b'Transmission by a Wireless Carrier of Information Regarding\na Cellular Phone User\xe2\x80\x99s Physical Location to Public Safety\nOrganizations\nNeither 47 U.S.C. \xc2\xa7 1002(a) nor the Fourth Amendment o f the Constitution prohibits a wireless car\xc2\xad\nrier\xe2\x80\x99s transmission to local public safety organizations o f information regarding the physical loca\xc2\xad\ntion of a caller who uses a cellular telephone to dial the 911 emergency line.\nAlthough 18 U.S.C. \xc2\xa72703 would apparently apply to the carrier\xe2\x80\x99s transmission of such location infor\xc2\xad\nmation to public safety organizations, the caller, by dialing 911, has impliedly consented to such\ndisclosure, thus permitting the federal government to require the carrier to disclose such information\nwithout a warrant or court order.\n\nSeptember 10, 1996\nM e m o r a n d u m O p in io n\n\nfor th e\n\nA c t in g A s s is t a n t A t t o r n e y G e n e r a l\n\nC r im in a l D iv is io n\nY ou have asked for our opinion as to whether 47 U.S.C. \xc2\xa7 1002(a) prohibits\na wireless carrier\xe2\x80\x99s transmission to local public safety organizations of information\nregarding the physical location of a caller who uses a cellular telephone to dial\nthe 911 emergency line. In addition, you have inquired as to the constraints, if\nany, imposed by the Fourth Amendment on such a transmission.1 As set forth\nin detail below, we conclude that \xc2\xa7 1002(a), by its terms, does not prohibit such\ntransmission of location information. Although you have not inquired as to the\napplicability of 18 U.S.C. \xc2\xa7 2703(c), we conclude that, while the provision would\napparently apply to the carrier\xe2\x80\x99s transmission of such location information to pub\xc2\xad\nlic safety organizations, the caller, by dialing 911, has impliedly consented to\nsuch disclosure, thus permitting the federal government to require the carrier to\ndisclose such information without a warrant or court order. Finally, the Fourth\nAmendment does not prohibit such transmission both because of the caller\xe2\x80\x99s im\xc2\xad\nplied consent to the disclosure and because a caller who dials 911 has neither\nan actual nor a reasonable expectation of privacy with regard to his whereabouts\nat the time of the call.\n\n1 Memorandum for W alter E. Dellinger, Assistant Attorney General, Office o f Legal Counsel, from John C. Keeney,\nActing Assistant Attorney G eneral, Criminal Division, Re: Request far a Legal Opinion from the Federal Communica\xc2\xad\n\ntions Commission as to the Applicability o f 47 U.S.C. \xc2\xa7 1002(a) to the Transmission to Local Public Safety Agencies\no f the Physical Location o f a Cellular Telephone Caller Who Dials the 911 Emergency Line (May 13, 1996).\n\n315\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nBACKGROUND\nA. F acts\nIn its recently issued rule regarding Compatibility of Wireless Services With\nEnhanced 911 ( \xe2\x80\x9c E-911\xe2\x80\x9d ), the Federal Communications Commission (the \xe2\x80\x9c FCC\xe2\x80\x9d )\nestablished a timetable for the development and deployment of new technologies\nthrough which wireless carriers (cellular telephone companies) will automatically\nprovide a designated public safety answering point (\xe2\x80\x9c PSAP\xe2\x80\x9d ) 2 with information\nregarding the physical location of a caller who dials 911 on a wireless cellular\ntelephone. Commercial Mobile Radio Services, 47 C.F.R. \xc2\xa7\xc2\xa720.3, 20.18 (1996).3\nThis information will significantly enhance the effectiveness of wireless 911 serv\xc2\xad\nices by helping emergency service personnel locate the caller and more rapidly\nand accurately determine where the emergency has occurred.\nThe implementation and deployment of enhanced 911 features and functions\nwill be accomplished in two phases. In phase one, covered carriers must relay\nto the PSAP the 911 caller\xe2\x80\x99s telephone number and the location of the cell site\nor base station through which the call originates. See id. \xc2\xa720.18(d). This informa\xc2\xad\ntion will identify the caller\xe2\x80\x99s location only in quite general terms,4 but will enable\nemergency service providers to call back if a 911 call is disconnected. See id.\nWe understand that the information provided in phase one is currently available\nto wireless carriers, as it is regularly captured by them as part of their transmission\nof calls from cellular phones,5 but some carriers must develop the ability to pass\nit on to a third party.\nA more precise identification of the caller\xe2\x80\x99s location will occur in phase two,\nwhen the carrier must provide the designated PSAP with the physical location\nof the mobile unit making the call by longitude and latitude within a radius of\n125 meters in 67% of all cases. See id. \xc2\xa7 20.18(e). According to FCC representa\xc2\xad\ntives, the more precise location determination required in phase two will occur\n2 A public safety answering point is a facility designated to receive 911 calls and route them to emergency service\npersonnel. See A l C.F.R. \xc2\xa720.3.\n3 An E -9 11 system automatically identifies on a screen at the PSAP the telephone num ber and geographical location\nfrom which the call was made. This system permits a more efficient response to calls received, mcluding silent\ncalls, and deters false alarms, because such calls are capable o f being traced. In many jurisdictions, E-911 systems\nare already operational for landline phones, identifying the telephone num ber and the address associated with that\ntelephone number. The address o f the subscriber to the cellular telephone will often be insufficient to identify the\nc aller\xe2\x80\x99s physical location at the time of a call, however, because cellular telephones are mobile and calls are frequently\nmade from som eplace other than the c aller\xe2\x80\x99s address. The need for this critical information regarding the location\no f the caller was the impetus for the new F C C rule.\n4The physical size o f a cell depends upon the density o f use: it could encompass only a few blocks in a populated\ncity, or m iles in a rural area.\n5 W hen a cellular caller makes a cal], the carrier captures his signal (his electronic serial number) and the data\ncarried on that signal, which is generally a mobile identification number ( \xe2\x80\x9c M IN\xe2\x80\x9d ). A MIN is a 34-bit binary number\nthat a cellular handset transm its as part o f the process o f identifying itself to wireless networks. Each handset has\none M IN, which is derived from the ten-digit North A merican Numbering Plan telephone number that is generally\nprogram m ed into the handset by a provider when it initiates service for a new subscriber. See id. \xc2\xa720.18. The\ncarrier\xe2\x80\x99s records include transactional information, such as the caller\xe2\x80\x99s address, associated with the MIN.\n\n316\n\n\x0cTransmission by a Wireless Carrier o f Information Regarding a Cellular Phone User\'s Physical\nLocation to Public Safety Organizations\n\nthrough the development of new technologies enabling the carrier to combine and\nanalyze information regarding the strength, angle and timing of the caller\xe2\x80\x99s signal\nmeasured at two or more cell sites. A caller\xe2\x80\x99s signal, and its strength, are already\noften picked up by more than one cell site. In addition, many cell sites have\nsectorized antennas, and, depending upon the angle of the signal\xe2\x80\x99s arrival, a par\xc2\xad\nticular antenna will pick up the signal, thus informing the carrier what sector of\nthe cell the caller is located in. Finally, each site records the arrival time of a\nsignal. By developing new computer programs, switching technology, protocols\nand network architecture, the carrier will be able to combine and analyze all of\nthis information\xe2\x80\x94 the strength of the signal at each of the cell sites picking up\nthe signal, the sector of a cell from which a signal emanates, and the time that\nit takes for the signal to arrive at one cell site compared to other sites\xe2\x80\x94 to identify\nmore precisely the caller\xe2\x80\x99s location.\nB. Relevant Statutory Provisions\nThe Communications Assistance for Law Enforcement Act of 1994\n(\xe2\x80\x9c CALEA\xe2\x80\x9d ), among other things, requires telecommunications carriers to ensure\nthat their equipment is capable of permitting the government (pursuant to a court\norder or other lawful authorization) to access certain \xe2\x80\x9c call-identifying informa\xc2\xad\ntion\xe2\x80\x9d 6 that is reasonably available to the carrier. 47 U.S.C. \xc2\xa7 1002(a)(2). CALEA\nincludes limitations, however, and specifically prohibits telecommunications car\xc2\xad\nriers from providing the government with \xe2\x80\x9c information acquired solely pursuant\nto the authority for pen registers and trap and trace devices (as defined in section\n3127 of title 18) . . . that may disclose the physical location of the subscriber\n(except to the extent that the location may be determined from the telephone num\xc2\xad\nber).\xe2\x80\x9d Id. \xc2\xa7 1002(a)(2)(B).7 Section 3127 of title 18 (part of the Electronic Com\xc2\xad\nmunications Privacy Act of 1986 (\xe2\x80\x9c ECPA\xe2\x80\x9d )) in turn prohibits the installation\nor use of pen registers and trap and trace devices absent a court order, with the\nexception of particular uses by providers of electronic or wire communication\nservices.8\n6 \xe2\x80\x9c The term \xe2\x80\x98call-identifying information\xe2\x80\x99 means dialing or signaling information that identifies the origin, direc\xc2\xad\ntion, destination, or termination o f each communication generated or received by a subscriber by means o f any\nequipment, facility, or service o f a telecommunications carrier.\xe2\x80\x9d 47 U.S.C. \xc2\xa7 1001(2).\n7 J8 U.S.C. \xc2\xa73127 defines \xe2\x80\x9c pen register\xe2\x80\x9d and \xe2\x80\x98\xe2\x80\x98trap and trace device\xe2\x80\x9d as follows:\n(3) the term \xe2\x80\x98pen register\xe2\x80\x99 means a device which records or decodes electronic or other impulses which\nidentify the numbers dialed o r otherwise transmitted on the telephone line to which such device is attached,\nbut such term does not include any device used by a provider or customer o f a wire or electronic commu\xc2\xad\nnication service for billing, o r recording as an incident to billing, for communications services provided\nby such provider o r any device used by a provider or customer o f a wire communication service for cost\naccounting or other like purposes in the ordinary course of its business;\n(4) the term \xe2\x80\x98trap and trace device\xe2\x80\x99 means a device which captures the incoming electronic or other\nimpulses which identify the originating number o f an instrument or device from which a wire or electronic\ncommunication was transmitted.\n8 18 U.S.C. \xc2\xa73121 provides in pertinent part\xe2\x80\x99\nContinued\n\n317\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nAnother provision of ECPA, 18 U.S.C. \xc2\xa72703, \xe2\x80\x9c Requirements for governmental\naccess,\xe2\x80\x9d sets forth the terms under which carriers may provide governmental enti\xc2\xad\nties with information relating to electronic communications. In particular,\n\xc2\xa7 2703(c) provides that a carrier shall only disclose a record or other information\npertaining to one of its customers (excluding the contents of communications cov\xc2\xad\nered elsewhere in the section) to a governmental entity when the governmental\nentity obtains a warrant, a court order or the consent of the customer.9\nANALYSIS\nA. Section 1002(a) Does Not Prohibit Wireless Carriers From Transmitting\nInformation Regarding the Physical Location o f Cellular Telephone Callers to\nPublic Safety Agencies\nBy its terms, 47 U.S.C. \xc2\xa7 1002(a)(2) does not prohibit a wireless carrier\xe2\x80\x99s trans\xc2\xad\nmission of physical location information as required by the new FCC rule. As\nset forth above, \xc2\xa7 1002(a)(2) only prohibits carriers from providing physical loca\xc2\xad\ntion information \xe2\x80\x9c acquired solely pursuant to the authority [under 18 U.S.C.\n\xc2\xa73127] for pen registers and trap and trace devices.\xe2\x80\x9d The physical location of\na cellular caller would not be obtained pursuant to legal authority requested and\nobtained by law enforcement officers as part of a government-initiated investiga\xc2\xad\ntion, but instead pursuant to the recently issued FCC rule in response to an individ\xc2\xad\nual\xe2\x80\x99s request for help. Indeed, the cellular caller\xe2\x80\x99s physical location would not\nbe determined by use of a pen register or trap and trace device at a ll,10 but rather\n(a) In general. \xe2\x80\x94 Except as provided in this section, no person may install or use a pen register or a trap and\ntrace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence\nSurveillance Act o f 1978 (50 U.S.C. 1801 e t seq.).\n(b) Exception.\xe2\x80\x94 The prohibition of subsection (a) does not apply with respect to the use o f a pen register or\na trap and trace device by a provider of electronic or wire communication service\xe2\x80\x94\n(1) relating to the operation, maintenance, and testing o f a wire or electronic communication service or\nto the protection o f the rights or property o f such provider, or to the protection o f users o f that service\nfrom abuse o f service or unlawful use o f service; or\n(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect\nsuch provider, another provider furnishing service toward the completion of the wire communication, or\na user o f that service, from fraudulent, unlawful o r abusive use o f service; or\n(3) where the consent o f the user o f that service has been obtained.\n9 A provider o f electronic communication service . . . shall disclose a record or other information pertaining to\na subscriber to o r custom er o f such service (not including the contents o f communications covered by subsection\n(a) or (b) o f this section) to a governmental entity only when the governmental entity\xe2\x80\x94\n(i) obtains a w arrant issued under the Federal Rules o f Criminal Procedure or equivalent State warrant;\n(ii) obtains a court order for such disclosure under subsection (d) of this section; or\n(iii) has the consent o f the subscriber o r custom er to such disclosure.\n18 U .S.C. \xc2\xa7 2 7 03(c)(l)(B ). Section 2703(c)(1)(C) provides that a carrier shall disclose certain transactional informa\xc2\xad\ntion, including the name, address and telephone num ber o r other subscriber number, o f a custom er when the govern\xc2\xad\nm ental entity utilizes an authorized administrative subpoena.\n10 A lthough pen registers and trap and trace devices would be used to obtain the caller\'s telephone num ber and\nto relay the call to the PSAP, they would not provide any information on the actual physical location o f the cellular\ncaller.\n\n318\n\n\x0cTransmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser\'s Physical\nLocation to Public Safety Organizations\n\nby advanced technologies that aggregate and analyze the strength and angle of\nthe caller\xe2\x80\x99s signal measured at various cell sites. At the very least, it certainly\ncannot be said that the caller\xe2\x80\x99s physical location would be determined \xe2\x80\x9c solely\xe2\x80\x9d\nthrough use of a pen register or trap and trace device. 47 U.S.C. \xc2\xa7 1002(a). Thus\n\xc2\xa7 1002 does not prohibit a telecommunications carrier from transmitting to a public\nsafety organization the physical location information pertaining to a cellular caller\nrequired by the FCC rule.11\nB. 18 U.S.C. \xc2\xa72703 Permits Wireless Carriers to Transmit to Public Safety\nAuthorities the Physical Location of Cellular Callers Dialing 911 Because Such\nCallers Have Impliedly Consented to Such Disclosure\nAs set forth above, 18 U.S.C. \xc2\xa72703 requires wireless carriers to obtain a war\xc2\xad\nrant, a court order or the consent of the customer before disclosing to govern\xc2\xad\nmental authorities information relating to such customer. Although the disclosure\nof information regarding the physical location of a customer would likely fall\nwithin this provision, it is our view that, by dialing 911, the caller impliedly con\xc2\xad\nsents to the disclosure of information regarding his location at the time of the\ncall. 12\nThe whole purpose of a 911 call is to seek the aid of appropriate government\nofficials in responding to an emergency at a particular place. Typically, that emer\xc2\xad\ngency is in the immediate vicinity of the caller\xe2\x80\x94 indeed, it often involves the\ncaller himself and thus his exact location\xe2\x80\x94 and the whole purpose of the call\n11 The legislative history o f \xc2\xa7 1002(a) supports our conclusion. As explained in the House Report (there was no\nSenate Report submitted with CALEA), Congress was acting to ensure that \xe2\x80\x9c the authority for pen registers and\ntrap and trace devices cannot be used to obtain tracking or location information, other than that which can be deter\xc2\xad\nmined from the phone num ber." H.R. Rep. No. 103-827, at 17 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3497;\nsee also id. at 22, reprinted in 1994 U.S.C.C.A.N. at 3502 ( \xe2\x80\x9c Call identifying information obtained pursuant to\npen register and trap and trace orders may not include information disclosing the physical location o f the subscriber\nsending or receiving the message, except to the extent that location is indicated by the phone n um ber.") (emphasis\nadded). \xe2\x80\x9c Currently, in some cellular systems, transactional data that could be obtained by a pen register may include\nlocation information." Id. at 17, reprinted in 1994 U.S.C.C.A.N. at 3497 (emphasis added).\n12Although there appear to be no cases interpreting \xc2\xa72 7 0 3 \xe2\x80\x99s consent provision, and the legislative history of\nthe section is silent on the matter, some guidance can be found in analyses o f the consent provision in Title DI\no f the Omnibus Crime Control and Safe Streets Act o f 1968, 18 U.S.C. \xc2\xa7 231 l(2)(c>. Section 2511(2)(c) provides\nin part that \xe2\x80\x9c [i]t shall not be unlawful under this chapter for a person acting under color o f law to intercept a\nwire, oral, or electronic communication, where . . . one o f the parties to the communication has given prior consent\nto such interception.\xe2\x80\x99- According to the legislative history o f \xc2\xa7251 l(2)(c), \xe2\x80\x9c (c)onsent may be expressed or implied.\xe2\x80\x9d\nS. Rep. No. 90-1097, at 94 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2182 ( \xe2\x80\x9c Surveillance devices in banks\nor apartment houses for institutional or personal protection would be impliedly consented to .\xe2\x80\x9d ). \xe2\x80\x9c In the Title in\nmilieu as in other settings, consent inheres where a person\'s behavior manifests acquiescence or a comparable vol\xc2\xad\nuntary diminution of his or her otherwise protected rights.\xe2\x80\x9d Criggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir.\n1990) (citations omitted). \xe2\x80\x9c fl]raplied consent\xe2\x80\x94 o r the absence o f it \xe2\x80\x94 may be deduced from \xe2\x80\x98the circumstances\nprevailing\xe2\x80\x99 in a given situation. . . . The circumstances relevant to an implication of consent will vary from case\nto case, but the compendium will ordinarily include language o r acts which tend to prove (or disprove) that a party\nknows of, or assents to, encroachments on the routine expectation that conversations are private.\xe2\x80\x9d Id. at 117 (citation\nomitted). See also United States v. Amen , 831 F.2d 373, 378-79 (2d Cir. 1987) (no violation o f Title DI where\ntaping o f prison inmates* telephone calls was impliedly consented to by inmates who used phones when on notice\no f the monitoring procedures at prison; \xe2\x80\x9c [h]ere we imply consent in fact from surrounding circumstances indicating\nthat the appellants knowingly agreed to the surveillance\xe2\x80\x9d ) (citations omitted), cert, denied, 485 U.S. 1021 (1988).\n\n319\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nis to inform officials of that location in order for the caller to obtain, and the\nemergency service officials to provide, help. The caller is the source of the loca\xc2\xad\ntion information needed by the government to respond, and his call evidences\nnot merely an expectation, but in fact a purpose, of conveying that information\nto the authorities. If the caller himself does not tell the authorities where he is\nlocated (which he generally does), it is presumably due to the exigent cir\xc2\xad\ncumstances resulting from the emergency, and not to any desire to withhold such\ninformation. Even if the emergency is in a different location, his decision to reach\nout to government officials to seek their help indicates that he would similarly\ntell them his location if it would help them respond to the emergency.13 The\nmere possibility that a caller subjectively does not wish his location to be revealed\nwould not negate the consent presumed from his making the 911 call.14\nC. Wireless Carriers May Transmit to Public Safety Authorities Information\nRegarding the Physical Location o f Cellular Callers Dialing 911 Without\nViolating the Fourth Amendment\n1. There is no \xe2\x80\x9c Search\xe2\x80\x9d Within the Meaning o f the Fourth Amendment Because\n911 C allers H ave N o Actual o r Reasonable Expectation o f Privacy in Information\nRegarding Their Location\nThe Fourth Amendment protects individuals from \xe2\x80\x9c unreasonable searches.\xe2\x80\x9d\nU.S. Const, amend. IV. For the Fourth Amendment even to apply to a particular\ngovernment action, the person invoking its protection must be able to claim \xe2\x80\x9c a\n\xe2\x80\x98justifiable,\xe2\x80\x99 a \xe2\x80\x98reasonable,\xe2\x80\x99 or a \xe2\x80\x98legitimate expectation of privacy\xe2\x80\x99 that has been\n13 C alling 911 and triggering the governm ent\'s emergency response invalidates any claim by a caller that he does\nnot in fact consent to the disclosure of information regarding his location. If he chooses to seek such emergency\naid, he implicitly consents both to aiding th e authorities in this limited way and to action taken by the government\nto verify his call. See Nolan v. United States, 423 F.2d 1031, 1043 (10th Cir. 1969) (telephone company\xe2\x80\x99s monitoring\no f calls does not violate 47 U.S.C. \xc2\xa7605 because illegal user has impliedly consented to company\'s attempts to\nproperly bill user), cert, d e n ie d 400 U.S. 848 (1970); Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967)\n(*\xe2\x80\x98[w]hen a subscriber o f a telephone system uses the system \'s facilities in a manner which reasonably justifies\nthe telephone com pany\xe2\x80\x99s belief that he is violating his subscription rights, then he must be deemed to have consented\nto the com pany\xe2\x80\x99s m onitoring o f his calls to an extent reasonably necessary for the company\xe2\x80\x99s investigation" and\nthere is no violation o f 47 U.S.C. \xc2\xa7605); Commonwealth v. Gullett, 329 A.2d 513, 519 (Pa. 1974) (Party calling\npolice to report homicide, its location and num ber o f bodies has no claim for violation o f Pennsylvania W iretapping\nand Electronic Surveillance Control Act, 18 Pa. C.S.A. \xc2\xa75703, where, \xe2\x80\x9c [fjrom the nature o f the call, the nonconfidential quality o f the information conveyed, the emergency atmosphere the communication engendered, and\nthe particular agency to which the disclosure was directed, it is apparent that the caller did not intend the privacy\no f the com m unication to be maintained. Rather, the conclusion is inescapable that a call made under these cir\xc2\xad\ncum stances carried with it the permission o f the caller to divulge the communication to authorized police personnel\nother than the officer who happened to take the message and to use the communication to investigate the reported\ncrim e by any reasonable m eans.").\n14See United States v. Tzakis, 736 F.2d 867, 8 71-72 (2d Cir. 1984) (defendant cannot assert post-hoc limits\non a listener\xe2\x80\x99s recording o f conversation by alleging that his willingness to allow overhearing did not encompass\nperm ission to record); United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994) ( \xe2\x80\x98\xe2\x80\x98where a suspect does not\nwithdraw his valid consent to a search for illegal substances before they are discovered, the consent remains valid");\nJones v. Berry, 722 F.2d 443, 449 (9th C ir. 1983) (consent search is valid where consent revoked after search\ncom plete), cert, denied, 466 U.S. 971 (1984).\n\n320\n\n\x0cTransmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser\'s Physical\nLocation to Public Safety Organizations\n\ninvaded by government action.\xe2\x80\x9d Smith v. M aryland, 442 U.S. 735 , 740 (1979)\n(citations omitted). This inquiry embraces two discrete questions. The first is\n\xe2\x80\x9c whether the individual, by his conduct, has \xe2\x80\x98exhibited an actual (subjective) ex\xc2\xad\npectation of privacy,\xe2\x80\x99 \xe2\x80\x9d \xe2\x80\x94 whether the individual \xe2\x80\x9c has shown that \xe2\x80\x98he seeks to\npreserve [something] as private.\xe2\x80\x99 \xe2\x80\x9d Id. at 740 (quoting K atz v. United States, 389\nU.S. 347, 361 (Harlan, J., concurring), 351 (1967)). The second question is\n\xe2\x80\x9c whether the individual\xe2\x80\x99s subjective expectation of privacy is \xe2\x80\x98one that society\nis prepared to recognize as \xe2\x80\x9c reasonable,\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d \xe2\x80\x94 whether \xe2\x80\x9c the individual\xe2\x80\x99s expec\xc2\xad\ntation, viewed objectively, is \xe2\x80\x98justifiable\xe2\x80\x99 under the circumstances.\xe2\x80\x9d Id. (quoting\nKatz, 389 U.S. at 361 (Harlan, J., concurring), 353).\nIn our opinion, a cellular caller dialing the 911 emergency line has not exhibited\nan \xe2\x80\x9c actual (subjective) expectation of privacy\xe2\x80\x9d in information regarding his phys\xc2\xad\nical location, much less a \xe2\x80\x9c reasonable\xe2\x80\x9d one. It is hard to imagine any clearer\nindication of the absence of an expectation of privacy than a cry for help; by\nreaching out to government officials to seek their help, the caller indicates that\nhe has no expectation of privacy in information that could help the authorities\nrespond to the emergency.15\nEven assuming that, in some number of cases, the caller actually expects his\nphysical location to remain private, we believe that expectation is not \xe2\x80\x9c one that\nsociety is prepared to recognize as \xe2\x80\x98reasonable.\xe2\x80\x99 \xe2\x80\x9d Katz, 389 U.S. at 361. A caller\ndialing 911 seeking assistance cannot reasonably expect that information regarding\nhis location will remain private when public service organizations need such infor\xc2\xad\nmation first and foremost to expeditiously provide the emergency assistance re\xc2\xad\nquested by the caller, and secondly to ensure that the call is legitimate and thus\nworthy of response.16\nIn addition, the Supreme Court has repeatedly held that a person has no expecta\xc2\xad\ntion of privacy in information he voluntarily turns over to third parties.17 In order\nto complete his call, the cellular caller must convey his signal and its cor\xc2\xad\nresponding cell site location to the carrier. The caller therefore has no reasonable\n13 Although no court has directly addressed this issue, our conclusion is supported by cases holding that a person\ncalling 911 has no expectation o f privacy in the contents o f his call. \xe2\x80\x9c There is no expectation o f privacy when\na person makes a 911 call. Instead, there is an expectation that the information provided will be recorded and dis\xc2\xad\nclosed to the public.\xe2\x80\x9d State ex rel. Cincinnati Enquirer v. Hamilton County, Ohio, 662 N.E.2d 334, 337 (O hio\n1996) (tape recordings o f 911 calls are public records that are not exempt from disclosure and must be immediately\nreleased upon request); see also State v. Cain, 613 A.2d 804, 809 (Conn. 1992) (tape recordings o f 911 calls are\npublic records); -Sra/e v. G ray, 741 S.W.2d 35, 38 (Mo. App. 1987) (same).\nieSee United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir.) (prisoner has no reasonable expectation of\nprivacy in outbound calls), cert, denied , 519 U.S. 912 (1996); People v. Suite, 161 Cal. Rptr. 825, 829 (Cal. App.\n1980) (person telephoning police and threatening to bomb public building \xe2\x80\x9c cannot reasonably expect that records\no f the call will be private; the only reasonable expectation under such circumstances is that police will make use\no f every available technology to trace the source o f that call\xe2\x80\x9d ).\n17 \xe2\x80\x9c [T]he Fourth Amendment does not prohibit the obtaining o f information revealed to a third party and conveyed\nby him to Government authorities, even if the information is revealed on the assumption that it will be used only\nfor a limited purpose and the confidence placed in the third party will not be betrayed.\xe2\x80\x9d United States v. Miller,\n425 U.S. 435, 443 (1976) (bank depositor has no legitimate expectation o f privacy in financial information voluntarily\nconveyed to banks and exposed to their employees in the ordinary course o f business); see also Smith, 442 U.S.\nat 744 (telephone caller has no reasonable expectation o f privacy in phone number voluntarily dialed).\n\n321\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nexpectation of privacy with regard to that information, which is exactly the loca\xc2\xad\ntion information that will be disclosed in phase one of the new FCC rule. And\nit is the strength of this same signal \xe2\x80\x94 information voluntarily turned over by the\ncaller to a third party\xe2\x80\x94 that would be measured from different antennas and cell\nsites, and then analyzed in phase two in order more precisely to determine his\nlocation. An expectation of privacy simply is not \xe2\x80\x9cjustified\xe2\x80\x9d in these cir\xc2\xad\ncumstances.\nIn sum, because a cellular caller dialing 911 has no actual or reasonable expecta\xc2\xad\ntion of privacy as to information regarding his physical location, there will be\nno \xe2\x80\x9c search\xe2\x80\x9d within the meaning of the Fourth Amendment, and thus no con\xc2\xad\nstraints imposed by the Fourth Amendment, when wireless carriers transmit such\ninformation to public safety authorities.\n2. C ellular C allers Dialing 911 Have Impliedly Consented to the Transmission\no f Information Regarding Their Physical Location\nEven assuming that the provision to public safety agencies of information re\xc2\xad\ngarding the physical location of a cellular caller dialing 911 would constitute a\nsearch within the meaning of the Fourth Amendment, that search would be lawful\nif the caller consented to it, as consent is \xe2\x80\x9c one of the specifically established\nexceptions to the requirements of both a warrant and probable cause.\xe2\x80\x9d Schneckloth\nv. Bustam onte, 412 U.S. 218, 219 (1973). As set forth above, we believe that\ndialing 911 evidences such consent.\nConsent to a warrantless search can be explicit or can be implied from conduct.\nThe Seventh Circuit recently reviewed the caselaw on implied consent, summa\xc2\xad\nrizing the pertinent analysis as follows:\nGenerally, in deciding whether to uphold a warrantless search on\nthe basis of implied consent, courts consider whether (1) the person\nsearched was on notice that undertaking certain conduct, like at\xc2\xad\ntempting to enter a building or board an airplane, would subject\nhim to a search, (2) the person voluntarily engaged in the specified\nconduct, (3) the search was justified by a \xe2\x80\x98vital interest\xe2\x80\x99, (4) the\nsearch was reasonably effective in securing the interests at stake,\n(5) the search was only as intrusive as necessary to further the inter\xc2\xad\nests justifying the search and (6) the search curtailed, to some ex\xc2\xad\ntent, unbridled discretion in the searching officers.\nM cGann v. N ortheast III. Regional Commuter R.R., 8 F.3d 1174, 1181 (7th Cir.\n\n1993) (citations omitted).18\n18 44W e decline to regard these six factors as dispositive criteria. Rather, these factors should be examined carefully\nin each case in evaluating the totality o f the circumstances and in respecting the consideration that the courts not\nunnecessarily extend exceptions to the warrant requirem ent." Id. at 1181. See also Almeida-Sanchez v. United States,\n\n322\n\n\x0cTransmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser\xe2\x80\x99s Physical\nLocation to Public Safety Organizations\n\nApplying this analysis to the \xe2\x80\x9c search\xe2\x80\x9d here at issue leads us to conclude that\na person using his cellular telephone to call 911 impliedly consents to the carrier\nproviding public safety officials with information as to his physical location. Al\xc2\xad\nmost all, if not all, of the above-enumerated factors will be satisfied. The caller\nwill have voluntarily called 911; the search will be justified by a vital interest\nin responding to an emergency and should be quite effective in facilitating that\nresponse; and the search will be limited to determining the caller\xe2\x80\x99s physical loca\xc2\xad\ntion, and thus will be only as intrusive as necessary to respond quickly and effi\xc2\xad\nciently to the emergency and should minimize any risk of unbridled discretion\nby officers. The only factor possibly raising a question would be the first. In\nmost instances, a person calling 911 will be doing so to obtain help for himself\nor someone in his immediate vicinity, and thus he will undoubtedly be \xe2\x80\x9c on no\xc2\xad\ntice\xe2\x80\x9d that calling 911 will entail disclosure of his location. Even if the caller\nis seeking help for a third party in a different location, he should be deemed\nto be on notice that his call will entail disclosure of his physical location in order\nto expedite the government\xe2\x80\x99s response.19 Moreover, this simply is not a situation\nwith any of the indicia of unwarranted interference into the private aspects of\na person\xe2\x80\x99s life. In particular, the government\xe2\x80\x99s \xe2\x80\x9c search\xe2\x80\x9d is in response to the\ncaller\xe2\x80\x99s request for assistance; it is not a government-initiated intrusion into a per\xc2\xad\nson\xe2\x80\x99s private life.\nRICHARD L. SHEFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n413 U.S. 266, 271 (1973) (warrantless inspections are constitutional where businessmen engaged in federally regulated enterprises \xe2\x80\x9c accept the burdens as well as the benefits o f their trade . . . [and] in effect consent! ] to the\nrestrictions placed upon [them ]\xe2\x80\x9d ); United States v. Bonanno , 487 F.2d 654, 658-59 (2d Cir. 1973) (consent shown\nwhere \xe2\x80\x9c informer went ahead with a call after knowing what the law enforcement officers were about\xe2\x80\x9d ).\n19 Although we think it unnecessary, the FCC could consider publishing a notice in the telephone book and/or\nin the standard service contract signed by each subscriber that anyone calling 911 will be deem ed to consent to\ndisclosure of their physical location.\n\n323\n\n\x0c'


b'September 9, 1977\n\n78-84\n\nMEMORANDUM FOR THE COUNSEL\nTO THE PRESIDENT\nPresidential Authority\xe2\x80\x94 Slovik Case\xe2\x80\x94\nConstitutional Law\xe2\x80\x94Posthumous Pardons\xe2\x80\x94\nReview of Sentence (10 U.S.C. \xc2\xa7 1552)\n\nYou have asked for our opinion regarding the President\xe2\x80\x99s authority to act in\nthe case of the late Eddie D. Slovik, who was sentenced to death by a\ncourt-martial for desertion and subsequently executed on January 31, 1945. For\nreasons stated hereafter, we conclude that: (1) the President has no power to\nreview or overturn the August 12, 1977, decision o f the Secretary of the Army;\nand (2) even assuming that the President might issue a posthumous pardon, its\nissuance would not remove the disability imposed by statute on his widow,\nAntoinette Slovik, receiving the proceeds o f the life insurance that she seeks to\ncollect.\n\nI.\n\nBackground\n\nSlovik left a widow, who, until recently, apparently made no attempt to\ncollect on the National Service Life Insurance (NSLI) policy o f $10,000 that\nhad been in force on Mr. Slovik during his brief military service.1\nThe disbursement o f NSLI benefits is entrusted by statute to the Veterans\xe2\x80\x99\nAdministration. See 38 U .S.C . \xc2\xa7 701 et seq. Under 38 U .S.C . \xc2\xa7 711:\nAny person guilty o f mutiny, treason, spying, or desertion, or\nwho, because o f conscientious objections, refuses to perform service\nin the Armed Forces . . . shall forfeit all rights to [NSLI], No\ninsurance shall be payable for death inflicted as a lawful punishment\nfor crime or for military . . . offense . . . .\nMrs. Slovik, apparently anticipating that the VA would deny a claim by her\nbecause o f \xc2\xa7 711,2 filed an application with the Army Board for Correction of\n\xe2\x80\x99The allotm ent from M r. S lovik\'s pay that paid for this insurance was discontinued on Decem ber\n31, 1944, one month prior to his execution.\n2M rs. Slovik also asked the Board to assist in having M r. Slovik\xe2\x80\x99s rem ains rem oved from their\npresent burial site in an "unm arked dishonored place in France, to a more suitable resting place.\xe2\x80\x9d\n2JQ\n(Continued)\n\n\x0cMilitary Records (Board), advancing several arguments as to why his military\nrecord should be \xe2\x80\x9c corrected\xe2\x80\x9d in such a way that \xc2\xa7 711 would no longer be a\nbar. The Board, after proceedings held on June 15 and 29, 1977, at which Mrs.\nSlovik was represented by counsel, recommended to the Secretary of the Army\nthat Mrs. Slovik\xe2\x80\x99s application be denied. On August 12, 1977, that recommen\xc2\xad\ndation was approved and the application was denied by the Secretary o f the\nArmy.\n\nII.\n\nThe President\xe2\x80\x99s Power of Review\n\nAny review of the Secretary of the A rm y\xe2\x80\x99s decision on the application of\nMrs. Slovik is governed in the first instance by 10 U .S.C . \xc2\xa7 1552, which\nauthorizes such applications to be entertained and establishes to a limited extent\nthe procedures under which they are to be processed. The more detailed\nprocedures actually employed are, under \xc2\xa7 1552, promulgated by the several\nService Secretaries after approval by the Secretary of Defense.\nSection 1552 does not explicitly grant or deny the President the power to\nreview decisions made by the Service Secretaries or Boards established\npursuant to its provisions. It does, however, state explicitly that \xe2\x80\x9c a correction\nunder this section is final and conclusive on all officers o f the United States.\xe2\x80\x9d\n\xc2\xa7 1552(a). This language would arguably prevent the President from overturning\na decision favorable to an applicant,3 but it does not address a situation where,\nas here, the decision of the Board and Secretary has gone against an applicant.\nSection 1552 does, however, require decisions made on applications to be\nmade \xe2\x80\x9c under procedures established by [the several Service Secretaries] and\napproved by the Secretary o f Defense . . . . \xe2\x80\x9d We think that, at a minimum, this\nmeans that all such decisions are to be made with some semblance of\nprocedural regularity. The Secretary of the Army has adopted procedures to this\nend. See 32 CFR \xc2\xa7 581.3.\nUnder 32 CFR \xc2\xa7 581.3(f)(2) the Secretary of the Army possesses final\nauthority, subject only to judicial review, to grant or deny an application for\ncorrection. As pointed out in a recent case, the Secretary could, by regulation\nhaving the approval of the Secretary of Defense, give final decisionmaking\nauthority to the Board itself, thereby preventing even the Secretary of the Army\nfrom reviewing the decision o f the Board so long as the regulation was in force.\nSee, Biddle v. United States, 186 Ct. Cl. 87 (1968). In addition, a number of\ncases have indicated that the Secretary himself may not reverse a \xe2\x80\x9c decision\xe2\x80\x9d of\nthe Board where the Board\xe2\x80\x99s findings are supported by the record. See, e .g .,\nWeiss v. United States, 408 F. (2d) 416, 422 (Ct. Cl. 1969); Nelson v. M iller,\n373 F. (2d) 474, 478 (3d Cir. 1967).\n(Continued)\nThe Board found this issue to be beyond its jurisdiction, stating that " 3 6 U .S .C . 121 provides the\nAmerican Battle M onum ents Com m ission with responsibility for m aintaining m ilitary cem eteries\nin foreign countries. . . . \xe2\x80\x9d\n^ h e scant legislative history o f the provision indicates that Congress intended to \xe2\x80\x9c make the .\nFindings o f the boards not subject to review by other Governm ent departm ents.\xe2\x80\x9d S. Rept. No. 788,\n82d C ong., 1st sess. 2 (1951).\n\n371\n\n\x0cIn these circumstances, we think that the President lacks the power of review\nover a decision made by the Secretary o f the Army because \xc2\xa7 581.3(0(2)\neffectively precludes him from doing so.4 It is a generally accepted principle\nthat courts will review and set aside actions taken by the military not in accord\nwith their own regulations. See, e .g ., P eavy v. Warner, 493 F. (2d) 748, 750\n(5th Cir. 1974). Although a departure inuring to the benefit of Mrs. Slovik\nwould probably not be subject to judicial review, we believe that the general\nprinciple is fully applicable.5\nConcluding, as we do, that the President may not exercise review over the\nSlovik case, the question arises whether he might nevertheless request the\nSecretary of the Army to reconsider his decision or to remand the case to the\nBoard for further consideration. It is certainly arguable that the President\xe2\x80\x99s\ngeneral supervisory power over the execution of the laws under Art. II, \xc2\xa7 3, of\nthe Constitution, as well as his power as Commander-in-Chief, would be\nsufficient to sustain his taking some position in this matter. We do not,\nhowever, think that this supervisory power is sufficient to permit him to order\nreconsideration o f the matter so long as 32 CFR \xc2\xa7 581.3(f)(2) is effective. We\nreach this result because such an order would effectively constitute Presidential\nintrusion into a quasi-adjudicatory procedure different only in degree from his\nattempting to review the Secretary\xe2\x80\x99s decision on the merits.\nThe President is, o f course, free at any time to comment on the merits of\ndecisions made by his subordinates. W hether to do so in a specific situation\ndoes not pose a legal question p e r se, but we tend to doubt the propriety of his\nmaking any statement on the merits of the Secretary\xe2\x80\x99s decision that would in\nany way compromise possible defense o f that decision by this Department in\nconnection with any judicial review that might be sought by Mrs. Slovik. Our\nreview o f the case, limited to an analysis of the Board\xe2\x80\x99s opinion, indicates to us\nthat its decision could easily withstand judicial review under the narrow scope\nof review given to courts in these m atters.6 The President would not be\nprecluded from expressing sympathy for Mrs. Slovik\xe2\x80\x99s situation, which was\nexpressed by the Board itself.\n\nIII.\n\nThe Pardon Power\n\nAnother source o f authority potentially available to the President is the\npardon power vested in the President under Art. II, \xc2\xa7 2, cl. 1, o f the\nConstitution. In the circumstances o f this case, a threshold question arises as\n4W e do not address the question w hether the Secretary o f the Arm y m ight am end the governing\nregulation so as to provide for Presidential review of som e or all of these cases.\n3W e note that were the President thought to have the pow er to review such decisions, a procedure\nto effect it would most probably have to be established to avoid raising grave questions concerning\njudicial review. This is so because courts will not review decisions that are thereafter subject to\nrevision by the Executive branch. See, Chicago & Southern Air Lines, Inc. v. Waterman S.S.\nCorp., 333 U .S. 103, 113-14 (1948). An established procedure would have to assure reviewing\ncourts that a decision before them for review was no longer subject to revision by the President.\n^ h e articulated standard of review o f such m atters is for arbitrariness or capriciousness. See.\nWeiner v. United Slates, 148 Ct. Cl. 445 (I960).\n\n372\n\n\x0cto whether the President may issue a pardon posthumously. Because this\nquestion has never been resolved judicially and the power has been exercised\nposthumously only on one occasion (apparently inadvertently), we think it\nprudent to dispose o f the question o f its use in this case on a narrower ground.7\nThus, we turn to the question whether, assuming the President were to pardon\nSlovik, the effect of that pardon would be to restore to Mrs. Slovik the right to\npayment of her late husband\xe2\x80\x99s insurance policy despite 38 U .S.C . \xc2\xa7 711.\nPrior Attorneys General have generally taken the position that, while a\npardon relieves the offender of all disabilities imposed by way of punishment, it\ndoes not relieve an offender o f disabilities that attend a conviction. Thus,\nActing Attorney General Davis concluded that a statute forbidding the\nappointment as a naval officer of any person previously dismissed from the\nnaval service by sentence o f a court-martial did not impose a punishment on\nsuch an officer but rather should be viewed as a qualification for appointment\nthat could not be affected by an exercise o f the pardon power. 31 Op. A .G.\n225, 226-30 (1918). See also 39 Op. A .G . 132, 134-35 (1938); 36 Op. A .G .\n193 (1930); 22 Op. A .G . 36 (1898).\nApplying the reasoning of these prior opinions to the present case, it is our\nopinion that \xc2\xa7 7 1 1 , insofar as it prevents the payment of insurance proceeds\nwhere the insured was executed pursuant to a criminal sentence8 does not\nconstitute a punishment. Rather, as copiously detailed in Simmons v. U nited\nStates, 120 F. Supp. 641 (D. Pa. 1954), the denial of insurance benefits to\npersons executed as punishment for crimes represents nothing more than\nCongress\xe2\x80\x99 recognition o f a longstanding public policy in commercial insurance\nof excluding from risks covered by life insurance the risk that the insured will\nbe executed for crime. In Simmons, a beneficiary of an NSLI policy sought to\nrecover where the insured had been executed by a State for murder. The court,\nin our view, correctly described the applicable provision of what is now \xc2\xa7 711\nas involving a contractual exclusion o f risk in recognition of prevailing public\npolicy in this area o f the law. We do not think that the pardon power reaches an\nexclusion or disability that is imposed not as punishment for crime committed\nbut to fulfill a readily identifiable public policy.\n\nL eon U\n\nlm an\n\nD eputy A ssistan t A ttorney G eneral\nOffice o f L egal Counsel\n\n\xe2\x80\x99Recently, the D eputy Attorney G eneral advised the Counsel to the President that the Departm ent\no f Justice did not think the President could grant a posthum ous pardon. O ur own research indicates\nthat there are conflicting internal departm ental m em oranda on this question and that none can be\nsaid to resolve the question definitively.\n8W e do not address the question w hether denial o f such benefits to a deserter would constitute a\npunishm ent because it is unnecessary to do so to dispose o f this case.\n\n373\n\n\x0c'


b'Status of the United States Postal Service as an \xe2\x80\x9cExecutive\nAgency\xe2\x80\x9d Under Executive Order No. 12,250\nIn light of the statutory independence given the United States Postal Service (Service)\nand its officers, Executive Order No. 12,250 should not be construed to include the\nService as an \xe2\x80\x9cExecutive agency\xe2\x80\x9d subject to the Attorney General\xe2\x80\x99s nondiscrimination\ncoordination authority.\n\nJuly 29, 1981\nMEMORANDUM OPINION FOR THE ACTING ASSISTANT\nATTORNEY GENERAL, CIVIL RIGHTS DIVISION\nYou have requested the views of this Office with respect to the\nquestion whether the United States Postal Service (Service) is an \xe2\x80\x9cEx\xc2\xad\necutive agency\xe2\x80\x9d within the meaning of Executive Order No. 12,250, 45\nFed. Reg. 72,995 (1980). For the reasons that follow, we believe that\nthe order should not be construed to include the Postal Service as such\nan agency, notwithstanding the considerable authority of the President\nand the Attorney General over the litigating activities of the Service.\nUnder 42 U.S.C. \xc2\xa7 2000d-l and 20 U.S.C. \xc2\xa7 1682, the President has\nbeen granted broad powers to approve the rules, regulations, and\norders of general applicability relating to racial, sex, and other forms of\ndiscrimination. Executive Order No. 12,250 delegates these powers to\nthe Attorney General. At the same time, the order grants the Attorney\nGeneral authority to \xe2\x80\x9ccoordinate the implementation and enforcement\nby Executive agencies of various nondiscrimination provisions o f\xe2\x80\x9d a\nvariety of laws banning discrimination on grounds of race, color, na\xc2\xad\ntional origin, handicap, religion, or sex. The Attorney General is re\xc2\xad\nquired, for example, to develop standards and procedures for taking\nenforcement actions and conducting investigations; to promulgate\nguidelines for establishing time limits on enforcement activities; to im\xc2\xad\nplement a schedule for review of the agencies\xe2\x80\x99 regulations; to establish\nguidelines for development of consistent recordkeeping and reporting\nrequirements and for sharing of information; and to initiate cooperative\nprograms between and among agencies in order to improve the coordi\xc2\xad\nnation of the covered laws. Under the order, each executive agency is\nrequired to cooperate with the Attorney General in performing its\nfunctions by furnishing requested information and submitting plans for\n239\n\n\x0cthe implementation of its responsibilities under the order. The order\noffers no definition of the \xe2\x80\x9c Executive agencies\xe2\x80\x9d that it covers.\nThis Office has recently discussed the \xe2\x80\x9cuneasy and unresolved ten\xc2\xad\nsion between the dependent and independent aspects of the new\n[Postal] Service,\xe2\x80\x9d Leonard v. United States Postal Service, 489 F.2d 814,\n815 (1st Cir. 1974). See Memorandum of June 15, 1979, for the Assistant\nAttorney General, Civil Division, from Leon Ulman, Deputy Assistant\nAttorney General, Office o f Legal Counsel.1 We summarize that discus\xc2\xad\nsion here. After passage of the Postal Reorganization Act of 1970\n(Act), 39 U.S.C. \xc2\xa7 101 et seq., the Postal Service was categorized as \xe2\x80\x9can\nindependent establishment of the executive branch of the Govern\xc2\xad\nment. . . .\xe2\x80\x9d 39 U.S.C. \xc2\xa7 201. The Act provides for a bipartisan Board\nof Governors who are removable by the President only for cause.\n\xc2\xa7 202(c). Moreover, the Postmaster General and the Deputy Postmaster\nGeneral are appointed and removable, not by the President, but by the\nBoard of Governors. \xc2\xa7 202(c), (d).\nAn agency directed by a board of governors and by chief executive\nofficers who are not freely removable by the President is not \xe2\x80\x9cwithin\xe2\x80\x9d\nthe Executive Branch of the government as that term is ordinarily\nunderstood. After Myers v. United States, 272 U.S. 52 (1926), it is plain\nthat purely executive officers must be appointed by the President, and\nremovable at his will. Under the Act, by contrast, Congress did not\nintend Postal Service officials to have that status. The relevant commit\xc2\xad\ntee report states that the Service was to be removed from the Presi\xc2\xad\ndent\xe2\x80\x99s Cabinet and from the ordinary political process, see H.R. Rep.\nNo. 1104, 91st Cong., 2d Sess. 6, 12-13 (1970), and that the Board was\nto act as a buffer between management of the Service and the possible\ninfluence of partisan politics. In this way, the statute was designed to\nremove \xe2\x80\x9cthe day-to-day management of the Postal Service from both\nPresidential and Congressional areas of concern while still leaving the\nPostal Service subject to [their] broad policy guidance.\xe2\x80\x9d Id. at 13.\nFor purposes of the present inquiry, we need not say whether the\nPresident possesses the constitutional or statutory authority to subject\nto the control of the Attorney General the activities of the Postal\nService in the nondiscrimination area. There is a substantial argument\nthat such control would constitute \xe2\x80\x9cbroad policy guidance\xe2\x80\x9d of the sort\npermitted by the Act. The question here, however, is not one of\npresidential authority, but o f the intent underlying the order.2\nIn light of the peculiar status of the Postal Service, we do not believe\nthat the Service should be understood to be included as an \xe2\x80\x9cExecutive\nagency\xe2\x80\x9d within the meaning of the order. The Service is not defined as\nsuch an agency under the Administrative Procedure Act, see 5 U.S.C.\n1In that memorandum, we concluded that, as a general matter, the Attorney General has the power\nto control litigation involving the Service\n2 N or need we say which of the statutes covered by the order is applicable to the Postal Service.\n\n240\n\n\x0c\xc2\xa7\xc2\xa7 103-105. Moreover, both the Act and its history reveal that Con\xc2\xad\ngress intended to grant the Service at least some measure of insulation\nfrom control by the President and to place the Service in a separate\ncategory from the conventional executive departments. See Leonard v.\nUnited States Postal Service, 489 F.2d 814. In light of that unequivocal\nintent, we believe that, if the President intended to include the Postal\nService under an executive order granting both substantive and proce\xc2\xad\ndural authority to the Attorney General, an explicit statement to that\neffect would ordinarily be expected.3 Since Executive Order No. 12,250\ncontains no such explicit statement, but instead refers to \xe2\x80\x9cExecutive\nagencies\xe2\x80\x9d generally, we interpret the order as not subjecting the Serv\xc2\xad\nice to the Attorney General\xe2\x80\x99s coordination authority.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 We note in addition that in a memorandum on Executive Order No. 12,250 prepared before the\norder was signed or drafted in finaJ form, this Office referred to the difficult legal problems that\nwould arise if the order were applied to the so-called \xe2\x80\x9cindependent\xe2\x80\x9d agencies. We have understood\nthe failure to respond to this concern as an indication that the independent agencies were not intended\nto be included.\n\n241\n\n\x0c'


b'Limitations on Presidential Authority To Control\nExport of Certain Hazardous Substances\nT h e re g u la to ry sc h em e im posed by c e rtain sta tu te s reg u latin g specific h aza rd o u s su b \xc2\xad\nsta n ces fo r p u rp o ses o f h ealth an d safety d o es n ot p re c lu d e th e P re sid en t from im posing\ne x p o rt c o n tro ls on th o se substances fo r foreign po licy p u rp o ses u n d e r th e E x p o rt\nA d m in istratio n A c t (E A A ).\nS ectio n 17(a) o f th e E A A d o es not su p e rsed e o th e r law s im posing e x p o rt c o n tro ls, but\nex p ressly reco g n izes th e effect o f su ch o th e r law s; c o n tro ls u n d er th e E A A th u s m ay\nexist side-by-side w ith c o n tro ls im posed p u rsu an t to o th e r laws.\nIn su latin g th e v ast ran g e o f p ro d u c ts w h ic h a re su b je ct to d o m estic health and safety\nreg u latio n s fro m e x p o rt c o n tro ls w o u ld d efeat th e g o als o f th e E A A relatin g to\nnatio n al se cu rity , fo reig n p o licy , and e c o n o m ic stability.\n\nNovember 13, 1980\nM EM ORANDUM OPIN IO N FOR\nT H E DEPUTY COUNSEL TO T H E PR ESID EN T\nThis responds to your request for our opinion whether other statutes\nlimit the President\xe2\x80\x99s authority under the Export Administration Act of\n1979 (EAA), Pub. L. No. 96-72, 93 Stat. 503 (1979), 30 U.S.C. app.\n\xc2\xa72401 (Supp. Ill 1979), to control exports of hazardous substances for\nforeign policy purposes. Your request further pursues the subject of our\nmemorandum of April 11, 1980, for the Special Assistant to the Presi\xc2\xad\ndent for Consumer Affairs, in which we found the general authority for\nsuch export controls but added a caveat noting that we did not address\nthe effect, if any, of other statutes regulating hazardous substances.*\nThe General Counsel to the United States Trade Representative has\nsince expressed his opinion in a memorandum (hereinafter Memoran\xc2\xad\ndum) that the effect of certain of these statutes is to preclude the\nimposition of export controls under the EAA. We disagree with this\nreading of the statutes; and for the reasons that follow, we conclude\nthat the President\xe2\x80\x99s authority under the EA A is not so limited.\nIn his Memorandum, the General Counsel states his view that certain\nstatutes currently controlling the products as to which export controls\nare being considered contain \xe2\x80\x9cexpress provisions\xe2\x80\x9d permitting exports of\nthe products.1 The General Counsel therefore concludes that export\n\xe2\x80\xa2 N o t e : T h e text o f the A pril 11, 1980, m em orandum appears in this volum e at p. 568. Ed.\n\n1\nT h e Federal Food, D rug, and C osm etic A ct, 21 U .S.C. \xc2\xa7 381(dXl); the Public H ealth Service A ct,\n42 U .S.C. \xc2\xa7 263f(aK3); the C onsum er P ro d u ct Safety A ct, 15 U.S.C. \xc2\xa72067 (Supp. II 1978); the\nContinued\n\n802\n\n\x0ccontrols under the EAA would be inconsistent with its statutory lan\xc2\xad\nguage and would intrude upon congressional authority under Article I,\n\xc2\xa7 8, clause 3 o f the Constitution to regulate foreign commerce. The\ninconsistency is asserted on the basis of \xc2\xa7 17(a) of the EAA which\nprovides that \xe2\x80\x9c[n]othing contained in this Act. . . . shall be construed\nto modify, repeal, supersede, or otherwise affect the provisions of any\nother laws authorizing control over exports of any commodity.\xe2\x80\x9d 50\nU.S.C. App. \xc2\xa7 2416(a). By this section, the General Counsel finds that\nCongress has expressly excluded from controls under the EAA any\ncommodity the export of which is provided for under any other law,\nincluding the seven specific statutes cited. And, in the face of the\nasserted congressional prohibition of export controls, he concludes that\nthe Executive has no authority to regulate foreign commerce. We have\nexamined the General Counsel\xe2\x80\x99s Memorandum and in our opinion none\nof its conclusions is correct.\nI.\n\nA.\nThe General Counsel\xe2\x80\x99s Memorandum rests, at bottom, on the\nview that each of the seven statutes cited expressly authorizes export of\nthe regulated products. We find no such express authorization.\nThe so-called export authorization cited under the Federal Food,\nDrug, and Cosmetic Act, 21 U.S.C. \xc2\xa7 381(d)(1), provides that a food,\ndrug, device, or cosmetic intended for export shall not be deemed to be\nadulterated or misbranded within the meaning of the law if it meets\ncertain conditions for export including specification by a foreign pur\xc2\xad\nchaser, compliance with the laws of the importing country, and appro\xc2\xad\npriate labeling. Section 381(d)(1) is thus not an express authorization of\nexports at all. It is nothing more than an exemption for exports from\nthe regulatory scheme and the standards required for products intended\nfor use in this country.\nWith minor differences in the requirements that must be met before\nthe exemption from domestic standards will be available, the other cited\nprovisions are to the same effect. Thus the Public Health Service Act\nrequires labeling for export and compliance with the requirements of\nthe importing country, 42 U.S.C. \xc2\xa7 263f(a)(3) (electronic products emit\xc2\xad\nting radiation); the Consumer Products Safety Act, labeling for export,\nno unreasonable risk to consumers\' within the United States, and notifi\xc2\xad\ncation to the Consumer Product Safety Commission of intent to export,\n15 U.S.C. \xc2\xa7 2067 (Supp. II 1978); the Federal Hazardous Substances\nAct, marking for exports, labeling in accordance with the specifications\nof the foreign purchaser and the laws of the foreign country, no\nunreasonable risk of injury to persons in the United States, and notificaFederal H azardous Substances A ct, 15 U.S.C. \xc2\xa7 1264<b) (Supp. II 1978); the Flam m able Fabrics Act,\n15 U.S.C. \xc2\xa7 1202 (Supp. II 1978); the Federal Insecticide, Fungicidc, and R odenticide A ct, 7 U.S.C.\n\xc2\xa7 136o (Supp. II 1978); the Toxic Substances C ontrol A ct, 15 U.S.C. \xc2\xa72611.\n\n803\n\n\x0ction to the Commission, 15 U.S.C. \xc2\xa7 1264(b) (Supp. II 1978); the Flam\xc2\xad\nmable Fabrics Act, labeling for export, and no unreasonable risk to\npersons in the United States, and notification to the Commission, 15\nU.S.C. \xc2\xa7 1202(a), (c) (Supp. II 1978); the Federal Insecticide, Fungicide,\nand Rodenticide Act, preparation or packaging in accordance with the\nspecifications of the foreign purchaser and, if applicable, a signed ac\xc2\xad\nknowledgment by the purchaser, with a copy to an appropriate official\nof the importing country, that the pesticide is not registered for use in\nthe United States and cannot be used in the United States, 7 U.S.C.\n\xc2\xa7 136o(a) (Supp. II 1978); and the Toxic Substances Control Act, label\xc2\xad\ning for export, no unreasonable risk of injury to health within the\nUnited States or to the environment of the United States, and in some\ncases notification to the Administrator of the Environmental Protection\nAgency of intent to export, 15 U.S.C. \xc2\xa7 2611.\nNowhere in any of the above-referenced provisions is there any\nindication of an intent to confer an absolute right to export without\nregard to any other provisions of law.2 There is merely an exemption\nfrom the domestic standards that would otherwise apply.3\nB. In the absence of any express authorization for exports under these\nstatutes, the further argument in the Memorandum as to the effect of\n\xc2\xa7 17(a) of the EAA has not even the basis asserted therein. The con\xc2\xad\ntinuing relevance of other laws providing for export, as \xc2\xa7 17(a) is said\nto recognize, depends first on a finding that other laws in fact provide,\nin so many words, for export. We have concluded that the cited\nstatutes do not. But even if they did, the effect of \xc2\xa7 17(a) would not be\nto preclude controls under the EAA. The assertion in the Memoran\xc2\xad\ndum to the contrary greatly distorts the language of \xc2\xa7 17(a).\nFirst, \xc2\xa7 17(a) does not address, as the Memorandum asserts, the rela\xc2\xad\ntionship between the EAA and other laws that provide for export.\nSection 17(a), in fact, addresses the relationship between the EAA and\nlaws that do affirmatively provide, just to the contrary, for export\ncontrols. The seven statutes cited cannot be at the same time laws\nexpressly authorizing exports and laws authorizing controls over ex\xc2\xad\n2 In fact, \xc2\xa7 2 o f the Senate version o f the E A A , w hich contained references to the \xe2\x80\x9c right o f export,\xe2\x80\x9d\nwas am ended to substitute the w ord \xe2\x80\x9c ability" for the w ord \xe2\x80\x9c right,\xe2\x80\x9d see 50 U.S.C. A pp. \xc2\xa72401(1),\nspecifically to avoid the inference o f \xe2\x80\x9ca constitutional o r otherw ise legally enforceable right to export\nfree from governm ent restriction.\xe2\x80\x9d S. Rep. No. 169, 96th Cong., 1st Sess. 3-4 (1979) (hereinafter cited\nas \xe2\x80\x9c 1979 Senate R ep o rt\xe2\x80\x9d ). If any o f these seven statutes had conferred a right to export, w e think that\nit w ould have been m entioned at this point.\n3 G iven the clarity o f the language, w e need not review the legislative history o f the E A A ,\nalthough w e do note that there is no indication in the history that any o f these seven statutes is an\nexport co n tro l law. T h e H ouse rep o rt states only that \xe2\x80\x9d[t]he Export A dm inistration A ct o f 1969\nconstitutes th e basic authority for co n tro llin g the export o f most civilian products from the United\nStates. (R elated acts are th e A rm s Export C o n tro l A ct, pertaining to the export o f arms, ammunition,\nand im plem ents o f w ar, and the N uclear N on-Proliferation A ct o f 1978, pertaining to the export o f\nnuclear m aterials and technology.)\xe2\x80\x9d H .R . Rep. N o. 200, 96th C ong., 1st Sess. 2-3 (1979) (hereinafter\ncited as \xe2\x80\x9c 1979 H ouse R ep o rt\xe2\x80\x9d ). W e also have no need to rely upon, although again w e certainly do\nnote, the w ell-settled rule that repeals by im plication are not favored. See, e.g., Morton v. Mancari, 417\nU.S. 535, 549 (1974).\n\n804\n\n\x0cports. Second, \xc2\xa7 17(a) does not address, as the Memorandum asserts, the\neffect on further controls under the EAA even as to commodities that\nare controlled under other laws. Again, \xc2\xa7 17(a) is addressed to just the\ncontrary situation. The relationship is stated not in terms of the effect\non controls under the EAA but in terms of controls under these other\nlaws. And third, even as to these other laws, the effect is just the\ncontrary of that stated in the Memorandum. Section 17(a) is not a\npreclusion of further controls- at all. Instead, it expressly recognizes the\neffect of other controls.\nC. With this statutory construction, the constitutional argument in\nthe Memorandum also falls. The assertion that the Executive may\nregulate commerce only as Congress has. provided, and thus may not\ntake actions that Congress has expressly forbidden, is meaningless in the\ncontext of the EAA, which not only does not forbid the export con\xc2\xad\ntrols contemplated here but in fact expressly authorizes them.4\nII.\n\nThere are other significant reasons for our opinion that the regula\xc2\xad\ntory scheme of the seven cited statutes does not preclude export con\xc2\xad\ntrols for foreign policy purposes under the EAA. The argument to the\ncontrary ignores the history of \xc2\xa7 17(a), fails to take account of the\neffect of the argument on national security and short-supply controls,\nand represents a fundamental misunderstanding of the purpose and\nfunction of the EAA.\nA. The provision that is now \xc2\xa7 17(a) derives from \xc2\xa7 10 of the Export\nControl Act of 1949, which provided:\nThe Act of February 15, 1936 (49 Stat. 1140), relating to\nthe licensing of exports of tinplate scrap, is hereby super\xc2\xad\nseded; but nothing contained in this Act shall be con\xc2\xad\nstrued to modify, repeal, supersede, or otherwise affect\nthe provisions of any other laws authorizing control over\nexports of any commodity.\nPub. L. No. 81-11, \xc2\xa7 10, 63 Stat. 7, 9 (1949). The legislative history of\n\xc2\xa7 10 makes clear both the reason for the change in the law relating to\ntinplate scrap and the fact that no other changes in existing export\ncontrol laws were made. Under prior law, the export licensing author\xc2\xad\nity for tinplate scrap was conferred upon the Department of State but\nwas, in practice, handled by the Department of Commerce. Section 10\nhad the effect of transferring the licensing authority to the agency that\nwould administer the 1949 Act and also conforming the law to the\nprior practice. S. Rep. No. 31, 81st Cong., 1st Sess. 7 (1949). Yet there\n4\nW e d o not wish to be understood as conceding, how ever, that the E xecutive has no independent\nconstitutional au th o rity to regulate com m erce for foreign policy reasons. Because the E A A clearly\nconfers this authority by statute, we have no need to consider the constitutional question.\n\n805\n\n\x0cwere in effect at the time of the 1949 Act export controls on other\ncommodities, such as narcotics, gold, ammunition, arms, implements of\nwar, tobacco seed, and atomic energy materials, H.R. Rep. No. 18, 81st\nCong., 1st Sess. 12 (1949); the Senate report, supra, mentions helium\nalso. As to these, \xe2\x80\x9cthe bill makes no change whatever in the present\nlaws.\xe2\x80\x9d S. Rep. No. 31, supra; see also H.R. Rep. No. 18, supra.\nThe Export Administration Act of 1969, Pub. L. No. 91-184, \xc2\xa7 12(a),\n83 Stat. 841, 846 (1969), retained verbatim the language of \xc2\xa7 10. The\n1979 Act deleted the language expressly superseding the prior law as to\ntinplate scrap but retained the language continuing the effectiveness of\nother laws authorizing control over exports. There is no explanation in\nthe legislative history why the 1969 Act carried over the reference to\ntinplate scrap or why the 1979 Act deleted it, but the process is in any\nevent not relevant to the issue here. What is important is that the 1979\nAct retained in \xc2\xa7 17(a) that portion of the prior provisions clearly\nstating the legislative intent that the EAA did not replace the regula\xc2\xad\ntory authority existing pursuant to other laws.\nBy its literal terms, \xc2\xa7 17(a) goes no further. As we noted above in\ndiscussing the construction given to \xc2\xa7 17(a) in the Memorandum, the\nsection does not address the effect, if any, of this other regulatory\nauthority on the authority under the EAA. But in preserving the\nauthority to impose controls pursuant to other laws, \xc2\xa7 17(a), like its\npredecessors, creates a regulatory structure in which export controls\nunder these other laws exist side by side with controls under the EAA.\nAt least in the absence of any indication to the contrary in these other\nstatutes, the reasonable conclusion to be drawn from the history of\n\xc2\xa7 17(a), and the logical implication of the regulatory structure that\nresults, is that controls under the EA A also may exist side by side with\nthese other controls. As we discuss at length above, we find no such\ncontrary indication in any of the seven statutes cited.\nThe Memorandum is addressed only to export controls imposed for\nforeign policy purposes. But the EAA also provides authority to\nimpose controls in the interests of national security, or to prevent\nundue diminution of goods in short supply, 50 U.S.C. App. \xc2\xa7\xc2\xa7 2404,\n2406. The authority as to national security controls is conferred in\nfurtherance of the congressionally declared policy of using export con\xc2\xad\ntrols \xe2\x80\x9cto restrict the export of goods and technology which would\nmake a significant contribution to the military potential of any other\ncountry or combination of countries which would prove detrimental to\nthe national security of the United States.\xe2\x80\x9d 50 U.S.C. App.\n\xc2\xa7 2402(2)(A). As to short-supply controls, the export control authority\nis intended to implement the policy of using export controls \xe2\x80\x9cto protect\nthe domestic economy from the excessive drain of scarce materials and\nto reduce the serious inflationary impact of foreign demand.\xe2\x80\x9d 50 U.S.C.\nApp. \xc2\xa7 2402(2)(C).\n806\n\n\x0cB. The Memorandum does not discuss the effect of \xc2\xa7 17(a) on these\nnational security or short-supply controls, but there is nothing in \xc2\xa7 17(a)\nthat would limit to foreign policy controls the effect attributed to that\nprovision in the Memorandum. Under that interpretation, national secu\xc2\xad\nrity, controls would be precluded merely because another statute im\xc2\xad\nposed health and safety regulations on domestic distribution of a par\xc2\xad\nticular product but utilized a more lenient standard for exports. For this\nis all that the seven cited provisions do; and this, of course, protects the\nnational security not at all. A health-and-safety regulatory scheme that\nincluded different standards for domestic distribution and export would\nsimilarly preclude short-supply export controls even though the other\nstatute protected the national economy not at all. This interpretation of\n\xc2\xa7 17(a) cannot be squared with the clear legislative intent as expressed\nin the congressional declarations of policy.5\nC. In the final analysis, this result is the clearest indication that the\nview in the Memorandum must be rejected. In pursuit of national\nsecurity, foreign policy, and economic stability, the EAA was intended\nto provide comprehensive authority for the control of exports. Nothing\nless would meet the stated goals of increasing the emphasis on national\nsecurity, 1979 Senate Report at 4, and implementing \xe2\x80\x9cthe full range of\nU.S. foreign policy goals,\xe2\x80\x9d H.R. Rep. No. 482, 96th Cong., 1st Sess. 43\n(1979) (1979 Conference Report) while at the same time minimizing\nuncertainty in export policy, increasing the efficiency of applicable\nadministrative procedures, obtaining increased cooperation by our\nallies, and providing the Executive with the flexibility to react\npromptly and appropriately to extreme and varied situations. See 1979\nSenate Report at 2-3, 8; 1979 House Report at 4-5; 1979 Conference\nReport at 43. Insulating a vast range of products from export controls\nwould in one stroke defeat these goals and prevent any kind of a\ncomprehensive and consistent export policy. And, as increased concern\nabout health and safety requires expanded domestic regulation of haz\xc2\xad\nardous substances, this approach would force the Executive to choose,\non the one hand, between forgoing domestic .regulation (or seeking in\nthe course of such regulation export standards identical in all circum\xc2\xad\nstances to domestic standards) or, on the other hand, retaining the\nauthority to control exports as appropriate under the EAA. We cannot\nbelieve that Congress intended to force such a choice. The legislative\nhistory and the statements of findings and policy in the EAA are at\nodds with this interpretation and indicate instead that, where export\n5\nO ne additional indication that these health-and-safety regulations do not preclude the imposition\no f export controls under the E A A is the inclusion o f \xc2\xa7 6 (0 o f the A ct, w hich provides that the EA A\ndoes not authorize controls on medicine o r medical supplies, 50 U.S.C. A pp. \xc2\xa7 2405(f). A lthough the\nproducts that fall w ithin this exclusion might not be identical to those regulated under the Federal\nFood, D rug, and C osm etic A ct there is clearly some overlap. If 21 U.S.C. \xc2\xa7 3 8 1 (d X l) had the effect\nthat the M em orandum contends it has, \xc2\xa7 6 (0 w ould have been either om itted as unnecessary o r at least\nphrased w ith reference to \xc2\xa7 381(d)(1)\n\n807\n\n\x0ccontrols under the EAA become important for reasons of national\nsecurity, foreign policy, or short domestic supplies, the President would\nhave the authority, notwithstanding any other statute that allows ex\xc2\xad\nports in the absence of one of these reasons, to impose those controls.\nFor all the foregoing reasons, we reject the view in the Memoran\xc2\xad\ndum that the seven statutes cited preclude the imposition of export\ncontrols pursuant to the EAA. We find no such preclusion and find\ninstead the President\xe2\x80\x99s continuing authority under the EAA to control\nexports as appropriate.\nL e o n U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n808\n\n\x0c'


b'Trials of Newspaper Personnel\nAccused of Disclosing Naval Secrets\nIt is probable that the newspaper personnel accused of violating the Espionage Act by disclosing naval\nsecrets can each be tried in any district in which the newspaper containing the secrets was received\nby a subscriber or newsstand.\nThe newspaper personnel would be entitled to separate trials unless a conspiracy to violate the\nEspionage Act can be shown.\n\nJune 16, 1942\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nIn an accompanying memorandum of today\xe2\x80\x99s date,* the substantive aspects of\ncertain disclosures of naval information are discussed. A short statement of facts is\nthere given.\nThis memorandum discusses the following questions:\n(1) Assuming a violation of law by the reporter, the managing editor\nof B newspaper, the company publishing it, and the publisher, can\nthey be tried in any district in which the newspaper was received by\na subscriber or newsstand?\n(2) Can these trials be combined?\n(3) Assuming a violation of the law by the managing editors of B\nand C newspapers, and a conspiracy between them and A, the reporter, can all be tried jointly in a certain district in which subscribers to\nboth B and C can be found? If no conspiracy exists?\nThe answers appear to be as follows:\n(1) Each defendant can probably be tried in any district in which the\nnewspaper was received.\n(2) The trials will be separate, in the absence of proof of conspiracy.\n(3) Assuming a conspiracy, the trial of all can be held jointly in a\ncommon district.\n\n*\nEditor\xe2\x80\x99s Note: That memorandum opinion precedes this one (Criminal Liability for Newspaper\nPublication of Naval Secrets, 1 Op. O.L.C. Supp. 93 (June 16, 1942)).\n\n102\n\n\x0cTrials of Newspaper Personnel Accused of Disclosing Naval Secrets\n\nI. Problems of Venue; Place of Trial\nAssuming a violation of the law by the reporter and his superiors\xe2\x80\x94managing\neditor, publisher, and newspaper company\xe2\x80\x94it is probable that each defendant can\nbe tried (whether separately or jointly will be discussed below) in any district in\nwhich a copy of the newspaper containing the criminal dispatch was received by a\nsubscriber or newsstand.\nThe Constitution of the United States provides that\n\xe2\x80\x9cThe trial of all Crimes . . . shall be held in the State where the said\nCrimes shall have been committed . . . ,\xe2\x80\x9d Article III, Section 2,\nand that\n\xe2\x80\x9cIn all criminal prosecutions, the accused shall enjoy the right to\na . . . trial, by an impartial jury of the State and district wherein the\ncrime shall have been committed . . . ,\xe2\x80\x9d Amendment VI.\nThese constitutional provisions do not give a defendant a constitutional right to\nbe tried only in the district of his residence or principal place of business. Haas v.\nHenkel, 216 U.S. 462 (1909). His right is to a trial in the district where the crime\nwas committed.\nIt seems to be reasonably well established by the Supreme Court that a \xe2\x80\x9ccrime,\xe2\x80\x9d\nwhich involves a sequence of acts crossing district boundaries, is committed in\nany district in which any substantial act in the sequence took place. Hyde v. United\nStates, 225 U.S. 347 (1911); United States v. Lombardo, 241 U.S. 73 (1915). The\ndiscretion of the Attorney General and the constant supervision of the courts are\nregarded as sufficient safeguards against double jeopardy and unnecessary\nmultiplicity of suits.\nThe most significant act in the crime of \xe2\x80\x9ccommunicating\xe2\x80\x9d or \xe2\x80\x9ctransmitting\xe2\x80\x9d a\ndocument relating to national defense to \xe2\x80\x9cany person not entitled to receive it\xe2\x80\x9d\nunder section 1(d) of the Espionage Act1 must be the actual presentation of the\ncontents of such a document to the person not entitled to receive it. When such\ncommunication or transmission is effected through the medium of a newspaper,\nthat act occurs only when the recipient of the newspaper has it in his control. The\nfactual chain of events which constitute the legal crime begins of course when the\nreporter first illegally scans the forbidden document, but it does not end until the\nwhole institutional apparatus of newspaper publication has deposited the finished\npaper in the hands of the subscriber or purchaser. To seize upon any one factual\nevent in the crime chain\xe2\x80\x94such as the physical rolling of the papers off a press\xe2\x80\x94\nand to say that such an event only is \xe2\x80\x9cthe crime\xe2\x80\x9d and that the crime is \xe2\x80\x9ccommitted\xe2\x80\x9d\nonly at the locus of that event would be as unrealistic as it would be subversive of\n1\n\nAct of June 15, 1917, ch. 30, \xc2\xa7 1(d), 40 Stat. 217, 218, codified at 50 U.S.C. \xc2\xa7 31(d) (1940).\n\n103\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe policy of the statute. It is not some physical step in the publishing process\nwhich is prohibited but the communication of defense information to unauthorized\nrecipients. The fact that there may be unauthorized recipients in many districts\nonly aggravates the crime. It would put an insuperable burden upon the government to require it to show which unauthorized recipients actually passed the\ninformation on to the enemy and, hence, to fix its venue there.\nDirect case authority to support this reasoning is scant. Helpful analogies can,\nhowever, be found in cases involving the unlawful transmission of goods and\nfraudulent mail practices. Charles C. Montgomery, Manual of Federal Jurisdiction\nand Procedure \xc2\xa7 1150 (4th ed. 1942). The famous old case of In re Palliser, 136\nU.S. 257 (1890), which held that the offense of tendering a contract for the\npayment of money in a letter mailed in one district and addressed to a public\nofficer in another, to induce him to violate his official duty, could be tried in the\ndistrict in which the letter was received by that officer, is squarely in point. The\nopinion contains excellent supporting language.\nOpposing authority is equally scant. The federal criminal libel cases are old, by\nlower courts, not numerous, and poorly reasoned. They have been often criticised.\nJustin Miller, Handbook of Criminal Law 495 (1934); Recent Cases, Criminal\nLaw\xe2\x80\x94Jurisdiction\xe2\x80\x94Locality of Publication of Libel, 23 Harv. L. Rev. 309 (1910);\nComment, Copies of a Printed Criminal Libel as Separate Offenses, 26 Yale L.J.\n308 (1916\xe2\x80\x9317). Many state court decisions are to the contrary. Annotation, Venue\nof Action for Libel in Newspaper, 37 A.L.R. 914 (1925). The leading case, United\nStates v. Smith, 173 F. 227 (D. Ind. 1909), could easily be distinguished or\ndiscredited.\nOne section of the judicial code, 28 U.S.C. \xc2\xa7 103, could be construed as relevant. This provides that:\nWhen any offense against the United States is begun in one judicial\ndistrict and completed in another, it shall be deemed to have been\ncommitted in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had\nbeen actually and wholly committed therein.\nRev. Stat. \xc2\xa7 731 (2d ed. 1878), 18 Stat. pt. 1, at 139 (repl. vol.), as amended by Act\nof Mar. 3, 1911, ch. 231, \xc2\xa7 42, 36 Stat. 1087, 1100. If the argument above that a\nsignificant act of the chain \xe2\x80\x9ccrime\xe2\x80\x9d was \xe2\x80\x9ccommitted\xe2\x80\x9d in the district where the\nnewspaper was received is accepted, an equally plausible argument could be made\nunder this section that the offense was \xe2\x80\x9ccompleted\xe2\x80\x9d in such district. The argument\nfrom the facts and from policy would be substantially the same.\nFor determining the place of trial, and allocating power between courts, the\nconcept of \xe2\x80\x9cvenue\xe2\x80\x9d serves the same function for different federal districts that the\nconcept of \xe2\x80\x9cjurisdiction\xe2\x80\x9d serves for the states. State courts are\xe2\x80\x94it should be noted\nby way of analogy\xe2\x80\x94rapidly getting away from the naive notion that a \xe2\x80\x9ccrime,\xe2\x80\x9d\n\n104\n\n\x0cTrials of Newspaper Personnel Accused of Disclosing Naval Secrets\n\ninvolving a sequence of acts crossing state boundaries, is physically \xe2\x80\x9clocated\xe2\x80\x9d on\nsome one spot. Thus Mr. Berge observes:\n[T]he conclusion is irresistible that if the constituent acts of a given\ncrime occur in more than one state, each such state has an equally\nvalid claim to jurisdiction over the whole crime. Such extra-territorial elements should be frankly recognized by courts and no attempt should be made to cover them with legal fictions.\nWendell Berge, Criminal Jurisdiction and the Territorial Principle, 30 Mich. L.\nRev. 238, 269 (1931).\nII. Separate Trials\nWhere two or more defendants are accused of the same crime, i.e., if they are\nconspirators, or principal and accessory, they may be tried together. Even here,\nhowever, the court may in its discretion order separate trials, upon proper motion.\nWhere the crimes are different, though related in nature or linked by events, the\ndefendants are entitled to separate trials, if the objection is seasonably raised. See\nMontgomery, Federal Jurisdiction and Procedure \xc2\xa7 1238; William T. Hughes,\nFederal Practice, Jurisdiction & Procedure \xc2\xa7 7084 (1931 & Supp. 1941).\nIn the instant case, unless the conspiracy theory is relied upon, the defendants\nwould appear to be entitled to separate trials.\nIII. Conspiracy\nIf a conspiracy to violate the Espionage Act can be shown (which does not\nappear probable on the facts now known to me), the defendants can be tried\ntogether in any district in which the conspiracy was formed or in which an act was\ndone to effectuate the object of the conspiracy. Hughes, Federal Practice \xc2\xa7 6849.\nIV. Questions of Policy\nThe newspapers usually stand together on questions affecting their common\ninterest. The locus of a suit against reporters, editors and proprietors is a matter of\nmajor importance to the publishing trade. If it is established that suits based on\nlibel or violations of the Espionage Act can be brought at any point at which even\na single subscriber receives the publication, the trade would feel itself in grave\njeopardy. Accordingly, an attempt to start a prosecution at a point remote from the\nplace of publication might raise a nationwide outcry from the press, and prevent\nthe public from reaching an understanding of the merits of the case.\nOSCAR S. COX\nAssistant Solicitor General\n\n105\n\n\x0c'