconstitutional search or seizure and the use in criminal trials in a federal court of evidence ob­tained by wire-tapping is not a violation of either the Fourth or Fifth Amendment of the United States Constitution. Since that time Congress enacted the so-called wire-tap law in Sec. 605 of the Federal Communications Act of 1934. (47 U.S. C.A. Sec. 605) This section provides that "No person not authorized by the sender shall inter­cept any communication and divulge or

publish the evidence, contents, substance, purport, effect or meaning of such inter­cepted communication to any person."

The federal wire-tapping decisions were arrived at under the provisions of Sec. 605. Nardone v. United States, (1937) 302 U.S. 379; Nardone v. United States, 308 U.S. 338; Weiss v. United States, (1939) 308 U.S. 321.

There are, however, some significant restrictions on the prohibition in Sec. 605 with regard to the exclusionary rule in the states.

In the absence of any specific congres­sional expression to the contrary, Sec. 605 was construed as not requiring the ex­clusion of wire-tap evidence in the state courts. Schwartz v. Texas, (1952) 344 U.S. 199. Immediately after this decision Texas amended its statute to make in­admissible evidence obtained in violation of the laws of the United States. See Vernon's Texas Ann. C. C. P., Art. 727a. The court in the Schwartz case did not intimate that the power of Congress would not extend to an inclusion of such prohibition in carrying out its functions of regulating the national system of com­munications if there were a clear expres­sion of intent to do so.

Thus the United States Supreme Court has affirmed what had been the ruling in a number of states even prior to Schwartz v. Texas, supra. Both the Maryland and California Supreme Courts ruled that Sec. 605 is intended to regulate the activities of officers and courts of the Federal Government and not the states and that therefore the admission of wire-tapped evidence in state crim­inal proceedings is not prohibited. Rowan v. State, (Md.), 3 A. (2d) 753; Leon v. State, (Md.), 23 A. (2d) 706, cert. den. in Neal v. Maryland, 316 U.S. 680; People v. Kelley, (Cal.), 137 P. (2d) 1, app. dis­missed, 320 U.S. 715; People v. Onofrio, 151 P. (2d) 158.

There is, however, additional persua­sive evidence supporting the position that Sec. 605 simply does not apply to state law enforcement officers. As indicated, infra, in this opinion, there are at least seven states where wire-tapping by law enforcement officials is authorized either by statute or by a statutorily issued court order. None of these statutes have been challenged as being in conflict with Sec. 605. It is therefore my opinion that Sec. 605 of the Federal Communications Code places no restriction upon state law enforce­ment officers.

In Oregon two statutes may be con­sidered as having a bearing upon the question of legality of wire-tapping. ORS 164.510, aimed at interference with and unlawful obstruction of the telephone service or injury to telephone and tele­graph wires, is discussed infra in this opinion. ORS 165.510 relates only to telegraph wires and messages. The stat­ute was originally enacted in 1862 and has not been amended since. It prohibits the learning of the contents of a tele­graphic message but could not possibly apply to interference with telephonic messages because the telephone had not been invented in 1862. ORS 165.510 is a criminal statute. It is unambiguous in its terms and not susceptible to judicial interpretation. While it is true that in Oregon penal statutes are construed ac­cording to the fair import of their terms with a view to effect their objects and promote justice, ORS 165.510 is not sus­ceptible of two constructions and there­fore an omission can obviously not be supplied by judicial interpretation. See ORS 161.050. A criminal statute does not allow enlargement by construction nor extension by implication. Kirk v. Far­mers Union Grain Agency, 103 Or. 43; State v. Moore, 192 Or. 39. Finally, it is not a rule of evidence but a statute protecting private property.

It is my conclusion therefore that there is no state statute which prohibits wire­tapping in the State of Oregon nor does Sec. 605 of the Federal Communications Act apply to state law enforcement officers. Adding thereto the fact that wire-tap­ping is not an unreasonable search or seizure according to the rule of the Olm-stead case, supra, we may now ask the question whether or not in a state crim­inal proceeding wire-tapped evidence may be used to obtain a conviction.

In early decisions of our supreme court the common-law rule on admissibility of evidence obtained by illegal search or seizure was followed. In State v. Ware, 79 Or. 367, 373, the court stated "What­ever may be the rule in the federal courts, it has been repeatedly held in state courts that evidence thus obtained is not thereby rendered inadmissible." Language which might imply a critical attitude on the part of the court of the strict common-law rule may be found in State v. Laundy, 103 Or. 443, 494. The court reaffirmed the general rule an­nounced in State v. Ware some years afterwards in State v. Goldstein, 111 Or. 221, 225. In State v. McDaniel, 115 Or. 187, 243, the court refused to rule on whether or not evidence illegally ob­tained is admissible where timely appli­cation had been made to suppress the same. The decision concludes that the search had been legal which obviated a decision on that point. Finally, in State v. La Plant, 149 Or. 615, a conviction of robbery was upheld even though it ap­peared that part of the evidence had been obtained by an illegal search or seizure. The court ruled that at most the evidence which was illegally obtained was merely

cumulative. The conviction was upheld since there was sufficient evidence otherwise. There has been some specula­tion concerning the position of the Su­preme Court of the State of Oregon if it were squarely faced with the question of whether or not illegally obtained evi­dence is admissible. I do not believe that it is necessary for the purposes of this opinion to answer that question— at least not until such time as the legis­lature sees fit to enact a statute pro­hibiting wire-tapping.

It has been established that wire­tapping is neither an illegal nor uncon­stitutional search or seizure. It has also been explained that no violation of Sec. 605 of the Federal Communications Act is in­volved.

It is therefore my opinion that evi­dence obtained through wire-tapping by law enforcement officers of the state is admissible in criminal proceedings in Oregon.

You have also asked my opinion whether or not probable cause exists that the provisions of ORS 164.510 have been violated because city and state law enforcement officers have intercepted telephonic conversations between a per­son who has been indicted of a crime involving sexual misconduct with minor children and his intended victims. The applicable provisions of that section read as follows:

"Any person who . . . wilfully arranges telephone or telegraph wires so as to interfere with their efficiency, or wilfully obstructs in any manner the service of any such telephone or telegraph wires, shall be punished. . . ."

The Oregon statute is in many respects a typical example of general legislative action to protect public utilities from in­jury. A considerable number of states have similar malicious mischief statutes which do not contain a specific prohibi­tion against wire-tapping or the inter­ception of messages but generally pro­vide a penalty for inflicting injury to telephone wires or interfering with or obstructing telephone service. See for instance Ga. Code (1936) Sec.26-8114; Ind. Stat. Ann. Sec. 10-4518; Me. Rev. Stat. (1944) ch. 118, Sec. 16; Md. Ann. Code, Art. 27, Sec. 628; Minn. Stat. Ann., Sec. 621.28 (6); Mo. Ann. Stat., Sec. 560.310; N.H. Rev. Laws (1942) ch. 442, Sec.3; Miss. Code Ann. (1942) Sec. 2381; R. I. Gen. Laws (1938), ch. 608, Sec.73; Vt. Stat. (1947), Sec. 9725; W. Va. Code (1949), Sec. 5970; S. C. Code (1952), Sec.58-316; Tex. Penal Code, Art. 1334.

In a large number of states you will find a general statute prohibiting injury to public utilities similar to those cited above in addition to a specific prohibi­tion against wire-tapping; in some of the states one or more statutes are in effect which prohibit wire-tapping and also regulate the use or disclosure of informa­tion so obtained. Most of the state legis­latures recognized that the general utilities injury statute was not intended to cover the wire-tapping situation and therefore enacted supplemental legisla­tion specifically prohibiting wire-tapping and disclosure of intercepted messages. For a list of these states see the Wire-Tapping Problem, 52 Columbia Law Re­view 165, 181. In a few of the states wire-tapping is prohibited, but divul-gence of wire-tapped information may be made on proper court order. Cal. Penal Code, Sec. 619; Ariz. Code, Sec. 43-5405; Mont. Rev. Code (1947), Sec. 94-35-220; Okla. Stat. Ann., Title 21, Sec. 1782; and of course N. Y. Code of Criminal Procedure, Sec. 813-A. In Masschusetts and Louisiana law enforcement officials are specifically authorized to wire-tap and may do so without court order. Mass. G. L. c. 272 Sec. 99; La. Rev. Stat. Sec. 14:322.

It is important to keep in mind the history of this legislation. ORS 164.510, for instance, was originally enacted as a general malicious mischief statute cover­ing public utilities. It was amended by chapter 204, Oregon Laws 1917, to in­clude injury, interference with and ob­struction to telephone wires. At that time wire-tapping was practically un­known. During the prohibition years considerable criticism was leveled against wire-tapping as practiced by the federal authorities. In 1934, when wire­tapping in connection with spying by management on the unions had become quite prevalent, general complaint went up from the ranks of labor. During that year Sec. 605 of the Federal Communica­tions Act became law. (47 U.S.C.A. Sec. 605) As a practical matter, it would be al­most impossible to prove that wire­tapping, when done expertly, will in any way obstruct or injure telephone equip­ment or will interfere with the telephone service. Mr. Ralph E. Mooney of the information department of the American Telephone and Telegraph Company in a letter dated January 22, 1951, and cited in 52 Columbia Law Review 198, states that "no mechanical device can be de­pended upon to determine whether a telephone line has been tapped." The author of the article also indicates that some attempts were made prior to the modern wire-tapping era to prosecute wire-tappers under the general injury statutes such as ORS 164.510. In all cases reported the defendant was a pri­vate citizen who had wire-tapped for private benefit or purpose. No case has been reported in which a law enforce­ment officer has ever been prosecuted for wire-tapping. In all of the reported

cases the courts refused to apply the statute since the methods of wire-tapping involved neither damage to the wires physically nor caused any interference with the telephone service to the clients of the company. The Washington Su­preme Court in State v. Nordskog, 136 P. 694, struck down the conviction of the defendant and used the following rather strong language:

"Upon some theory not entirely clear to us, the court held that the act complained of was a 'damaging' within the meaning of the stat­ute. It is our judgment that the law will bear no such interpretation. It is a cardinal prin­ciple of statutory construction that the first consideration in the interpretation of ques­tioned statutes is to inquire as to the object of the law. The statute here involved is a part of the Criminal Code and is found under the subtitle 'Injuring Public Utilities,' and its purpose, standing alone and compared with other subsections, is unquestionably to pre­serve the efficiency of the public utilities of the state. To offend against it there must be such physical invasion of the quasi public property as to destroy the property or so injure it that it will not meet the ordinary tests of efficiency. In the instant case the property of the telephone company was not 'removed' or 'destroyed.' Its use was in no way impaired; its business was in no way interrupted. It is not complaining. To hold under this state of facts that the mere attach­ment of two thread-like wires is a damage would be to overrule the legislative intent by the most strained sort of judicial construc­tion."

In Young v. Young, (R.I.) 185 A. 901, the court approved the admissibility of evidence obtained by clamping a radio headphone onto the telephone wires of the testatrix of the probate proceeding stating that "No part of the wire was damaged or destroyed; the free transmis­sion of the message was preserved, and the communication itself was not diverted or distorted . . ." hence no crime had been committed. See also Southwestern Telephone and Telegraph Company v. Priest, (Texas) 72 S. W. 241.

None of the currently practiced meth­ods of wire-tapping, if used expertly, will in any way impair or interfere with the telephone wires or service. The en­tire purpose of wire-tapping would be defeated if it resulted in interference with the service; the tapped line can pro­duce useful information only if the listener has full and unimpaired access to the telephone conversation. The most popular method of wire-tapping now is the coil induction system which does not require any physical connection with the telephone equipment. However, where access to the switchboard terminals or the individual box to the telephone sub­scriber is available and accessible, a tap can be made by clamping a receiver transmitter onto the terminals or by making the connection at the individual box without cutting, scraping, splicing or in any way harming the telephone wire itself. The Pacific Telephone and Telegraph Company and all other sub­sidiaries of the Bell Telephone System equip their employes with wire-tapping devices used for the purpose of testing and detecting deficiencies in service. Anyone who has ever spoken to a tele­phone technician of the companies will know that wire-tapping does not as a matter of course result in either injury to the equipment or interference with the service.

In the Nordskog case, cited supra, the Pacific Telephone and Telegraph Com­pany indicated that its equipment was not being interfered with or that it was damaged by the making of the tap. You must remember too that the Nordskog case dates back to 1913 and modern methods of tapping are even more expert and less susceptible to detection than ever before. In this connection your attention is also called to People v. Appelbaum, (N. Y.) 95 N.E. (2d) 410, in which the court rejected the idea that the telephone companies could by approval or disapproval of the practice of wire­tapping either legalize or make criminal acts within the scope of the New York Statute.

By the same token, ORS 164.510 must be construed by a court of law and can­not be expanded by the telephone com­pany to include wire-tapping.

It is therefore my opinion that ORS 164.510, violation of which is conditioned upon injury to or interference with the physical telephone equipment, was not intended to support a prosecution for wire-tapping, particularly so when the tap or interception was undertaken by law enforcement officers for the express purpose of obtaining evidence against a person suspected of having committed a felony. This conclusion is made on the assumption that the wire-tapping was performed in such a manner as not to result in injury or obstruction to the telephone equipment or in interference with the telephone service.

While the interception of messages is undoubtedly an invasion of the right of privacy and a civil remedy for damages may be available, wire-tapping is not a criminal act in Oregon. To rectify this situation the matter should be brought to the attention of the legislature, but it cannot be corrected by expanding, liberalizing or placing a strained con­struction upon existing legislation.

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