(concurring):
I am perfectly willing to accept the notion that Section 605 has no application to a self-contained military switchboard.
II
For a long time it has seemed to me that there is a substantial component of Alice-in-Wonderland in certain of the decisions interpreting this Section. This aura of unreality, a faintly disembodied air — occasionally found as well in other difficult juristic situations —is doubtless the product of unlikelihood that the Congress, in adopting the Communications Act, gave much, if any, thought to the problem of wire tapping. At least, this has always been an article of my faith — and it has nothing at all to do with what the law of the problem should be.
Against this backdrop of fantasy in the interpretation of Section 605,1 have little reluctance to accept the Chief Judge’s view that Congress meant to exclude military communications systems from the proscription against wire tapping by law enforcement agencies. In my view, Congress purposed that exception fully as much as it intended the ban itself. However, in more specific support of the rationale of the principal opinion, 1 observe that special safeguards are supplied in the Criminal Code for communication lines, stations, or systems “operated or controlled by the United States.” 18 USC § 1362. Since military communications fall safely within this individualized coverage, it can be argued more cogently, I think, that the legislature intended to permit measures — including even wire tapping perhaps — which are necessary to maintain these communications in proper functioning condition.
It is undeniable that rights more fundamental than any against wire tapping have given way to public necessity. For instance, the privilege against self-incrimination — which certainly exists as to private papers — cannot be maintained in full degree as to “records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established.” See, e.g., Shapiro v. United States, 335 US 1. Similarly, the public interest in some sorts of records and documents may lead to a relaxation of the normal restraints against intrusions on one’s privacy through searches and seizures by Federal. agents. Davis v. United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256. It is strange then to suppose that Congress granted the users of communication facilities operated by military authorities less freedom from telephone conversation monitoring than might be possessed by the subscriber to private facilities? How, in fact, without an exception of this nature, could the Government possibly see to it that its telephone facilities were not used for unauthorized — even dangerous— purposes, rather than for official ones?
Ill
Other interesting facets to the case are recognizable. For example, Section 605 of the Communications Act provides that no unauthorized person shall “intercept any communication and divulge or publish the existence, con*724tents, substance, purport, effect, or meaning of such intercepted communication to any person.” (Emphasis supplied.) The Department of Justice has long taken the position, I believe, that a violation of the Act requires more than interception alone. Of course, the conjunctive phrasing used supports this view. See Coplon v. United States, 191 F2d 749, 759 (CA DC Cir). So, too, do judicial interpretations of other Federal offenses- — such as misprision of felony — which are defined conjunctively. See 18 USC § 4.
To be sure, what shall be deemed to constitute “divulgenee” is not overly clear. Would it suffice that a wire tapper repeated to an associate the contents of a message, or included it within a report to his official superiors within the investigative agency involved? These questions I need not resolve, but it seems doubtful to me that the record of trial here reveals a divulgenee of even the “existence” of any sort of communication made by the accused — that is, one within the meaning of the Communications Act’s phrasing. Instead, there was here no more than an attempt— happily a successful one — by communications personnel to recognize a voice, and thereby to identify the telephone extension from which the obscene calls involved had emanated. These communications people declined consistently to relate the contents of that which had been said by the accused during his calls — with, apparently, a specific purpose to avoid divulgenee of the monitored communications. Granting ar-guendo that 47 USC § 605 is applicable to a military switchboard, I am in some doubt that the present case reveals a violation of that legislation.
IV
Another thing puzzles me mildly. Obscene language is not, I think, deemed entitled to the free speech protection of the First Amendment. It is, indeed, a subject of express prohibition in Chapter 71 of the Criminal Code. See 18 USC §§ 1461-64. Moreover, it would seem that the persons toward whom obscenities are directed through the medium of a telephone exchange are entitled to protection therefrom. Presumably the Congress did not intend to sacrifice their interests to a desire for privacy on the part of the promulgator of obscenity. Yet if telephone officials are not to be permitted— as in the present ease — to monitor their own circuits in some manner or other for the purpose of determining the origin of objectionable calls, I can conceive of no genuinely effective means by which the commission of this type of offense can be curtailed.
Indeed, this circumstance appeared to carry great weight at once with the law officer, the staff judge advocate, and the board of review — and I think properly so. They refused — without the most unmistakable mandate from Congress — to invalidate a measure regarded as necessary to escape a distinct burden on telephonic communications. The board of review noted that, “To hold otherwise would, in a similar but more serious setting, permit a person to terrorize a whole community with threats of violence or even death and remain beyond the reaches of the law to carry out his threats, or some of them, with only a remote possibility of detection.” It is familiar knowledge that scurrilous anonymous calls are frequently a nuisance today — especially those directed to persons of prominence or to ones who take controversial or unpopular positions. To say that Congress wished to prevent communications authorities and police officials from dealing with this public annoyance — perhaps menace — in the only feasible way is to impute to its members an intention which is scarcely probable.
Thus the necessities of the situation may serve to convince doubters that the result reached here by the Chief Judge is appropriate — regardless of whether his rationale be accepted.