No. 81-77
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1982
N. J. HASTETTER, M . D . 1
P l a i n t i f f and A p p e l l a n t ,
J . J. BEHAN AND MID-RIVERS TELEPHONE
COOPERATIVE, I N C .
Defendant and Respondent.
Appeal from: D i s t r i c t Court o f t h e Seventh J u d i c i a l District,
I n a n d f o r t h e County o f McCone, The H o n o r a b l e
M. James S o r t e , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Moses Law F i r m , B i l l i n g s , Montana
F o r Respondent :
H e e f e r , Roybal & Hanson, B i l l i n g s , Montana
Moulton, B e l l i n g h a m , Longo & M a t h e r , B i l l i n g s ,
Montana
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, Great
F a l l s , Montana
Crowley, Haughey, Hanson, T o o l e & D i e t r i c h ,
B i l l i n g s , Montana
Submitted on B r i e f s : July 16, 1981
Decided: January 20, 1982
Filed: J N 2 O 1982
A
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This action is based on the defendants' alleged
violation of the plaintiff's right to privacy as provided in
Art. 11, Sec. 10, 1972 Mont. Const., and the defendants'
alleged violation of 47 U.S.C. 5605. Defendants' motion for
summary judgment was granted by the District Court of the
Seventh Judicial District, in and for the County of McCone.
Plaintiff appeals the summary judgment .
Respondent Mid-Rivers Cooperative (Mid-Rivers) is a
corporation organized under the Rural Electric and Telephone
Cooperative Act, Title 35, Chapter 18, Montana Code Anno-
tated. Respondent Behan was hired as the general manager of
Mid-Rivers in November 1977 and continues to hold that
position. Appellant Hastetter is a physician residing in
Circle, Montana, and is a Mid-Rivers subscriber.
Appellant was concerned about what he believed were
extravagant expenditures on the part of Mid-Rivers and its
employees and took it upon himself to investigate the
finances of Mid-Rivers. In his investigations appellant
made a number of phone calls to the Rural Electrician
Administration (REA) in Washington, D.C.
Appellant's cause of action arises out of respondent
Behan's examination of his telephone records. Behan admits
that while he was conducting a survey of heavy toll users,
he examined the appellant's toll records to verify that
appellant was calling the REA. Behan further admits that he
examined the appellant's toll records and that his purpose
in doing so was to determine where and to whom the appellant
had made his long distance calls.
The District Court granted the respondents' motion
for summary judgment on the grounds that appellant has no
claim of relief under either the Montana Constitution or 47
U.S.C. S605.
The issue on appeal, then, is whether the District
Court erred by finding that neither the Montana Constitution
nor 47 U.S.C. S605 provides the appellant with a claim of
relief on the facts alleged.
We must agree with the District Court since telephone
records cannot be considered constitutionally-protected
private matters and 47 U.S.C. 5605 protects only communica-
tions by radio.
Art. 11, Sec. 10, 1972 Mont. Const., provides:
"The right of individual privacy is essential
to the well-being of a free society and shall
not be infringed without the showing of a
compelling state interest."
The District Court held that the appellant had no
claim of relief under the above provision because no state
action was involved in any way. While we agree that the
appellant has no claim of relief under this provision, we do
not agree with the District Court's reason. The key
question here is whether the appellant had a reasonable
expectation of privacy in his telephone records.
Our constitutional right of privacy cannot protect
something that is not a private matter. Persuasive federal
authority holds that there is not a legitimate expectation
of privacy in the mere fact that a telephone call was made
to a particular number. See Smith v. Maryland (1979), 442
U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220; United States v.
New York Telephone Co. (1977), 434 U.S. 159, 98 S.Ct. 364,
54 L.Eld.2d 376; and especially, Hodge v. Mountain States
Telephone & Telegraph Co. (9th Cir. 1977), 555 F.2d 254.
Federal cases have clearly distinguished the
difference between the recording of a conversation and
merely discerning that a call was made to a particular
number.
In Hodge, the court stated ". . . 'the expectation of
privacy protected by the Fourth Amendment attaches to the
content of the telephone conversation and not to the fact
that a conversation took place.' [Citations omitted.]" 555
F.2d at 256.
The leading case of Smith v. Maryland, supra, seems
to handle this matter conclusively. The issue before the
Court in Smith was whether the use of a pen register
constituted a "search" within the meaning of the Fourth
Amendment. A pen register is a device that records the
numbers dialed on a telephone by monitoring the electrical
impulses caused when the dial on the telephone is released.
It does not overhear oral communications and does not
indicate whether calls are actually completed.
The Court in Smith looked first to the test set down
in Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576, in which the application of the Fourth
Amendment depended upon whether the person invoking its
protection has a "legitimate expectation of privacy" that
has been invaded by the government. -
Katz, 389 U.S. at 353.
The Court noted that the listening device employed in Katz
differed significantly from the use of a pen register, "for
pen registers do not acquire the contents of communica-
tions." Smith, 442 U.S. at 741.
In Smith, the petitioner's argument that the
installation and use of the pen register constituted a
"search" rested necessarily upon a claim that he had a
"legitimate expectation of privacy" in the numbers he dialed
on his phone. The Court rejected this claim, stating:
". .
. First, we doubt that people in general
entertain any actual expectation of privacy
in the numbers they dial. All telephone
users realize they must 'convey' phone
numbers to the telephone company, since it is
through telephone company switching equipment
that their calls are completed. All sub-
scribers realize, moreover, that the phone
company has facilities for making permanent
records of the numbers they dial, for they
see a list of their long-distance (toll)
calls on their monthly bills. . . Telephone
users, in sum, typically know that they must
convey numerical information to the phone
company; that the phone company has facili-
ties for recording this information; and that
the phone company does in fact record this
information for a variety of legitimate
business purposes. Although subjective
expectations cannot be scientifically gauged,
it is too much to believe that telephone
subscribers, under these circumstances,
harbor any general expectation that the
numbers they dial will remain secret.
"Second, even if petitioner did harbor some
subjective expectation that the phone numbers
he dialed would remain private, this expecta-
tion is not 'one that society is prepared to
recognize as "reasonable." ' This Court con-
sistently has held that a person has no
legitimate expectation of privacy in informa-
tion he voluntarily turns over to third
parties. E.g., United States v. Miller, 425
U.S. at 442-444, 96 S.Ct. at 1623-1624. . ."
(Further citations omitted. ) 442 U.S. at
742-744.
Likewise, the Montana constitutional provision pro-
tecting an individual's right of privacy protects only
matters which can reasonably be considered private. Tele-
phone company billing records are not private matters. The
public awareness that such records are routinely maintained
negates any constitutional expectation of privacy regarding
the records. See, Hodge, supra, 555 F.2d at 256, referring
to United States v. Baxter (9th Cir. 1973), 492 F.2d 150,
167, cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d
292; and United States v. Fithian (9th Cir. 1971), 452 F.2d
Appellant therefore has no claim of relief under Art.
11, Sec. 10, 1972 Mont. Const. There is no reasonable
expectation of privacy in telephone records to justify
bringing them under constitutional protection.
The next issue is whether appellant has a claim for
relief under 47 U.S.C. S605. h e agree with the District
i
Court that appellant has no claim of relief here. The 1968
amendments to section 605 and federal case law indicate that
the section is restricted to prohibiting unauthorized use of
radio communications only.
The appellant claims that Behan and Mid-Rivers vio-
lated the first sentence of section 605 when Behan used
appellant's telephone records to find out who appellant had
been calling. The first sentence of section 605 provides:
"Except as authorized by chapter 119, Title
18, no person receiving, assisting in
receiving, transmitting, or assisting in
transmitting, any interstate or foreign
communication by wire or radio shall divulge
or publish the existence, contents, sub-
stance, purport, effect, or meaning thereof,
except through authorized channels of trans-
mission or reception, (1) to any person other
than the addressee, his agent, or attorney,
(2) to a person employed or authorized to
forward such communication to its destina-
tion, (3) to proper accounting or distri-
buting officers of the various communicating
centers over which the communication may be
passed, (4) to the master of a ship under
whom he is serving, (5) in response to a
subpena issued by a court of competent juris-
diction, or (6) on demand of other lawful
authority."
The second sentence provides that no person shall divulge or
publish any radio communication.
T h i s s e c t i o n cannot be i n t e r p r e t e d w i t h o u t l o o k i n g a t
its l e g i s l a t i v e history. I n Hodge, 5 5 5 F.2d at 262-265,
Judge Hufstedler i n a concurring opinion d i s c u s s e s a t l e n g t h
t h e h i s t o r y o f s e c t i o n 605.
In 1968, when Congress enacted Title I11 of the
Omnibus Crime Control and Safe Streets Act, clause 2 of
s e c t i o n 6 0 5 was amended t o p r o h i b i t o n l y t h e i n t e r c e p t i o n o f
r a d i o communications. C l a u s e 1 of s e c t i o n 605 was c h a n g e d
o n l y c o s m e t i c a l l y ; t h e r e was no e x p l i c i t l i m i t a t i o n t o o n l y
r a d i o communications. Nevertheless, f e d e r a l c a s e s and t h e
l e g i s l a t i v e h i s t o r y of t h e Crime C o n t r o l A c t i n d i c a t e t h a t
Congress i n t e n d e d T i t l e I11 o f t h e A c t t o p r o v i d e a whole
new s t a t u t o r y scheme f o r r e g u l a t i o n o f t h e u n a u t h o r i z e d u s e
of c o m m u n i c a t i o n s by w i r e , and t h a t s e c t i o n 605 a f t e r 1 9 6 8
no l o n g e r c o n t r o l l e d t e l e p h o n i c c o m m u n i c a t i o n s . S e e Hodge,
555 F.2d a t 260; United S t a t e s v. Falcone (3rd Cir. 1974),
505 F.2d 478; Korman v . United S t a t e s ( 7 t h C i r . 1 9 7 3 ) , 486
F.2d 926; and especially, United States v. New York
T e l e p h o n e Co., supra.
The U n i t e d S t a t e s Supreme C o u r t i n f o o t n o t e 1 3 o f t h e
N e w York T e l e p h o n e Co. c a s e s t a t e d :
" U n i t e d S t a t e s v . D o t e , 3 7 1 F.2d 176 (CA7
1 9 6 6 ) , h e l d t h a t § 605 o f t h e Communications
A c t o f 1 9 3 4 , 47 USC S; 605, which p r o h i b i t e d
t h e i n t e r c e p t i o n and d i v u l g e n c e o f ' a n y
c o m m u n i c a t i o n ' by w i r e o r r a d i o , i n c l u d e d p e n
r e g i s t e r s w i t h i n t h e scope of i t s ban. In §
8 0 3 o f T i t l e 111, 82 S t a t . 2 2 3 , C o n g r e s s
---------------yn-----------g ----------
amended B 605 b restrictin
i n t e r c e p t i o n of 'a y r a d i o communication.'
it t o the
T h u- i s c l e a r t h a t p e n r e g i s t e r s a r e no
-s i t
l o n g e r w i t h i n t h e s c o p e o f S; 6 0 5 . S e e Korman
v . U n i t e d S t a t e s , 486 F.2d 9 2 6 , 931-932 (CA7
1 9 7 3 ) . " 434 U.S. a t 1 6 8 . (Emphasis added.)
The suggestion in this footnote that section 605
a f t e r 1968 a p p l i e s o n l y t o r a d i o communication is s u p p o r t e d
by t h e l e g i s l a t i v e h i s t o r y o f t h e 1 9 6 8 amendment. In the
Senate Report ( 1 9 6 8 ) , U.S. Code Cong. of Admin. News, at
2196, t h e i n t e n t o f C o n g r e s s was made c l e a r :
" S e c t i o n 803.--This s e c t i o n amends s e c t i o n
605 o f t h e c o m m u n i c a t i o n s A c t o f 1934 ( 4 8
S t a t . 1 1 0 3 , 47 U.S.C. s e c . 605 ( 1 9 5 8 ) ) . T h i s
section is not intended merely t o be a re-
e n a c t m e n t - s e c t i o n 6 0 5 . The new p r o v i s i o n
of
i s i n t e n d e d a s a s u b s t i t u t e . The r e g u l a t i o n
- t h e i n t e r c e p t i o n o f w i r e o r o r a l communi-
o f-
c a t i o n s i n t h e f u t u r e is t o be governed by
p r o p o s e d new c h a p t e r 119 o f t i t l e 1 8 , U n i t e d
S t a t e s Code." (Emphasis added.)
A s t h e c o u r t s n o t e d i n Hodge, F a l c o n e and Korman, the
i n t e n t o f C o n g r e s s would be t h w a r t e d i f p e n r e g i s t e r s w e r e
s t i l l r e g u l a t e d by s e c t i o n 605. Telephone b i l l i n g r e c o r d s ,
l i k e pen r e g i s t e r s , a r e n o t h i n g more t h a n t h e r e c o r d t h a t a
p a r t i c u l a r c a l l was made. S i n c e t h e s e t e l e p h o n i c communica-
tions are no longer covered by section 605, appellant's
c l a i m f o r r e l i e f u n d e r s e c t i o n 605 i s d e n i e d .
The appellant raised a peripheral issue concerning
t h e u s e o f u n s i g n e d d e p o s i t i o n s f i l e d l o n g a f t e r t h e summary
judgment was entered. This issue need not be discussed
s i n c e t h i s c a s e h a s been r e s o l v e d w i t h o u t t h e n e c e s s i t y t o
review t h e d e p o s i t i o n s .
Since the appellant has no claim of relief under
either the Montana Constitution or 47 U.S.C. S605, the
D i s t r i c t C o u r t ' s summary judgment i s a f f i r m e d .
H Justice
W concur:
e
s; &A J.$A,~ d,
Chief J u s t i c e
Mr. J u s t i c e F r a n k B. M o r r i s o n , J r . , s p e c i a l l y c o n c u r s :
I a g r e e w i t h t h e r e s u l t , however, I would a f f i r m t h e
trial c o u r t ' s determination t h a t the privacy provision,
A r t i c l e 11, S e c t i o n 1 0 , o f t h e Montana C o n s t i t u t i o n , is not
o f f e n d e d by i n d i v i d u a l a c t i o n a s opposed t o g o v e r n m e n t a l
action.