190 21 OCTOBER TERM, 1977 STEVENS, J., dissenting in part 434 U.S. tion of an investigation . . . ." Ante, at 174. Concededly, citizen cooperation is always a desired element in any government investigation, and lack of cooperation may thwart such an investigation, even though it is legitimate and judicially sanctioned. But unless the Court is of the opinion that the District Court's interest in its jurisdiction was coextensive with the Government's interest in a successful investigation, there is simply no basis for concluding that the inability of the Government to achieve the purposes for which it obtained the pen register order in any way detracted from or threatened the District Court's jurisdiction. Plainly, the District Court's jurisdiction does not ride on the Government's shoulders until successful completion of an electronic surveillance. If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation's history. Of course, there is precedent for such authority in the common law-the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate. See n. 3, supra. I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be "agreeable to the usages and principles of law." 21 A citizen is not, however, free to forcibly prevent the execution of a search warrant. Title 18 U. S. C. § 2231 imposes criminal penalties on any person who "forcibly assaults, resists, opposes, prevents, impedes, intimidates, or interferes with any person authorized to serve or execute search warrants . . . ." This section was originally enacted as part of the Espionage Act of 1917, see n. 6, supra, and is the only statutory provision imposing any duty on the general citizenry to "assist" in the execution of a warrant. 159 UNITED STATES v. NEW YORK TELEPHONE CO. 191 STEVENS, J., dissenting in part III The order directed against the Company in this case is not particularly offensive. Indeed, the Company probably wel comes its defeat since it will make a normal profit out of com pliance with orders of this kind in the future. Nevertheless, the order is deeply troubling as a portent of the powers that future courts may find lurking in the arcane language of Rule 41 and the All Writs Act. I would affirm the judgment of the Court of Appeals. 392 452 FEDERAL SUPPLEMENT 114 (1952), has clearly held in an extradition situation that a fugitive from justice must challenge the constitutionality of his (or her) incarceration in the demanding state and not in the asylum state. The sparse law in this circuit has followed the Supreme Court mandate. United States ex rel. Hammershoy v. Director of Conn. Corr. Ctr., 299 F.Supp. 1354, 1356 (D.Conn.1969) (Timbers, Ch. J.). Hammershoy recognized the possibility of a contrary rule on a showing of "very unusual facts," id., presumably referring to the arguable intimation in Sweeney that such might be the result on a showing that relief is unavailable in the courts of the demanding state. There is, however, no basis on which to conclude that the courts of the State of North Carolina would be unable to afford petitioner her relief, notwithstanding a vague suggestion in the petition to the contrary. Indeed, the fact that Ms. Little was acquitted on the murder charge in a North Carolina court would belie such a suggestion. Should there be any failure on the part of the North Carolina state courts to accept and apply the requirements of the Constitution of the United States, relief in the federal court sitting in the State of North Carolina is available. To me the law is clear. It requires that the petition for the writ of habeas corpus be dismissed. At the hearing, the attorney for the petitioner requested a stay pending appeal in the event of an adverse determination. Since I believe that there is no probable cause for an appeal, I will not issue either the required certificate of probable cause (28 U.S.C. § 2253) or a stay. Freddie Joe SIMMONS, Plaintiff, V. SOUTHWESTERN BELL TELEPHONE United States District Court, May 19, 1978. Former employee of telephone company sued company alleging that its actions in monitoring his private telephone conversations were unlawful and unconstitutional. On defendant's motion for summary judg. ment, the District Court, Thompson, J., held that: (1) where telephone company maintained a "testdesk" where trouble reports from customers were handled, and use of testdesk telephone by employees was monitored by supervisors for quality control and other purposes, and where employee knew that personal calls were not be made from the testdesk and that his telephone conversations from the desk could be and were monitored, he could not recover against telephone company on ground that monitoring his private conversations on the testdesk telephone violated constitutional right of privacy; (2) company's monitoring activities fell within exception from prohibition against intercepting wire communications contained in the Omnibus Crime Control and Safe Streets Act of 1968; (3) since company lawfully monitored plaintiff's phone calls, any disclosure thereof was not a violation of the Act, and (4) section of the Communications Act of 1934 prohibiting unauthorized publication or use of communications exempts from its coverage those activities authorized by the 1968 Act. Motion granted. : SIMMONS v. SOUTHWESTERN BELL TEL. CO. expectation of privacy. U.S.C.A.Const. 8.5(2) Where telephone company maintained "iestdesk" where trouble reports from mers were handled, and use of testtelephone by employees was monitored supervisors for quality control and other ses, and where employee knew that Sonal calls were not to be made from the desk and that his telephone conversaas from the desk could be and were moored, he could not recover against telehe company on ground that monitoring 1 private conversations on the testdesk phone violated constitutional right of acy, since the company was not an arm the government nor responsible under Fourth Amendment as a government s and since, in any event, employee did have a reasonable expectation under circumstances that he could protect his onal conversations from intrusion. U.S. A Const. Amends. 4, 9. Telecommunications ~491 Where telephone company maintained board where trouble reports from cusmers were handled and use of board by ployees was monitored by supervisors for pose of service quality control checks d. in plaintiff employee's case, for purof preventing his persistent use of board phone for personal calls, against ich he had been warned several times, mpany's legitimate interest in maintain quality control and availability of lines ⚫ght its monitoring activities within extion from prohibition against intercep of wire communications, contained in Omnibus Crime Control and Safe reets Act of 1968. 18 U.S.C.A. §§ 2511, 11(2)(a)(i), 2520. 393 desk," within meaning of the Omnibus Crime Control and Safe Streets Act of 1968, any disclosure of such conversations was not a violation of the Act since disclosure, to be unlawful thereunder, must be of information which was unlawfully intercepted. 18 U.S.C.A. §§ 2511, 2511(2)(a)(i), 2520. 5. Telecommunications 492 Section of the Communications Act of 1934 prohibiting unauthorized publication or use of communications exempts from its coverage those activities authorized by the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C.A. § 2510 et seq.; Communications Act of 1934, § 605, 47 U.S. C.A. § 605. Lyle McPheeters, Oklahoma City, Okl., for plaintiff. Thomas J. Enis and Robert D. Allen, Oklahoma City, Okl., for defendant. MEMORANDUM OPINION THOMPSON, District Judge. Plaintiff herein was formerly employed by defendant at its test center in Oklahoma City. His job, at the time of the acts complained of herein, was that of "desk man" or "testboardman". As such, plaintiff was one of several employees at a "testdesk"-a large and complex panel where all trouble reports from customers were received, cleared, dispatched, and closed.' The supervisors, or chief deskmen, monitored the use of testboard telephones for service quality checks, checking work in progress, assisting deskmen, and insuring minimum use of customer monitoring by deskmen. The deskmen, and specifically plaintiff, knew that the testboard lines were monitored. It was the written policy of defendant, and understood by plaintiff, that personal calls made to or from the testboard were not allowed.' 3. Deposition of plaintiff, pp. 94, 99. 4. Deposition of plaintiff, Exhibit 1. 394 452 FEDERAL SUPPLEMENT There were other telephones, not subject to service observing, available for personal calls. Plaintiff had been warned repeatedly against his excessive use of the testboard phones for private calls. In this action plaintiff alleges that the actions of defendant in monitoring his private conversations on the testboard telephones were unlawful, unconstitutional, and caused him damages exceeding $6,000,000. Plaintiff brings this action on two separate theories of recovery-he alleges first a violation of his constitutional right to privacy, and secondly, a violation of 18 U.S.C. §§ 2510, et seq., entitling him to a private right of damages. He seeks actual and punitive damages as a result of the defendant's actions, including his allegedly wrongful termination from employment. Defendant has moved for summary judgment, which motion has been briefed by the parties and is ready for decision. Plaintiff has, during the time for briefing this motion, applied for and obtained leave to amend his complaint. Defendant has asked that its Motion for Summary Judgment be directed to the amended complaint, as the cause of action is essentially the same. Thus the Court has read the briefs of the parties on the Motion for Summary Judgment as be 5. Affidavit of Dennis J. Fowler, supra, n. 2; deposition of plaintiff, p. 94. ing directed to plaintiff's second amended complaint. Constitutional Right to Privacy [1,2] The constitutional protection of the right to privacy is a relatively new development in our law, but with historical precedent. The right to privacy has been found under the First,' Fourth,10 Fifth," Ninth,12 and Fourteenth Amendments," and the "penumbra of the Bill of Rights","4 It is clear that, whatever the source of the right, the protection is only as against government intrusions into a person's privacy.15 The defendant herein is certainly not an arm of the government and is not "responsible under the Fourth Amendment as [a] government bod[y]"." Moreover, as the law in this area continually evolves and becomes more concrete, it is inevitable that the right protected is not absolute and unequivocal, but rather that the Constitution protects only a reasonable expectation of privacy." Plaintiff herein was well aware that his telephone conversations could be monitored, and in fact were. It is not a "reasonable expectation" under these circumstances that plaintiff could protect his personal conversations from intrusion. 12. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). |