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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 els ewhere, 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 t he United States.

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

M EMORANDUM O PINION FOR THE D IRECTOR
O FFICE OF G OVERNMENT R EPORTS

I. W ireless

Section 606(c) of the Communications Act of 1934 1 provides that

, upon pro clamation by the President that there exists a national emergency

, the President may suspend or amend for such time as he sees fit the r u les and regulations applicable
to any and all radio stations within the j urisdiction of the United States, and may cause the closing of any station and the removal of its apparatus and equipment, or he may authori z e the use or control of any such station and/or its apparatus and equi pment by a ny department of the g overnment 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, i nimical to the national security and foreign policy of the

nation. Attention is called, however, to the provision s of section 605 of the Commun ications Act of 1934 that, “ no person not being authorized by the sender sha ll intercept any communication [ by wire or radio ] and divulge or publish the

. . . contents

. . . of such intercepted communication to any person. ” 48 S tat. at 1104. The Supreme Court has held that this provision applies to wire tapping and

interce ption of messages, even by the g overnment, 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. Wei s s v. United St ates

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

, 3 08 U.S. 338 ( 1937 ) . Attention is also called to section 326 of said Co mm unic ations Act

, which prohibits the Commission from establishing any censorship over

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

that under hi s 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 co uld

, I believe

, exercise similar control through the A rm y or Navy over the transmission by cable of messages from t he United States. On April 28, 1917, censorship of cable, telegraph

, and telephone lines was established by Executive Order 2604, which recit ed 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 specifical ly authorizing censorship (Trading with the En emy Act 2 )

, but this le gislation was only for the period of the w ar 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, 1 917, 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.