In re U.S. Order Auth. Roving Interception

• Decision Date: 18 November 2003
• Docket Number: No. 02-15635.,02-15635.
• Citation: 349 F.3d 1132
• Parties: In the Matter of the Application of the UNITED STATES FOR AN ORDER AUTHORIZING THE ROVING INTERCEPTION OF ORAL COMMUNICATIONS, The Company, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

349 F.3d 1132

In the Matter of the Application of the UNITED STATES FOR AN ORDER AUTHORIZING THE ROVING INTERCEPTION OF ORAL COMMUNICATIONS,

The Company, Appellant, v. UNITED STATES of America, Appellee.

No. 02-15635.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2002.

Filed November 18, 2003.

Bennee B. Jones, Andrews & Kurth LLP, Dallas, Texas, for the appellant.

Eric Johnson, Senior Litigation Counsel, and Kathleen Bliss, Assistant United States Attorney, Organized Crime Strike Force, Office of the United States Attorney, Las Vegas, Nevada, for the appellee.

Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CV-01-01495-LDG.

Before: John T. NOONAN, Marsha S. BERZON, and Richard C. TALLMAN, Circuit Judges.

Opinion by Judge BERZON.

Dissent by Judge TALLMAN.

OPINION

BERZON, Circuit Judge:

Giving new meaning to the automotive advertising slogans "The Ultimate Driving Machine"¹ and "We've Got You Covered,"² some luxury cars are now equipped with telecommunication devices that provide a set of innovative services to car owners. These on-board systems assist drivers in activities from the mundane — such as navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant — to the more vital — such as responding to emergencies or obtaining road-side assistance. Such systems operate via a combination of GPS (global positioning system, using satellite technology) and cellular technology. The appellant ("the Company") runs one such service ("the System").

One feature of the System allows the Company to open a cellular connection to a vehicle and listen to oral communications within the car. This feature is part of a stolen vehicle recovery mode that provides assistance to car owners and law enforcement authorities in locating and retrieving stolen cars. The same technology that permits the interception of the conversations of thieves absconding with the car also permits eavesdropping on conversations within the vehicle.

The Federal Bureau of Investigation ("FBI"), realizing that the System can be used as a roving "bug" and following the procedures mandated for "bugging" private individuals suspected of criminal activity, sought and obtained a series of court orders requiring the Company to assist in intercepting conversations taking place in a car equipped with the System. The Company challenges the court's authority to order the use of the Company's equipment, facilities, system, and employees. The question for decision is whether the statute governing private parties' obligations to assist the federal government in intercepting communications permits such an order.

I

A. The System

The physical components that permit the System to operate are manufactured by an independent company but installed by the car maker. The car maker then subcontracts with the Company for the provision of the service aspects of the System. When a new car is purchased, owners have the option to subscribe, for a fee, to the System. The System is serviced by two different call centers, one of which is operated by the Company.

A national cellular telephone company provides the cellular airtime for the System and sends bills in batches to the Company. The Company then "forwards" these bills to its customers. It is our understanding from oral argument that the Company includes the cellular phone charges on its own bill sent out to its customers rather than sending on the cellular phone company's bill, but the record is not clear on this matter. Customers write only a single check, payable to the Company, for all System-related fees, including cellular airtime. The System does not allow users to make traditional cellular telephone calls; it only permits a user to communicate with one of the two designated call centers.

Each System console has three buttons: (1) an emergency button, which routes customers' calls to the Company; (2) an information button, which routes customers' calls to the other company that assists the customer with navigation; and (3) the roadside assistance button, which routes customers' calls to the other company for assistance in getting on-site service for vehicles.³ The System automatically contacts the Company if an airbag deploys or the vehicle's supplemental restraint system activates.

If a customer's car is stolen and the customer verifies the theft, the customer can ask the Company to put the car into stolen vehicle recovery mode. Once the car is in this mode, the Company sends a signal to the car's System. The signal is sent continuously until the car responds or until the Company deactivates the mode. If the System has cellular reception and the engine is running, the System will automatically call the Company. The call will be directed to the next available operator. The Company maintains that it cannot determine when such a call will be made from the car or direct the call to a specific operator.

Once the call from the System is answered, the operator and anyone else listening in can hear sound from inside the vehicle. Occupants of the vehicle will not know of the cellular phone connection and will be unaware of the eavesdropping.⁴ The connection remains active until the driver turns off the ignition or loses cellular reception, or the Company disconnects the call. The System returns to normal when the Company deactivates vehicle recovery mode. At this point, one of two things happens: (1) if the radio in the vehicle is on, it will be muted and its screen will display a message saying "[System] Active;" or (2) if the radio is not on, the System will emit a beeping tone, regardless of whether the vehicle is on at the time. There is no way to prevent such signals that the car has been in recovery mode from reaching the customer.

When the System is in stolen vehicle recovery mode, the customer cannot use any of the other System services. If a customer presses any of the non-emergency buttons — for example, the roadside assistance or information buttons — nothing will happen. If the customer presses the emergency button or the airbags deploy while the recovery mode is enabled, it appears to the user that the system is attempting to open up a cellular phone connection to the response center but it is not. Instead, an audio tone is sent over the already open connection. The Company is concerned that if no operator is on the line and only the FBI is listening in, there will be no response to the subscriber's emergency signaled by the transmitted tone.

B. This Case

Upon request by the FBI, the district court issued several ex parte orders pursuant to 18 U.S.C. § 2518(4),⁵ requiring the Company to assist in intercepting oral communications occurring in a certain vehicle equipped with the System. The Company complied with the first thirty-day order but not the next. After the government filed a Motion to Compel and for Contempt, the Company responded and filed motions for reconsideration and to quash or modify the court's order. The district court held an evidentiary hearing, denied the government's contempt motion, and ordered the Company to comply with the contested order. The Company has since complied with all subsequent court orders. In explaining its order, the district court found that "[The Company] is a `telecommunications carrier' and `provider of wire or electronic communication service' within the scope of 18 U.S.C. § 2518(4) and § 2522;" that the FBI request and the court order were not "unreasonably burdensome," that the Company's due process rights had not been violated; and that no "taking" had occurred.⁶

The district court ordered two further, similar ex parte interception orders, and the Company both contested and complied with each order. The district court then held a hearing on the Company's pending motions and denied them all. The Company now appeals from this denial.

II

A. Mootness

Although the court orders requiring the Company to assist the FBI have now expired, the case readily fits the "capable of repetition, yet evading review" exception to the mootness doctrine.

The `capable of repetition, yet evading review' exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.

Bernhardt v. County of L.A., 279 F.3d 862, 871-72 (9th Cir.2002) (quoting Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000)). Here, the relevant time period was too short for court review. Each court order was effective for thirty days, and the statute precludes orders of greater length. See § 2518(5).

Also, similar orders requiring the Company's cooperation are likely in the future. The government asserts that it will most probably seek orders to monitor oral communications in other vehicles containing the System. When there have been challenges to expired tracing and pen register⁷ orders, courts have consistently found that they meet the capable of repetition, yet evading review exception. See, e.g., N.Y. Tel. Co., 434 U.S. at 165 n. 6, 98 S.Ct. 364; United States v. Mountain States Tel. & Tel. Co., 616 F.2d 1122, 1128 n. 5 (9th Cir.1980). We therefore conclude that the case is not moot.

B. Overview of 18 U.S.C. § 2518

Section 2518 was first enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351(1968). Title III of the Act, Wiretapping and Electronic Surveillance, has the dual goals of: "(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." S.Rep. No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Title III therefore attempts to balance...