Petition — United States v. New York Telephone Co.

76-835 4 ; Supreme Court, U. 1

rive Mi

No. DEC 20 1976

MICHAEL RODAK, R. CLERK

Iu the Supreme Court ot the Rutted Ph States

OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

.

NEW YORK TELEPHONE COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Ropert H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

HARRIET S. SHAPIRO,

Assistant to the Solicitor General,

JEROME M. FEIT,

MARC PHILIP RICHMAN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below 1

Jurisdiction 1

Question presented 2

Statute and rule involved 2

Statement 3

Reasons for granting the writ 9

Conclusion 21

D J 1a

Appendix i a

r ? 27a

Appendix C 28a

Appendix E 30a

CITATIONS

Cases:

Babington v. Yellow Taxi Corp., 250 N.Y.

14, 164 N.E. 726 16

Balinoviec v. Evening Star Newspaper

Co., 113 F.2d 505, certiorari denied,

311 U.S. 675 16

Board of Education v. York, 429 F.2d 66,

certiorari denied, 401 U.S. 954 14

DeFunis v. Odegaard, 416 U.S. 312 19

Elrod v. Moss, 278 Fed. 123 16

Hamilton v. Regents, 293 U.S. 245 16

Harris v. Nelson, 394 U.S. 286 13

Katz v. United States, 389 U.S. 347 15

Nebraska Press Ass’n v. Stuart, No. 75-

817, decided June 30, 1976 19

Cases—Continued Page

Quarles and Butler, In re, 158 U.S. 532 16

Richardson v. Ramirez, 418 U.S. 24 19

Roe v. Wade, 419 U.S. 1122 17,18

Sosna v. Iowa, 419 U.S. 3933 20

Southern Bell Tel. & Tel. Co. v. United

States, 541 F.2d 1151 18, 20

Southern Pacific Terminal Co. v. Inter-

state Commerce Commission, 219 U.S.

— ²˙ A a ema om 6,17

United States, Application of, 407 F.

aan 10

United States, Application of the, 427 F.

4e 14

United States v. Cuplan, 255 F. Supp.

805 — T olan ae ee 3

United States v. Field, 193 F.2d 92, cer-

tiorari denied, 342 U.S. 84 14

United States v. Focarile, 340 F. Supp.

1033, affirmed sub nom. United States

v. Giordano, 469 F.2d 522, affirmed,

D Sr Pe ae 3

United States v. Giordano, 416 U.S. 505. 12

United States v. Illinois Bell Tel. Co., 531

F.2d 809 6, 9, 12-13, 13-14

United States v. Trans-Missouri Freight

Ass'n, 166 U.S. 290 17

United States v. United States District

Court, 407 U.S. 297 * 16

Weinstein v. Bradford, 423 U. 8. 147 17

Constitution, statutes and rules:

United States Constitution, Fourth

Amendment — 13

All Writs Act, 28 U.S. C. 1651 (a) 1 2, 13

III

Constitution, statutes and rules - Continued

Communications Act of 1934, 48 Stat.

1064, as amended, 47 U.S.C. 151 et

seq.:

47 U.S.C. 201

47 U.S.C. 202

47 U.S.C. 605

47 U.S.C. 605(6)

Omnibus Crime Control and Safe Streets

Act of 1968, as amended:

18 U.S.C. 2510-2520

18 U.S.C. 2510(4) —

18 U.S.C. 2518(1) (c)

18 U.S.C. 2518 (3) (e)

18 U.S. C. 2518 (4)

82 Stat. 223

84 Stat. 654

18 U.S.C. 371

18 U.S.C. 1952

18 U.S.C. 3105

Federal Rules of Criminal Procedure:

Rule 41

Rule 57(b)

Miscellaneous:

115 Cong. Rec. 37192-37193 (1969)

Dash, Schwartz, Knowlton, The Eaves-

droppers, 310-312 (1959) jn

Note, The Mootness Doctrine in the Su-

preme Court, 88 Harv. L. Rev. 373

(1974)

S. Rep. No. 1097, goth Cong. 2d Sess.

(1968) — Pe

Page

6, 12

20

12

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

*.

NEW YORK TELEPHONE COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIKCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra) is reported at 538 F.2d 956. The opinion of

the district court (App. E, infra) is unreported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on July 13, 1976. A petition for

(1)

rehearing with suggestion for rehearing en banc was

denied on October 26, 1976 (Apps. C and D, infra).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether a United States District Court, as part

of an admittedly valid order authorizing the use of

a pen register to investigate gambling offenses being

committed by means of the telephone, may properly

direct the telephone company to provide federal law

enforcement agents the facilities and technical as-

sistance necessary for implementation of the court’s

order, in the absence of legislation expressly author-

izing such an order.

STATUTE AND RULE INVOLVED

The All Writs Act, 28 U.S.C. 1651(a), provides:

The Supreme Court and all courts established

by Act of Congress may issue all writs neces-

sary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and

principles of law.

Rule 57(b), Federal Rules of Criminal Procedure,

provides:

If no procedure is specifically prescribed by

rule, the court may proceed in any lawful man-

ner not inconsistent with these rules or with any

applicable statute.

3

STATEMENT

1. On March 19, 1976, upon application of the

government, Judge Charles H. Tenney of the United

States District Court for the Southern District of

New York issued an order (C.A. App. 1-3) author-

izing FBI agents to install a pen register’ upon

specified telephones, based on his finding that there

was probable cause to believe that the telephones

were being used in the commission of federal gam-

bling offenses, in violation of 18 U.S.C. 371 and 1952.

curred first (C.A. App. 2-3).* As part of the order,

Judge Tenney directed that respondent telephone

company “shall furnish the applicant forthwith all

A pen register is a mechanical instrument attached to a

telephone line * * * which records the outgoing nurabers dialed

on a particular telephone * * * The device is not used to

learn or monitor the contents of a call nor does it record

4

7

|

i

:

i

é

|

pp. la-2a). See United States v. Focarile, 340 F. Supp. 1033,

1039-1040 (D. Md.), affirmed sub nom. United States v. Gior-

dano, 469 F.2d 522 (C.A. 4), affirmed, 416 U.S. 505; United

States v. Caplan, 255 F. Supp. 805, 807 (E.D. Mich.)

* After twenty days had passed and the pen register had still

not been installed, the order was extended for another twenty

days (C.A. App. 115).

4

information, facilities and technical assistance neces-

sary to accomplish the interception unobtrusively,”

with compensation to be paid the company at the

prevailing rates (C.A. App. 2).

After being informed of the pen register order,

the telephone company provided the FBI with suffi-

cient information to allow FBI agents to install and

monitor a pen register located in the vicinity of the

apartment containing the subject telephones but re-

fused to lease to the FBI a telephone line to which

the pen register could be connected and monitored

from a remote location (C.A. App. 8, 23-24).* In

order to determine whether the investigation could

be conducted unobtrusively without a leased line,

FBI agents canvassed the neighborhood for three

days in an attempt to find a location for the pen

register from which FBI telephone lines could be

strung to the terminal box without compromising the

investigation. However, because of the location of

fication of the specific terminals to which the wires leading to

the subject telephones are connected (C.A. App. 16-17). See

generally, Dash, Schwartz, Knowlton, The Eavesdroppers, 310-

312 (1959).

A “leased line” is an unused telephone line that makes an

appearance in the same terminal box as the telephone lines

of the suspects. Inside the box, the leased line can be con-

nected to the subject line, and the pen register can then be in-

stalled upon the leased line at a remote location and monitored

at that point (see C.A. App. 16-17).

the apartment and because the suspects were known

to use counter-surveillance techniques, it was deter-

mined that the use of a leased line was essential

(C.A. App. 24). Despite this, the telephone company

refused to comply with the pen register order and

provide the FBI with a leased line (C.A. App. 24-

25).

2. The telephone company thereafter moved the

district court to vacate that portion of the pen regis-

ter order that directed it to furnish facilities and

technical assistance to the FBI (C.A. App. 5-6). The

district court denied the motion in an opinion issued

on April 2, 1976. In its opinion, the district court

first noted that the telephone company did not chal-

lenge the court’s authority to authorize FBI agents

to use a pen register (App. E, infra, p. 3la), but

claimed only that because the order directed it to

provide the FBI with cooperation that would give

the FBI the capability to perform a full wire inter-

ception,’ it could only be required to do so in an

*That assertion is not entirely correct. If the company

provided a leased line to the FBI (or indeed, if it provided

the minimal assistance originally offered here in a case where

that would permit the FBI to install a pen register), the

agents using the pen register would have the ability, if they

the to conduct a full wire

interception, but only if they obtained additional equipment

not required in a pen register investigation. Of course, an

agent so violating the order would be in contempt of court,

However, the telephone company could comply with the

order and still reduc» that risk to a minimum or even elimi-

6

order issued under Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, as amended

(18 U.S.C. 2510-2520) (App. E, infra, p. 35a). The

district court rejected this argument, pointing out

that Title III regulates wire interceptions and not

pen registers (id. at 32a-36a). The court concluded

by adopting the holding of the Seventh Circuit in

United States v. Illinois Bell Tel. Co., 531 F.2d 809,

that a district court has inherent authority to compel

the telephone company to provide facilities and tech-

nical assistance in connection with a pen register

order (App. E, infra, pp. 37a-39a).°

nate it totally by the type of facilities and technical assist-

ance it provided. For example, the company could permit the

pen register to be used by federal agents at the telephone

company central exchange, where the opportunity to use un-

authorized equipment would be extremely limited. Or the

telephone company could attach a pen register to the subject

telephone lines itself and then transmit the dial impulses

over a leased line to the monitoring agents. In this situation

an agent would not have the ability to monitor conversations

even if he had the desire, because he would not have direct

access to the telephone lines of the suspect.

After the district court and the court of appeals refused

the telephone company’s motions to stay the pen register

order pending appeal of the denial of the motion to vacate, the

company on April 9, 1976 provided a leased line, allowing the

use of the pen register from that date until April 28, 1976.

Thus, the pen register investigation had been completed by

the time of the court of appeals’ decision in this case, and

neither that decision nor a decision by this Court could affect

this particular investigation. Nevertheless, as we demon-

strate (infra pp. 17-20), this does not render the case moot

because this is a classic example of a controversy which is

“capable of repetition, yet evading review.” Southern Pacific

Terminal Co. v. Interstate Commerce Commission, 219 U.S.

498, 515.

7

3. The court of appeals reversed, one judge dis-

senting (App. A, infra). The court began by noting

that pen registers do not fall within the scope of

Title III and are not otherwise prohibited or regu-

lated by statute. The court agreed with the govern-

ment that district courts have the power—either in-

herently or by analogy to Rule 41, Fed. R. Crim. P.

—to authorize pen register surveillance, and it con-

cluded that such power was properly exercised in

this case (App. A, infra, pp. 3a-8a). However, the

majority concluded that the district court abused its

discretion in ordering respondent to assist in install-

ing the pen register. It assumed arguendo “that a

district court has inherent discretionary authority or

discretionary power under the All Writs Act to com-

pel technical assistance by the Telephone Company,”

but it nevertheless held that “in the absence of spe-

cific and properly limited Congressional action, it

was an abuse of discretion” for the district court to

order the company to provide facilities or assistance

(id. at 13a). In reaching this conclusion, the major-

ity recognized that (id. at 13a-14a): ,

Federal law enforcement agents simply cannot

implement pen register surveillance without the

Telephone Company’s help. The assistance re-

quested requires no extraordinary expenditure

of time or effort by [respondent]; indeed, as we

understand it, providing lease or private line is

a relatively simple, routine procedure. More-

over, as we have noted above, we believe that

the Telephone Company can provide this tech-

nical assistance without fear of civil or crimi-

nal liability; and the order itself provides for

financial compensation for [respondent] for the

assistance it renders. An additional argument

in favor of granting the Government’s request

is its legitimate concern that if the courts do

not act to compel compliance, law enforcement

in general, and the particular investigation in-

volved here, may be severely hampered.

Despite these strong justifications for the district

court’s order, the majority concluded that the issu-

ance of “such an order could establish a most un-

desirable, if not dangerous and unwise precedent for

the authority of federal courts to impress unwilling

aid on private third parties” (id. at 15a). It be-

lieved that Congress was better equipped than the

courts to decide the circumstances under which the

telephone company should be required to render as-

sistance and facilities necessary for implementation

of a pen register order (id. at 15a-16a).

In dissent, Judge Mansfield agreed with the ma-

jority’s assumption that the district court possessed

the power to require respondent to assist in imple-

menting the order, but he disagreed that such orders

constitute an abuse of discretion in the absence of

explicit statutory authorization. As he stated:

Since the terms, conditions and limits of such

assistance would vary according to the circumstances

of each particular case, the subject is better suited

to judicial exercise of discretion under the All Writs

Act than to a precise or detailed statutory blueprint”

(id. at 24a). He further observed that district

courts could be trusted to use their powers under

the Act only in “cases of clear necessity” and that

the instant case was one in which the telephone com-

pany’s assistance was appropriately ordered under

that standard (id. at 22a-23a).

REASONS FOR GRANTING THE WRIT

1. Although the decision below is phrased in terms

of abuse of discretion by the trial court, the basis

for that finding does not lie in any particular facts

of this case—indeed, the opinion specifically recog-

nizes that the facts here strongly support the exer-

cise of discretion. Instead, the majority has in sub-

stance concluded that it will always be an abuse of

judicial discretion to require the telephone company

to assist in the installation of a pen register, so long

as there is no statute expressly authorizing such an

order. Therefore, the decision below conflicts with

that of the Seventh Circuit in United States v. /Ili-

nois Bell Tel. Co., 531 F.2d 809, sustaining the valid-

ity of such an order under similar circumstances.

It is important that this Court promptly resolve

this conflict among the circuits regarding the powers

of the district court to assure implementation of pen

register orders, both because the issue is at the heart

of an increasing volume of litigation in the lower

federal courts and because the issue has a substan-

tial practical impact upon effective law enforcement.

Challenges to pen register cooperation orders are now

pending in three circuits: Jn re Application, No. 76-4117

(C.A. 5); In the Matter of the Application (C.A. 6), appeal

FP

10

Moreover, to the extent that respondent’s refusal

to cooperate is based on a fear that voluntary assist-

ance may subject it to civil or criminal penalties

(App. A, infra, p. 9a), the decision below indicates

to telephone companies throughout the country that

the state of the law is unsettled; this, in turn, ap-

pears to be having the effect of encouraging them

to challenge orders to assist in the installation of

pen registers. The delays caused by litigation of

such orders has serious adverse impact on fast-

moving criminal investigations; thus, the practical

effect of the uncertainty concerning the district

courts’ power to compel the telephone company to

assist in installing pen registers is substantially in-

terfering with the use of this investigative tool.

Furthermore, to the extent that telephone compa-

nies are, as in this case, successful in resisting any

obligation to cooperate (and unwilling to cooperate

voluntarily), the result ordinarily will be to fore

close the possibility of utilizing pen registers to aid

in the detection of criminal activity. The practical

of Ohio Bell Telephone Company from No. USDJ 26, N.D.

Ohio, not yet docketed; L ‘ted States v. Southwestern Bell

Telephone Company, No. 76-1725 (C.A. 8). See also Applica-

tion of United States, 407 F. Supp. 398 (W.D. Mo.), which

concluded that district courts have no authority to issue pen

register orders except incident to Title III interceptions. A

case presenting a related question, namely, whether the tele

phone company may be required to assist in installing a device

to identify the source of incoming calls in connection with

a Title III wire interception, is pending in the Sixth Circuit.

Michigan Bell Telephone Company v. United States, Nos. 76-

2202, 76-2203.

11

consequence of this in many cases where there is

reason to believe the telephone is being used to fur-

ther unlawful activities is to impel law enforcement

authorities toward utilization of wiretaps even

though use of a pen register might suffice, simply

because the telephone company can be judicially com-

pelled to render assistance in installing a wiretap

(18 U.S.C. 2518(4)). In terms of striking a sound

balance between law enforcement needs and personal

privacy interests, it seems to us plainly undesirable

to deprive the government of the less intrusive in-

vestigative method of the pen register (which does

not reveal the contents of conversations), as the court

of appeals has done in this case.“ The increased use

of wiretaps is also undesirable insofar as it imposes

added procedural burdens on the government and

the courts in complying with the complex require-

ments of Title III.

The court of appeals implicitly recognized these

drawbacks to its decision in expressing the hope that

*Pen registers are frequently used in investigations that

may later lead to applications for wire interceptions. In those

situations, the initial use of the pen register protects privacy

by helping to verify the need for an interception before it is

utilized, and thus avoiding unnecessary interceptions. In ad-

dition, a pen register may be used when all the government

needs to know is the location of a suspect or a fugitive. For

example, a pen register on the telephone of a relative of such

a person, when the government has probable cause to believe

the phone will be used to contact him, may lead to the location

of the subject. A pen register on the telephone of a narcotics

dealer will be useful in disclosing the locations of his cus-

tomers and facilitating surveillance of illicit activities.

12

Congress would promptly consider the legislation the

majority believed necessary (App. A, infra, p. 16a).

But further legislation is not necessary—the decision

below is simply incorrect. It is justified neither by

congressional intent as expressed in the enactment

and amendment of Title III, nor by the need to guard

against the possibility that law enforcement authori-

ties, with the aid of federal courts, will indiscrimi-

nately “impress unwilling aid on private third par-

ties” (App. A, infra, p. 15a).

2. a. In 1968, Congress enacted Title III of the

Omnibus Crime Control and Safe Streets Act (18

U.S.C. 2510-2520). That legislation embodied the

first statutory authorization for the use of electronic

surveillance by law enforcement officers under court

supervision and in accordance with exacting stand-

ards set forth in the Act. At the same time, by Sec-

tion 803 of Title III (82 Stat. 223), Congress

amended Section 605 of the Communications Act of

1934, 48 Stat. 1064, 1103, 47 U.S.C. 605. Both the

majority and the dissenting judge below agreed that

by this legislation Congress excluded pen registers

from the scope of Title III and amended Section 605

so that it would no longer prohibit the use of pen

registers, as the prior language of that statute had

been held to do (App. A, infra, pp. 3a-8a, 17a). See

18 U.S.C. 2510(4); 47 U.S.C. 605; S. Rep. No. 1097,

90th Cong., 2d Sess. 90, 107-108 (1968). See also

United States v. Giordano, 416 U.S. 505, 553-554

(Powell, J., concurring and dissenting); United

13

States v. Illinois Bell Tel. Co., supra, 531 F.2d at

812, and cases cited therein.

It is also plain, as the majority below assumed and

the dissent agreed, that the district court had juris-

diction to issue an order authorizing the use of pen

registers in the instant investigation.’ And to give

effect o this power, the district court had the con-

comitant power under the All Writs Act, 28 U.S.C.

1651(a), to order the telephone company to provide

facilities and assistance, which only it could supply

and which were necessary to implement the court’s

order.

The purpose of the All Writs Act is “to supply

the courts with the instruments needed to perform

their duty, as prescribed by the Congress and the

Constitution * * *.” Harris v. Nelson, 394 U.S. 286,

299-300. The duty to issue warrants when required

bv the Fourth Amendment, and where appropriate,

reside: in the judiciary, and the All Writs Act gives

federal courts the power to make their lawfully is-

sued warrants effective. United States v. Illinois Bell

»The source of the district court’s power to issue a pen

register order has been found by the court below and the

Seventh Circuit either in Rule 41, Fed. R. Crim. P., or in the

court’s inherent power. Rule 57(b), Fed. R. Crim. P., is

presently the procedural means through which a district

court’s inherent power is exercised. The Rule provides: “If

no procedure is specifically prescribed by rule, the court may

proceed in any lawful manner not inconsistent with these

rules or with any applicable statute.”

14

Tel. Co., supra, 531 F.2d at 814.“ The order in this

case that the telephone company provide facilities

and services (without which the pen register au-

thorization would be meaningless) is, as Judge Mans-

field noted (App. A, infra, p. 19a), not materially

different from similar types of orders validly issued

pursuant to the Act. See, e.g., Board of Education

v. York, 429 F.2d 66, 68-69 (C.A. 10), certiorari

denied, 401 U.S. 954; United States v. Field, 193 F.

2d 92, 95-96 (C.A. 2), certiorari denied, 342 U.S.

894.

b. The majority's holding that federal courts

should await congressional guidance before using

their power to require telephone company assistance

seriously underestimates the capability of the federal

judiciary to exercise this power with restraint." The

„Application of the United States, 427 F. 2d 639 (C. A. 9),

does not hold to the contrary. The basis for the decision in

that case that the district courts did not have the power to

order telephone company assistance in wire interceptions was

that Congress by Title III had completely pre-empted the field

of wire interceptions, and that if it had desired the courts

to have such power it would have granted it. The case is

inapplicable here, because Congress explicitly declined to reg-

ulate pen registers in Title III; they are thus outside any pre-

empted area. In any event, when Congress amended Title III

in 1970 to provide the explicit authorization for orders requir-

ing telephone company assistance in installing interceptions

(84 Stat. 654), it made clear that there had been no intent

to withhold such authority originally. See 115 Cong. Rec.

37192-37193 (1969). There is even less reason to infer such

intent with regard to pen register orders.

Congress has already indicated that it expects pen regis-

ters to be used (see supra, p. 12); their use is evidently

15

majority feared that approval of the court’s exercise

of discretion in ordering the clearly necessary and

non-burdensome assistance at issue here might lead

to situations in which the court would be unable to

protect [a] third party from excessive or overzealous

Government activity or compulsion” (App. A, infra,

p. 16a). But as the dissent points out (id. at 24a):

[Since the terms, conditions and limits of such

assistance would vary according to the circum-

stances of each particular case, the subject is

better suited to judicial exercise of discretion

under the All Writs Act than to a precise or

detailed statutory blueprint.

This conclusion is strongly supported by the fact

that when Congress found it necessary to provide

explicit authority for orders requiring telephone com-

pany assistance in installing wiretaps, it did not

limit that authorization by any such statutory blue-

print to govern judicial discretion.

Similarly, the decisions of this Court suggest that

no specific statutory authorization is necessary. In

Katz v. United States, 389 U.S. 347, 354-355, the

Court stated that the electronic surveillance in that

case would have been constitutional had it been con-

ducted pursuant to court order; there was no sugges-

one of the “normal investigative procedures” to be considered

before application for interception orders (see 18 U.S.C. 2518

(1) te) and (8) (e)). Since telephone company assistance is

necessary for their installation, Congress could hardly have

intended to give the telephone company an absolute veto over

pen register use.

16

tion that a statute was required before such an order

could be issued. Cf. United States v. United States

District Court, 407 U.S. 297, 306-308, 321-324.

e. Finally, we submit that the majority’s concerns

were based on a misunderstanding of the extent of

the telephor. company’s duty to assist in criminal

investigations. The executive branch of government

has inherent power to require the assistance of citi-

zens in carrying out its law enforcement duties.” As

applied here, this assistance is particularly defined

and imposes no significant burden on the company.

Moreover, the telephone company is not a mere citi-

zen corporation, but a common carrier charged with

special obligations to the public. Cf. Balinovie v.

Evening Star Newspaper Co., 113 F. 2d 505, 506-507

(C.A.D.C.), certiorari denied, 311 U.S. 675. Con-

A basic illustration of this inherent power is the posse

comitatus, in which law enforcement officers may require the

assistance of members of the public in carrying out their

duties. See Jn re Quarles and Butler, 158 U.S. 532, 535. As

Mr. Justice Cardozo, then sitting on the New York Court of

Appeals, said (Babington v. Yellow Taxi Corp., 250 N.Y.

14, 17, 164 N.E. 726, 727): “Still, as in the days of Edward

I, the citizenry may be called upon to enforce the justice of

the state, not faintly and with lagging steps, but honestly and

bravely and with whatever implements and facilities are con-

venient and at hand.” He later referred to this obligation as

the “duty of the able-bodied citizen to aid in suppressing

crime.” Hamilton v. Regents, 293 U.S. 245, 265 fn. * (concur-

ring). This duty is not limited to emergency situations or to

hot pursuit arrests, but applies equally in the case of necessary

assistance in executing search warrants, as Congress recog-

nized in 18 U.S.C. 3105. See Elrod v. Moss, 278 Fed. 123, 129

(C. A. 4).

17

gress has required the telephone company to provide

telephone services upon reasonable request, 47 U.S.C.

201, and it cannot be seriously contended that a re-

quest for assistance by the FBI in cases such as this

is unreasonable. See also 47 U.S.C. 202, 605 (6).

Indeed, the telephone company is under a particu-

lar obligation to aid the government here, because

it is no mere bystander in relation to the crimes be-

ing investigated. On the contrary, it is providing

telephone facilities to those whom a district court has

determined are probably using them to commit fed-

eral crimes. In such circumstances, it is disingenu-

ous for the telephone company to argue that any

assistance to law enforcement officers creates “the

danger of indiscriminate invasions of privacy” (App.

A, infra, p. 15a).

3. In this case the telephone company complied

with the pen register order of the district court after

both lower courts had denied stays pending its ap-

peal; accordingly, the pen registers were installed

and the investigation completed some months prior

to the decision of the court of appeals. Nevertheless,

we submit that this case is not moot. Rather, this is

a classic example of a controversy that is “capable

of repetition, yet evading review.” Southern Pacific

Terminal Co. v. Interstate Commerce Commission,

219 U.S. 498, 515; Roe v. Wade, 410 U.S. 113, 125;

ef. United States v. Trans-Missouri Freight Ass'n,

166 U.S. 290, 308-309. In Weinstein v. Bradford,

423 U.S. 147, 149, the Court reiterated that this

doctrine “was limited to the situation where two

18

elements combined: (1) the challenged action was

in its duration too short to be fully litigated prior to

its cessation or expiration, and (2) there was a rea-

sonable expectation that the same complaining party

would be subjected to the same action again.” Both

these elements are satisfied here.

Pen register orders authorize surveillance only for

brief periods. As is typical, the order here was lim-

ited to a maximum of twenty days; it was then ex-

tended for twenty days after review in the district

court. Despite expedited action by the court of ap-

peals, the order and the investigation expired six

days after oral argument. Moreover, even had the

pen register order been stayed pending appeal, the

mootness problem would not have been avoided. Full

litigation includes the opportunity for effective ap-

pellate review, including review by this Court. Roe

v. Wade, supra, 410 U.S. at 125. But before that

review could be completed, the showing of probable

cause upon which the order authorizing the installa-

tion of the pen register was based would have be-

come stale. Thus, even with a stay, this Court would

nevertheless be in the position of passing upon the

validity of an order that could no longer be enforced

if it were upheld.” In sum, the realities of the in-

The Fifth Circuit ignored the time required for review by

this Court when, in Southern Bell Tel. & Tel. Co. v. United

States, 541 F.2d 1151, it dismissed as moot an appeal raising

the issues involved here on the theory that a stay and an expe-

dited appeal would permit appellate review of the district

court’s order before it became moot.

19

vestigation of crime preclude effective appellate re-

view of orders like the one involved here, if the case

becomes moot when the order expires, either because

the telephone company has provided the assistance

required or because the underlying order upon which

the requirement rests has lapsed for staleness. The

order here, like that in Nebraska Press Ass’n v.

Stuart, No. 75-817, decided June 30, 1976, slip op.

6, is “by nature short-lived.” Here, as there, the

expiration of the particular order does not moot the

case. Cf. DeFunis v. Odegaard, 416 U.S. 312, 318-

319."

Regarding the second element set forth in Wein-

stein, it is plain that this issue will be joined again

between the telephone company and the government

in the future if it is not resolved now. Pen registers

It is possible to conceive of situations in which the issue

here could arise in a way in which the short life of the order

would not preclude review—for example, if the telephone

company were held in criminal contempt. But we believe

that the “evading review” test is met when the order will not

be reviewable in the normal course of events, and that the

parties should not be denied review until the issue arises in

some unusual posture that avoids the mootness problem

(which, of course, may never actually happen).

1 If the case is moot, it became so when the pen register

was removed on April 28, 1976, before the court of appeals’

judgment was entered on July 13, 1976, and that judgment

should be vacated. If that were done, there would be no bar

to the issuance of similar assistance orders by other district

courts in the second circuit in the future. Alternatively, if

the judgment below remains in effect and compels compliance

by the district courts in the Second Circuit, the case is not

moot because “incapable of repetition.” See Richardson v.

Ramirez, 418 U.S. 24, 35-36.

20

are useful investigative tools, which we intend to

continue to seek to utilize in the future despite a

consistent telephone company policy of refusing to

render voluntary assistance in installing them. South-

ern Bell Tel. & Tel. Co. v. United States, swpra, 541

F.2d at 1155-1156; see cases cited supra, n. 7.“

In sum, despite respondent’s compliance with this

particular order, this case presents a well-defined

controversy between the parties on an important is-

sue that is bound to arise between them in the future

and to evade review before subsequent orders expire.

See Note, The Mootness Doctrine i The Supreme

Court, 88 Harv. L. Rev. 373 (1974). It is conse-

quently not moot.

There does not seem to be any possibility that the moot-

ness problem could be avoided by a class action, as it was,

for example, in Sosna v. lowa, 419 U.S. 393, 399-403. The

interests affected by the issue here, although important, in-

volve only law enforcement officials and the telephone com-

pany; neither party could claim to represent a class.

21

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be granted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

HARRIET S. SHAPIRO,

Assistant to the Solicitor General.

JEROME M. FEIT,

MARC PHILIP RICHMAN,

Attorneys.

DECEMBER 1976.

E: eee

la

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

No. 1068, Docket 76-1155

APPLICATION OF THE UNITED STATES OF AMERICA

IN THE MATTER OF AN ORDER AUTHORIZING THE

USE OF A PEN REGISTER OR SIMILAR MECHANICAL

DEVICE

Argued April 22, 1976

Decided July 13, 1976

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 direct-

ing the New York Telephone Company to provide

information, facilities and technical assistance to

Special Agents of the Federal Bureau of Investiga-

tion 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 de-

2a

vice 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), affd, 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 Tele-

phone Company to furnish to government agents in-

vestigating an alleged illegal gambling operation “All

information, facilities and technical assistance neces-

sary to accomplish the interception [by pen register]

unobstrusively 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 Com-

pany agreed to provide information such as terminal

locations and cable and pair identifications, but de-

3a

clined to furnish telephone lease or private lines,

citing Telephone Company regulations which pro-

hibited 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 por-

tion of Judge Tenney’s March 19, 1976 order which

mandated technical assistance by the Telephone Com-

pany 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 appel-

lant to provide technical assistance to the Govern-

ment. 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 Street Act, Title III of which

added Sections 2510-2520 to Title 18 of the United

4a

states Code and amended Section 605 of the Fed-

eral Communications Act of 1934, 47 U.S.C. See-

tion 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 par-

ties 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 inter-

ception 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 prospective standards of Title III.’

The proposed legislation is not designed to pre-

vent the tracing of phone calls. The use of a

“pen register,” for example would be permis-

sible. [citation omitted]. The proposed legis-

lation is intended to protect the privacy of the

communication itself and not the means of com-

munication. S.Rep. No. 1097, 90th Cong., 2d

Sess., 90 (1968), U.S. Code Cong. & Admin.

News 1968, pp. 2112, 2178.

See also Blakey, “A Proposed Electronic Surveillance

Act,” 43 Notre Dame L.Rev. 657 (1968). Professor Blakey,

who has been credited with primary authorship of Title III,

see United States v. Giordano, 416 U.S. 505, 517 n. 7, 526

n. 16, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), states that Title

III was not intended to prevent the tracing of phone calls by

the use of a pen register.

5a

Other courts faced with the question of the applica-

bility of Title III to pen register orders have like-

wise concluded that they are excluded. See United

States v. Illinois Bell Tel. Co., 531 F.2d 408, 410,

(N. D. III., 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 dissent-

ing 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).

It is also clear that pen register orders are not

now covered by Section 605 of the Federal Communi-

cations 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 pe registers, See United

States v. Dote, 3. 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 com-

munications, 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

* But see United States v. Lanza, 341 F.Supp. 405, 422

(M. D. Fla. 1972), where the court held that pen register

orders fall within Title III when they are issued in connec-

tion with a wiretap order.

6a

indicate an intention by the Congress to disavow

Dote and its progeny.’

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 cov-

erage. The Telephone Company argues that absent

authorization in Title III or other statutes, the Dis-

trict Court has 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 Amend-

ment. 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:

* United States v. Dote, 371 F.2d 176 (7th Cir. 1966), may,

however, retain some residual vitality in cases where a pen

register order is issued in conjunction with a wiretap order.

See United States v. lilinois Bell Tel. Co., 531 F.2d 408, 411,

(N. D. III., 1976); United States v. Lanza, 341 F.Supp. 405,

422 (M. D. Fla. 1972).

Ta

Because of pen register device is not subject

to the provisions of Title III, the permissibility

of its use by law enforcement authorities de-

pends entirely on compliance with the constitu-

tional 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 seizo of non-tangibles,

such as information gleaned from pen register sur-

veillance. Id., at 411. We agree with this reason-

ing. 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 Mat-

8a

ter of the Application of the United States of Ameri-

ca 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 cause.

We cannot concur in the view, voiced by some com-

mentators, that pen register orders are constitu-

tionally indistinguishable from mail covers, which

are initiated by subpoena, and therefore should fall

outside Rule 41. See Statement of Professor G. Rob-

ert Blakey, NWC Law Enforcement Effectiveness

Conference 38-39 (1976); Note, “The Legal Re-

straints Upon the Use of the Pen Register as a

Law Enforcement Tool,” 60 Cornell L.Q. 1028

(1975). If anything, we think this argument speaks

in favor of more stringent regulation of mail cov-

ers, and in no way detracts from our conclusion here.

In our view, the power to order pen register sur-

veillance, whether considered a logical derivative of

Rule 41 or a matter of inherent judicial authority,

is the equivalent of the power to order a search

warrant, and is thus subject to the requirements of

the Fourth Amendment. As the order authorizing the

installation and use of a pen register was here is-

sued by Judge Tenney upon a showing of probable

cause, we conclude that it was properly granted.

9a

II

The next question is whether or not the court be-

low properly ordered appellant to provide technical

assistance to federal law enforcement agents in their

operation of the pen register. This question is of

some significance not only because of its immediate

impact on the Telephone Company, but also because

of its broader implications regarding the power of a

federal court of mandate law enforcement assistance

by private citizens and corporations under the threat

of the contempt sanction.

At the outset it should be noted that we are not

concerned with the question of whether the Telephone

Company could voluntarily assist in effectuating pen

register surveillance, but rather only with whether

they may be compelled to do so. Furthermore, we

deem unfounded the Telephone Company’s stated fear

of criminal liability under 47 U.S.C. Section 501

and civil liability under 47 U.S.C. Section 206 for

voluntary or compelled assistance in operating the

pen register. 18 U.S.C. Section 2520, which provides

a civil cause of action for any individual whose wire

or oral communication is intercepted in violation of

Title III, states that “good faith reliance on a court

order * * * shall constitute a complete defense to any

civil or criminal] action brought under this chapter

or under any other law.” [emphasis added]. Our

inquiry is limited o the question of whether or not

the District Court had authority to compel assistance,

10a

and if so, whether or not that power was properly

exercised.

Prior to its amendment in 1970, Title III was si-

lent as to whether or not a court could order a pri-

vate party, such as a telephone company, to provide

technical assistance to law enforcement officials in

the installation and use of wiretap devices. In May,

1970, the Ninth Circuit held in Application of the

United States, 427 F.2d 639 (9th Cir. 1970) that ab-

sent express statutory authorization, a federal district

court was without power to compel technical coopera-

tion by the Central Telephone Company of Nevada in

the interception of wire communications. Some two

months after that decision, 18 U.S.C. Sections 2511,‘

*§ 2511. Interception and disclosure of wire or oral com-

munications prohibited

(2) (a) (i) It shall not be unlawful under this chapter for

an operator of a switchboard, or an officer, employee, or agent

of any communication common carrier, whose facilities are

used in the transmission of a wire communication, to inter-

cept, disclose, or use that communication in the normal course

of his employment while engaged in any activity which is a

necessary incident to the rendition of his service or to the

protection of the rights or property of the carrier of such

communication: Provided, That said communication common

carriers shall not utilize service observing or random moni-

toring except for mechanical or service quality control checks.

(ii) It shall not be unlawful under this chapter for an

officer, employee, or agent of any communication common

carrier to provide information, facilities, or technical assist-

ance to an investigative or law enforcement officer who, pur-

suant to this chapter, is authorized to intercept a wire or oral

communication.

—— — —

lla

2518 and 2520 were amended to provide that a

communication common carrier, or other firm or

individual, could be compelled to furnish such tech-

nical assistance as requested by government agents,

without fear of criminal or civil liability.

As we have already said, however, Title III does

not cover the issuance of pen register orders or

corollary orders compelling technical assistance. While

conceding this absence of coverage, the Government

contends that the federal courts have either inherent

authority or power under the All Writs Act, 28

*§ 2518. Procedure for interception of wire or oral com-

munications

* * * *

(4) Each order authorizing or approving the interception

of any wire or oral communication shall specify

An order authorizing the interception of a wire or oral com-

munication shall, upon request of the applicant, direct that a

communication common carrier, landlord, custodian or other

person shall furnish the applicant forthwith all information,

facilities, and technical assistance necessary to accomplish

the interception unobtrusively and with a minimum of inter-

ference with the services that such carrier, landlord, cus-

todian, or person is according the person whose communica-

tions are to be intercepted. Any communication common car-

rier, landlord, custodian or other person furnishing such facil-

ities or technical assistance shall be compensated therefor by

the applicant at the prevailing rates.

6 2520. Recovery of civil damages authorized

A good faith reliance on a court order or legislative authori-

zation shall constitute a complete defense to any civil or

criminal action brought under this chapter or under any other

law.

—— GGW

12a

U.S.C. Section 1651(a) to compel the Telephone

Company to assist in installing and operating the

pen register. In support of their argument they

cite United States v. Illinois Bell Tel. Co., supra,

where the court found authority for the issuance of

such an order to exist on both such bases. It ap-

pears that that was the first time a court construed

the All Writs Act, or the notion of inherent judicial

power, to provide justification for the entry of such

an order in aid of its jurisdiction to order a search

and seizure. The Seventh Circuit reasoned that since

the federal courts have authority to enter orders au-

thorizing government agents to employ a pen regis-

ter, they must have analogous authority to compel

assistance by a telephone company as non-compliance

by the company would frustrate the issuance of the

pen register order by rendering pen register surveil-

lance technically infeasible.

The All Writs Act provider that a federal court

may issue any writ “necessary or appropriate in aid

of [its] respective [jurisdiction] and agreeable to the

usages and principles of law.” Once jurisdiction is

properly vested in a federal court on some independent

basis, the Act empowers that court to enter such

orders as it deems necessary, in its discretion, to

preserve and protect its jurisdiction. It must be

emphasized that the Act, even if found to be ap-

plicable here, is entirely permissive in nature; it in

no way mandates a particular result or the entry of

a particular order. It is addressed to the discre-

tionary power of the court. Similarly, when one

—— —

——

13a

speaks of inherent judicial authority and argues for

its exercise, as does the Government here, one in-

vokes the discretionary power of the court and pe-

titions for the entry of an order not otherwise pro-

vided for by specific statutory authority. Thus, even

if we were to assume arguendo, as we do, that a

district court has inherent discretionary authority or

discretionary power under the All Writs Act to com-

pel technical assistance by the Telephone Company,

it is for this court to determine whether, on balance,

the exercise of that power by the court below was

proper or whether it constitutes an abuse of discre-

tion. For the reasons detailed below, we conclude

that, assuming the existence of the powers found by

the Seventh Circuit, in the absence of specific and

properly limited Congressional action, it was an abuse

of discretion for the District Court to order the Tele-

phone Company to furnish technical assistance.

Probably the most persuasive point argued by the

Government in support of such an order is that with-

out the appellant’s technical aid, the order authoriz-

ing the use of a pen register will be worthless. Fed-

eral law enforcement agents simply cannot imple-

ment pen register surveillance without the Telephone

Company’s help. The assistance requested requires

no extraordinary expenditure of time or effort by

appellant; indeed, as we understand it, providing

lease or private lines is a relatively simple, routine

procedure. Moreover, as we have noted above, we

believe that the Telephone Company can provide this

technical assistance without fear of civil or criminal

liability; and the order itself provides for financial

l4a

compensation for appellant for the assistance it ren-

ders. An additional argument in favor of granting

the Government’s request is its legitimate concern

that if the courts do not act to compel compliance,

law enforcement in general, and the particular in-

vestigation involved here, may be severely hampered.

Notwithstanding the alacrity with which the Con-

gress acted to amend Title III after the Ninth Cir-

cuit decision in Application of the United States,

supra, there is no certainty that the Congress will

similarly enact legislation authorizing orders com-

pelling technical assistance in the case of pen regis-

ter surveillance, or even if they do, that they will

act promptly. Undue delay here would predictably

impede if not entirely negate the Government’s at-

tempts to apprehend the suspected illegal gambling

operators.

Against these considerations, however, must be

weighed the factors which militate against issuance

of an order mandating technical assistance. We think

a consideration of these factors compels the conclu-

sion that the issuance of such an order by the court

below represented an abuse of discretion.

Congress did act quite rapidly to remedy the ab-

sence in the Title III of any provision for compelling

technical aid by communication common carriers after

the Ninth Circuit rendered its decision. We do not

agree with the Seventh Circuit that one may only

infer from this speedy action that the Congress must

have assumed that the federal courts possessed in-

herent power to compel assistance or that the tele-

phone companies would voluntarily asist. United

15a

States v. Illinois Bell Tel. Co., supra, at 412. On the

contrary, we think it is just as reasonable, if not

more reasonable, to infer that the prompt action by

the Congress was due to a doubt that the courts

possessed inherent power to issue such orders, or

that courts would be unwilling to find or exercise

such power, and that in the absence of specific Con-

gressional action, other courts would similarly reject

applications by the Government for compelled com-

pliance. In any case, as Congressional authority was

thought to be necessary in Title III cases, it seems

reasonable to conclude that similar authorization

should be required in connection with pen register

orders, especially as the two are so often issued in

tandem.

Perhaps the most important factor weighing

against the propriety of the order is that without

Congressional authority, such an order could estab-

lish a most undesirable, if not dangerous and un-

wise precedent for the authority of federal courts

to impress unwilling aid on private third parties.

We were told by counsel for the Telephone Company

on the oral argument of this appeal that a principal

basis for the opposition of the Telephone Company

to an order compelling it to give technical aid and

assistance is the danger of indiscriminate invasions

of privacy. In this best of all possible worlds it is a

law of nature that one thing leads to another. It

is better not to take the first step.

While the Congress can clearly limit authorization

for such orders to — types of assistance and to

b mbwa d —

l6a

federal law enforcement investigations of certain

specified crimes, limitations by the courts cannot so

easily be drawn, as our authority must be derived

from the very general All Writs Act or the even

more amorphous notion of inherent judicial power.

We must be concerned not only with the Fourth

Amendment rights of those whose telephone calls

are monitored by pen register surveillance, but with

the privacy rights of those third parties, communica-

tion common carriers and private parties alike, who

might be called upon to aid the Government in its

law enforcement endeavors. While a court may im-

munize such a third party from criminal or civil

liability for its technical assistance, there is no as-

surance that the court will always be able to protect

that third party from excessive or overzealous Gov-

ernment activity or compulsion. The potential dan-

gers inherent in such a judicial order, and the fu-

ture orders it spawns, compel us to conclude that

if indeed the Government requires technical assist-

ance, it is far better te have the authority for order-

ing that assistance clearly defined by statute. We

thus agree with the advice of the Ninth Circuit: “If

the Government must have the right to compel

regulated communications carriers or others to pro-

vide such assistance, it should address its plea to

Congress.” Application of the United States, supra,

at 644. We have every hope that the Congress will

promptly undertake consideration of these pen regis-

ter orders and the technicaY assistance required to

install and operate them. F.

i}

1

— —

— ——— ſ—— —w

- te ee ee ee

17a

Accordingly, we affirm Judge Tenney’s order inso-

far as it authorizes the use of a pen register, and

reverse that part of the order which mandates as-

sistance by appellant in the installation and operation

of the pen register.

MANSFIELD, Circuit Judge (concurring and dis-

senting) :

I agree with the majority’s holding that the dis-

trict court possessed the power to order installation

of a “pen register.” However, I cannot agree that

it was an abuse of discretion to require the Tele-

phone Company to assist in installing it. On the

contrary, a direction that the Telephone Company

render assistance was obviously essential to imple-

ment the court’s pen register order since otherwise

that order would amount to nothing more than an

empty gesture. The assistance order was therefore

well within the district court’s discretionary au-

thority under the All Writs Act, 28 U.S.C. § 1651

(a) and no further specification of authority by Con-

gress was required. Accordingly, I would affirm.

Judge Medina’s opinion starts out on a satisfactory

enough note by correctly concluding that the district

court had jurisdiction to authorize installation of the

pen register by federal agents upon a showing of

probable cause. See United States v. Giordano, 416

U.S. 505, 553-54, 94 S.Ct. 1820, 40 L.Ed.2d 341

(1974) (Powell, J., concurring and dissenting) ;

United States v. Illinois Bell Telephone Co., 531 F.2d

809, 812-13 (7th Cir. 1976). The majority then

18a

assumes (without expressly deciding) that the All

Writs Act provides the court with such authority as

it needs to require Telephone Company assistance. In

my view this assumption also is clearly correct.

The All Writs Act provides that “The Supreme

Court and all courts established by Act of Congress

may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the

usages and principles of law.” 28 U.S.C. § 1651 (a).

Although the Act does not itself furnish jurisdiction,

see e.g., Covington & Cincinnati Bridge Co. v. Hager,

203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111 (1906), it

does authorize the court in proper cases to issue

auxiliary orders necessary to render effective its ex-

ercise of jurisdiction otherwise obtained. “[A] fed-

eral court may avail itself of all auxiliary writs as

aids in the performance of its duties, when the use

of such historic aids is calculated in its sound judg-

ment to achieve the ends of justice entrusted to it.”

Adams v. United States ex rel. McCann, 317 U.S.

269, 273, 63 S.Ct. 236, 239, 87 L.Ed. 268 (1942).

See Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir.),

cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.

2d 332 (1972) (“[O]nce jurisdiction has attached,

powers under 8 1651 (a) should be broadly con-

strued.”) The power conferred by the Act extends

to issuing injunctions and other writs against per-

sons who, though not parties to the original action,

may thwart the effectuation of the court’s decision.

See Mississippi Valley Barge Line Co. v. United

— —— — —¼ — —

19a

States, 273 F.Supp. 1, 6 (E. D. Mo. 1967), af’d mem.,

389 U.S. 579, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968).

It is true that, until the recent decision of the

Seventh Circuit in United States v. Illinois Bell Tele-

phone Co., supra, the authority granted by the All

Writs Act was apparently never used to issue orders

auxiliary to a search warrant. But such an order

is no more novel than others issued under the Act,

which have been upheld when needed to implement

a court’s decisions. See, e.g., Board of Education v.

York, 429 F.2d 66 (10th Cir. 1970), cert. denied, 401

U.S. 954, 91 S.Ct. 968, 28 L.Ed.2d 237 (1971) (or-

der requiring parents to send son to particular school

to further desegregation plan); Application of Presi-

dent & Directors of Georgetown College, Inc., 331

F.2d 1000 (D.C.Cir.), rehearing en banc denied, 118

U.S.App.D.C. 90, 331 F.2d 1010, cert. denied, 377

U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964) (one-

judge order requiring blood transfusion); United

States v. Field, 193 F.2d 92, 95-96 (2d Cir.), cert.

denied, 342 U.S. 894, 74 S.Ct. 202, 96 L.Ed. 670

(1951) (order requiring bail committee members to

answer questions regarding fleeing defendants).

Once we agree that the district court had jurisdic-

tion to issue a pen register order and authority un-

der the All Writs Act to direct third parties to render

such assistance as is reasonably necessary to imple-

ment its exercise of jurisdiction, I find it impossible

on this record to accept the majority’s conclusion that

it was an abuse of discretion to direct that such

assistance be rendered in this case. As the majority

20a

opinion notes, the assistance of the Telephone Com-

pany was here necessary for the installation of the

pen register; due to the physical peculiarities of the

location to Le put under surveillance it would have

been difficult if not impossible, for the agents to in-

stall the device on their own without detection. Fur-

thermore, the Telephone Company concedes that the

assistance required of it was not burdensome; all

that was required was the provision of certain plans

and the flicking of a switch at a central terminal.

Finally, the intrusion into the privacy of the targets

of the surveillance and their communications was

less than would occur had the government sought

authorization of a Title III wiretap; only the desti-

nation, not the content, of telephone messages was to

be monitored.“ It is the function of the district court

to weigh such considerations when exercising its dis-

cretion, and in this case the balance clearly points

toward requiring Telephone Company assistance.

Despite the compelling case made out here for ex-

ercise of discretion in favor of the assistance order,

It is possible that the result of holding that the Telephone

Compan: cannot be required to give assistance in the installa-

tion of a pen register may be, paradoxically, to increase the

amount of electronic surveillance. Since the Telephone Com-

pany can be required under the 1970 amendment to Title III,

18 U.S.C. § 2518 (4), to provide assistance in installing a

Title III wiretap, law enforcement agents may be conipelled

to seek such wiretap authority in order to receive Telephone

Company assistance, even if their primary interest lies simply

in determining the locations to which calls are placed rather

than in the monitoring of content which the wiretap would

permit.

2la

the majority has concluded that the district court’s

action represented an abuse of discretion. None of

the reasons offered in support of that conclusion,

however, can withstand scrutiny. First it is sug-

gested that the 1970 amendment of Title III of the

Omnibus Crime Control and Safe Streets Act of

1968, 18 U.S.C. §$§ 2510 et seq., following the decision

in Application of United States, 427 F.2d 639 (9th

Cir. 1970), represented implicit Congressional ap-

proval of the Ninth Circuit’s view that a court does

not have power under the All Writs Act or otherwise,

to require Telephone Company assistance in electronic

surveillance.’ The Supreme Court has, however, long

cautioned against drawing the inference that an ex-

press Congressional grant of authorily to an agency

necessarily implies that the agency previously lacked

such authority. As Justice Jackson wrote in Wong

Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct.

445, 453, 94 L.Ed. 616 (1950), “we will not draw

the inference . . . that an agency admits that it

is acting upon a wrong construction by seeking rati-

fication from Congress. Public policy requires that

agencies feel free to ask legislation which will termi-

nate or avoid adverse contentions and litigations.“

See FTC v. Dean Foods Co., 384 U.S. 597, 608-12,

86 S.Ct. 1738, 16 L.Ed.2d 802 (1966) (FTC requests

*The majoritv’s view of the Congressional intent behind

the 1970 amendient can find no support in the meager legis-

lative history of the amendment, which was approved as a

rider to the District of Columbia Court Reform and Criminal

Procedure Act of 1970.

22a

for specific authority to seek injunctions agairst mer-

gers, even if granted, would not imply such power

was lacking under the All Writs Act). Thus, it is

impossible to conclude that because Congress acted

to provide express authority to the courts to require

Telephone Company assistance in installing Title III

wiretaps, similar express authorization is required

to issue the present order involving a pen register

which both parties agree is wholly outside the ambit

of Title III. Although Congressional clarification of

the court’s power to order Telephone Company as-

sistance in the installation of pen registers would

place the matter beyond argument, it is wholly un-

necessary to impose this burden upon Congress. The

district court clearly possesses the authoriiy under

the Ali Writs Act.

The majority next concludes that, although an as-

sistance order may be desirable in the circumstances

of the present case, it would be the first step down a

slippery slope in which law enforcement agents would

obtain judicial orders requiring progressively more

assistance from third parties in furtherance of gov-

ernment investigations. Here I must respectfully dis-

agree. To hold that the district court acted properly

within the scope of its powers in the present case

would not write a carte blanche for any and all or-

ders which law enforcement agencies might seek in

the future. While the powers conferred by the All

Writs Act are broad, they are to be reserved for

cases of clear necessity, as this court has frequently

observed in passing upon demands that it exercise

its power under the Act to issue mandamus to dis-

trict courts. See, e.g., United States v. Weinsiein,

511 F.2d 622, 626 (2d Cir.), cert. denied, 422 U.S.

1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975); Uniled

States v. Dooling, 406 F.2d 192, 198 (2d Cir.), cert.

denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224

(1969) ; Electric & Musical Industries Ltd. v. Walsh,

249 F.2d 308 (2d Cir. 1957). We have had sufficient

confidence in our district judges over the past cen-

tury to vest them with discretionary power to issue

such extraordinary relief as temporary restraining

orders and preliminary injunctions. I see no reason

for not trusting them to employ sensible standards

in deciding whether auxiliary relief should be granted

under the All Writs Act. Because of the combination

of clear necessity for Telephone Company assistance

and the minimal burdens on that company, this is a

case where application of such standards mandates

assistance from the Telephone Company. Were the

necessity lesser, or the burden greater, in some future

case, a district court might not be justified in invok-

ing its extraordinary powers. That is what exercise

of discretion is all about. I see no reason to assume

that the district courts will in the future grant law

enforcement agencies such relief on anything less

than a showing of the compelling nature here made,

or that, in reviewing such orders, future panels of

this court will be any less sensitive than the present

majority to the problems involved.

Nor can I agree with the majority that Congress,

as distinguished from federal courts, is in a better

a wů

24a

position to define the conditions under which as-

sistance by third parties may be ordered or the scope

of that assistance. Surely it did not do so in its

1970 amendment of Title III* and no necessity for

doing so in the present case has been shown. Aside

from the obvious need for minimal help from the

Telephone Company in the present case, there is no

basis for believing that the government will need,

much less demand, other types of assistance in the

investigation of other types of crimes. In any event,

since the terms, conditions and limits of such assist-

ance would vary according to the circumstances of

each particular case, the subject is better suited to

judicial exercise of discretion under the All Writs

Act than to a precise or detailed statutory blueprint.

In short the majority, ignoring the principle that

“Sufficient unto the day is the evil thereof,” paints

imaginary and unlikely devils on the wall. However,

should these devils ever appear in real life, I am

confident that the district courts’ sound exercise of

discretionary power would be more than sufficient to

deal with them.

The 1970 amendment simply and broadly authorizes courts

to require communications carriers to provide “all informa-

tion, facilities, and technical assistance necessary” in instal-

ling Title III wiretaps. 18 U.S.C. § 2518 (4).

*New Testament: Matthew, vi, 34.

25a

APPENDIX B

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the thirteenth day of July, one thousand nine

hundred and seventy-six.

Present: HON. HAROLD R. MEDINA

HON. WILFRED FEINBERG

HON. WALTER R. MANSFIELD

Circuit Judges.

76-1155

IN RE

APPLICATION OF THE UNITED STATES OF AMERICA

IN THE MATTER OF AN ORDER AUTHORIZING THE

USE OF A PEN REGISTER OR SIMILAR MECHANICAL

DEVICE.

NEW YORK TELEPHONE COMPANY, (“TELEPHONE”)

APPELLANT.

Appeal from the United States District Court

for the Southern District of New York

— — — — — — ——— —

This cause came on to be heard on the transcript

of record from the United States District Court for

the Southern District of New York and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered adjudged and decreed that the order

of said district court be and is hereby affirmed in

part and reversed in part in accordance with the

opinion of the court.

A. DANIEL FUSARO

Clerk

27a

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the twenty-sixth day of October, one thousand

nine hundred and seventy-six.

Present: HON. HAROLD R. MEDINA

HON. WILFRED FEINBERG

HON. WALTER R. MANSFIELD

Circuit Judges.

76-1155

IN RE

APPLICATION OF THE UNITED STATES OF AMERICA

IN THE MATTER OF AN ORDER AUTHORIZING THE

USE OF A PEN REGISTER OR SIMILAR MECHANICAL

DEVICE.

NEW YORK TELEPHONE COMPANY, („TELEPHONE“)

APPELLANT.

A petition for a rehearing having been filed herein

by counsel for the United States of America,

Upon consideration thereof, it is

Ordered that said petition be and hereby is

DENIED.

A. DANIEL FUSARO

*

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the twenty-sixth day of October, one thousand

nine hundred and seventy-six.

IN RE

APPLICATION OF THE UNITED STATES OF AMERICA

IN THE MATTER OF AN ORDER AUTHORIZING THE

USE OF A PEN REGISTER OR SIMILAR MECHANICAL

DEVICE.

NEW YORK TELEPHONE COMPANY,

APPELLANT.

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the United States of America,

and a poll of the judges in regular active service

having been taken and there being no majority in

favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

denied.

Judges Timbers, Gurfein and Van Graafeiland

did not participate in consideration of the petition.

s, Irving R. Kaufman

IRVING R. KAUFMAN

Chief Judge

30a

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Misc. No. 19-97(44)

IN RE: APPLICATION OF THE UNITED STATES OF

AMERICA IN THE MATTER OF AN ORDER AUTHOR-

IZING THE USE OF A PEN REGISTER OR SIMILIAR

MECHANICAL DEVICE.

MEMORANDUM

APPEARANCES

GEORGE E. ASHLEY

Attorney for New York Telephone Company

1095 Avenue of the Americas

New York, N.Y. 10036

Of Counsel: FRANK R. NATOLI

ROBERT B. FISKE, JR.

United States Attorney for the

Southern District of New York

St. Andrews Plaza

New York, N.Y. 10007

Of Counsel: PETER D. SUDLER

Special Attorney

U.S. Department of Justice

TENNEY, J.

On March 19, 1976, this Court granted the appli-

cation of the Department of Justice’ for an order

The Government’s application was submitted by Peter D.

Sudler, a Special Attorney of the United States Department

31a

directing New York Telephone Company (Tele-

phone”) to furnish the information, facilities, and

technical assistance necessary to enable agents of

the Federal eau of Investigation (“FBI”) to

install “pen registers” on two telephones. The appli-

cation specified two telephones subscribed to by a

specified individual and located at a specific address.

In response to the Court’s order, Telephone moved,

by order to show cause, to vacate or to modify the

order. While not contesting the right of the Govern-

ment to employ the “pen register”, Telephone ob-

jected to so much of the Court’s order as directed it

to provide all information, facilities (including lease

lines), and technical assistance necessary for the

utilization of the “pen register”.

Based upon the papers submitted and the argu-

ments heard and for the reasons stated below, the

motion to vacate or modify this Court’s previous

order is hereby denied.

Telephone challenges the Court’s direction that it

furnish technical assistance, including lease lines, to

law enforcement officials for installation and utili-

zation of the “pen register”. Telephone does not

challenge the Court’s jurisdiction to authorize use

of the “pen register”, nor does it contend that there

of Justice, New York Joint Strike Force Against Organized

Crime. The application was supported by the affidavit of

Walter F. Smith, a Special Agent of the Federal Bureau of

Investigation.

New York Telephone Company is a communications com-

mon carrier as defined in 18 U.S.C. § 2510(10).

was no probable cause supporting the Court’s order.

Indeed, Telephone has been willing and continues to

be willing to provide the Government with all the

necessary information that would enable the FBI

to install a “pen register”. It is Telephone’s position,

however, that its facilities and technical assistance

may be furnished to law enforcement officials only

pursuant to an application under 18 U.S.C. §§ 2510

et seg. These sections constitute Title III of the

Omnibus Crime Control and Safe Streets Act of

1968 (“Title III“). Title III “prescribes the pro-

cedure for securing judicial authority to intercept

wire communications in the investigation of specified

serious offenses.” United States v. Giordano, 416

U.S. 505, 507 (1974). Briefly, the Act confers power

upon the Attorney General or a specially designated

Assistant Attorney General to apply for a federal

court order authorizing wire interceptions. 18 U.S.C.

§ 2816(1).

A “pen register” is a mechanical device which

picks up electrical impulses which are used to decode

the telephone numbers dialed in outgoing calls.’ Tele-

A “pen register” is more fully defined and explained as

follows:

“A pen register is a mechanical device attached to a

given telephone line and usually installed at a central

telephone facility. It records on a paper tape all numbers

dialed from that line. It does not identify the telephone

numbers from which incoming calls originated, nor does

it reveal whether any call, either incoming or outgoing,

was completed. Its use does not involve any monitoring

of telephone conversations. The mechanical complexities

33a

phone concedes that the application for a “pen reg-

ister” is not an application for a wire or oral inter-

ception within the purview of Title III. (Telephone’s

Memorandum of Law at 5).

There is significant authority for this Court to

find that the “‘pen register” in this instance was not

a device for wire or oral interception covered by the

prescriptions of Title III. 18 U.S.C. § 2510 contains

the following definition:

“As used in this chapter—

(4) ‘intercept’ means the aural acquisition of

the contents of any wire or oral communication

through the use of any electronic, mechanical, or

other device.”

“Aural” has been defined as of or relating to the

sense of hearing.’” United States v. Focarile, 340

F. Supp. 1033, 1039 (E.D. Mo.), aff'd sub nom.

United States v. Giordano, 469 F.2d 522 (3rd Cir.

1972), affd, 416 U.S. 505 (1974), quoting Webster's

Third New International Dictionary. A “pen reg-

ister” decodes phone numbers by responding to elec-

tric impulses and not to aural stimuli.

The legislative history of Title III clearly discloses

a Congressional inten: to exclude “pen registers“

from the Act’s strictures.

“Paragraph (4) defines ‘intercept’ to include

the aural acquisition of the contents of any

of a pen register are explicated in the opinion of the

District Court. 340 F. Supp. 1033, 1038-1041 (Md.

1972).“ United States v. Giordano, supra, 416 U.S. at

549 n. 1.

34a

wire or oral communication by any electronic,

mechanical, or other device. Other forms of sur-

veillance are not within the proposed legislation.

See Lee v. United States, 47 S.Ct. 746, 274 U.S.

559 [71 L.Ed. 1202] (1927); Corngold v. United

States, 367 F.2d [1] (9th 1966). An examina-

tion of telephone company records by law en-

forcement agents in the regular course of their

duties would be lawful because it would not be

an ‘interception.’ (United States v. Russo, 250

F.Supp. 55 (E.D.Pa. 1966)). The proposed leg-

islation is not designed to prevent the tracing

of phone calls. The use of a ‘pen register,’ for

example, would be permissible. But see United

States v. Dote, 371 F.2d 176 (7th 1966). The

proposed legislation is intended to protect the

privacy of the communication itself and not the

means of communication.” (Emphasis added).

S. Rep. No. 1097, 90th Cong., 2d Sess. at 90

(1968), 1968 U.S. Code Cong. & Admin. News,

p. 2178.

Various federal courts have adopted the position

that a “pen register’ device is not governed by Title

III. See United States v. Illinois Bell Telephone Co.,

No. 75-1909 (7th Cir., February 23, 1976), at 3;

United States v. Clegg, 509 F.2d 605, 610 (5th Cir.

1975); United States v. Falcone, 505 F.2d 478, 482

(3d Cir. 1974), cert. denied, 420 U.S. 955 (1975);

United States v. Finn, 502 F.2d 938, 942 (7th Cir.

1974); United States v. Brick, 502 F.2d 219, 223

(8th Cir. 1974); Korman v. United States, 486 F.2d

926, 931 (7th Cir. 1973); United States v. King,

335 F. Supp. 523 (S.D.Cal. 1971), affd in part,

35a

rev'd in part on other grounds, 478 F.2d 494 (9th

Cir. 1973), cert. denied, 417 U.S. 920 (1974);

United States v. Vega, 52 F.R.D. 503 (E. D. N. v.

1971). Finally, Mr. Justice Powell reiterated this

conclusion in his opinion (concurring in part and dis-

senting in part) joined by The Chief Justice and

Mr. Justice Blackmun and Mr. Justice Rehnquist in

United States v. Giordano, supra, 416 U.S. at 553-

54.“ This Court likewise holds that a pen register”

falls outside of Title III's definition of “interception”.

Without disputing the nonapplicability of Title

III, Telephone contends, however, that this Court’s

order authorizing the use of a “pen register” device

“directs Telephone to furnish the FBI with the capa-

iblity to perform an interception” (Natoli Affidavit

at 3), and that a court order directing an intercep-

tion must comply with the strictures of Title III.

(Natoli Affidavit at 3; Telephone Memorandum of

Law at 7). Although the order employs the term

“interception”, it clearly does not direct that type of

*In United States v. Giordano, supra, 416 U.S. 505, a Title

III interception order was improperly obtained by an un-

authorized official. The Supreme Court approved the suppres-

sion of all evidence resulting from the unlawful wiretap. In-

AIrmation revealed from the wiretap had formed the basis

of probable cause upon which “pen registers” were subse-

quently authorized. The Court concluded that evidence re-

sulting from the “pen registers” was tainted by its indirect

connection with the unlawful wiretap, and was therefore

inadmissible under a “fruit of the poisonous tree” rationale.

One court has observed that the substance of the minority

opinion is not inconsistent with the majority holding. See dis-

cussion in text p. 7, infra.

interception contemplated by Title III. The order

specifically permits only that interference, from the

installation and operation of the device, necessary for

the limited purpose of obtaining the telephone num-

bers of outgoing calls.

This Court adopts the jurisdictional basis for the

issuance of a “pen register” that was enunciated by

Mr. Justice Powell in the Giordano case. The minor-

ity opinion explained that

“(bjecause a pen register device is not subject

to the provisions of Title III, the permissibility

of its use by law enforcement authorities de-

pends entirely on compliance with the constitu-

tional 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.” United

States v. Giordano, supra, 416 U.S. at 554.

The minority noted further:

“The Government suggests that the use of a

pen register may not constitute a search within

the meaning of the Fourth Amendment. I need

not address this question, for in my view the

constitutional guarantee, assuming its applica-

bility, was satisfied in this case.” Id. at n. 4.

Telephone does not contest the existence of prob-

able eau: underlying the issuance of the court order.

The “pen register” was ordered pursuant to affidavits

concerning an on-going investigation of a criminal

operation for which a wiretap order had been pre-

viously authorized under Title III. This investiga-

tion, then, concerns an offense deemed serious enough

to justify a Title III interception. Refusal of Tele-

phone to assist in furnishing technical assistance and

facilities would frustrate the operation of the court

order, properly granted upon a showing of probable

cause.

On facts substantially similar to those in the in-

stant case, the Seventh Circuit Court of Appeals

cogently reconciled Mr. Justice Powell’s minority

opinion with that of the majority in the Giordano

case.

“There seems nothing essentially inconsistent

with this order-application accommodation in

the majority opinion which rejected the evidence

obtained from the use of the pen register, not

because of a lack of judicial authority to issue

the form of order used, but the evidence was

*. . . derived from . . an] invalid wire inter-

ception. .. 416 U.S. at 511 n. 2 and 533-34

n. 19. Apparently, Fed. R. Cr. P. 41, which

deals with the traditional concept of search and

ran

not thought by the Supreme Court to be a limi-

tation upon the power of the district court to

authorize, outside Title III, reasonable use of

investigative techniques rendered possible by

modern technology as to ‘nontangibles’. The

commonsense approach used by the district court

in issuing an order based on probable cause and

following a procedure designed to comply with

Fourth Amendment considerations in authoriz-

ing the use by the government of the pen regis-

ter was a valid exercise of authority.” United

States v. Illinois Bell Telephone Co., supra, No.

75-1909, at 5.

Finding jurisdiction for issuance of the court order

under this “commonsense approach,” the Seventh Cir-

cuit likewise found “inherent authority” for the

district court to direct Illinois Bell’s compliance with

and assistance in the installation of a “pen register”

by federal law enforcement agents. The court con-

cluded that

“district courts in the area of electronic surveil-

lance, inherently have power to effectively com-

pel compliance with validly issued orders. It

seems more congruent with both reason and

Congressional intent to have courts, rather than

the telephone company, decide if a pen register

should or should not be used. The authority to

compel the cooperation of the telephone com-

pany is in a sense concomitant of the power to

authorize the installation of a pen register, for

without the former the latter would be worthless.

“It is conceded that the district court had

authority to enter an order authorizing govern-

ment law enforcement agents to employ a pen

register. Therefore, analogous authority for the

proposition that the telephone company cannot

frustrate the exercise of the district court's

39a

order by refusing to make available its facili-

ties and knowhow, is the All Writs Act. The All

Writs Act, 28 U.S.C. § 1651 provides in perti-

nent part:

(a) The Supreme Court and all courts

established by Act of Congress may issue all

writs necessary or appropriate in aid of

their respective jurisdictions and agreeable

to the usages and principles of law.

This statute allows a district court to defend a

proper exercise of is [sic] jurisdiction, although

it does not supply jurisdiction.” Jd. at 7-8.

This Court adopts the sound reasoning of the

Seventh Circuit and holds that it possesses inherent

jurisdiction to direct Telephone’s compliance with the

order. Furthermore, this Court finds jurisdiction for

its directive under the All Writs Act. The mandate

to Telephone is necessary to protect and effectuate

the purpose of the concededly valid “pen register”

order.

Accordingly, the application of Telephone to va-

cate or modify this Court’s order authorizing the use

of a “pen register” is in all respects denied.

So ordered.

Dated: New York, New York

April 2, 1976

CHARLES H. TENNEY

U.S. D. J.

Ur eee eee orrice, ee 22849 32