Hanna v. United States/Dissent Fortas

Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS joins, dissenting.

The recording instrument was used for about three weeks. The FBI was then informed of the recordings, and the recordings were turned over to a grand jury in response to a subpoena. Using the recorded information, the FBI obtained a warrant and conducted a search of petitioner's home.

Section 605 of the Federal Communications Act, 47 U.S.C. § 605, prohibits the interception and divulgence of telephone messages. It is argued-and the Fifth Circuit held-that the information was not unlawfully obtained because § 605 excludes from its prohibitions certain divulging of telephone messages by '[a] person * *  * transmitting, or assisting in transmitting' conversations.

In a similar case, Bubis v. United States, 384 F.2d 643 (C.A. 9th Cir.1967), the Ninth Circuit held that under § 605 the telephone company was not allowed to continue tapping its subscribers' lines to detect fraud 'after ample evidence had been secured of the illegal use of the company's facilities.' 384 F.2d, at 648. The tap in Bubis recorded the whole conversation and not merely the first part, but an essential fact-that the interception was more extensive than necessary to detect fraud-is the same in both cases.

I would grant certiorari in this case to resolve the area of conflict between circuits and to determine whether § 605 permits the telephone company to intercept and divulge personal communications which are used in the expectation of freedom from 'the uninvited ear.' Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).