No. 81-77 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

N. J. HASTETTER, M.D.1 Plaintiff and Appellant,

J. J. BEHAN AND MID-RIVERS TELEPHONE COOPERATIVE, INC. Defendant and Respondent.

Appeal from: District Court of the SeventhJudicial District, Inand fortheCounty of McCone, The Honorable M. James Sorte, Judge presiding.

Counsel of Record: For Appellant: Moses Law Firm, Billings, Montana

For Respondent: Heefer, Roybal & Hanson, Billings, Montana Moulton, Bellingham, Longo & Mather, Billings, Montana Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana

Submittedon Briefs: July 16, 1981 Decided: January 20, 1982

Filed:

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# 1982Mr. JusticeGene B. Daly delivered the Opinion of the Court. This action is based on the defendants' alleged violation of theplaintiff's right toprivacy asprovided in Art. 11, Sec. 10, 1972 Mont. Const., and the defendants' alleged violation of 47U.S.C. 5605. Defendants' motion for summary judgment was granted by the District Court of the Seventh Judicial District, in and for the County of McCone. Plaintiff appeals the summary judgment

# . Respondent Mid-Rivers Cooperative (Mid-Rivers) is a corporation organized under theRural Electric and Telephone Cooperative Act, Title 35, Chapter 18, Montana Code Annotated. Respondent Behan was hired as the generalmanager of Mid-Rivers in November 1977 and continues to hold that position. Appellant Hastetter is a physician residing in Circle, Montana, and is aMid-Rivers subscriber. Appellant was concerned about what he believed were extravagant expenditures on the part of Mid-Rivers and its employees and took it upon himself to investigate the finances of Mid-Rivers. In his investigations appellant made a number of phone calls to the Rural Electrician Administration (REA)inWashington,D.C. Appellant's cause of action arises out of respondent Behan's examination of his telephone records. Behan admits that while he was conducting a survey of heavy toll users, he examined the appellant's toll records to verify that appellant was calling theREA. Behan further admits that he examined the appellant's toll records and that his purpose in doing sowas to determine where and to whom the appellant had made his long distance calls. The District Court granted the respondents' motionfor summary judgment on the grounds that appellant has no claim of relief under either the Montana Constitution or 47 U.S.C. S605. The issue on appeal, then, is whether the District Court erred by finding that neither theMontana Constitution

nor 47 U.S.C. S605 provides the appellant with a claim of relief on the facts alleged. Wemust agree with the District Court since telephone records cannot be considered constitutionally-protected private matters and 47U.S.C. 5605 protects only communicationsby radio. Art. 11, Sec. 10,1972Mont. Const., provides: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." The District Court held that the appellant had no claim of relief under the above provision because no state action was involved in any way. While we agree that the appellant hasno claim of reliefunder thisprovision,we do not agree with the District Court's reason. The key question here is whether the appellant had a reasonable expectation ofprivacy in his telephone records. Our constitutional right of privacy cannot protect something that is not a privatematter. Persuasive federal authority holds that there is not a legitimate expectation of privacy in the mere fact that a telephone call was made to a particular number. See Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220; United States v. New York Telephone Co. (1977),434 U.S. 159, 98 S.Ct. 364, 54 L.Eld.2d 376; and especially, Hodge v. Mountain States Telephone & TelegraphCo. (9thCir. 1977), 555 F.2d 254.Federal cases have clearly distinguished the difference between the recording of a conversation and merely discerning that a call was made to a particular number.InHodge, the court stated

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.. 'theexpectation of privacy protected by the Fourth Amendment attaches to the content of the telephone conversation and not to the fact that a conversation took place.' [Citationsomitted.]" 555 F.2d at 256. The leading case of Smith v. Maryland, supra, seems to handle this matter conclusively. The issue before the Court in Smith was whether the use of a pen register constituted a "search" within the meaning of the Fourth Amendment. A pen register is a device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicatewhether callsare actually completed. The Court in Smith looked first to the test setdown in Katzv. United States (1967),389U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, in which the application of the Fourth Amendment depended upon whether the person invoking its protection has a "legitimate expectation of privacy" that has been invaded by the government. 

# - Katz, 389 U.S. at 353. The Court noted that the listening device employed in Katz differed significantly from the use of a pen register, "for pen registers do not acquire the contents of communications." Smith, 442U.S. at 741. In Smith, the petitioner's argument that the installation and use of the pen register constituted a"search" rested necessarily upon a claim that he had a "legitimate expectation of privacy" in the numbers he dialed

onhisphone. The Court rejected this claim, stating: 

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# . First,we doubt that people ingeneral entertain any actual expectation of privacy in the numbers they dial. All telephone users realize they must 'convey' phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. 

# . . Telephone users, in sum, typically know that theymust convey numerical information to the phone company; that the phone company has facilities for recording this information;and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannotbe scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

"Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remainprivate, this expectation is not 'one that society is prepared to recognize as "reasonable.

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### ' This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E.g., United States v. Miller, 425 U.S. at 442-444, 96 S.Ct. at 1623-1624. 

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(Further citations omitted.) 442 U.S. at 742-744. Likewise, the Montana constitutional provision protecting an individual's right of privacy protects only matters which can reasonably be considered private. Telephone company billing records are not private matters. The public awareness that such records are routinely maintained negates any constitutional expectation of privacy regarding the records. See,Hodge, supra, 555 F.2d at 256, referringto United States v. Baxter (9th Cir. 1973), 492 F.2d 150, 167, cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292; and United States

### v. Fithian (9thCir. 1971), 452 F.2d

Appellant therefore has no claim of reliefunder Art. 11, Sec. 10, 1972 Mont. Const. There is no reasonable expectation of privacy in telephone records to justify bringing them under constitutionalprotection. The next issue is whether appellant has a claim for relief under 47 U.S.C. S605. hie agree with the District Court that appellant has no claim of relief here. The 1968 amendments to section 605and federal case law indicate that the section is restricted to prohibiting unauthorized use of radio communications only. The appellant claims that Behan and Mid-Rivers violated the first sentence of section 605 when Behan used appellant's telephone records to find out who appellant had been calling. The first sentence of section 605provides: "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 anyperson 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 distributing 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 subpena issued by a court of competent jurisdiction, or (6)on demand of other lawful authority." The second sentence provides that no person shalldivulge or publish any radio communication.This sectioncannot be interpreted without looking at its legislative history. In Hodge, 555 F.2d at 262-265, JudgeHufstedler ina concurring opinion discussesatlength thehistory of section 605. In 1968, when Congress enacted Title I11 of the Omnibus Crime Control and Safe Streets Act, clause 2 of section605was amended toprohibit onlythe interception of radio communications. Clause 1 of section 605 was changed only cosmetically; there was no explicit limitation to only radio communications. Nevertheless, federal cases and the legislative history of the Crime Control Act indicate that Congress intended Title I11 of the Act to provide a whole

new statutory scheme for regulation of the unauthorized use of communications by wire, and that section 605 after 1968

no longer controlled telephonic communications. See Hodge, 555 F.2d at 260; United Statesv. Falcone (3rd Cir. 1974), 505 F.2d 478; Korman v. United States (7th Cir. 1973), 486 F.2d 926; and especially, United States v. New York Telephone Co., supra. The United StatesSupreme Court infootnote 13of the NewYork Telephone Co. case stated: "United States v. Dote, 371 F.2d 176 (CA7 1966), held that § 605 of the Communications Act of 1934, 47 USC S; 605, which prohibited the interception and divulgence of 'any communication' by wire or radio, includedpen registers within the scope of its ban. In § 803 of Title 111, 82 Stat.223, Congress amended B 605 by restricting it tothe 

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## --------------------- interception of 'any radio communication.' Thus 

## -- it is clear thatpen registers areno longer withinthe scopeof S; 605. SeeKorman v. United States,486 F.2d 926, 931-932 (CA7 1973)." 434 U.S. at168. (Emphasisadded.) The suggestion in this footnote that section 605 after 1968 applies only to radio communication is supportedby the legislative history of the 1968 amendment. In the Senate Report (1968), U.S. Code Cong. of Admin. News, at 2196, the intentof Congresswas made clear: "Section 803.--This section amends section 605 of the communications Act of 1934 (48 Stat. 1103, 47 U.S.C. sec. 605 (1958)). This section isnot intendedmerely tobe a reenactment of section605. The new provision 

## - is intended asa substitute. The regulation of the interceptionof wire ororalcommuni

### -- cations inthe future is tobe governed by proposed new chapter 119 of title 18,United StatesCode." (Emphasisadded.) As the courtsnoted inHodge, Falcone and Korman, the intent of Congress would be thwarted if pen registers were still regulated by section 605. Telephone billing records, likepen registers, arenothing more than the record that a particular callwas made. Since these telephonic communications are no longer covered by section 605, appellant's claim for relief under section605 isdenied. The appellant raised a peripheral issue concerning the use of unsigned depositions filedlong after the summary judgment was entered. This issue need not be discussed since this case has been resolved without the necessity to review thedepositions. Since the appellant has no claim of relief under either the Montana Constitution or 47 U.S.C. S605, the DistrictCourt's summary judgment isaffirmed.

Justice 

# HWe concur: 

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# J.$A,~ 

# d, Chief JusticeMr. JusticeFrank B. Morrison, Jr., speciallyconcurs:

I agree with theresult, however, I would affirmthe trialcourt'sdeterminationthattheprivacy provision, Article 11, Section 10, of theMontana Constitution, isnot offendedby individual actionasopposed togovernmental action.