434 U.S. 159 (177), 76-835, United States v. New York Telephone Co.

Docket Nº:No. 76-835
Citation:434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376
Party Name:United States v. New York Telephone Co.
Case Date:December 07, 1977
Court:United States Supreme Court
 
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Page 159

434 U.S. 159 (177)

98 S.Ct. 364, 54 L.Ed.2d 376

United States

v.

New York Telephone Co.

No. 76-835

United States Supreme Court

Dec. 7, 1977

Argued October 3, 1977

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

On the basis of an FBI affidavit stating that certain individuals were conducting an illegal gambling enterprise at a specified New York City address and that there was probable cause to believe that two telephones with different numbers were being used there to further the illegal activity, the District Court authorized the FBI to install and use pen registers with respect to the two telephones, and directed respondent telephone company to furnish the FBI "all information, facilities and technical assistance" necessary to employ the devices, which (without overhearing oral communications or indicating whether calls are completed) record the numbers dialed. The FBI was ordered to compensate respondent at prevailing rates. Respondent, though providing certain information, refused to lease to the FBI lines that were needed for unobtrusive installation of the pen registers, and thereafter filed a motion in the District Court to vacate that portion of the pen register order directing respondent to furnish facilities and technical assistance to the FBI, on the ground that such a directive could be issued only in connection with a wiretap order meeting the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The District Court ruled adversely to respondent, holding that pen registers are not governed by Title III; that the court had jurisdiction to authorize installation of the devices upon a showing of probable cause; and that it had authority to direct respondent to assist in [98 S.Ct. 366] the installation both under the court's inherent powers and under the All Writs Act, which gives federal courts authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Though agreeing with the District Court's Title III rationale, and concluding that district courts have power either inherently or as a logical derivative of Fed.Rule Crim.Proc. 41, to authorize pen register surveillance upon a probable cause showing, the Court of Appeals, affirming in part and reversing in part, held that the District Court abused its discretion in ordering respondent to assist in installing and operating the pen registers, and expressed concern that such a requirement could establish an undesirable precedent for the authority of federal courts to impress unwilling aid on private third parties.

Held:

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1. Title III, which is concerned only with orders "authorizing or approving the interception of a wire or oral communication," does not govern the authorization of the use of pen registers, which do not "intercept," because they do not acquire the "contents" of communications as those terms are defined in the statute. Moreover, the legislative history of Title III shows that the definition of "intercept" was designed to exclude pen registers. Pp. 165-168.

2. The District Court under Fed.Rule Crim.Proc. 41 had power to authorize the installation of the pen registers, that Rule being sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. Pp. 168-170.

3. The order compelling respondent to provide assistance was clearly authorized by the All Writs Act, and comported with the intent of Congress. Pp. 171-178.

(a) The power conferred by the Act extends, under appropriate circumstances, to persons who (though not parties to the original action or engaged in wrongdoing) are in a position to frustrate the implementation of a court order or the proper administration of justice. Here respondent, which is a highly regulated public utility with a duty to serve the public, was not so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court based on a probable cause showing that respondent's facilities were being illegally used on a continuing basis. Moreover, respondent concededly uses the devices for its billing operations, detecting fraud, and preventing law violations. And, as the Court of Appeals recognized, provision of a leased line by respondent was essential to fulfillment of the purpose for which the pen register order had been issued. Pp. 171-175.

(b) The District Court's order was consistent with a 1970 amendment to Title III providing that

[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier . . . furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively. . . .

Pp. 176-177.

538 F.2d 956, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined; in Parts I, II, and III of which STEWART, J., joined; and in Part II of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in part and dissenting in part, post, p. 178. STEVENS, J., filed an

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opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, and in Part II of which STEWART, J., joined, post, p. 178.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

This case presents the question of whether a United States District Court may properly direct a telephone company to provide federal law enforcement officials the facilities and technical assistance necessary for the implementation of its order authorizing the use of pen registers1 to investigate offenses which there was probable cause [98 S.Ct. 367] to believe were being committed by means of the telephone.

I

On March 19, 1976, the United States District Court for the Southern District of New York issued an order authorizing agents of the Federal Bureau of Investigation (FBI) to install and use pen registers with respect to two telephones and directing the New York Telephone Co. (Company) to furnish the FBI "all information, facilities and technical assistance" necessary to employ the pen registers unobtrusively. The FBI was ordered to compensate the Company at prevailing rates for any assistance which it furnished. App. 6-7. The order was issued on the basis of an affidavit submitted

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by an FBI agent which stated that certain individuals were conducting an illegal gambling enterprise at 220 East 14th Street in New York City, and that, on the basis of facts set forth therein, there was probable cause to believe that two telephones bearing different numbers were being used at that address in furtherance of the illegal activity. Id. at 1-5. The District Court found that there was probable cause to conclude that an illegal gambling enterprise using the facilities of interstate commerce was being conducted at the East 14th Street address in violation of 18 U.S.C. §§ 371 and 1952, and that the two telephones had been, were currently being, and would continue to be used in connection with those offenses. Its order authorized the FBI to operate the pen registers with respect to the two telephones until knowledge of the numbers dialed led to the identity of the associates and confederates of those believed to be conducting the illegal operation or for 20 days, "whichever is earlier."

The Company declined to comply fully with the court order. It did inform the FBI of the location of the relevant "appearances," that is, the places where specific telephone lines emerge from the sealed telephone cable. In addition, the Company agreed to identify the relevant "pairs," or the specific pairs of wires that constituted the circuits of the two telephone lines. This information is required to install a pen register. The Company, however, refused to lease lines to the FBI which were needed to install the pen registers in an unobtrusive fashion. Such lines were required by the FBI in order to install the pen registers in inconspicuous locations away from the building containing the telephones. A "leased line" is an unused telephone line which makes an "appearance" in the same terminal box as the telephone line in connection with which it is desired to install a pen register. If the leased line is connected to the subject telephone line, the pen register can then be installed on the leased line at a remote location and be monitored from that point. The

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Company, instead of providing the leased lines, which it conceded that the court's order required it to do, advised the FBI to string cables from the "subject apartment" to another location where pen registers could be installed. The FBI determined after canvassing the neighborhood of the apartment for four days that there was no location where it could string its own wires and attach the pen registers without alerting the suspects,2 in which event, of course, the gambling operation would cease to function. App. 15-22.

On March 30, 1976, the Company moved in the District Court to vacate that portion of the pen register order directing it to furnish facilities and technical assistance to the FBI in connection with the use of the pen registers on the ground that such a directive could be issued only in connection with a wiretap order conforming to the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970 ed. and Supp. V). It contended that neither Fed.Rule Crim.Proc. 41 nor the All Writs Act, 28 U.S.C. § 1651(a), [98 S.Ct. 368] provided any basis for such an order. App...

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