In re Certified Question of Law.

• Decision Date: 14 April 2016
• Docket Number: No. FISCR 16–01.,FISCR 16–01.
• Citation: 858 F.3d 591
• Parties: In re CERTIFIED QUESTION OF LAW.
• Court: U.S. Foreign Intelligence Surveillance Court

858 F.3d 591

In re CERTIFIED QUESTION OF LAW.

No. FISCR 16–01.

United States Foreign Intelligence Surveillance Court of Review.

April 14, 2016.

Marc Zwillinger, ZwillGen PLLC, Washington, D.C., argued the case as court-appointed amicus curiae. With him on the brief was Jacob A. Sommer.

Aditya Bamzai, United States Department of Justice, Washington, D.C., argued the case for the United States. With him on the brief were John P. Carlin, Stuart J. Evans, J. Bradford Wiegmann, and Lisa M. Farabee.

Before BRYSON, CABRANES, and TALLMAN, Judges.

PER CURIAM.

The Foreign Intelligence Surveillance Court ("FISC") certified this matter under 50 U.S.C. § 1803(j) for review by this court. The FISC certified the following question to us:

Whether an order issued under 50 U.S.C. § 1842 may authorize the Government to obtain all post-cut-through digits, subject to a prohibition on the affirmative investigative use of any contents thereby acquired, when there is no technology reasonably available to the Government that would permit:

(1) a PR/TT [pen register/trap-and-trace] device to acquire post-cut-through digits that are non-content DRAS [dialing, routing, addressing, and signaling] information, while not acquiring post-cut-through digits that are contents of a communication; or

(2) the Government at the time it receives information acquired by a PR/TT device, to discard post-cut-through digits that are contents of a communication, while retaining those digits that are non-content DRAS information.

We have reviewed the record and considered briefs from the government and from amicus curiae appointed by the court under 50 U.S.C. § 1803(i) to present argument in this matter. We conclude that section 1842 authorizes, and the Fourth Amendment to the Constitution of the United States does not prohibit, an order of the kind described in the RISC's certification. Read fairly and as a whole, the governing statutes evince Congress's understanding that pen registers and trap-and-trace devices will, under some circumstances, inevitably collect content information. Congress has addressed this difficulty by requiring the government to minimize the incidental collection of content through the employment of such technological measures as are reasonably available—not by barring entirely, as a form of prophylaxis, the use of pen registers and trap-and-trace devices simply because they might gather content incidentally.

Nor does an order authorizing such surveillance run afoul of the Fourth Amendment's guarantee against unreasonable searches and seizures. The warrant requirement is generally a tolerable proxy for "reasonableness" when the government is seeking to unearth evidence of criminal wrongdoing, but it fails properly to balance the interests at stake when the government is instead seeking to preserve and protect the nation's security from foreign threat. We therefore hold that surveillance of this type may be constitutionally reasonable even when it is not authorized by a probable-cause warrant. We further hold, on the facts presented here, that the order under review reasonably balances the investigative needs of the government and the privacy interests of the people.

I

On January 21, 2016, a judge of the FISC approved an Application for Pen Register and Trap and Trace Device(s) after finding that the application met the requirements for a pen register/trap-and-trace authorization order under the Foreign Intelligence Surveillance Act ("FISA"). The authorization provided for the installation and use of pen register/trap-and-trace devices on a cellular telephone number used by the subject of an ongoing investigation to protect against clandestine intelligence activities, with the assistance of the service provider for that number.¹

As requested by the government, the court's order granted "the authority to record and decode all post-cut-through digits," as described in a memorandum filed by the government with the FISC on August 17, 2009, in connection with an earlier request for similar authorization. The court's order further provided that the government "shall not make any affirmative investigative use of post-cut-through digits acquired through pen register authorization that do not constitute call dialing, routing, addressing or signaling information, unless separately authorized by this Court." In a secondary order, the court directed the service provider to furnish "all information, facilities, or technical assistance necessary to accomplish the installation and operation of the ... device(s)."

"Post-cut-through digits" are numbers or characters that are dialed after the call is initially connected or "cut through." Frequently, those numbers are other telephone numbers, as when a caller places a calling card, credit card, or collect call by first dialing a carrier access number and then, after the initial call is "cut through," dialing the telephone number of the intended recipient. See U.S. Telecom Ass'n v. FCC, 227 F.3d 450, 456, 462 (D.C.Cir.2000) ; In re Application of the United States, 396 F.Supp.2d 45, 48 (D.Mass.2005). Both the first dialed number (the carrier access number) and the second dialed number (the intended recipient's number) constitute dialing information.² The initial dialed number, however, is likely to be of little interest to investigators who are seeking to determine what specific number the caller is calling. In such a situation, in order to discover what number is being called, the investigators must be able to intercept the post-cut-through digits.

In some instances, after a caller has dialed a telephone number, the caller dials additional digits that do not constitute dialing information, but instead constitute a form of content information. For example, after dialing a bank, the caller may be prompted to input a password, a personal identification number, or a bank account number. Or, under certain circumstances, a customer may enter a credit card number or a Social Security number by dialing additional digits. That information is considered content information. As the government acknowledges, pen register orders do not target the interception and decoding of such content information.³

The authorization granted by the FISC judge in this case was consistent with prior FISC practice. Since at least 2006, FISC judges have issued pen register/trap-and-trace orders under 50 U.S.C. § 1842 that have authorized the acquisition of all post-cut-through digits, while generally prohibiting the use of those digits that do not constitute dialing information.

In the order certifying the question of law to this court, the FISC judge set forth in detail the background of the legal issue presented by the government's application. The FISC judge also described the manner in which other courts have dealt with this issue under the pen register/trap-and-trace provisions of title 18 of the United States Code, which govern the use of such devices in the context of criminal investigations.

The FISC judge explained that the pen register/trap-and-trace statutes provide that the information intercepted by pen registers and trap-and-trace devices "shall not include the contents of any communication." 18 U.S.C. § 3127(3), (4). A related section, however, states that the government "shall use technology reasonably available to it" that restricts the recording or decoding of electronic or other impulses "so as not to include the contents of any wire or electronic communications." Id. § 3121(c). In the past, the FISC judge explained, the government has argued, and the FISC has accepted, that in the absence of such reasonably available technology, the government is permitted to obtain all post-cut-through digits, so long as the investigative use of any content information contained therein is prohibited. Because there is not now and has not previously been any known or reasonably available technology to segregate dialing information from content information in post-cut-through digits prior to the interception of those digits, the government has contended that it is entitled to obtain post-cut-through digits even when the acquisition of such digits comes with some risk of intercepting content information.

The FISC judge explained that the government's interest in acquiring such digits is concretely presented in this case. The subject of the investigation is suspected of engaging in clandestine intelligence activities on behalf of a foreign government, contrary to the interests of the United States. [redacted] Using currently available technology, the government cannot identify the foreign telephone number without obtaining the entire set of post-cut-through digits.

Considering the competing privacy interests, the FISC judge concluded that they are not great. Even though some post-cut-through digits may constitute content information, they "nonetheless involve a narrow category of information from a subset of calls placed from a targeted phone number." The intrusion, the judge explained, is less than obtaining the full contents of calls to or from a targeted number, and the intrusion is also "mitigated by the prohibition on affirmative investigative use" of the non-dialing information.

In view of the uniformity of the authorities holding that post-cut-through digits may not be intercepted in the parallel setting of criminal investigations, the FISC judge concluded that the "disagreement between the FISC and other courts provides reason to believe that consideration of these issues by the [Foreign Intelligence Surveillance Court of Review] would serve the interests of justice." See 50 U.S.C. § 1803(j). We find that it is appropriate for this court to address the certified question.

II

The problem in this case is this: Under presently available technology, there is no way for a pen register to distinguish between dialing information and content information contained in post-cut-through digits so that it can be directed to intercept only the former...