James L. Hodge v. The Mountain States Telephone and Telegraph Company, a Foreign Corporation

555 F.2d 254, 1977 U.S. App. LEXIS 13034

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 1977
• Docket: 74-2162
• Status: Published

Opinions

RENFREW, District Judge:

Appellant James L. Hodge appeals from an order granting summary judgment in favor of appellee Mountain States Telephone and Telegraph Company. In his complaint appellant asserted a number of federal and state claims, all of which relate to appellee’s installation of a pen register¹ on his telephone. Appellant’s federal claims were that the actions taken by employees of appellee in installing the pen register and divulging some of the information recorded by the device violated his rights under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.) Section 605 of the Communications Act of 1934, 47 U.S.C. § 605; and the Fourth Amendment to the Constitution of the United States. Appellant’s state claims were asserted under the doctrine of pendent jurisdiction. The district court granted summary judgment against appellant as to all claims.² For reasons somewhat different from those relied upon by the district court, we affirm as to the federal claims; the state claims are remanded with instructions to dismiss for lack of federal jurisdiction.

After receiving a number of complaints of obscene and annoying telephone calls, appellee began an investigation of those calls in the first part of 1970. Obtaining the cooperation of a woman subscriber who had been the target of a number of obscene calls, security agents employed by appellee traced one such call through the telephone company circuits to appellant’s telephone. Soon thereafter the security agents attached a pen register to appellant’s telephone. No attempt was made to obtain a search warrant. The device remained in place recording the numbers dialed from that telephone for a period of approximately seventeen days. As part of the investigation, the security agents telephoned the subscribers whose numbers were recorded by the pen register to ask if they were having any trouble with their telephone service. If asked why they were calling, the security agents would explain that the appellee had received complaints that obscene telephone calls were being made and that there was an indication that the subscriber’s number might have been called.

Appellant was tried and convicted by a jury on three counts of illegal use of the telephone and one count of using the telephone to extort money. During the trial, security agents who had installed the pen register and a central office foreman who had supervised the security agents gave testimony based at least in part on the information recorded by the device. In a complicated series of post-trial rulings in the Arizona state courts,- the jury verdict was set aside. No subsequent criminal proceedings have been brought. Our only concern is with the civil action brought by appellant.

I

Appellant asserted a claim under 42 U.S.C. § 1983 for the appellee’s alleged violation of appellant’s Fourth Amendment rights in installing the pen register. This claim was properly rejected by the district court.

Assuming arguendo that the requisite state action could be found,³ it is clear that no substantive Fourth Amendment right of the appellant has been violated by the appellee. This Court has held that “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.” United States v. Baxter, 492 F.2d 150, 167 (9 Cir. 1973), cert, denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), citing United States v. Fithian, 452 F.2d 505, 506 (9 Cir. 1971). Because a pen register record does not indicate whether the calls placed on the monitored telephone were completed, it does not even establish that “a conversation took place.” Nevertheless, we recognize that pen registers are not squarely within the existing precedent. In Baxter and Fit-hian we rejected a claim that the Fourth Amendment applies to telephone company billing records. The public awareness that such records are routinely maintained was held to negate any constitutionally sufficient expectation of privacy⁴ regarding the records.⁵ Although a pen register record differs from telephone company billing records, we have no difficulty in now holding that the information recorded is not protected by the Fourth Amendment.

A pen register record for a particular telephone contains information different from the telephone company billing records for that telephone. Telephone company billing records show only completed calls, not, as with a pen register, the numbers dialed. Furthermore, a pen register record shows the dialing of telephone numbers which, even if completed, would not be shown by billing records, because the numbers are within a local dialing area. It could be argued that since no records of such calls are normally maintained, an expectation of privacy exists. This admitted difference is not, in our view, of constitutional dimension⁶ and is more than offset by the fact that pen register records are even farther removed than billing records from the content of the communications. Viewed in the round, the information recorded by pen registers is not entitled to Fourth Amendment protection.⁷ This conclusion has also been reached by the Court of Appeals for the Fifth Circuit in United States v. Clegg, 509 F.2d 605, 610 (5 Cir. 1975).⁸

“Our problem is not what the privacy expectations of particular defendants in particular situations may be * * *. * * * Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally ‘justifiable’— what expectations the Fourth Amendment will protect in the absence of a warrant.”

II

Appellant also asserted a claim under 18 U.S.C. § 2520 for the use of the pen register in alleged violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title III”). We hold that the district court was correct in holding that the use of the pen register did not constitute a violation of Title III and that appellant therefore was not entitled to recover under § 2520.

No extended statutory exegesis is necessary to dispose of appellant’s argument. Title III prohibits the interception of wire or oral communications except by law enforcement officials under carefully defined circumstances. The disclosure and use of intercepted communications is prohibited unless the interception was authorized under the statute. For our present purposes, the statutory linchpin is the concept of interception, which is defined by § 2510(4)⁹ as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” (Emphasis added.) Because a pen register is incapable of making an aural acquisition of any communication, the use of the device does not fall within the statute. This conclusion is further buttressed by the legislative history of Title III. The Senate Report includes the following statement regarding the question now before us:

“Paragraph (4) defines ‘intercept’ to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. See Lee v. United States, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Corngold v. United States, 367 F.2d [1] (9th 1966). An examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an ‘interception.’ (United States v. Russo, 250 F.Supp. 55 (E.D.Pa.1966)). The proposed legislation is not designed to prevent the tracing of phone calls. The use of a ‘pen register,’ for example, would be permissible. But see United States v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication.” S.Rep. No. 1097, 90th Cong., 2d Sess. 90, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2178 (1968) (emphasis added).

Other courts that have had occasion to consider the issue have also concluded that pen registers are not controlled by Title III. See, e. g., United States v. Falcone, 505 F.2d 478, 482 (3 Cir. 1974), cert, denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975); United States v. Brick, 502 F.2d 219, 223 (8 Cir. 1974). See also, United States v. Giordano, 416 U.S. 505, 553, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part).

There is no statutory basis for appellant’s argument that an aural acquisition of the contents of a telephone call, triggering the provisions of Title III, occurs when the persons whose telephone numbers were recorded are questioned about the call in a subsequent investigation. Appellant has not suggested that the subsequent investigations involved any independent violation of law. Certainly, appellant as one party to a telephone conversation has no right under Title III to prevent another party to that conversation from discussing it in response to legitimate questions. The pen register is a device used typically in the early stages of an investigation to generate leads for further inquiry. In excluding the use of pen registers from the scope of Title III, Congress certainly did not intend to outlaw the subsequent use of the information obtained from the device. Arguing, in effect, that two rights make a wrong, appellant would have us adopt the doctrine that the fruit of the non-poisonous tree cannot be used by investigatory authorities. This we decline to do.

“No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception * * * ; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * * 47 U.S.C. § 605 (1964) (emphasis added).

Ill

We also hold that the district court did not err in concluding that appellant could not base a claim on 47 U.S.C. § 605. Only the first sentence of § 605 applies to wire communications. It provides, in pertinent part:

“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, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney * * *.”¹⁰

Prior to 1968, § 605 also prohibited the interception and divulgence by any person of wire communications.¹¹ The use of a pen register was such an “interception” within the meaning of clause 2 of the pre-1968 § 605. United States v. Dote, 371 F.2d 176, 180 (7 Cir. 1966); United States v. Caplan, 255 F.Supp. 805, 808 (E.D.Mich.1966). See Application of United States in Matter of an Order Authorizing Use of a Pen Register, 538 F.2d 956, 958-959 (2 Cir. 1976), cert, granted, 429 U.S. 1072, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977).

In 1968, however, Congress amended § 605 when it enacted the electronic surveillance provisions of the Omnibus Crime Control Act. Pub.L. No. 90-351, § 803, 82 Stat. 223 (1968). In addition to making certain changes in punctuation, Congress eliminated any reference to wire communications from the part of the section prohibiting interceptions. Congress made this change because it intended “[t]he regulation of the interception of wire or oral communications * * * to be governed by proposed new chapter 119 of title 18, United States Code.” S.Rep. No. 1097, supra, at 107, U.S.Code Cong. & Admin.News 1968, p. 2196.

The Courts of Appeal for the Second, Third, Seventh, and Eighth Circuits have held that the 1968 amendment to § 605 ended the applicability of that section to the use of pen registers.¹² Their conclusion is supported by the legislative history of § 605. The first clause of the pre-1968 § 605 never regulated the use of pen registers, and there is no indication that Congress intended to begin such regulation when it converted that clause into the first sentence of the present § 605.

As discussed, supra, the use of pen registers constituted an interception within the meaning of the second clause of the pre-1968 § 605. The first clause of that section did not apply to individuals who intercepted wire communications, but rather to persons “receiving or assisting in receiving, or transmitting, or assisting in transmitting” communications in the normal course of their business. The clause did not even mention interception.¹³ As the court noted in United States v. Russo, 250 F.Supp. 55, 58-59 (E.D.Pa.1966), the first clause of § 605 was not intended to prohibit the interception of wire communications, it was

Interception of wire communications was prohibited by the second clause of the pre-1968 § 605. That clause provided that “no person not being authorized by the sender shall intercept any communication * * (Emphasis added.) With respect to the divulgence of intercepted wire communications, it is clear that any prohibition of the first clause would have been completely subsumed by the broader prohibition of the second clause. Given the broad scope of the second clause, the first clause has independent meaning only if it is read to prohibit the divulgence of information acquired by means other than interception. To construe the first clause as prohibiting an “interception” would be incorrect for two reasons. First, there is a total absence of any language reflecting such an intention, and second, such an interpretation would have made the section redundant, because the second clause covered interceptions by all persons not authorized by the sender.¹⁵

“designed to apply to persons such as telegram or radiogram operators, who must either learn the content of the message or handle a written record of communications in the course of their employment. Clause 1 recognizes that the integrity of the communication system demands that the public be assured that employees who thus come to know the content of messages will in no way breach the trust which such knowledge imposes on them.”¹⁴

There is no reason to believe that Congress intended to expand the scope of the first clause of the pre-1968 § 605 to include interceptions by adopting it as the first sentence of the post-1968 § 605. See United States v. Baxter, supra, 492 F.2d at 166 n. 15. In fact, Congress did not intend the new § 605 to deal with electronic surveillance at all: “Congress intended to shift all control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520.” United States v. Falcone, supra, 505 F.2d at 482.¹⁶

Congress intended the amended § 605 to be a “substitute” for the pre-1968 § 605, not merely a “reenactment.” S.Rep. No. 1097, supra, at 107. Congress enacted the new § 605 at the same time that it specifically considered and rejected regulating the use of pen registers under the Omnibus Crime Control Act. See Part II, supra. Under such circumstances, and in the absence of specific evidence of legislative intent, it would be anomalous to conclude that Congress decided to begin regulating the use of pen registers under § 605 by using language identical to clause 1 of the former § 605.

IV

As stated above, we have concluded that appellant stated no federal constitutional or statutory claim. The district court also granted summary judgment against appellant on his state law claims. When a district court dismisses all federal claims prior to trial, it should not retain jurisdiction over pendent state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Walling v. Beverly Enterprises, 476 F.2d 393, 398 (9 Cir. 1973); Wham-O-Mfg. Co. v. Paradise Manufacturing Co., 327 F.2d 748, 752-753 (9 Cir. 1964). In light of our disposition of the federal claims, we feel that it is appropriate to remand the state law claims to the district court with instructions to dismiss for want of federal jurisdiction.

Judgment affirmed in part and remanded for action consistent with this opinion.

1 . A pen register was described in United States v. Capian, 255 F.Supp. 805, 807 (E.D.Mich. 1966) as follows:

“The pen register is a device attached to a given telephone line usually at a central telephone office. A pulsation of the dial on the line to which the pen register is attached records on a paper tape dashes equal in number to the number dialed. The paper tape then becomes a permanent and complete record of outgoing numbers called on the particular line. With reference to incoming calls, the pen register records only a dash for each ring of the telephone but does not identify the number from which the incoming call originated. The pen register cuts off after the number is dialed on outgoing calls and after the ringing is concluded on incoming calls without determining whether the call is completed or the receiver is answered. There is neither recording nor monitoring of the conversation.”

See also United States v. Giordano, 416 U.S. 505, 549 n. 1, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part).

Pen registers have a variety of uses. When used by telephone companies, they need not be associated with any kind of investigation of wrongdoing. For example, they are used to check for defective dials and for overbilling. The devices are also used in various intra-com-pany investigations. For example, they are used to determine if a home telephone is being used to conduct a business and, as here, to investigate persons suspected of making annoying or obscene telephone calls. In addition, of course, pen registers may be useful in criminal investigations by law enforcement officials of activities such as illicit gambling where telephones are frequently used. Note, “The Legal Constraints Upon the Use of the Pen Register as a Law Enforcement Tool,” 60 Cornell L.Rev. 1028, 1029 (1975).

2 . The treatment of the federal claims in the district court’s Memorandum and Order was quite terse and is set out in full below:

“The only applicable part of section 605 is the first sentence thereof. Because the security personnel are not among the class of persons described it follows there was no violation. See Bubis v. United States, 384 F.2d 643, 646 (9th Cir. 1967); accord, United States v. Baxter, et al., [492 F.2d 150 (9th Cir. 1973)]. Furthermore, the term ‘persons’ as used therein does not include a law enforcement officer acting in the normal course of his duties. United States v. Hall, et al., 488 F.2d 193 (9th Cir. 1973).

“With regard to the alleged violation of section 2510 et seq., this Act was not intended to prevent the tracing of calls or the use, as here, of the pen register. United States v. Lanza, 341 F.Supp. 405 (M.D.Fla.1972), and cases cited therein.” (Memorandum and Order, p. 2, March 7, 1974 (footnote omitted)).

3 . Although we need not decide the point, we doubt that the requisite state action exists here. There was clearly cooperation between appel-lee’s security agents and the local police, but cooperation alone is not sufficient. In United States v. Goldstein, 532 F.2d 1305, 1311 (9 Cir. 1976), also involving a telephone company investigation, this Court approved the following language from the decision of the Court of Appeals for the Fifth Circuit in United States v. Clegg, 509 F.2d 605, 609 (5 Cir. 1975): “It is only when the government has preknowledge of and yet acquiesces in a private party’s conducting a search seizure which the government itself * * * could not have undertaken * * * [that the requisite state involvement exists].”

4 . The expectation of privacy analysis of the Fourth Amendment originated in the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It was further explained in the plurality opinion of four Justices in United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971):

5 . In United States v. Fithian, 452 F.2d 505, 506 (9 Cir. 1971), this rationale was made explicit: “No one justifiably could expect that the fact that a particular call was placed will remain his private affair when business records necessarily must contain this information.” (Footnote omitted.)

6 . The existence of a constitutional right should not depend upon the boundaries established by the telephone company for its local calling areas.

7 . The possibility that the Fourth Amendment applies to pen registers has not been foreclosed in all circuits. See, e. g., United States v. John, 508 F.2d 1134, 1141 (8 Cir.), cert, denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975). See also United States v. Giordano, 416 U.S. 505, 554 n. 4, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part). In United States v. Falcone, 505 F.2d 478, 482 and n. 21 (3 Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975), the Court of Appeals for the Third Circuit apparently concluded that the Fourth Amendment requires some authorization for the use of pen registers, although the court did not discuss the authorization necessary when a pen register is used apart from an accompanying wiretap.

8 . In Clegg, the telephone company security agent had monitored the defendant’s telephone with a TTS 176 device, a device which “is capable of detecting blue box calls” and which also “produces a paper tape record of the time and date of all outgoing telephone calls, local and long distance, complete and incomplete.” 509 F.2d at 608. A TTS 176 device apparently differs from a pen register only in its ability to detect the special frequencies emitted by blue boxes, devices which allow their users to circumvent the normal billing mechanisms of the telephone system. In Clegg the court treated TTS 176 devices and pen registers as equivalent for purposes of Fourth Amendment analysis, holding that neither raised any Fourth Amendment issue. 509 F.2d at 610.

9 . The statutory definition is of the word “intercept”.

10 . The second sentence concerns the interception only of radio communications and does not apply to telephone communications. United States v. Clegg, 509 F.2d 605, 611 (5 Cir. 1975).

11 . Prior to its amendment in 1968, § 605 provided, in pertinent part:

12 . Application of United States in Matter of an Order Authorizing Use of a Pen Register, 538 F.2d 956, 958 (2 Cir. 1976), cert, granted, 429 U.S. 1072, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). (“It is also clear that pen register orders are not now covered by Section 605 of the Federal Communications Act of 1934.”); United States v. Falcone, 505 F.2d 478, 482 (3 Cir. 1974), cert, denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975) (“[Section] 605 does not now control the use of pen registers * * *.”); United States v. Brick, 502 F.2d 219, 223 (8 Cir. 1974) (“Nor is such use controlled by 47 U.S.C. § 605, as amended.”); Korman v. United States, 486 F.2d 926, 931-932 (7 Cir. 1973) (“the clear intent of Congress would seem to be that the interception of wire communications would be governed solely by [18 U.S.C. § 2510 et seq.].”).

These cases do not hold merely that the use of pen registers — as opposed to the disclosure of information so obtained — is no longer prohibited by § 605, as Judge Merrill suggests in his dissent. Section 605 never prohibited the mere interception of communications; clause 2 of the pre-1968 § 605 outlawed the interception and divulgence of communications.

13 . Judge Merrill’s conclusion that clause 1 of the pre-1968 § 605 prohibited divulgence by communications employees of both information gained in the normal course of their business and information gained by interception rests upon an extremely strained construction of the statute. Clause 1 provided that telephone company employees who assisted in the transmission or reception of communications could divulge the contents “thereof” only under certain enumerated circumstances, e. g., to an addressee’s agent, to an employee authorized to forward the communication, or in response to a subpoena, 42 U.S.C. § 605 (1964). Clause 2 provided that “no person” could intercept and divulge communications unless authorized by the sender or recipient.

Judge Merrill’s construction of the pre-1968 § 605 is internally inconsistent. He suggests that clause 1 provided that certain communications employees could legally divulge both intercepted and non-intercepted communications under certain enumerated circumstances. Yet it is undisputed that clause 2 provided that no person —not even communications employees — could legally intercept and divulge communications without authorization. Thus under Judge Merrill’s reasoning, clause 1 permitted what clause 2 clearly prohibited. Congress cannot be presumed to have enacted such an internally contradictory statute.

14 . The court in Russo went on to conclude that because telephone employees can only learn of the existence or contents of a telephone call by interception, the first clause of § 605 did not apply to them at all. 250 F.Supp. at 59. That assumption is of course, unwarranted. In the course of their daily duties, telephone operators, servicemen, and other employees routinely learn of the existence and/or contents of telephone calls.

15 . The only court to hold that use of a pen register violated the first clause of the pre-1968 § 605 did not consider the internal inconsistency of applying that clause to interceptions. See United States v. Caplan, 255 F.Supp. 805, 808 (E.D.Mich.1966). Despite Judge Hufsted-ler’s implication to the contrary, no other federal court has ever held that the use of pen registers violates the first clause of the pre-1968 § 605 or the first sentence of the present statute.

16 . I disagree with Judge Hufstedler’s conclusion that the use of pen registers to apprehend those who make obscene telephone calls is part of a telephone company’s inherent right “to protect the integrity of [its] communications systems * * *Bubis v. United States, 384 F.2d 643, 646 (9 Cir. 1967). In fact, this protection of integrity exception has always been limited to the telephone company’s right to protect its property against users who attempt to circumvent billing procedures. See, e. g., United States v. Goldstein, 532 F.2d 1305, 1311 (9 Cir. 1976); United States v. Freeman, 524 F.2d 337, 340 (7 Cir. 1975), cert, denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976); United States v. Glanzer, 521 F.2d 11, 12 (9 Cir. 1975); United States v. Clegg, 509 F.2d 605, 613 (5 Cir. 1975); Brandon v. United States, 382 F.2d 607, 610-611 (10 Cir. 1967).

When this Court speaks in Bubis of protecting the integrity of communications systems, it means only that companies should be allowed “to take reasonable measures to protect themselves and their properties against the improper and illegal use of their facilities.” 384 F.2d at 648. A telephone company may intercept a subscriber’s calls only to the extent “necessary to protect the telephone company’s property.” 384 F.2d at 648 n. 5. A subscriber who seeks to circumvent telephone company billing procedures is “deemed to have consented to the company’s monitoring of his calls to an extent reasonably necessary for the company’s investigation.” 384 F.2d at 648 (citation omitted).

Indeed, the best indication that Judge Huf-stedler misreads Bubis is the holding of that case. This Court found that the telephone company did violate § 605 by exceeding the intrusion necessary to establish Bubis’s circumvention of billing procedures. The telephone company may not gather evidence to be used against a subscriber in a prosecution for a different crime:

“It is equally difficult to find any implied consent by appellant to disclosure for the purpose of convicting him of using interstate telephone facilities for gambling. Disclosure for this purpose contributed nothing either to the collection of long distance tolls that appellant may have owed the company, or to preventing him or others from thereafter using long distance telephone facilities without paying.” 384 F.2d at 648 n. 5.

This Court concluded that “[t]o sanction such practices on the part of the telephone company would tend to emasculate the protection of privacy Section 605 was intended to protect.” 384 F.2d at 648.

Prosecution of obscene callers is no more likely to lead to the collection of long distance tolls than is the prosecution of interstate gamblers. The intent of this Court in Bubis was to limit strictly the circumstances under which a telephone company would monitor the calls of a customer. The holding in Bubis should not be relied upon to frustrate its very purpose.

The protection of integrity exception has never been used to allow telephone companies to investigate crimes committed against their subscribers over the telephone. As Judge Merrill correctly points out in his dissent, such an interpretation would open the door to telephone company investigation of an extremely wide variety of offenses. Nor is there any reason to believe that the Fourth Amendment or § 1983 would be any more applicable to a telephone company’s investigation of other crimes than it is to the investigation of obscene calls in this case.

The most disturbing aspect of Judge Hufsted-ler’s dictum (she discusses the protection of integrity exception to § 605 after already having concluded that the statute does not apply to pen registers) is that her reasoning can be relied upon to broaden substantially the circumstances under which a telephone company may wiretap its customers’ lines. When Congress enacted the Omnibus Crime Control Act of 1968, it preserved the right of telephone companies to intercept and disclose any communication when doing so “is a necessary incident * * * to the protection of the rights or property of the carrier of such communication.” 18 U.S.C. § 2511(2)(a)(i).

Citing United States v. Beckley, 259 F.Supp. 567 (N.D.Ga.1965), Congress enacted § 2511(2)(a)(i) “to reflect existing law” which allowed telephone companies to intercept communications in order to protect the integrity of their property. S.Rep. No. 1097, 90th Cong., 2d Sess. 93 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112. This Court’s decision in United States v. Goldstein, supra, 532 F.2d at 1309, upon which Judge Hufstedler relies, also cites Beckiey, adopting its reasoning. Thus, if Judge Hufstedler is correct that the protection of integrity exception also includes the investigation of crimes committed over the telephone, then § 2511(2)(a)(i) would allow telephone companies to wiretap under the same circumstances. This is a dangerous and unnecessary precedent with which I cannot agree.