(dissenting):
I dissent.
In United States v. Noce, 5 USCMA 715, 19 CMR 11, this day decided, I set out my views on the prin- ciples which I believe ought to govern our decisions in cases of intercepted communications. I deem it unnecessary to again republish those concepts. In general, I predicated my holding in that case on the provisions of the Code and the Manual which require us to follow the doctrine of the Federal civilian courts and I, therefore, look to them for precedents to govern this case.
It will be noted from the comments in the Chief Judge’s opinion that the Circuit Court of Appeals for the Second Circuit in United States v. Polakoff, 112 F2d 888 (1940), held that recordings of a telephone conversation were inadmissible. The point of interception in that instance was a telephone box located in the office of one of the parties to the conversation who had consented to the arrangement. As the Chief Judge correctly points out, some doubt has been cast on the rationale of that opinion by virtue of Judge Chase’s subsequent concurring remarks in Reitmeister v. Reitmeister, 162 F2d 691, 697, (CA 2d Cir 1947), in which he concludes the Supreme Court has overruled the PolakofE decision. However, his reasoning is not shared by other members of that Court as Judge Learned Hand took a contrary view and Judge Clark expressed no opinion on that phase of the controversy. In his decision, Judge Hand stated:
“. . . In United States v. Polakoff, the message was taken down at the receiver’s office in the same way as here, and we held that ‘publishing’ it was unlawful. We cannot find that the question has come up again in quite the same form, but the Supreme Court gave our decision at least a *758limited recognition in Goldstein v. United States, and unless Goldman v. United States, has overruled it, we shall accept it as a valid interpretation of the section. We think that Goldman’s case has not done so. The evidence in that case of what Shul-man, the sender, had said over a telephone had been recorded upon a ‘de-tectaphone’ set against a wall in an adjoining room. There was no doubt that the ‘detectaphone’ had ‘intercepted’ Shulman’s message as he spoke it into the receiver in the same sense that an eavesdropper would, who was hidden in a closet; but the court held that the section did not apply to such a situation. The message must be ‘intercepted’ by some mechanical interposition in the transmitting apparatus itself, for the message, though sent over the wire, is not immune from disclosure but only the interjection of an independent receiving device between the lips of the sender and the ear of the receiver. In the case at bar, Louis recorded the talks which passed along the transmitting wire by means of an instrument, interjected in that wire; and we cannot see why an existing lead off the main circuit was different from a ‘tap’ into the wire, made ad hoc.” [Page 694.]
The dispute between those Judges has never been reconciled by the Supreme Court as neither case was the subject of an opinion by that Court. However, because there has been no express overruling of its holdings or reasoning, I assume they will announce the law in the Second Circuit.
There is one other Circuit which has, in a general way, pointed out the direction it intends to follow if confronted with this form of interception. In Diamond v. United States, 108 F2d 859 (1938), the Circuit Court of Appeals, Sixth Circuit, dealt with the inadmissibility of evidence obtained by wire tapping. I assume from the statement of facts that the messages were intercepted within the meaning of Section 605 of the Communications Act. The case is, therefore, only helpful insofar as it expresses one limited concept. The principle for which I cite the case may be found in the following quotation:
“It seems to us that the privacy to be achieved by the mandate of the statute is the privacy of a conduit or instrumentality of interstate communication, though the same physical equipment may likewise be the means by which intrastate communications are made.”
The Federal district courts are in disagreement on the question of whether this form of interception violates the Communications Act, and the principal opinion makes reference to and quotes from the decisions of those tribunals which have been reported. District Judges McNamee, Holtzoff, and Gibson have taken the view that the attachment of a recording device to a telephone system in the office of the receiver or listening in on an extension line is not a prohibited act. On the other hand, Judge Pine has reached a contrary conclusion. See United States v. Pierce, 124 F Supp 264 (ND Ohio 1954); United States v. Sullivan, 116 F Supp 480 (DC 1953); United States v. Yee Ping Jong, 26 F Supp 69 (WD Pa 1939); and United States v. Stephenson, 121 F Supp 274 (DC 1954).
The Circuit Court of Appeals for the District of Columbia can, at this time, be catalogued with the Federal District Courts which hold that attaching a recording instrument or listening over an extension telephone would be a violation of the Act. There is no precise holding to that effect, but the wording in James v. United States, 191 F2d 472 (CA DC Cir) (1951), so indicates. In addition, in the recent case of Sullivan v. United States, 219 F2d 760 (CA DC Cir 1955), that Court went to the extent of reasoning that information obtained by listening over an extension telephone did not taint other evidence which was obtained independent from that learned by the eavesdropper. I doubt that that rationalization would have been necessary had the Judges believed the interception legal. While I cannot prophesy what that Court’s holding in a case identical to this might be, the language of the two opinions *759supports a conclusion that the evidence would be inadmissible.
In summary then, I conclude that one Circuit Court of Appeals supports my views, and two have used language which indicates a possible concurrence, while quantitatively the district courts have announced a contrary view.
Because of the uncertainty existing in the pronouncements of those courts, I might join my associates in their views if it were not for the language of the Supreme Court of the United States in Goldman v. United States, 316 US 129, 86 L ed 1322, 62 S Ct 993 (1942). From the language employed and the reasoning used by Mr. Justice Roberts in his opinion in that ease, which is supported by a majority of the Justices of that Court, I conclude there is a violation in this case. He finds there was no violation in that instance, but his reasoning illuminates the issue before us. He states as follows:
“The petitioners contend that a communication falls within the protection of the statute once a speaker has uttered words with the intent that they constitute a transmission of a telephone conversation. The validity of the contention must be tested by the terms of the Act fairly construed. So considered, there was' neither a ‘communication’ nor an ‘interception’ within the meaning of the Act. The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation. ...
“What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission.” [Emphasis supplied.]
I have purposely not finished the quotation as the remaining portion will be easier to apply to the facts of this case if my interpretation is first stated. As I understand the statements which I later quote, I interpret them to say that once the message enters the system at the point of the sender, to be carried over the wires, it becomes protected from publication by third parties if heard before it leaves the agency of transmission at the usual point of exit, namely, the receiver at the ear of the listener. For purposes of illustration, I liken the message to that of water which travels through a conduit. Until the water is actually within the pipe, it may be used by anyone and when it flows therefrom, it again becomes usable. However, there is but one point of discharge and that is through the valve which is installed for that specific purpose. It cannot be used if diverted out of the pipe by new connections or channeled around the point of discharge by secondary outlets. Stated in telephonic terms, my illustration is as follows. What I shall designate as the primary circuit is between the lips of the sender and the ears of the listener. The point of entry is the mouthpiece into which the former talks, and the port of discharge is the receiver in the hands of the listener. The message may be used if it is heard before it reaches the transmitter and after it escapes through the appropriate receiver, but it remains inviolate between those points. Any contrivance which makes it possible to hear the message while still on the wires does not remove its protection from disclosure. Therefore, to seize the message between its point of entry and exit is a violation of the law, whether the seizure is by temporary attachments, by permanent extensions, or by other scientific means.
I now continue the quotation from Goldman v. United States, supra, and then measure my illustrations by its specifications:
“. . . Words written by a person and intended ultimately to be carried as so written to a telegraph office do not constitute a communication within the terms of the Act until they are handed to an agent of the telegraph company. Words spoken in a room in the presence of another into a telephone receiver do not constitute a .communication by wire within the meaning of the section. Letters deposited in the Post Office are protected from examination by federal statute, but it could not rightly be claimed that the office carbon of such letter, or indeed the letter itself before it has left the office of the *760sender, comes within the protection of the statute. The same view of the scope of the Communications Act follows from the natural meaning of the term ‘intercept.’ As has rightly-been held, 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. 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 Rave been the overhearing of the conversation by one sitting in the same room.”
It is to be noted from the foregoing quotation that words written by a person are not protected by the Act because they have not entered the system. It is readily apparent that listening in a room to a conversation is not capturing words while they are being conveyed over an agency between the mouth of the speaker and the ear of a listener. Also, it would be extraordinary to hold that listening in the next room is seizing information from out of the lines of communication. In all of those situations, the listener hears only one side of the conversation and not because he has interjected himself into the conduit carrying the message but because he has obtained his knowledge before the message entered or after it was released from the area of protection. That is not so, however, when the message is obtained by affixing instruments to the lines or listening over wires which are attached but auxiliary to the primary circuit. The words are captured while still within the system, whether they are heard over a temporary or fixed attachment.
I must, of course, concede that the Supreme Court in the Goldman case, supra, suggests that there is no taking if the message is heard at the moment that it comes into possession of the intended receiver. But that statement has to be considered in its context with the other wording of the opinion, or it would legalize most taps. Certainly, if a line is tapped at the receiver’s box or outside his home, the message will be heard at the same moment by the receiver and the monitor. I could well understand the cogency of that time factor if it is considered with the previous statement which mentions the receipt of the message at its “destined place,” which I assume would permit no divergence to other places. If that “destined place” is not intended to be the receiver in the hands of the party listening, then any shunting of the message around the receiving party would be admissible. An interpretation which makes time the sole test would cut the heart out of the principles which have been well established by the Supreme Court, and I doubt that, a majority of the Court intended that, result. Therefore, the easiest way for-me to vividly portray what I believe to. be the rationale of the Goldman casa is to suggest a conversation by two. parties over a scrambled line with no. devices for scrambling or unscrambling-except in the one transmitting set and the one receiving set. What was audible as it was entering and hearable as. it was exiting could be used. Any diversion of the scrambled message through other outlets or by other devices would be barred.
I may not have announced an approved solution, but I suggest that the one I offer meets most of the standards set by the various appellate Federal courts. If it is not appropriate, I encounter a great deal of difficulty in reconciling the cases decided by the Supreme Court. To me a recording machine affixed to the terminals in a receiving box constitutes an interception or an interference just as much as when a connection is made a few yards along the line and the conversation recorded or overheard. If one party to a conversation can authorize the affixing of a recording machine to the end of the lines on extension leads, why not at any other place on the circuit? Both seize the message. If it is permissible to have a technician run an extension off a telephone box to a room at another location, a seizure can be made legal *761by the simple expedient of having an extension installed. An argument that there is a difference between a permanent and temporary installation does not solve the difficulty. If permanency is to be the touchstone, then any .switchboard operator can listen or by ¡cross-connections make it possible for .a number of listeners to overhear the conversation. To avoid any or all of those possibilities, I would bar all disclosures except of conversations obtained from outside of the system. Finally, to avoid being misunderstood, I do not intend to express any opinion on the legality of the listening to, or the recording of, communications, as all that is presently before us is whether Congress has sealed the lips of the listener or a replay of the transcription if the evidence is sought to be introduced in a criminal case. I believe it Ihas.
In conclusion, I might add that Congress and ' certain executive departments of the Government have considered the divulgence of information preserved by monitors, stenographic reporters, or recording instruments, without consent of both parties, as being prohibited by the Communications Act, and they have refused to sanction their use. It can be asserted that they do so out of a spirit of caution, but the fact remains that they seek to comply with the spirit of the Communications Act even though a strict interpretation might aid in netting some criminal offenders. I prefer to join with them until such time as Congress sees fit to change the law as it presently exists or the Supreme Court announces principles which conflict with my answer to this particular question.