(dissenting).
I respectfully dissent from the majority and would affirm the judgment of the trial court.
I agree with the majority that “our consideration is limited to the question of whether the defendants’ motion to suppress the tape recording, book-making paraphernalia and the ‘blue box’ should have been sustained because they were in violation of 47 U.S.C. sec. 605.” In my opinion the evidence was not obtained as a result of violating 47 U.S.C. sec. 605 and the trial court was correct in overruling defendants’ motion to suppress.
By enacting the first clause of section 605, Congress recognized the special position of the carrier’s employees. This clause does not proscribe the interception of communications by a “ * * * person * * * assisting in receiving * * * or assisting in transmitting * * Apparently, the majority interprets this phrase to include only employees who in actually placing the call obtain knowledge of the communication. In my view such a restrictive construction is contrary to the intent of Congress.
Section 605 was enacted in 1934, long before it was technically possible for toll-charge telephone calls to be completed without the assistance of some human agency. At that time an operator’s “interception” was necessary in order properly to assess toll charges for long distance calls. In recent years the company has developed a means of placing calls and assessing charges without the aid of an operator. The new system, while affording a greater measure of privacy to the user than the old system, provides less security to the telephone company, since by using a “blue box” a caller may electronically circumvent the new billing system.
In an effort to combat this practice and thus be assured of compensation for the use of its lines, the telephone company has had to take certain security measures. Since the “blue box” emits a 2600 cycle tone when in use, the company has developed a means of electronically sensing its emission. The frequent appearance of such a tone on a particular line is a strong indication that a “blue box” is being used. Before any degree of certainty can be achieved, however, it is necessary to have more substantial evidence. This is obtained by the Company’s security personnel attaching a tape *709recorder to the suspected line to verify that a “blue box” is in fact being used.
I would interpret the first clause of section 605 to include security officers as well as other employees of the carrier who are engaged in keeping the business of telecommunications functioning properly. The operator is only one of many employees who in the proper exercise of their duties necessarily must “intercept” transmissions. In view of recent inventions, it is irrational to differentiate the legal effect of the operator’s function from that of the security personnel. To some extent the security officer has taken over the function of the operator in making certain that toll charges are properly assessed. Consequently, the statute should apply to him in the same way as it formerly did to the operator. Otherwise, the carrier, by using an electronic complex for the purpose of assessing charges, has lost the right of interception which formerly he had.
Since it is my opinion that a security officer, in the light of present day developments, should be included among company employees engaged in the transmission of communications, information obtained by him in the regular course of his duties with the telephone company can be divulged, if done in accordance with the conditions set forth in the first clause of the statute, viz. “ * * * in response to a subpoena issued by a court of competent jurisdiction, or on demand of other lawful authority * * The testimony in this case reveals that the manner of divulgence was in accordance with this provision of the statute, as is set forth in the statement of the facts in the majority opinion. Thus the first clause of section 605 does not prohibit the introduction into evidence of the tape recording.
The second clause of section 605 covers persons other than employees “ * * * assisting in transmitting * * It provides that “ * * * no person not being authorized by the sender shall intercept * * * and divulge * * * the contents * * * of such intercepted communication.” In my opinion the transmissions here under scrutiny are not entitled to the protection of this clause of the statute.
The telephone calls between Hanna and Modell were intrinsically illegal transmissions. It is not their content which made them so, but the fact that Hanna and Modell were fraudulently using the lines without paying for their use. The majority assumes that Congress intended to protect against the monitoring and divulgence of fraudulent transmissions as well as legal ones, but I am unable to make that assumption.
No worthwhile purpose is served by protecting the secrecy of such transmissions, and to do so would seriously inhibit their detection. It is difficult to believe that Congress intended that outlaw transmission should have protection. “It is,” as stated in Brandon v. United States, 382 F.2d 607, August 29, 1967, 10th Circuit, “contrary to common sense.”
The leading case which sustains the view that, if the use of a communication facility is illegal, the right of privacy does not exist and the matter may be divulged, is Sugden v. United States, 226 F.2d 281 (9th Cir. 1955) affirmed per curiam, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 1449.
Sugden involved the interception and monitoring of radio transmissions by federal agents. Information obtained in this manner was used as evidence in prosecuting defendants for violation of the immigration laws. Although defendants were not licensed operators and were not thus legally on the air, they sought to interpose section 605 in a motion to suppress the evidence. The trial court granted the motion and dismissed the indictment, but the Ninth Circuit reversed, holding that because the defendants were not legally using the station the statute had no application. The Court declared:
* * * To throw a mantle of protection provided by Section 605 over an outlaw broadcast is to abandon rea*710son. * * * Giving the one who broadcasts without authority any protection under Section 605 could not tend to protect the means of communication.
The case of Brandon v. United States, supra, likewise sustains this view. In that case the defendants were accused of conspiring to defraud the Southwestern Bell Telephone Company in the use of long distance telephone service and facilities. The means of detection were similar to that used in the present case. The Court in holding that section 605 did not prohibit the use of information obtained by monitoring said:
(Section 605) * * * was adopted by Congress for the protection of authorized users of telephone or radio facilities ; it was not intended as a refuge for the wrongdoer who uses the telephone in a scheme to violate the wire fraud state.
The majority suggests, assuming argu-endo that the tapes are admissible against Hanna, that they cannot be introduced against Modell because there is no evidence that he participated in the wire fraud, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, decided December 18, 1967, as controlling. However, I do not believe Katz to be analogous. That case censured eavesdropping by federal agents as constituting a violation of the defendant’s Fourth Amendment rights against unlawful search and seizure. But the Fourth Amendment is no bar to eavesdropping by persons such as these telephone company employees; it applies only to acts of the government. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. The evidence demonstrates that the government played no part in the “interception” here complained of. Moreover, since I find no violation of Sec. 605 in obtaining and divulging the statements of Modell, there is no legal impediment to their admissibility against him.
For the reasons stated I would affirm.