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

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 *255 to appellee’s installation of a pen register 1 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…

specially concurring:

While I join in the result reached by Judge Renfrew, I cannot concur in his reasoning in concluding that Section 605, 47 U.S.C. § 605 (1976), does not prohibit the use of pen registers and that the Fourth Amendment does not restrict the use of a pen register.

I

The problem presented by this appeal is one of interpretation: Did Congress intend to permit or prohibit pen registers under Section 605? This process of interpretation requires us to explore both legislative history and the judicial reception to pen registers under Section 605. While Judge Ren-frew’s analysis may offer a reasonable interpretation of Section 605’s applicability to pen registers, it does not accurately represent the judicial response to pen registers under Section 605. In its failure to do so, Judge Renfrew’s analysis skips over a crucial analytical stepping stone in arriving at a fair interpretation of Congress’ intent with respect to pen registers under Section 605.

Pen registers have had a diverse history under Section 605. Prior to its amendment in 1968, Section 605 contained two clauses applicable to pen registers. Clause 1 pro *262 hibited, with certain exceptions inapplicable…

concurring and dissenting:

I concur in part II of Judge Renfrew’s opinion and agree with the conclusion of part I of that opinion and part II of Judge Hufstedler’s concurring opinion. I disagree with the result they reach and with their conclusion that § 605 does not prohibit the divulgence of information obtained by means of a pen register. Accepting at face value the language of that section, it clearly does prohibit such divulgences. Subject to certain exceptions the prohibition, as applied to persons engaged in forwarding communications, is complete and absolute: “[N]o person * * * shall divulge or publish the existence, contents, substance, purport, effect, or- meaning” of communications.

It is important to bear in mind that while Title III of the Omnibus Crime Control Act and § 605 both strive to protect interests of privacy and confidentiality, their objectives are quite different. Title III is concerned with eavesdropping — the obtaining of private information by unjustified intrusion into private areas. It seeks to accomplish its objective by regulating the interception of communications. The specific interest addressed by § 605 is the integrity of communications…

555 F.2d 254 James L. HODGE, Plaintiff-Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Foreign Corporation, Defendant-Appellee. No. 74-2162. United States Court of Appeals, Ninth Circuit. June 8, 1977. I. Harrison Levy, Phoenix, Ariz., argued for plaintiff-appellant. Roger C. Mitten, Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., argued for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before MERRILL and HUFSTEDLER, Circuit Judges, and RENFREW, * District Judge. 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 register 1 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…