No. 81-77 

IN THE 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 Seventh Judicial District, 

In and for the County 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 

Submitted on Briefs: July 16, 1981 

Decided: January 20, 1982 

Filed: JAN 2 O 1982 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This action is based on the defendants' alleged 

violation of the plaintiff's right to privacy as provided in 

Art. 11, Sec. 10, 1972 Mont. Const., and the defendants' 

alleged violation of 47 U.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 the Rural Electric and Telephone 

Cooperative Act, Title 35, Chapter 18, Montana Code Annotated. Respondent Behan was hired as the general manager of 

Mid-Rivers in November 1977 and continues to hold that 

position. Appellant Hastetter is a physician residing in 

Circle, Montana, and is a Mid-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) in Washington, 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 the REA. Behan further admits that he 

examined the appellant's toll records and that his purpose 

in doing so was to determine where and to whom the appellant 

had made his long distance calls. 

The District Court granted the respondents' motion 
for 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 the Montana Constitution 

nor 47 U.S.C. S605 provides the appellant with a claim of 

relief on the facts alleged. 

We must agree with the District Court since telephone 

records cannot be considered constitutionally-protected 

private matters and 47 U.S.C. 5605 protects only communications by radio. 

Art. 11, Sec. 10, 1972 Mont. 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 has no claim of relief under this provision, we do 

not agree with the District Court's reason. The key 

question here is whether the appellant had a reasonable 

expectation of privacy in his telephone records. 

Our constitutional right of privacy cannot protect 

something that is not a private matter. 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 & Telegraph Co. (9th Cir. 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. 

In Hodge, the court stated ". . . 'the expectation 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.' [Citations omitted.]" 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 

indicate whether calls are actually completed. 

The Court in Smith looked first to the test set down 

in Katz v. United States (1967), 389 U.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, 442 U.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 

on his phone. The Court rejected this claim, stating: 

". . . First, we doubt that people in general 

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 they must 

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 cannot be 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 remain private, this expectation is not 'one that society is prepared to 

recognize as "reasonable. " ' 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. . ." 

(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, referring 
to 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 (9th Cir. 1971), 452 F.2d 

Appellant therefore has no claim of relief under Art. 

11, Sec. 10, 1972 Mont. Const. There is no reasonable 

expectation of privacy in telephone records to justify 

bringing them under constitutional protection. 

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 605 and 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 605 provides: 

"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 any person 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 shall divulge or 

publish any radio communication. 
This section cannot be interpreted without looking at 

its legislative history. In Hodge, 555 F.2d at 262-265, 

Judge Hufstedler in a concurring opinion discusses at length 

the history of section 605. 

In 1968, when Congress enacted Title I11 of the 

Omnibus Crime Control and Safe Streets Act, clause 2 of 

section 605 was amended to prohibit only the 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 States v. 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 States Supreme Court in footnote 13 of the 

New York 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, included pen 

registers within the scope of its ban. In § 

803 of Title 111, 82 Stat.223, Congress 

--------------- amended B 605 by ----------- restricting ---------- it to the 

interception of 'any radio communication.' 

Thus -- it is clear that pen registers are no 

longer within the scope of S; 605. See Korman 

v. United States, 486 F.2d 926, 931-932 (CA7 

1973)." 434 U.S. at 168. (Emphasis added.) 

The suggestion in this footnote that section 605 

after 1968 applies only to radio communication is supported 
by the legislative history of the 1968 amendment. In the 

Senate Report (1968), U.S. Code Cong. of Admin. News, at 

2196, the intent of Congress was 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 is not intended merely to be a reenactment - of section 605. The new provision 

is intended as a substitute. The regulation 

-- of the interception of wire or oral communications in the future is to be governed by 

proposed new chapter 119 of title 18, United 

States Code." (Emphasis added.) 

As the courts noted in Hodge, Falcone and Korman, the 

intent of Congress would be thwarted if pen registers were 

still regulated by section 605. Telephone billing records, 

like pen registers, are nothing more than the record that a 

particular call was made. Since these telephonic communications are no longer covered by section 605, appellant's 

claim for relief under section 605 is denied. 

The appellant raised a peripheral issue concerning 

the use of unsigned depositions filed long after the summary 

judgment was entered. This issue need not be discussed 

since this case has been resolved without the necessity to 

review the depositions. 

Since the appellant has no claim of relief under 

either the Montana Constitution or 47 U.S.C. S605, the 

District Court's summary judgment is affirmed. 

H Justice 
We concur: 

s; Chief &A 

Justice 

J.$A,~ d, 
Mr. Justice Frank B. Morrison, Jr., specially concurs: 

I agree with the result, however, I would affirm the 

trial court's determination that the privacy provision, 

Article 11, Section 10, of the Montana Constitution, is not 

offended by individual action as opposed to governmental 

action.