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Presidential Control of Wireless and Cable 

Information Leaving the United States

The President has authority under the Communications Act of 1934 to control any radio station so as to 

prevent the transmission from the United States of any message, or part thereof, inimical to the 

national security and foreign policy of the nation. Specific emergency powers like those granted 

over radio are not contained in the Communications Act, or elsewhere, with respect to cables. But 

should the President as Commander in Chief and under his other constitutional powers deem such 

action essential to the protection of the armed forces or the national security, or the protection of 

shipping, in a time of unlimited national emergency, he could exercise similar control through the 

Army or Navy over the transmission by cable of messages from the United States.

A great deal can be done by the President with respect to censorship of second, third, and fourth class 

mail; but in view of the protection which the existing statutes afford to sealed first class mail, the 

problem there is a difficult one, and it is still being studied.

June 19, 1941

MEMORANDUM OPINION FOR THE DIRECTOR

OFFICE OF GOVERNMENT REPORTS

I. Wireless

Section 606(c) of the Communications Act of 19341 provides that, upon proclamation by the President that there exists a national emergency, the President may 

suspend or amend for such time as he sees fit the rules and regulations applicable 

to any and all radio stations within the jurisdiction of the United States, and may 

cause the closing of any station and the removal of its apparatus and equipment, or 

he may authorize the use or control of any such station and/or its apparatus and 

equipment by any department of the government under such regulations as he may 

prescribe, upon just compensation to the owners.

Under this power the President may under existing circumstances take over and 

control the radio stations of the country. If he does not desire to go that far, the 

President in my opinion may, through appropriate agents and regulations, control 

any radio station so as to prevent the transmission from the United States of any 

message, or part thereof, inimical to the national security and foreign policy of the 

nation.

Attention is called, however, to the provisions of section 605 of the Communications Act of 1934 that, “no person not being authorized by the sender shall 

intercept any communication [by wire or radio] and divulge or publish the . . .

contents . . . of such intercepted communication to any person.” 48 Stat. at 1104. 

The Supreme Court has held that this provision applies to wiretapping and 

interception of messages, even by the government, for the purpose of obtaining 

 

1 Act of June 19, 1934, ch. 652, 48 Stat. 1064, 1104–05, codified at 47 U.S.C. § 606.
Presidential Control of Wireless and Cable Information Leaving the United States

83

evidence. Weiss v. United States, 308 U.S. 321 (1939); Nardone v. United States, 

308 U.S. 338 (1937). Attention is also called to section 326 of said Communications Act, which prohibits the Commission from establishing any censorship over 

any radio communications or signals. Notwithstanding these provisions, I believe 

that under his emergency powers referred to above, the President may exercise the 

control above stated. Whether or not information obtained through the exercise of 

this control could be used as evidence presents a different question, and I express 

no opinion about that for the moment.

II. Cable

Specific emergency powers like those granted over radio are not contained in 

the Communications Act, or elsewhere, with respect to cables. But should the 

President as Commander in Chief and under his other constitutional powers deem 

such action essential to the protection of the armed forces or the national security, 

or the protection of shipping, etc., in a time of unlimited national emergency such 

as now exists, he could, I believe, exercise similar control through the Army or 

Navy over the transmission by cable of messages from the United States. On 

April 28, 1917, censorship of cable, telegraph, and telephone lines was established 

by Executive Order 2604, which recited the authority of the President under the 

Constitution and the Joint Resolution of April 6, 1917 declaring an existence of a 

state of war. Legislation was subsequently enacted specifically authorizing 

censorship (Trading with the Enemy Act2), but this legislation was only for the 

period of the war of 1917–18. Similar legislation is desirable to put the matter 

beyond doubt, although I believe the President may act without it.

III. Mail

During the last war there was no censorship of mail until October 12, 1917, 

when it was established under the authority contained in the Trading with the 

Enemy Act of October 6, 1917 (§ 3(d)). This statutory provision is no longer in 

existence. It is clear a great deal can be done with respect to second, third, and 

fourth class mail; but in view of the protection which the existing statutes afford to 

sealed first class mail, the problem there is a difficult one, and I am still studying 

it.

CHARLES FAHY

Assistant Solicitor General

 

2 Act of Oct. 6, 1917, ch. 106, 40 Stat. 411.