Authority of National Telecommunications and Information Administration to Monitor Radio Communications

• Court: Department of Justice Office of Legal Counsel
• Decided: February 12, 1980
• Status: Published

Opinion

Authority of National Telecommunications and Information Administration to Monitor Radio Communications

T h e N atio n al T e le c o m m u n ic a tio n s an d In fo rm atio n A d m in istratio n ( N T IA ) m ay m o n ito r ra d io c o m m u n icatio n s to th e ex ten t reaso n ab ly necessary to d isc h a rg e its functions u n d e r 47 U .S .C . § 305(a) an d 15 U .S .C . § 272(12) & (13).

T itle III o f th e O m n ib u s C rim e C o n tro l a n d S afe S tre ets A c t o f 1963 p ro h ib its N T IA fro m a u ra lly m o n ito rin g c o m m u n ic a tio n s b etw e e n a rad io an d a land-line telep h o n e.

February 12, 1980

M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL, D E PA R T M E N T O F COM M ERCE

This responds to your request for our views on the authority o f the. National Telecom m unications and Inform ation Adm inistration (N T IA ) to m onitor certain radio transmissions. You specify that N T IA will m onitor these com m unications only to the extent necessary to perform its authorized functions, and that it will not divulge the contents or the existence o f any particular intercepted message. Similarly, you say, N T IA will not attem pt to decode coded messages. F o r the reasons we state below, w e believe that, with one exception, N T IA may conduct these m onitoring activities to the extent they are reasonably necessary to discharge N T IA ’s statutory functions under 47 U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13). T he one exception is that N T IA may not aurally m onitor com m unications between a radio and a land-line telephone.

I. NTIA Authority to Monitor Radio Communications

N T IA derives its authority from the Secretary o f Com merce. No statute explicitly em powers the Secretary to m onitor radio com m unica­ tions, but w e believe that tw o statutes implicitly authorize the Secretary to m onitor in certain situations. First, § 305(a) o f the Com munications A ct o f 1934, 47 U.S.C. § 305(a), provides that “ [r]adio stations belong­ ing to and operated by the United States . . . shall use such frequen­ cies as shall be assigned . . . by the President.” As you know, when the function o f assigning frequencies to governm ent stations was vested in the Office o f Telecom m unications Policy (OTP), see Reorganization Plan No. 1 o f 1970, 84 Stat. 2083, we expressed the opinion that O T P was “implicitly authorized to conduct m onitoring activities related to

400 its statutory responsibilities under § 305(a).” We reasoned that O T P ’s functions w ere analogous to those of the Federal Com m unications Commission, which assigns frequencies to radio stations not ow ned by the governm ent and regulates certain aspects o f their transmissions. United States v. Sugden, 226 F.2d 281, 284 (9th Cir. 1955), a f f d per curiam, 351 U.S. 916 (1956), held that the Commission can m onitor radio com m unications in order to carry out its duty o f assigning fre­ quencies, because “ [e]xcept by listening, how can the Commission tell with certainty that a station is using its assigned frequency?” Id. By analogy, we concluded, O T P was authorized to m onitor radio transm is­ sions in the course o f perform ing its function o f assigning frequencies to stations owned by the governm ent. In 1977, this function was trans­ ferred to the Secretary of Commerce. Reorganization Plan No. 1 o f 1977, as amended, § 5(B), 91 Stat. 1633. You tell us that the Secretary has delegated this responsibility to N TIA . Plainly, then, N T IA has the same authority as O T P had to m onitor radio com m unications to the extent reasonably necessary to carry out its statutory responsibilities under § 305(a). T he second statutory source o f N T IA ’s authority to m onitor is 15 U.S.C. § 272(12) & (13). These subsections provide: T he Secretary o f Com m erce . . . is authorized to under­ take . . . * * * * *

(12) the investigation o f the conditions w hich affect the transmission o f radio waves from their source to a receiver; (13) the com pilation and distribution o f inform ation on such transmission o f radio waves as a basis for choice of frequencies to be used in radio operations. You tell us that the Secretary o f C om m erce has also delegated these functions to N TIA . W e believe that the reasoning o f Sugden applies here as well; to the extent that the m onitoring you describe is “ reason­ ably ancillary to the effective perform ance o f [these statutory] responsi­ bilities,” United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968), we believe that N T IA is implicitly authorized to conduct it. See, e.g., Permian Basin Area R ate Cases, 390 U.S. 747, 777, 780 (1968). Your letter appears to assume that Executive O rder No. 12046 con­ fers on N T IA additional authority to m onitor radio communications. T hat executive order does not purport expressly to authorize the Secre­ tary of Com m erce to monitor. Y our letter seems to suggest, how ever, that such authority is implicit in the executive o rd er’s instruction that the Secretary “serve as the President’s principal adviser on telecom ­ munications policies,” § 2-401, conduct econom ic and technical analy­ ses o f telecomm unications policies, § 2-412, represent the Executive

401 Branch in dealings w ith the Federal C om m unications Commission, § 2- 407, and perform similar tasks. But as a general m atter,1 an executive o rd er cannot enlarge the pow er o f the Executive Branch beyond w hat C ongress has granted. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). T herefore Executive O rder No. 12046 does not expand N T IA ’s pow er to m onitor beyond w hat can reasonably be inferred from 47 U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13).2 Partly because your letter assumed that Executive O rder No. 12046 provides an independent source o f authority to m onitor, you did not make clear the extent to w hich N T IA needs to conduct the sorts o f m onitoring activities your letter describes in order to fulfill its statutory responsibilities. Thus w e cannot specify w hich am ong the kinds of transmissions you mention in your letter may be m onitored. In general, we believe that N T IA has authority to m onitor both electrical impulses and voices on nongovernm ent frequencies; but it may m onitor them only to the extent that such m onitoring is reasonably necessary to enable N T IA to assign frequencies to governm ent stations, and to perform the functions incident to assigning frequencies, or to investigate the conditions affecting the transmission o f radio waves and to compile and distribute inform ation about radio w aves “as a basis for choice o f frequencies to be used in radio operations.” This authority is, o f course, subject to the statutory restrictions to w hich w e turn next.

II. Statutory Limits on NTIA’s Authority to Monitor

A t first glance, tw o statutes appear to restrict N T IA ’s authority. Section 605 o f the Com m unications A ct o f 1934, 47 U.S.C. §605, provides, in relevant part, that “ [n]o person not being authorized by the sender shall intercept any radio com m unication and divulge or publish the existence, contents, substance, purport, effect, o r meaning o f such intercepted com m unication to any person.” T he D epartm ent o f Justice has consistently taken the position that since § 605 is phrased in the conjunctive—“ intercept . . . and divulge” (emphasis added)—a gov­ ernm ent agency may intercept radio com m unications so long as it does not disclose inform ation about them to any person outside the G overn­

’ N o inherent presidential pow ers, derived d irectly from the C onstitution, appear to be involved in N T IA m onitoring. See generally United Stales v. United States District Court, 407 U.S. 297, 308-12 (1972); Fleishm an & Aufses, Law and Orders: The Problem o f Presidential Legislation. 40 L aw & C ontem p. Probs., Sum m er 1976, at-1, 11-13. In any event, as w e noted, E xecutive O rder No.. 12046 does not expressly attem pt to authorize the S ecretary o f C om m erce to m onitor, and w e are reluctant to assume that inherent executive pow ers have been invoked by implication. 2 A s you note, E xecutive O rd e r N o. 11556 assigned to O T P m any functions similar to those assigned to the Secretary in Executive O rd e r No. 12046, and § 5(B) o f Reorganization Plan No. 1 o f 1977 transferred “ (a]ll . . . functions o f the O ffice o f T elecom m unications Policy and o f its D irector,” w ith exceptions not relevant here, to the Secretary o f C om m erce. But for the reasons w e have given, E xecutive O rd e r No. 11556 could not have expanded O T P ’s pow ers beyond w hat w as granted by statute, and in any event a-reorganization Mmay not have th e effect o f . . . authorizing an agency to exercise a function w hich is not expressly authorized by law at the time the plan is transm itted to C ongress." 5 U.S.C. § 905(a)(4). T h u s R eorganization Plan No. 1 o f 1977 does not give N T IA any additional statu to ry authority.

402 ment. See Office o f Legal Counsel M em orandum for the D irector, Federal Bureau o f Investigation, May 29, 1979, 3 Op. O.L.C. 240, 245 (1979) (hereinafter “ 1979 O LC M em orandum ”) H.R. Rep. No. 1283, Pt. 1, 95th Cong., 2d Sess. 15 (1978). See also United States v. Butenko, 494 F.2d 593, 623-24 (3rd Cir.) (Aldisert, J;, concurring and dissenting), cert, denied, 419 U.S. 881 (1974). M oreover, as the language o f §605 suggests, only divulging the contents o r existence o f a particular “com ­ munication” is prohibited. In our view, N T IA would not violate § 605 if, after monitoring, it divulged only aggregate statistics about the use o f radio frequencies. You stipulate that you will not reveal the contents o f communications to any other party; so long as “contents” is under­ stood broadly to include the “existence” and “purport, effect, o r m ean­ ing” o f the particular communication, w e believe that N T IA ’s m onitor­ ing will not run afoul o f 47 U.S.C. § 605. Title III o f the Omnibus Crime C ontrol and Safe Streets A ct o f 1968, as amended, 18 U.S.C. §§ 2510-2520, presents a more complex question. It provides that with certain exceptions, “any person who . . . willfully intercepts, endeavors to intercept, o r procures any other person to intercept or endeavor to intercept, any wire or oral com m unication . . . shall be fined not m ore than $10,000 o r im pris­ oned not more than five years, o r both.” 18 U.S.C. § 2511(1 )(a). A “wire com m unication” is defined as: any com m unication made in whole or in part through the use o f facilities for the transmission o f com m unications by the aid o f wire, cable, o r other like connection between the point o f origin and the point o f reception furnished or operated by any person engaged as a com m on carrier in providing or operating such facilities for the transmission o f interstate o r foreign communications. 18 U.S.C. §2510(1). An oral com m unication is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circum stances justi­ fying such expectation.” 18 U.S.C. §2510(2). Radios contain wires, but the wires are not “connection[s] between the point o f origin and the point o f reception furnished o r operated by . . . a com m on carrier.” F o r this reason, we have previously expressed the view that com m uni­ cations betw een tw o radios are not “wire com m unications” within the meaning o f Title III. 1979 O L C M emorandum, 3 Op. O.L.C. at 242. T he Ninth Circuit has reached the same conclusion. United States v. H all, 488 F.2d 193, 196-97 (9th Cir. 1973). On the basis o f the legislative history o f Title III, see e.g., S. Rep. No. 1097, 90th Cong., 2d Sess. 66, 75, 89-90 (1968); see also United States v. Hall, 488 F.2d at 198, w e have previously concluded, 1979 O LC M emorandum, 3 Op. O.L.C. at 242 & n.2, that when Congress limited the definition o f “oral com m unication” to com m unications by a person

403 w ho has “an expectation that such com m unication is not subject to interception under circum stances justifying such expectation,” it in­ tended to include only those com m unications made with a “reasonable expectation o f privacy” in the sense in w hich that term is used in defining a “search” under the F ourth Am endm ent, see, e.g., K atz v. United States. 389 U.S. 347, 351-53 (1967). See also United States v. United States District Court, 407 U.S. 297, 302 (1972). 1979 O L C M em o­ randum, 3 Op. O.L.C. at 242 & n.2. W e have also previously concluded that radio users have no reasonable expectation o f privacy in ordinary radio transmissions. We reasoned that the “ease of interception, the widespread availability o f the technology required for interception, and the ease o f access for the user to m ore private means o f com m unica­ tion” all suggested that one cannot reasonably expect ordinary radio com m unications to remain private. Id. at 243.3 It follows from these conclusions we have previously reached that ordinary com m unications by radio are not “oral com m unications” within the meaning o f Title III.4 As we have said, communications betw een radios are also not “ wire com m unications.” Thus Title III, like § 605, does not prohibit N T IA from intercepting ordinary com m unica­ tions between radios. W e know o f no other statute that applies. Title III does, how ever, prohibit N T IA from m onitoring com m unica­ tions betw een a party using a mobile telephone or other radio and a party using a land-line telephone. “ W ire com m unication” is defined by Title III as “any com m unication made in whole or in part . . . by the aid o f ’ wire or cable facilities furnished or operated by a common carrier. 18 U.S.C. §2510(1) (emphasis added). In.the legislative history, Congress noted that this definition is intended to be “com prehensive.” S. Rep. No. 1097, 90th Cong., 2d Sess. 89 (1968). Otherwise, the legislative history seems to give no indication o f how Congress wished to treat com m unications between a radio telephone and a land-line telephone. In these circum stances, we must follow the language o f the statutory definition; since com m unications betweeen a radio telephone and a land-line telephone are made “in part through the use of facilities for the transmission o f com m unications by the aid of wire, cable, or o ther like connection . . . furnished or operated by . . . a common carrier,” we must conclude that they are “w ire com m unications” under T itle III. T he Ninth Circuit, apparently the only court to have consid­ ered the issue, reached the same conclusion. United States v. Hall, 488 F.2d at 197-98. Title III prohibits “any person” from “intercept[ing]” wire com m unications w ithout a w arrant; it contains some exceptions,

3 As the quoted language suggests, w e assume that N T IA proposes to intercept only ordinary radio transmissions, not transmissions m ade by sophisticated means designed to prevent the transmission from being intercepted by devices that are generally know n to exist. 4 Since radio users have no reasonable expectation o f privacy in ordinary radio transmissions, intercepting such transmissions w ould not violate the F o u rth A m endm ent.

404 but none applies to N T IA .5 As you know, we have previously said that m onitoring electrical impulses alone—w ithout translating them to voice impulses—does not violate Title III. T herefore Title III does not pro­ hibit N T IA from monitoring the electronic impulses o f com m unications betw een radios and land-line telephones. But N T IA may not aurally m onitor a transmission if any party to the transmission is using a land- line telephone. With this restriction, we believe that N T IA is author­ ized to m onitor radio communications in the categories you identify in your letter, when such m onitoring is reasonably necessary if N T IA is to perform its functions under 47 U.S.C. § 305(a) and 15 U.S.C. § 272(12) & ( 13). L arry A. H am m ond D eputy Assistant Attorney General Office o f Legal Counsel

8 T he statute partially exem pts “an officer, em ployee, or agent o f the Federal Com m unications Commission, in the norm al course o f his em ploym ent and in discharge o f the m onitoring responsibil­ ities exercised by the C om m ission" from these prohibitions. 18 U.S.C. § 2511 (2)(b). As you know , we previously concluded that this exem ption did not em brace em ployees o f N T fA ’s predecessor, O TP. W e reasoned that w hen Congress enacted the Om nibus C rim e C ontrol A ct, it was aw are that certain agencies had responsibility for governm ent com m unications corresponding to the Federal C om m unica­ tions C om m ission’s responsibilities for private com m unications; yet C ongress exem pted only the Commission from T itle III. W e noted that the case law confirm ed this view. See, e.g.. United States v. Sugden, 226 F.2d 281, 285 (9th Cir. 1955), a f f d per curiam. 351 U.S. 916 (1956). F o r these same reasons, N T IA is not exem pted from the restrictions contained in T itle III. N o other exem ptions are relevant.