Reporters Committee for Freedom of Press v. American Tel. & Tel. Co.

Citation593 F.2d 1030,192 U.S.App.D.C. 376
Decision Date05 March 1979
Docket NumberNo. 76-2057,76-2057
Parties, 4 Media L. Rep. 1177 REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al., Appellants, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 74-1889).

Lloyd N. Cutler, Washington, D. C., with whom David R. Anderson, Ronald J. Greene, William J. Kolasky, Jr., Washington, D. C., and Alan B. Sternstein, Rockville, Md., were on the brief, for appellants.

David Ginsburg, Washington, D. C., with whom Lee R. Marks, James E. Wesner, Washington, D. C., F. Mark Garlinghouse, New York City, James A. DeBois, San Francisco, Cal., Robert A. Levetowin, and John M. Kelleher, Washington, D. C., were on the brief, for appellees American Tel. & Tel. Co. and Chesapeake & Potomac Tel. Co.

D. Jeffrey Hirschberg, Atty. Department of Justice, Washington, D. C., with whom George W. Calhoun and Stanley Dalton Wright, Attys., Department of Justice, Washington, D. C., were on the brief, for appellee United States of America. Elizabeth Gere Whitaker, Atty. Department of Justice, Washington, D. C., also entered an appearance for appellee United States of America.

Before WRIGHT, Chief Judge, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and concurring in the result.

Dissenting opinion filed by J. SKELLY WRIGHT, Chief Judge.

WILKEY, Circuit Judge:

Plaintiffs in this action are two newspaper-publishing corporations; 1 twelve individual journalists; 2 and the "Reporters' Committee for Freedom of the Press," a legal research and defense fund organization established to protect the interests of the institutional press. The defendants in this case are the American Telephone and Telegraph Company ("AT& T") and the Chesapeake and Potomac Telephone Company ("C & P"). Plaintiffs brought suit in the District Court for declaratory and injunctive relief, claiming that the First and Fourth Amendments require that prior notice be provided to them before defendants turn over their long distance telephone billing records to Government law enforcement officials. The United States intervened as a party defendant. The District Court denied plaintiffs' motion for summary judgment and granted the summary judgment motion of defendants and of the United States. With respect to plaintiffs Jack Anderson, Richard Dudman, James R. Polk, David E. Rosenbaum and Knight Newspapers, we reverse the District Court and remand the case. We affirm the District Court's grant of summary judgment against the other plaintiffs.

I. THE FACTS
A. The Records in Question and Their Usefulness in Law Enforcement

Telephone companies, like other businesses, maintain for billing purposes records of the services they provide their customers. Company billing records for local calls contain only the total number of local message units charged to a customer, but no details concerning specific calls. 3 However, company billing records for long distance calls, referred to as "Toll calls," contain, for Each long distance call charged to the customer's number, a notation of the number called and the date, time, and duration of the call. 4 Telephone companies retain these "toll-call" records for a period of six (6) months. 5 Telephone subscribers are aware that these records are maintained, since they receive copies of them with their phone bills each month.

For at least the past 50 years, state and federal law enforcement officials have used information from telephone company toll-billing records in criminal investigations and prosecutions. 6 The telephone companies have generally cooperated with law enforcement efforts and, in response to official requests, have made their business records available for inspection.

The toll-call records are useful investigative tools because the information they contain sometimes provides circumstantial evidence that there has been contact between a subscriber and some other person. There are limits on the usefulness of these records, however. Because they reveal nothing regarding the content of the call, they virtually never provide direct evidence of criminality. Furthermore, it is relatively easy for subscribers to avoid recordation of their long distance calls if they desire to keep their telephonic contacts secret. Records relating to a particular subscriber reflect Only long distance calls Charged to the subscriber's number. Thus, they cannot be used to trace calls made to or from the subscriber's telephone but charged to some other number. Moreover, toll records are not maintained for pay phones or for individual extensions of general business telephones and thus cannot be used to trace calls from such phones. Finally, as already noted, toll-call records are maintained only for six months and are not available for inspection once that period has expired.

Despite these limitations, toll-billing records have become an invaluable law enforcement aid. They have been most successfully used in the investigation and prosecution of organized crime and major narcotics offenses. 7 Law enforcement agencies and grand juries currently issue subpoenas and summonses for toll-call records relevant to felony investigations at the rate of approximately 2,000-3,000 each month. 8

Defendant AT&T and the associated companies of the Bell Telephone System operate a nationwide telecommunications network. Defendant C & P is an associated company of the Bell System, providing telephone services for the District of Columbia. AT&T has no telephone subscribers and thus does not maintain subscriber billing records. C & P, as an operating company, does maintain such records in the ordinary course of its business.

B. Limitations on Disclosure Under the AT&T Policy

Before 1974 there was no uniform policy within the Bell System governing the release of company billing records to law enforcement officials. In March 1974, however, AT&T adopted throughout the System a formal policy on the release of such records. This policy, which is currently in effect, has three important provisions.

First, the policy Prohibits the release of toll-billing records in the absence of a subpoena or summons, valid on its face, issued under the authority of a statute, court, or legislative body. 9

Second, the policy requires that subscribers whose toll-billing records have been subpoenaed in civil suits, non-criminal investigations, and non-felony criminal investigations be Immediately notified upon receipt of the subpoena, the same day by telephone and, in addition, by letter within 24 hours. 10 Both the oral and written notification must include the approximate date on which the company will furnish the toll-billing records.

Third, the policy requires that subscribers whose toll records have been subpoenaed in Felony investigations be similarly notified, Unless the subpoena is accompanied by a written certification stating (1) that the subpoena or summons was issued pursuant to an Official investigation of a suspected felony or an official legislative investigation, and (2) that Notification to the subscriber could impede the investigation. Such a certification is effective for 90 days, and must be renewed by further certifications in writing for successive 90-day periods. When a certification period expires, the subscriber is to be notified of the subpoena if he so requests or if he has previously submitted to the company a general request for notification. 11

The decision to adopt this policy originated solely with AT&T no Government official requested or prompted the action. 12 AT&T placed the new policy into effect on 1 March 1974.

C. Impact on Journalists of Toll-Record Subpoenas Prior to the New Policy

In December 1973 plaintiffs wrote AT&T demanding assurances that their toll-billing records and those of other journalists would not be released to government investigative agencies without prior notice to the journalists concerned. 13 Plaintiffs also demanded from AT&T information concerning any past instances of Government access to their toll-billing records. 14 Although AT&T did provide this latter information, it refused to give plaintiffs the assurances they demanded.

Finding this response inadequate, plaintiffs filed a complaint in the District Court for the District of Columbia on 27 December 1974, alleging that defendants' policy regarding the release of toll-call records violated their First and Fourth Amendment rights. 15 The complaint sought a judicial declaration that it was unlawful for defendants to release the toll-billing records of journalists to government investigative agencies without prior notification to the journalists concerned. In addition, it prayed for an injunction barring defendants from releasing plaintiffs' records without such prior notice. The United States intervened as a party defendant.

The record developed by plaintiffs in the course of a massive discovery effort reveals that from January 1971 to March 1974, before AT&T's new policy went into effect, the Government issued Approximately 75,000-100,000 toll-record subpoenas. 16 This reflects the importance of these records as a tool in the investigation of modern crime. The record further reveals, during this same period, Only five instances in which the toll-call records of journalists were requested. This reflects the relative impact of this investigative method on journalists. Four of these cases involved grand jury subpoenas; one involved an Internal Revenue Service summons. In each of these five instances, the toll-call records were sought in connection with a felony investigation. One subpoena was issued in the course of an investigation...

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