                                                                                     June 5, 1978



78-31         MEMORANDUM OPINION FOR THE DEPUTY
              ASSISTANT ATTORNEY GENERAL, CRIMINAL
              DIVISION

             Intelligence— Warrantless Electronic Surveillance—
             Common Carriers (18 U.S.C. §§ 2510-2520, 47
             U.S.C. § 605)


   This is in response to your request for our opinion regarding the legality of
cooperation by common carriers in providing the Federal Government with
technical assistance in connection with warrantless electronic surveillance for
foreign intelligence purposes.1 We conclude that such activities are not
prohibited by § 605 of the Communications Act, 47 U.S.C. §605; nor do they
violate chapter 119 or title 18, United States Code, 18 U.S.C. §§ 2510 -2520,
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as
amended.

                     I. Section 605 of the Communications Act
   Section 605 provides in pertinent part that:
     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, (2) to a person employed or authorized to forward such
     communication to its destination, (3) to proper accounting or distrib­
     uting officers of the various communicating centers over which the
     communication may be passed, (4) to the master of a ship under
     whom he is serving, (5) in response to a subpoena issued by a court
     of competent jurisdiction, or (6) on demand of other lawful
     authority. . . .

  'Y ou have indicated that only limited technical assistance, not interception and disclosure perse,
would be requested. The scope o f this m em orandum is limited accordingly.

                                                 123
This language, found in the first sentence of § 605, is designed to regulate the
conduct of communications personnel. S. Rept. No. 1097, 90th Cong., 2d
sess., 1968 U.S. Code Cong. & Admin. News, at 2197. The remainder of the
section deals only with radio communications. The current language was
adopted in 1968 as § 803 of the Omnibus Crime Control and Safe Streets Act.
The provision was “ not intended merely to be a reenactment of (old] section
605. . . [but was] intended as a substitute.” Id., at 2196.
   Although the 1968 changes have in certain respects rendered pre-1968
judicial interpretations inapplicable,2 certain interpretations may have contin­
ued vitality. Thus, in United States v. Russo, 250 F. Supp. 55, 58-59 (E.D. Pa.
 1966), the court treated the first clause of § 605 as applicable under only very
narrow circumstances, unlike those here at issue, indicating that the statute’s
language was
      . . . 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 employ­
     ment. 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 breech the trust
     which such knowledge imposes on them.
    Also significant is the holding of the Court of Appeals for the Third Circuit,
 in United States v. Butenko, 494 F. (2d) 593 (en banc), cert, denied sub nom.,
Ivanov v. United States. 419 U.S. 881 (1974), that in its earlier form the
provision was simply not intended to reach wiretapping undertaken pursuant to
Presidential order for foreign intelligence purposes.The provision of technical
assistance for this limited purpose, using similar reasoning, would also seem to
fall outside the current scope of § 605, particularly since an express disclaimer
of such coverage appears in 18 U.S.C. § 2511(3), discussed below, which was
enacted at the same time.
    The language and legislative history of § 605, as amended, provide addi­
tional support for the view that the provision presents no bar to a carrier’s
technical assistance in connection with warrantless intelligence taps. In its
present form, the section simply bars divulgence of the existence or content of
wire communications. Cooperation in identifying lines or otherwise providing
 necessary technical information to facilitate Government taps does not involve
disclosures of this sort. Moreover, the legislative history of the amended
provision states that “ [T]he regulation of the interception of wire and oral
communications in the future is to be governed by proposed new chapter 119 of
title 18, United States Code [18 U.S.C. §§ 2510-2520].” S. Rept. No. 1097,
supra, 1968 U.S. Code Cong. & Admin. News, at 2196. Rather than assuming
that Congress intended separately to regulate interceptions (in title 18) and
disclosures (in § 605), the courts have indicated that Congress effectively

  “'Significantly, under the earlier version the restrictions contained in the second through fourth
sentences o f the current provision, now applicable only to radio com m unications, also governed
com m unications by wire.

                                                124
shifted control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520.
See, United States v. Falcone, 505 F. (2d) 478, 482 (3d Cir. 1974), cert,
denied, 420 U.S. 955 (1975). Cf., Hodge v. Mountain States Telegraph &
Telephone Co., 555 F. (2d) 254, 264 (9th Cir. 1977) (Hufstedler, J.,
concurring) (pen registers not barred by chapter 119 of title 18 and therefore not
covered by § 605).
   For these reasons we believe that communication carriers who provide
limited technical assistance in connection with Presidentially authorized warrantless
electronic surveillance undertaken for foreign intelligence purposes will not
violate § 605 of the Communications Act.


                    II. 18 U.S.C. §§ 2510-2520 (Title III)
   Section 2511(1) of title 18, United States Code, forbids interception of wire
or oral communications, use of various devices to intercept oral communica­
tions, disclosure of the content of wire or oral communications, and use of the
contents of such communications knowing that they have been obtained
through illegal interception. “ Intercept” is defined as “ the aural acquisition of
the contents of any wire or oral communication through the use of any
electronic, mechanical, or other device” 18 U.S.C. § 2510(4). Identification of
particular telephone lines or provision of other technical assistance, knowing
that another intends to undertake electronic surveillance, does not fall within
the statutory language. Only actual interception or disclosure is forbidden, not
lesser acts facilitating such consequences. The possibility that such conduct
would be treated by a court as falling within the terms of the statute for the
purpose of aiding or abetting or of a conspiracy charge where the electronic
surveillance is not authorized pursuant to title III. cf.. White v. Weiss, 535 F.
(2d) 1067 (8th Cir. 1976) (private detective’s participation in interception by
providing equipment and instruction in its installation held basis for liability
under § 2520), appears to be foreclosed by reference to the limitation on the
scope of the title III prohibitions appearing in 18 U.S.C. § 2511(3).
   Section 2511(3) provides:
     Nothing contained in this chapter or in section 605 of the Communi­
     cations Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the
     constitutional power of the President to take such measures as he
     deems necessary to protect the Nation against actual or potential
     attack or other hostile acts of a foreign power, to obtain foreign
     intelligence information deemed essential to the security of the
      United States, or to protect national security information against
     foreign intelligence activities. Nor shall anything contained in this
     chapter be deemed to limit the constitutional power of the President
     to take such measures as he deems necessary to protect the United
     States against the overthrow of the Government by force or other
     unlawful means, or against any other clear and present danger to the
     structure or existence of the Government. . . .


                                        125
   The Supreme Court, in United States v. United States District Court (Keith),
407 U.S. 297 (1972), a case involving warrantless surveillance of a domestic
organization allegedly inclined to attack and subvert the existing structure of
 Government, interpreted this provision not as a grant of authority to conduct
 warrantless national security searches, but as a disclaimer of congressional
intent to define Presidential powers in matters affecting national security. In
this limited context, the Court held that the Fourth Amendment warrant
requirement did apply; in so doing, however, it appeared to assume that title III
limitations were inapplicable, for it discussed at some length the possible
variations in procedural requirements that might be permissible under the
Constitution. Id., at 322-323. The Keith decision provides guidance concern­
ing the President’s constitutional power to undertake surveillance, while at the
same time it construes § 2 5 11 (3) broadly to exempt from coverage under title III
Presidential action with regard to both national security and foreign intelligence
surveillance, at least in the absence of further action by Congress.'' The Court’s
clear language supports this interpretation: “ We therefore think the conclusion
inescapable that Congress only intended to make clear that the Act simply did
not legislate with respect to national security surveillance.” Id., at 306.
   An alternative interpretation of Keith was suggested in Zweibon v. Mitchell,
516, F. (2d) 594 (D.C. Cir. 1975), cert, denied, 425 U.S. 944 (1976). In an
opinion joined by Judges Leventhal and Robinson, and concurred in by Judge
Bazelon, Judge Wright there asserted that the requirements of title III should
be deemed to apply as fully as possible where warrantless electronic surveil­
lance at the behest of the President was not found to be constitutionally
authorized; specifically where such surveillance was directed against members
of a domestic organization whose activities could affect the foreign relations of
the United States, but who were neither agents of nor collaborators with a
foreign power.4 At the same time, both Judge Wright and the other members of
the court were careful to stress that the case did not require them to resolve the
more difficult question left undecided in Keith, see 407 U.S. at 322, i.e.,
whether a warrant is constitutionally required in connection with electronic
surveillance of collaborators or agents of a foreign power. Courts of appeal in
three circuits have squarely held that warrants are not required under those
circumstances. United States v. Buck, 548 F. (2d) 871 (9th Cir. 1977); United
States v. Butenko, supra; United States v. Brown, 484 F. (2d) 418 (5th Cir.
1973). See also, United States v. Humphrey, Crim. No. 78-25-A (E.D. Va.,
March 31, 1978), memorandum opinion at 8. In light of this clear and growing
authority, we do not believe that Judge Wright’s analysis in Zweibon regarding

   3In a recent decision, the U .S . District C ourt for the Eastern District of Pennsylvania adopted this
view, holding that if it is established that surveillance is conducted for national security purposes,
no right o f action based on failure to com ply with title III will lie. despite the conclusion that in that
case there was a constitutional requirem ent that a warrant be procured. See. Burkhart v. Saxbe. 448
F. Supp. 588 (E .D . Pa. 1978).
   4Judges W ilkey, M acK innon, and M cG ow an rejected this interpretation of Keith; Judge Robb,
concurring in the result but not in the relevant portion o f the W right opinion, found title III
applicable on the facts presented. It is therefore far from clear that the W right view should be seen
as controlling.

                                                    126
the breadth of application to be given the provisions of title III will be extended
to render telephone companies liable for providing technical assistance in
connection with even constitutionally flawed surveillances undertaken pursuant
to Presidential authorization for foreign intelligence purposes.5
   Given our conclusion that the proscriptions of title III do not apply where,
pursuant to Presidential authorization, Federal agents carry out warrantless
electronic surveillance for foreign intelligence purposes, we must nevertheless
inquire whether telephone companies which provide necessary technical
assistance at the request of the Government are equally exempt from liability. It
would seem to follow that Congress, intending to leave unimpaired the
President’s authority in this regard, did not seek to bar cooperation by
telephone companies where needed to accomplish the permitted end. Cf.,
Fowler v. Southern Bell Telephone & Telegraph Co., 343 F. (2d) 150, 156-157
(5th Cir. 1965) (recognizing a common law immunity from liability for
telephone companies engaged in assisting immune State officials). This notion
is strengthened by analogy to § 251 l(2)(a), as amended in 1970, to provide that
      (ii) It shall not be unlawful under this chapter for an officer,
      employee, or agent of any common carrier to provide information,
      facilities, or technical assistance to an investigative or law enforce­
      ment officer who, pursuant to this chapter, is authorized to intercept a
      wire or oral communication.
   Section 2511 (2)(a) and two other contemporaneous amendments to title III6
specifically provide for limited assistance in connection with court-authorized7
electronic surveillance which complies with the procedural protections of title
III, but do not in terms immunize carriers who provide such limited assistance




    5See Burkhart v. Saxbe, supra. It should, nevertheless, be noted that the Humphrey decision may
be viewed as raising particular questions in this regard. T here, the court held that a w arrant was
required by virtue o f the Fourth Am endm ent once the gathering o f evidence o f crim inal activity,
rather than the accum ulation o f foreign intelligence inform ation, had becom e the primary purpose
o f Presidentially authorized electronic surveillance, but did not analyze the issue in term s o f title
HI. W e do not believe that such a recognition of the G overnm ent’s obligation under the
Constitution to seek a judicial warrant at this later tim e should affect the liability o f telephone
com panies under title III. Section 2 5 11 (3) states that nothing in chapter 119 o f title 18 (title III) is to
be read as lim iting the President’s constitutional pow er to undertake foreign intelligence
surveillances as necessary. Interpreting title 111 to render telephone com panies liable for providing
necessary technical assistance w henever an investigation later changes in character (without their
knowledge) so that a warrant is constitutionally required would effectively deter their participation
at the outset. This result is questionable since it im pinges upon the carefully preserved and
judicially recognized Presidential pow er with regard to foreign intelligence surveillances.
    6See 18 U .S .C . § 2518(4) (on request o f the applicant for a court order com pelling a
com m unications com m on carrier to fum ish inform ation, facilities, and technical assistance in
connection with court-authorized interception); 18 U .S .C . § 2520 (expanding the defense o f good
faith reliance on court orders or on the provisions o f § 2518(7) to include reliance on court order or
 "legislative authorization").
    7The Suprem e Court in Keith, as earlier discussed, found that § 2511(3) did not constitute
congressional “ authorization” o f w arrantless intelligence surveillance undertaken pursuant to
Presidential order.

                                                     127
in connection with Presidentially authorized surveillance.8 At the same time,
however, they do demonstrate Congress’ intent not to penalize under title 111
those who render this sort of aid in connection with electronic eavesdropping
that is lawfully undertaken.9 The decision in Halperin v. Kissinger, .424, F.
Supp. 838 (D.D.C. 1974), provides some support for this view insofar as the
district court there found a telephone company which had provided limited
technical assistance while acting in reliance on the representations of Govern­
ment officials to be without liability.10 Based on the above reasoning and this
limited authority, we therefore believe that it may properly be concluded that
title III imposes no criminal or civil liability on common carriers which provide
limited technical assistance pursuant to a Government request in connection
with Presidentially authorized electronic surveillance for foreign intelligence
purposes.

                                         III. Conclusion
   There have been few judicial decisions considering the liability of telephone
companies which provide technical assistance in the conduct of foreign
intelligence surveillances. However, based on relevant statutory provisions, we
believe that no liability is likely to be found under 47 U.S.C. § 605, as
amended. Additionally, it is our view that liability for rendering technical
assistance at least in connection with Presidentially authorized warrantless
electronic surveillance of an agent or collaborator of a foreign power could not
be founded on the provisions of Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, as amended.

                                                           Jo h n M . H a rm o n
                                                        Assistant Attorney General
                                                                    Office o f Legal Counsel




   “The am endm ents were adopted in 1970 as part o f the District o f Colum bia Court Reorganization
Act. Their limited legislative history indicates that they were intended m erely to clarify C ongress’
intent under title III o f the 1968 Act. 115 Cong. Rec. 37192-93 (1970) (rem arks by Senator
M cClellan). The Suprem e Court has held that the am endm ents were primarily designed to overrule
the Ninth C ircu it’s decision in Application o f the United States, 427 F. (2d) 639 (1970), which had
concluded that district courts lack pow er to compel a telephone com pany to assist in a wiretap
conducted pursuant to title III. United States v. New York Telephone Co.. 434 U. S. 159, 177, n.
25 (1977). T he use o f such language to clarify C ongress’ intent in enacting title III does not compel
the conclusion that the earlier version o f the law did not permit the rendering o f such assistance.
C f. ibid.
   ''That lim ited technical aid was expressly sanctioned does, how ever, by im plication, suggest that
direct telephone com pany involvem ent in interception and disclosure was not at the same time
approved.
    l0It is unclear which o f these distinguishable grounds and statutory bases (§ 251 l(2)(a),
concerning technical assistance, o r § 2520, concerning good faith reliance) served ultim ately as the
basis for the co u rt’s ruling.

                                                  128
