Justice Sutherland on Wiretapping

As part of my ongoing research on George Sutherland, I came across an interesting passage in his dissent from United States v. Nardone.  Nardone was a 1936 case holding that the Communication Act of 1934, which prohibited employees from intercepting electronic communications, applied to wiretaps used by the FBI and other federal agents.  (This was a decision, BTW, that J. Edgar Hoover and Franklin Roosevelt largely ignored.)  Sutherland argued (for himself and McReynolds) that Congress did not intend to include criminal investigations in this statute, and concluded with this purple passage:

“My abhorrence of the odious practices of the town gossip, the peeping Tom, and the private eavesdropper is quite as strong as that of any of my brethren. But to put the sworn officers of the law, engaged in the detection and apprehension of organized gangs of criminals, in the same category, is to lose all sense of proportion. In view of the safeguards against abuse of power furnished by the order of the Attorney General, and in the light of the deadly conflict constantly being waged between the forces of law and order and the desperate criminals who infest the land, we well may pause to consider whether the application of the rule which forbids an invasion of the privacy of telephone communications is not being carried in the present case to a point where the necessity of public protection against crime is being submerged by an overflow of sentimentality.”

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1 Response

  1. Howard Gilbert says:

    Not only was the law interpreted as prohibiting wiretaps by the FBI, it was also interpreted as preventing US Military Intelligence from intercepting communications between foreign countries and their diplomats. As a result, ATT refused to turn over to the government copies of foreign communications. In 1939 as WWII broke out in Europe, Army Chief of Staff George Marshall ordered the US military to ignore the law and the court decisions and intercept and decode at least Japanese short wave radio communications, including the 1941 orders to consular officials in Hawaii to take long walks on the hills overlooking Pearl Harbor and report back each night on what they saw. Interesting, this clear violation of US law was either ignored or praised for the next 70 years by historians and scholars, the same sort of people are now horrified by unintended technical glitches in NSA handling of communications data.