In re Orders (1) Authorizing Use of Pen Registers

• Decision Date: 18 September 2007
• Docket Number: No. 06MISC.547(JMA).,No. 06MISC.561(JMA).,No. 07MISC.120(JMA).,06MISC.547(JMA).,06MISC.561(JMA).,07MISC.120(JMA).
• Citation: 515 F.Supp.2d 325
• Parties: IN THE MATTER OF APPLICATIONS OF THE UNITED STATES OF AMERICA FOR ORDERS (1) AUTHORIZING THE USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES and (2) Authorizing Release of Subscriber Information.
• Court: U.S. District Court — Eastern District of New York

515 F.Supp.2d 325

IN THE MATTER OF APPLICATIONS OF THE UNITED STATES OF AMERICA FOR ORDERS (1) AUTHORIZING THE USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES and (2) Authorizing Release of Subscriber Information.

No. 06MISC.547(JMA).

No. 06MISC.561(JMA).

No. 07MISC.120(JMA).

United States District Court, E.D. New York.

September 18, 2007.

COPYRIGHT MATERIAL OMITTED

Jed Davis, Scott Klugman, Assistant U.S. Attorneys, Brooklyn, NY, for the United States.

Yuanchung Lee, Of Counsel, Federal Defenders of New York, Inc., Appeals Bureau, New York City, for Amicus Curiae.

MEMORANDUM AND ORDER

JOAN M. AZRACK, United States Magistrate Judge.

The United States Attorney for the Eastern District of New York (the "Government") has made an ex parte application for the installation and use of a pen register under the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127. In the application, the Government requested access to all dialed digits, including post-cut-through dialed digits, even if such digits may contain the contents of a telephone communication. This Court granted the application in part, but denied access to any post-cut-through dialed digits. In response to the Government's request, I agreed to reconsider the partial denial. Federal Defenders of New York was requested to file an amicus brief on the issue and did so.¹

This issue is a matter of first impression in this Circuit, although courts in Texas and Florida have addressed it and ruled that post-cut-through dialed digits ("PCTDD") may not be obtained with a pen register order. See In the Matter of the Application of the United States of America, 441 F.Supp.2d 816, 818 (S.D.Tex. 2006) ("In re U.S. (S.D.Tex.)"); In the Matter of the Application of the United States of America, No. 06-MJ-1130 (M.D. Fla. June 20, 2006) ("In re U.S. (M.D.Fla.)"), affirming In re U.S., No. 06-MJ-1130 (M.D.Fla. May 23, 2006). This Court agrees with the decision rendered by both those courts, but for different reasons. Insofar as the issue has been addressed in dicta by the D.C. Circuit and a Massachusetts district court, those references also lend support to my decision. See United States Telecom Ass'n v. F. C. C., 227 F.3d 450, 462 (D.C.Cir.2000); In re Application of the United States, 396 F.Supp.2d 45, 48 (D.Ma.2005).

I. BACKGROUND

In layman's terms, a pen register is a device capable of recording all digits dialed from a particular telephone. In 1979, the Supreme Court held that Government installation and use of such a device does not constitute a search within the meaning of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Court reasoned that pen registers do not implicate the Fourth Amendment because there is no legitimate expectation of privacy in the information they collect. Id. at 744, 99 S.Ct. 2577. After Smith v. Maryland, Congress enacted laws to govern Government use of pen registers. See Electronic Communications Privacy Act ("ECPA") of 1986, Title III, 301 (codified as amended at 18 U.S.C. §§ 3121-3127) ("Pen/Trap Statute").² The statute has since been amended twice.

Telephone use has expanded rapidly since the constitutionality of pen registers was examined in 1979. Today, Americans regularly use their telephones not just to dial a phone number, but to manage bank accounts, refill prescriptions, check movie times, and so on.

Dialed digits can now be categorized in a number of ways. "Post-cut-through dialed digits" ("PCTDD"), the subject of the instant application, "are any numbers dialed from a telephone after the call is initially setup or `cut-through.'" In re U.S. (S.D.Tex.), 441 F.Supp.2d at 818. In most instances, any digit dialed after the first ten is a PCTDD. "Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like." Id. In such circumstances, PCTDD contain the "contents of communication." Id. (citing U.S. Telecom, 227 F.3d at 462). At other times, PCTDD "are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party," id., or when an extension number is dialed.

At issue are the parameters of the federal statute governing pen registers. The Government contends that pen register authorization entitles it to all digits dialed from a target telephone, including PCTDD that may include content. The Government maintains that federal law requires it only to minimize the collection of content using reasonably available technology. If no technology exists that can sort content from non-content, the Government argues it is entitled to access all digits dialed subject only to Department of Justice ("DOJ") guidelines, which forbid the use of content gathered with a pen register absent extenuating circumstances, and federal wiretap laws. (See Gov. Supp. Mem. of Law 12-16.) For the sake of clarity, I will refer to the Government's position as the "minimization theory." Because the Government's position belies statutory interpretation and would violate the Fourth Amendment, the application is denied.

II. DISCUSSION

A. The Statutory Scheme

In order to examine the Pen/Trap Statute as it exists today, it is helpful to understand its genesis. In 1986, seven years after Smith v. Maryland upheld the constitutionality of pen registers, Congress enacted legislation which set forth the procedure the Government must follow and the burden it must meet to install and use one. 18 U.S.C. § 3122(a). The statute continues to express a general prohibition against the installation or use of a pen register without a court order. 18 U.S.C. § 3121(a). The standard for obtaining a court order is far from burdensome. An attorney for the Government must make an application for authorization to install and use a pen register "in writing under oath or equivalent affirmation, to a court of competent jurisdiction." 18 U.S.C. § 3122(a)(1). Such an application need only contain: "(1) the identity of the attorney for the Government or the State law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and (2) certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency." 18 U.S.C. § 3122(b). Upon a finding that this burden has been met, the court "shall enter" such an order. Id. This minimal requirement seems to reflect the premise that pen registers were once unable to record the contents, of any communication, and instead could record only call processing information, which, pursuant to Smith v. Maryland, was deemed to encompass a less important privacy interest. 442 U.S. at 741, 99 S.Ct. 2577.

1. The Original Pen/Trap Statute

Although the authorization procedure has not changed since the Pen/Trap Statute was initially enacted, the relevant definitions have. The original Pen/Trap Statute defined a pen register as follows: "a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line." ECPA § 301, enacting 18 U.S.C. § 3126(3), recodified at 18 U.S.C. § 3127(3) by P.L. 100-690, § 7092 (1988). On its face, this statute authorized the recording of all digits dialed. That it was possible for the content of communications to be included in that definition was likely not contemplated. See H.R.Rep. No. 99-647, at 78 (1986) (A pen register "does not [record] the contents of a communication, rather it records the numbers dialed."); S. Rep. 99-541, at *10 (1986) ("[Pen registers] capture no part of an actual telephone conversation, but merely the electronic switching signals that connect two telephones."); see also People v. Bialostok, 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374, 378 (1993) ("The traditional pen register was, to a large extent, self-regulating. Neither through police misconduct nor through inadvertence could it reveal to anyone any information in which the telephone user had a legitimate expectation of privacy."); In re U.S. (S.D.Tex.) at 821.

2. CALEA

In 1994, Congress enacted the Communications Assistance for Law Enforcement Act ("CALEA"), which amended the Pen/ Trap Statute. The purpose of CALEA was "to make clear a telecommunications carrier's duty to cooperate in the interception of communications for Law Enforcement purposes, and for other purposes." 141 Cong. Rec. H113-05 (Oct. 25, 1994). CALEA was intended "to preserve the Government's ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission modes, or features and services such as call forwarding, speed dialing and conference calling, while protecting the privacy of communications and without impeding the introduction of new technologies, features and services." H.R. Rep 103-827(I), 103d Cong., 2d Sess. at 9 (Oct. 4, 1994).

CALEA added a new provision to the Pen/Trap Statute that imposed a limitation on the Government's use of a pen register. The new provision mandated that "[a] Government agency authorized to install and use a pen register ... shall use technology reasonably available to it that restricts the recording or decoding ... to the dialing and signaling information utilized in call processing." 18 U.S.C. § 3121(c) (1994) (emphasis added).

After CALEA was enacted, the Government argued that a pen register order authorized a law enforcement agency to receive all PCTDD, subject only to CLEA's requirement that the agency use "technology reasonably available to it" to avoid processing digits that are content. 18 U.S.C. 3121(c) (1994). In 2000, the D.C. Circuit noted in dicta that "[n]o court has yet considered that contention ... and it may be that a Title III [wiretap] warrant is required to receive all...