U.S. in Matter of Order Authorizing Use of a Pen Register, Application of

• Decision Date: 13 July 1976
• Docket Number: D,No. 1068,1068
• Citation: 538 F.2d 956
• Parties: Application of the UNITED STATES of America In the Matter of an ORDER AUTHORIZING the USE OF A PEN REGISTER or Similar Mechanical Device. ocket 76-1155.
• Court: U.S. Court of Appeals — Second Circuit

Page 956

538 F.2d 956

Application of the UNITED STATES of America In the Matter of

an ORDER AUTHORIZING the USE OF A PEN REGISTER or

Similar Mechanical Device.

No. 1068, Docket 76-1155.

United States Court of Appeals, Second Circuit.

Argued April 22, 1976.

Decided July 13, 1976.

George E. Ashley, New York City (Frank R. Natoli and Robert E. Scannell, New York City, on the brief), for movant-appellant N. Y. Tel. Co.

Peter D. Sudler, Sp. Atty., U. S. Dept. of Justice, New York City (Thomas J. Cahill, Acting U. S. Atty., S. D. N. Y., and T. Barry Kingham, Asst. U. S. Atty., New York City, on the brief), for appellee U. S.

Before MEDINA, FEINBERG and MANSFIELD, Circuit Judges.

MEDINA, Circuit Judge:

This important and interesting case involves the Government's application for an order authorizing the installation and use of a pen register, and directing the New York Telephone Company to provide information, facilities and technical assistance to Special Agents of the Federal Bureau of Investigation in the installation and operation of the device. A pen register is a mechanical instrument attached to a telephone line, usually at a central telephone office, which records the outgoing numbers dialed on a particular telephone. In the case of a rotary dial phone, the pen register records on a paper tape dots or dashes equal in number to electrical pulses which correspond to the telephone number dialed. The device is not used to learn or monitor the contents of a call nor does it record whether an outgoing call is ever completed. For incoming calls, the pen register records a dash for each ring of the telephone, but does not identify the number of the telephone from which the incoming call originated. See United States v. Caplan, 255 F.Supp. 805, 807 (E.D.Mich.1966). The device used for touch tone telephones, the TR-12 touch tone decoder, is very similar to a pen register, differing primarily in that it causes the digits dialed on the subject telephone to be printed in arabic numerals, rather than dots or dashes, corresponding to the electrical pulses. See United States v. Focarile, 340 F.Supp. 1033, 1039-1040 (D.Md. 1972), aff'd sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

By an order dated March 19, 1976, Judge Charles H. Tenney of the United States District Court for the Southern District of New York directed the Telephone Company to furnish to government agents investigating an alleged illegal gambling operation "All information, facilities and technical assistance necessary to accomplish the interception (by pen register) unobtrusively and with a minimum of interference with the service that such carrier is according the person whose communications are to be intercepted * * *." Pursuant to this order, the Telephone Company agreed to provide information such as terminal locations and cable and pair identifications, but declined to furnish telephone lease or private lines, citing Telephone Company regulations which prohibited such assistance. Government Special Agents determined that without these lease lines they could not successfully implement pen register surveillance; Telephone Company assistance in this regard was thus crucial. On March 30, 1976, appellant moved by order to show cause to vacate or modify that portion of Judge Tenney's March 19, 1976 order which mandated technical assistance by the Telephone Company in the installation of pen registers, contending that the order was without legal authority. In an opinion of April 2, 1976, not yet reported, Judge Tenney denied the motion in all respects. Appellant then promptly filed a notice of appeal and moved for a stay of both District Court orders pending appeal. This Court denied the motion for a stay on April 8, 1976, and ordered an expedited appeal.

We will consider separately the two questions raised on this appeal: first, whether the District Court erred in authorizing the use of a pen register; and second, whether it erred in ordering the appellant to provide technical assistance to the Government. As it appears that this is the first time these important issues have been reviewed by this Court, we believe they merit some extended discussion.

I

In 1968, the Congress enacted the Omnibus Crime Control and Safe Streets Act, Title III of which added Sections 2510-2520 to Title 18 of the United States Code and amended Section 605 of the Federal Communications Act of 1934, 47 U.S.C. Section 605. Title III is a comprehensive electronic surveillance statute, prohibiting all wiretapping and other types of electronic surveillance except by law enforcement officials investigating certain specified crimes. The statute requires compliance with strict procedures, all under judicial supervision. Both parties agree that pen register orders are not covered by Title III because its provisions apply only to surveillance which involves an "interception" of wire communication, or an "aural acquisition," as interception is defined in 18 U.S.C. Section 2510(4), and because the legislative history makes clear that there was no Congressional intent to subject pen registers to the proscriptive standards of Title III. ¹

The proposed legislation is not designed to prevent the tracing of phone calls. The use of a "pen register," for example would be permissible. (citation omitted). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication. S.Rep.No.1097, 90th Cong., 2d Sess., 90 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2178.

Other courts faced with the question of the applicability of Title III to pen register orders have likewise concluded that they are excluded. See United States v. Illinois Bell Tel. Co., 531 F.2d 408, 410, (N.D.Ill., 1976); United States v. Giordano, 416 U.S. 505, 553-54, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part, joined by Burger, C. J., Blackmun & Rehnquist, JJ.); United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975); United States v. Vega, 52 F.R.D. 503 (E.D.N.Y.1971). ²

It is also clear that pen register orders are not now covered by Section 605 of the Federal Communications Act of 1934. Prior to the enactment of Title III, there was authority for the broad applicability of Section 605 to the interception and disclosure of "any communication," including pen registers. See United States v. Dote, 371 F.2d 176 (7th Cir. 1966); United States v. Caplan, 255 F.Supp. 805 (E.D.Mich.1966). The amendment of Section 605 effected by Title III restricted the coverage of that Section to radio communications, and withdrew the interception of wire or oral communications from the ambit of that Section, making Title III the sole governing provision. The legislative history of the amendment seems to us to indicate an intention by the Congress to disavow Dote and its progeny. ³

This (new) section amends section 605 of the Communications Act of 1934 * * *. This section is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute. The regulation of the interception of wire or oral communications in the future is to be governed by proposed (Title III) * * *. S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968), U.S.Code Cong. & Admin.News 1968, p. 2196.

While in agreement that pen register orders are thus not within Title III or Section 605, the parties draw conflicting inferences from this absence of coverage. The Telephone Company argues that absent authorization in Title III or other statutes, the District Court had no authority to order the installation and use of a pen register. The Government argues that a District Court has inherent authority or power under Rule 41, F.R.Cr.P., to issue such an order, subject only to the restraints of the Fourth Amendment. They point to the statement of Justice Powell in United States v. Giordano, supra, 416 U.S. at 553-54, 94 S.Ct. at 1844, 1845 where he stated by way of dictum:

Because a pen register device is not subject to the provisions of Title III, the permissibility of its use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment. In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register.

We take this statement to mean that a pen register order involves a search and seizure under the Fourth Amendment, and that a court may issue such an order only upon a showing of probable cause.

In United States v. Illinois Bell Tel. Co., supra, the Seventh Circuit, in considering the power of the federal courts to issue pen register orders, concluded that ample authority could be found either in the inherent power of the courts or by analogy to Rule 41, F.R.Cr.P. The court held that a "commonsense approach" dictated that authority tantamount to that found in Rule 41 for the search and seizure of tangible objects be found to exist for an order authorizing the search and seizure of non-tangibles, such as information gleaned from pen register surveillance. Id., at 411. We agree with this reasoning. While the electronic impulses recorded by pen registers are not "property" in the strict sense of that term as it is used in Rule 41(b), we concur in the Seventh Circuit's suggestion that there exists a power akin to that lodged in Rule 41 to order the seizure of non-tangible property. But see In the Matter of the Application of the United States of America for an Order Authorizing Use of a Pen Register Device, 407 F.Supp. 398, (W.D.Mo.1976). Moreover, relying principally on Justice Powell's statement in United States v. Giordano, supra, we agree with the Seventh Circuit that a pen register order may only be issued after a showing of probable...