Petition — Southwestern Bell Telephone Co. v. United States

Supreme Court, U. S$,

}

| FEB 22 1977

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

w....26-~- 1157

SOUTHWESTERN BELL TELEPHONE COMPANY,

Petitioner,

.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

WAYNE £. BABLER

LEO £. EICKHOFF, JR.

1010 Pine Street

St. Louis, Missouri 63101

Telephone: 314-247-4492

Attorneys for Petitioner Southwestern

Bell Telephone Company

St. Louis Law Printing Co.. Inc... 812 Olive Street 62101 314-231-4477

=>

TABLE OF CONTENTS

Page

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SY SE cc cneveupessctansedabaceuane 2

Statutes, Rules and Constitution Involved ............. 3

EE o6 ddd eneusensedesetbasénccncesconessdc 4

Reasons for Granting the Writ ................0555. 9

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Appendix A—Decision of U.S. Court of Appeals, 8th

SD ocdavanndnccouesncnesenesesceccoassesa A-1

Appendix B—Order Denying Petition for Rehearing . . .A-16

Appendix C—Order Granting Stay ................. A-17

Appendix D—Order of District Court ............... A-18

Appendix E—Memorandum of District Court ......... A-19

Appendix F—Order to Show Cause ................. A-21

Appendix G—Motion to Reconsider and Withdraw Order. A-22

Appendix H—Application for Order to Show Cause .. . .A-26

Appendix I—Order Authorizing Installation and Use of

DED GED necceccececccdacceconncnseoscnecse A-29

Table of Cases

Application of U.S., 407 F. Supp. 398 (W.D. Mo., Jan.

a ia lc oe ee rl oe 14

Application of U.S., 416 F.Supp. 800 (S.D.N.Y., April

RRR np nee Na RRS AO a 16

Application of the U.S., 427 F.2d 639 (9th Cir. 1970) .. .8, 11

Application of U.S., 538 F.2d 956 (2nd Cir., July 13,

SOUND ccd ccesdencesecescescnsacceanceceessees 17

_ PPPTTITITTTTITITTTIT TTT TTT TT Te 18

Application of U.S., No. 76-1725 (8th Cir. Dec. 9, 1976) 18

In Re Joyce, 506 F.2d 373 (Sth Cir., Jan. 9, 1975) ...... 12

Southern Bell Telephone and Telegraph Company v. U.S.,

541 F.2d 1151 (Sth Cir., Nov. 5, 1976) ........... 13

U.S. v. Giordano, 416 U.S. 505, 553-554 (1974) ...... 7,21

U.S. v. Illinois Bell Telephone Company, 531 F.2d 809,

ee Gee n, UE cecenccnccecuccac« 8, 15, 17, 18, 19

United States v. New York Telephone Company, 538 F.

2d 936 (2nd Cir., Jan. 25, 1977) ....... 66. cee eeee 9

Table of Authorities

Federal Rules of Criminal Procedure Amendments Act of

1975, P.O. 94-64, § 1, July 31, 1975, 89 Stat. 370 ... 10

D.C. Court Reform Act, P.L. 91-358, Title II, § 211, July

eh Se <6 666 Keeuek neeetecest 8,12, 15

Rule 41, Federal Rules of Criminal

SE oe Aik tinted tie eins eee nied 3, 10, 13, 18, 19, 22

Rule, 57 Federal Rules of Criminal Procedure .......... 3

18 USCA §§ 2510-2520 . .2, 3-4, 7, 11, 12, 14, 15, 18, 22, 23

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28 USC $ 1254(1) .. cece rece eee cree een e ences 2

BP UBCA BERS 2 wcccccccccccccsccseccececes 3, 14, 20

United States Constitution, Amendment IV . .3, 18, 20, 22, 23

United States Constitution, Amendment V ........--. 3, 23

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Southwestern Bell Telephone Company petitions for a Writ

of Certiorari to review the decision of the United States Court

of Appeals for the Eighth Circuit, affirming the order of the

United States District Court for the Eastern District of Mis-

souri, Eastern Division, denying Southwestern Bell Telephone

Company's Motion to Reconsider and Withdraw Order Author-

izing Trespass on Southwestern Bell Telephone Company Lines

and Facilities and To Remove Southwestern Bell Telephone

Company from the Provisions of Said Order.

The opinion of the Court of Appeals for the Eighth Circuit,

No. 76-1725, is not reported at this time.’ The order? and

memorandum* of the District Court is also not reported.

The decision of the Court of Appeals for the Eighth Circuit

was entered on December 9, 1976. A Suggestion for Rehearing

en banc, Petition for Rehearing and Motion for Stay of Man-

date, was filed by petitioner on December 23, 1976. The order

of the Court of Appeals denying petitioner's Suggestion for Re-

hearing en banc and Petition for Rehearing was entered Jan-

wary 18, 1977.4 On January 24, 1977, the Court of Appeals

ordered its mandate stayed for thirty days with the provision

that if a petition for writ of certiorari was filed within that thirty

day period, the stay would continue until the final disposition of

the Supreme Court.’ The jurisdiction of the court is invoked

under 28 USC § 1254(1).

QUESTIONS PRESENTED

Whether a United States District Court has authority when

the requirements of 18 USC § 2510-2520 and 18 USC § 3771

have not been followed, (1) to authorize FBI agents to electri-

cally tap into a telephone line for the purpose of discovering

' Appendix A, page A-1.

* Appendix D, page A-18.

* Appendix E, page A-19.

* Appendix B, page A-16.

* Appendix C, page A-17.

ES 0 RE ee

=

the telephone numbers dialed on the telephone line, and (2)

to order a private company to require its employees (not of-

ficers of the United States authorized to serve warrants) to

provide affirmative assistance to the FBI in perfecting the wire-

tap and carrying out the surveillance of the persons under in-

ae

STATUTES, RULES AND CONSTITUTION

INVOLVED

The pertinent portions of the federal statutes, Federal Rules

of Criminal Procedure, and United States Constitution involved

in this case, because of their length, are set forth in Appendix

J, page A-31, to this petition. Included are:

A. The Act of June 29, 1940, authorizing the Supreme

Court of the United States to prescribe rules or procedure in

criminal proceedings, 18 USCA § 3771. See Appendix J,

page A-31.

B. The All Writs Act, 28 USCA § 1651. See Appendix J,

page A-31.

C. Rule 41, Federal Rules of Criminal Procedure, setting

forth procedure for the issuance, execution and return of war-

rants to search for and seize property and other tangible ob-

jects. See Appendix J, page A-32.

D. Rule 57, Federal Rules of Criminal Procedure, author-

izing district courts to make rules for the conduct of criminal

proceedings. See Appendix J, page A-34.

E. Section 605 of the Communications Act of 1934, as

tions, 47 USCA § 605. See Appendix J, page A-35.

F. Title 111 of the Omnibus Crime Control and Safe Streets

Act of 1968, as amended, protecting privacy of wire and oral

—_

communications and setting forth a procedure for court super-

vised interceptions, 18 USCA § 2510-2520. See Appendix J,

page A-36.

G. United States Constitution, Amendments IV and V. See

Appendix J, page A-60.

STATEMENT

In an ex parte proceeding the United States Attorney filed

an application with the United States District Court for an order

to “install mechanical devices commonly described as a pen

register” on a telephone line of one of the petitioner's subscrib-

ers for the purpose of identifying telephone numbers dialed. The

telephone number information sought was to be used in con-

nection with the investigation of the commission of racketeering

offenses in violation of Title 18 of the United States Code. It

was agreed by the United States Attorney that the crime under

investigation was one listed in 18 USC § 2516(1) and for which

an application could have been made for a Title III order au-

thorizing the interception. However, no such application was

made.

On July 26, 1976, an order* was issued by the United States

District Court for the Eastern District of Missouri by Judge

Wangelin, authorizing the FBI to install mechanical devices on

the telephone line and to record by mechanical means the tele-

phone numbers of all outgoing calls dialed from ihe described

telephone for a period of thirty days or until the location and

identities of the persons connected with the crimes under in-

thorize the interception of voice communications, but only the

signals which disclosed the numbers of the outgoing calls. The

* Appendix I, page A-29.

A

0 ee ee eee ee

entices

court then ordered petitioner to furnish the FBI all information,

facilities and technical assistance, including leased lines, neces-

sary to accomplish the interception unobtrusively and with a

minimum of interference with petitioner's other services.’ The

order also provided that for the furnishing of such facilities or

technical assistance, petitioner was to be compensated by the

federal government at prevailing rates. See Appendix I, page

A-29. Neither the application nor the order cites any authority

for its issuance. It was not issued pursuant to the provisions

of Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, as amended (18 USC § 2518).

In brief, what is involved in complying with the court's order

is that the FBI asks the telephone company for information as

to the location of various terminals where the subscriber line

pair appears in the telephone distribution system and the cable

number, pair number and binding post number. The FBI, on

receiving this information, then selects the terminal location

at which it will place the tap and requests that a private line

be run from that point to the FBI office in which the surveillance

will be conducted. A telephone employee brings into the selected

terminal a private line pair which is tagged. An FBI agent makes

the tap by physically connecting a tapping device to the sub-

scriber’s line, which is designed to prevent feedback and line

loss, and then connects the loose ends of the private line pair to

the tapping device. The FBI then connects the dialed number

recorder (i.e. pen register) to the terminal block of the private

line terminated in its office. The dialed number recorder will

print on paper tape the date and time whenever the subscriber's

receiver is lifted off hook and whenever placed back on hook.

It will also print any dialed telephone number or Touch Tone ®

keyed number. Pursuant to a Title II] authorized interception, a

tape recorder may be plugged into the dialed number recorder

to record conversations occurring on the line. Earphones may

* Appendix H, page A-26.

antien

also be plugged into the dialed number recorder. The involve-

ment of the telephone company in the interception is the same

on orders for interception of dialed number information as it

would be under an order authorizing interception of telephone

conversations.

On July 27, 1976 the United States Attorney sought to have

petitioner cited for contempt; and the District Court issued an

order to show cause on the application for contempt.* Also on

July 27, 1976, petitioner, because it questioned the legal au-

thority of the district courts to issue such an order outside the

provisions of Title III, filed a motion® to reconsider the order

and to not authorize the FBI to make any attachments to South-

western Bell telephone lines'® and to remove the petitioner from

the provisions of the order requiring it to furnish information,

technical assistance and special lines to the FBI in order to

facilitate the wiretap. On July 30, 1976, the District Court

denied petitioner's motion and held the petitioner in contempt

for failure to comply with the Court's order of July 26, 1976.

See Appendix D and E, pages A-18 and A-19 respectively. Com-

pliance with the District Court order was stayed pending appeal

to the Eighth Circuit Court of Appeals. Notice of such appeal

was filed July 30, 1976. The appeal was argued and submitted

to the court on October 14, 1976. The Court of Appeals ren-

dered its decision on December 9, 196, affirming the order of

the District Court.'' In reaching its decision, the Court of Ap-

peals, just as did the District Court, rejected petitioner's argu-

ments that (1) the District Court had no statutory or inherent

authority to authorize attachments to and surveillance of a tele-

~ Appendix F, page A-21.

* Appendix G, page A-22.

'® Southwestern Bell has never conceded that the District Court

had authority to authorize on its facilities except pursuant

to the Act of Congress, 18 USCA §2518(4)(b), as amended.

'! Appendix A, page A-1.

=

phone line by means of a pen register outside the statutory pro-

visions of Title Il, 18 USCA § 2510-2520, and that (2) the

District Court could not properly order petitioner to provide

technical assistance and facilities to federal law enforcement

agents in placing and operating a pen register outside the pro-

visions of Title TU, 18 USCA § 2510-2520.

The Court of Appeals agreed that Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 USCA § 2510-

2520,'* prescribes the procedure for securing judicial authority

to intercept wire communications. It then cited several cases it

felt rejected the contention that pen register interceptions fall

within the purview of Title III.

The Court of Appeals then reasoned that the applicability of

Title II] to pen registers turns on the definition of “intercep-

tion” of wire communications. Under 18 USC § 2510(4) “inter-

ception” is defined as the “aural acquisition of the contents of

any wire or oral communication through the use of any elec-

tronic, mechanical, or other device.” The court concluded that

aural acquisition by definition engages the sense of hearing and

that since a pen register does not possess the sense of hearing,

it falls outside Title III prohibitions.

The court stated that the legislative history of Title III sup-

ports this conclusion and cited Mr. Justice Powell's concurring

and dissenting opinion in U.S. v. Giardano, 416 US 505, 553-

554 (1974) which interprets that legislative history.

The court subsequently held that the propriety of a pen reg-

ister’s usage depends entirely upon compliance with the Fourth

Amendment, rather than Title III. The court reasoned that the

District Court's power to order pen register surveillance is the

equivalent of the power to order a search warrant and is in-

herent in the District Court.

'2 Appendix J, page A-38.

The court then went on to consider that portion of the

order requiring petitioner to provide affirmative assistance.

The court looked to the Congressional amendments to Title

III which took cognizance of the decision of the Ninth Cir-

cuit in Application of the U.S., 427 F2d 639 (9th Cir. 1970),

holding that a District Court has no statutory or inherent au-

thority to enter such an order, even in conjunction with a

valid Title II] order. The Congressional amendments in 1970

gave the District Court such authority for Title III orders.

D.C. Court Reform Act, Title II, Section 211, July 29, 1970,

Public Law 91-358, 84 Stat. 654. The Court of Appeals for

the Eighth Circuit reasoned that the quick reaction of Con-

gress in passing these amendments after the Ninth Circuit

decision provided strong and persuasive authority for the

proposition that Congress presumed that the District Courts,

in the area of electronic surveillance, inherently have the

power to compel compliance with an order requiring affirma-

tive assistance by communication common carriers.

The court also cited the decision of the Seventh Circuit in

U.S. v. Illinois Bell Telephone Company, 531 F2d 809, 811

(7th Cir. 1976), holding that a District Court has inherent

authority to order the telephone company’s assistance.

The Eighth Circuit reasoned that the inherent power of

the District Court to order pen register surveillance would be

a nullity without the authority to compel the assistance of the

petitioner, and that such power was “in a sense” concomitant

of the power to authorize pen register surveillance. The court

concluded that to hold otherwise would allow the telephone

company rather than the District Court to decide when pen

register surveillance should be used, and that, on the record,

it could find no abuse of discretion by the District Court in

ordering petitioner's assistance.

>-- —--~— —_o_+$ -

‘

REASONS FOR GRANTING THE WRIT

The Supreme Court should grant petitioner's request for writ

of certiorari for the reason the court has granted the United

States Government's petition for writ of certiorari in a similar

case on January 25, 1977, styled United States v. New York

Telephone Company, No. 76-835, to review the decision of

the Court of Appeals for the Second Circuit, reported at 538

F2d 956.

The question presented in that case, as stated at 45 LW

3499, is:

“May the U.S. district court, as part of admittedly valid

order authorizing use of pen register to investigate gam-

bling offense being committed by means of telephone,

properly direct telephone company to provide federal

law enforcement agents with facilities and technical as-

sistance necessary for implementation of court's order,

in absence of legislation expressly authorizing such or-

der?”

Petitioner in this case has never conceded the issue of

whether the district court has the power to authorize FBI

agents to trespass on its lines to tap the telephone of one of

its subscribers. On the contrary, petitioner has steadfastly

asserted that such an order, in the absence of statute and

Congressionally mandated standards, violates the right of pri-

vacy of petitioner's subscribers under the Fourth Amendment

and petitioner's property rights under the Fifth Amendment.

A total and final resolution of the legal issues suggested by

the Second Circuit case cannot be resolved unless the facts

and issues of this case in the Eighth Circuit are also con-

sidered.'*

'' Petitioner intends to move to consolidate the two cases.

ee

The United States district courts, in authorizing wire taps for

dialed telephone number interception, outside the purview of

Title II] of the Omnibus Crime Control and Safe Streets Act of

1968, raise substantial unresolved questions, both as to the

of the United States Government, and as to the proper deference

which district courts should observe respecting authority of the

Supreme Court under 18 USC § 3771.

Traditionally, district courts have been created and their

rules of criminal procedure have been determined by Congress.

In the Act of June 29, 1940, as amended and revised, 18 USC

§ 3771, Congress delegated to the Supreme Court authority to

initiate rules of criminal procedure, which Congress then ap-

proves either tacitedly by inaction or actually by statute. The

Federal Rules of Criminal Procedure Amendments Act of 1975,

P.O. 94-64, § 1, July 31, 1975, 89 Stat. 370, is indicative of the

fact that Congress jealously guards and exercises the rights it has

reserved to itself.

The ad hoc order of the district court, in permitting search

for and seizure of intangible intelligence of acts to be committed

by persons in the future (i.e. time of dialing, the number dialed

and time duration of the call), certainly cannot be considered

as being anticipated by Rule 41, relating to search and seizure

of tangible property. Supreme Court guidance is needed to decide

when rules promulgated by district courts, such as the electronic

search warrant involved here, are so new and innovative as to

constitute a substantive change in the rules of criminal procedure

and are violative of the requirements of 18 USC § 3771.

-—-+

The legal rationale of the Courts of Appeals in affirming dis-

trict court non Title III pen register orders is hopelessly confused

and a decision of the Supreme Court is needed to clarify the

legal basis for such orders, if further and protracted litigation

over these issues is to be avoided.

In Application of United States, 427 F2d 639 (9th Cir. 1970)

the government sought an order to intercept and record tele-

phone conversations pursuant to the provisions of 18 USC §

2510-2520. The government also asked the district court to

order The Central Telephone Company of Nevada to provide

assistance and facilities to effectuate the wiretap. The district

court denied the request for a directive against the company

and the government appealed. On appeal the government con-

ceded that 18 USC § 2510-2520 as passed by Congress did not

contain any express provision conferring on the courts the power

to compel telephone company assistance, but argued that the

power was implied or could be inferred from other laws. The

Court of Appeals rejected this contention and said:

“In view of the breadth and apparent self-sufficiency of this

genera! statute, and the total absence of any provision even

hinting that the court is to have authority to enter such a

unique order as the Government here seeks, we think the

existence of such authority is not lightly to be implied

from the Act. Nor do we find any provision in the Act,

or in the history of its enactment, which points in the di-

rection of implied authority. Quite to the contrary, consider-

ation of the constitutional signficance of the legislation, the

relevant provisions of the Act, and the legislative history

tend in the opposite direction.

. . * . . . .

Nor, insofar as the record before us would indicate, is the

implication of such a power necessary in order to give the

= =

Act any room for operation. It may or may not be true

that, in this particular case, it is an absolute impossibility

for the Federal Bureau of Investigation to effectuate the

desired interception for which approval was sought, with-

out the active assistance of the company. But it is com-

mon knowledge that there can be, and frequently has been,

wiretapping of telephone lines without the assistance or even

the knowledge of the telephone company. For all that

the Act and its legislative history disclose, Congress meant

to limit approved interceptions to those which could be

accomplished without the active assistance of the carrier,

or at least to those in which that assistance would be forth-

coming on a voluntary basis.” Id. at 643-644

After this decision, Congress amended the statute to give the

courts power to compel telephone assistance in Title III cases.

D.C. Court Reform Act, P.L. 91-358, Title II, § 211, July 29,

1970, 84 Stat. 654.

The first non Title III case to reach the Courts of Appeals

was In re Joyce, 506 F2d 373 (Sth Cir., Jan. 9, 1975). This

case resulted from the appeal of a criminal contempt citation

against a security officer of Mountain States Telephone and Tele-

graph Company for refusing to comply with an order, issued by

a federal Magistrate and approved by the United States District

Court for the Western District of Texas, to participate with

federal customs agents in the installation of an electronic sur-

veillance device known as a “pen register”, (also known as a

dialed number recorder ).

The security officer had refused to assist the federal agents

authority of 18 USC § 2510-2520. The fifth Circuit held that the

evidence was insufficient for the district court to find that the

security officer had willfully refused to obey the court's order.

Consequently, the Court of Appeals reversed the contempt judg-

— =

ment and expressly refused to consider the substantive law issues

in the case. The court said:

“In addition, our disposition renders it unnecessary to con-

sider the other issues briefed by the parties; (1) whether a

‘pen register’ order unaccompanied by a wiretap application

is within or without Title Il; (2) whether compliance with

the order in this case might have subjected Mountain Bell

and/or appellant to civil or criminal liability; (3) whether

a federal court has the authority to order a wire carrier or

its employees to participate with law enforcement officials

in the installation of a ‘pen register’ pursuant to the court's

power to issue search warrants; .. .” /d. at 379.

The government did not appeal.

The Fifth Circuit, in the case of Southern Bell Telephone and

Telegraph Company v. U.S., 541 F2d 1151 (Sth Cir., Nov. 5,

1976) in which the pen register issue became moot, did note

the importance of answering these questions. Id. at 1156. In

that case the pen register order to seize intangible intelligence

had been issued pursuant to Rule 41, Federal Rules of Criminal

Procedure, which, as noted, is by its terms limited to search and

seizure of the tangible property. Southern Bell contested both

the jurisdiction of the district court to authorize use of a pen

register on telephone lines and the order requiring its assistance.

The court noted:

“As the use of the pen register as a surveillance tool has

grown, and as courts in different jurisdictions have re-

sponded with differing voices to the legal issues posed by

its use, we have become increasingly aware that we—and

the District Court in acting on stays pending review-must

still the clamor in the Fifth Circuit by taking the steps

necessary in the future to make sure that the controversy

reaches us while it is still alive. Thus, in any future case

raising these issues, absent a substantial representation by

—

the Government that delay would frustrate the Govern-

ment’s legitimate investigative efforts, the District Court

should seriously consider a stay to permit review on an

emergency basis by this Court. At the same time, we are

acutely aware of our own responsibilities to expedite the

appeal of any future case raising these issues while a stay

order is in effect.” Id. at 1155.

In Application of U.S., 407 F. Supp. 398 (W. D. Mo., Jan.

19, 1976) District Judge Oliver refused to grant the United

States Attorney's application for a pen register order outside

the scope of Title III, 18 USC §2510-2520. In that case the

government conceded that its first application, founded on Rule

41, Federal Rules of Criminal Procedure, was improper. Its sec-

ond application was supported by the assertion that the All

Writs Act, 28 USC §1651(a), gave the court authority to issue

the newly devised warrant. The court said:

“Nor does the All Writs Act vest this Court with any inde-

pendant jurisdictional power to design ad hoc procedures

to authorize the use of a pen register device in connection

with investigation of alleged offenses outside of the scope

of Title III.” Id. at 405.

The court declared that it must be assumed that Congress knew

Section 605 of the Communications Act of 1934 forbade the

use of pen register devices by police agencies and that unless

Congress took affirmative action to remove the prohibition, the

ban would continue. The court concluded that enactment of

Title III did not remove the ban, but rather the procedures of

Title II controlled the use of all devices used for electronic

surveillance, including pen registers. The court also followed the

holding in the Ninth Circuit, that absent a statute, the court had

no authority to direct a telephone company to assist the FBI in

carrying out the electronic surveillance.

The government did not appeal.

—_—

The next decided case was U.S. v. /isois Bell Telephone

Company, 531 F2d 809 (7th Cir., Feb. 23, 1976). Appar-

ently Illinois Bell did not contest the issue of whether govern-

ment law enforcement agents could lawfully tap subscriber lines

to obtain dialed number information. The legality of that order

was presumed. It did contest the issue of whether the court

could compel it to assist the agents in doing so. The Fifth Cir-

cuit concluded, without citation, that:

R. governs

of ‘tangible’ objects nor from Title III of the Omni-

bus Crime Control and Safe Streets Act, 18 USC §§2510-2520,

The Court of Appeals decided that Title II], 18 USC § 2510-

2520, did not prohibit use of pen register interceptions and

consequently, the district court was at liberty to do whatever

it concluded appropriate so long as it designed a procedure

compatible with Fourth Amendment considerations. It approved

the district court's “common sense” approach in reasonably

allowing use of investigative techniques rendered possible by

modern technology for discovery and seizure of “intangibles.”

On the issue of ordering telephone company assistance, the

Seventh Circuit said that Congress’ reaction to the Ninth Cir-

cuit decision, by granting authority to compel assistance, was

so prompt that it could only be concluded that Congress pre-

sumed the courts already had authority to compel telephone

company assistance under Title Ill orders. See D.C. Court

Reform Act, P.L. 91-358, Title Il, § 211, July 29, 1970, 84

Stat. 654. The court does not state what prior law or judicial

precedent upon which Congress might reasonably have based its

presumption. The court did state that:

“We believe that Congress’ amendments to Title III in this

regard provide strong and persuasive authority, by analogy,

for the proposition that district courts in the area of elec-

tronic surveillance, inherently have power to effectively

compel 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 au-

thority to compel the cooperation of the telephone com-

pany ts in a sense concomitant of the power to authorize the

installation of a pen register, for without the former the

latter would be worthless.”

“{7, 8) It is conceded that the district court had authority

to enter an order authorizing government law enforcement

agents to employ a pen register. Therefore, analogous au-

not frustrate the exercise of the district court's order by

refusing to make available its facilities and know-how, is

the All Writs Act.” /d. at 814.

Encouraged by the Seventh Circuit opinion, the Department

of Justice filed a pen register application in New York for its

organized crime strike force. Again the telephone company

did not seek to protect the privacy of its subscribers or its own

property from the intrusion. In the lower court it objected only

to so much of the order as dirceted it to provide assistance. The

district court, in Application of U.S., 416 F. Supp. 800 (S.D.

N.Y., April 2, 1976) found that Congress specifically intended

to exclude pen registers from the application of Title III pro-

cedures. The court then stated:

“Refusal of Telephone to assist in furnishing technical as-

sistance and facilities would frustrate the operation of the

—=— =

court's order, properly granted upon a showing of probable

cause.” /d. at 803.

The district court adopted the assertedly “sound reasoning of

the Seventh Circuit” in the /ilinois Bell case, supra, that the

order was a common sense application of the court's inherent

note & colle found juriedictice fer ite disective to

the telephone company under the All Writs Act.

As the Supreme Court is aware, the Second Circuit affirmed

on appeal that part of the order authorizing use of a pen reg-

ister and reversed that part ordering telephone company assist-

ance. In the case Application of U.S., 538 F2d 956 (2nd Cir.

July 13, 1976), the Court of Appeals concluded that while the

district court had the power to issue the order, it constituted

an abuse of discretion for the court to order telephone company

assistance. /d. at 962. It agreed with the Ninth Circuit in

Application of U.S., 427 F2d 639, 644 (9th Cir. 1970) that

the government should address its plea to Congress. The court

stated |

“Perhaps the most important factor weighing against the

propriety of the order is that without Congressional au-

thority, such an order could establish a most undesirable,

if not dangerous and unwise, precedent for the authority

of federal courts to impress unwilling aid on private third

parties. We were told by counsel for the Telephone Com-

pany 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 ts

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.” Id. at 962.

On the issue of whether the district court had authority to

authorize the wiretap in the first instance, the Second Circuit

determined that neither Title II], 18 USC § 2510-2520 nor

Section 605 of the Communications Act precluded use of pen

registers. The telephone company had argued in the Court of

Appeals that the district court had no authority to issue the

order authorizing the installation and use of a pen register.

The government argued that the court had inherent power under

Rule 41, Federal Rules of Criminal Procedure—The court

ruled.

“In our view, the power to order pen register surveillance,

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 issued by Judge Tenney upon a showing of prob-

able cause, we conclude that it was properly granted.” /d.

at 960.

The government appealed this case and its petition for writ

was granted on January 25, 1977 and assigned docket No.

76-835.

In the instant case, the district court, in its memorandum

opinion, Application of U.S., No. 76 Misc. 58 (E.D. Mo., July

30, 1976), see Appendix E, page A-19, declared that it had in-

herent authority and power under the All Writs Act, 28 USC

§ 1651(a), to compel the cooperation and assistance of South-

western Bell in implementing the use of a pen register, citing

the Seventh Circuit decision, U.S. v. Iilinois Bell, supra. The

court also declared that pen register orders involve a search and

seizure under the Fourth Amendment and, consequently, the

court may issue such an order upon a showing of probable

cause.

On appeal to the Eighth Circuit, the Court of Appeals in

Application of U.S., No. 76-1725 (8th Cir. Dec. 9, 1976), see

= =

Appendix A, rejected petitioner's argument that Title III proce-

dures must be followed for wiretaps involving dialed number

interceptions. The court stated at page 5 of the slip opinion:

“The court's power to order pen register surveillance is the

equivalent of the power to order a search warrant and is

inherent in the district court.°

n.° The unusual character and technological advances of

electronic communications have occasioned the surfacing of this

inherent authority. Fed. R. Crim. P. 41 governs the

search and seizure of objects, it is, by analogy, sup-

portive of our conclusion.”

On the basis of a finding in the district court that the FBI

could not carry out the court's order, the Court of Appeals

concluded at page 7 of the slip opinion:

“In view of this finding, the inherent power of the district

court to order pen register surveillance would be a nullity

without the authority to compel the assistance of the tele-

phone company. It is in a sense concomitant of the power

to authorize pen register surveillance. United States v.

Illinois Telephone Co., supra, 531 F2d at 814. Therefore,

we hold as did the Seventh Circuit, that the district court

had inherent authority to order the telephone company’s

assistance.”

The Court of Appeals expressly found that the district court's

order directing telephone company assistance was not an abuse

of discretion. Consequently, the decision is in conflict with both

the Second and Ninth Circuit opinions.

The Eighth Circuit has found that the district court has

inherent authority to order pen register surveillance and, so

that this inherent power might not be frustrated, it has found

the disirict court has the further inherent authority to order

the telephone company’s assistance. No precedent is cited,

even for the proposition that the district court has inherent

power, absent Rule 41, to issue search warrants. It is pointed

= =

out in the dissenting opinion of Judge Lay that even if Rule

41 is used by analogy the district court order omits to pro-

vide the Fourth Amendment safeguards of service of the war-

rant by a federal officer and notice to the party concerned.

Judge Lay also concluded that Title III is the exclusive pro-

cedure set down by Congress for conducting electronic sur-

veillance and, therefore, pen register orders must be governed

by the safeguards prescribed by Title III. Judge Lay said at

page 16 of the slip opinion:

“The majority's rationale is surely dangerous precedent.

Judicial authority to compel a private party to assist the

government in the invidious act of electronic surveillance

should be based on defined authority. Wire interception

of any communication constitutes a direct invasion of

privacy. Congress initially outlawed all wire intercep-

tions. Act of June 19, 1934, c. 652, Title VI, §605, 48

Stat. 1103 (Federal Communications Act) (amended

1968). Subsequently Congress carefully studied limited

circumstances where wire interceptions could be utilized,

subject to constitutional safeguards. The result of that

study was the passage of Title II]. Under that Act, Con-

gress authorized wire interceptions for the investigation

of specific crimes, as long as the safeguards of minimiza-

tion and supervision by the court were evinced. It is

troublesome to me that we now not only authorize gov-

ernment agents, but compel a resisting private corporate

enterprise, to conduct pen register surveillance without

court supervision. It is conceded by the parties that such

surveillance can be abused and that private conversations

on touch-tone telephone (as involved here) can be inter-

cepted. Cf. United States v. Harvey, supra.

To me it is wrong that the judicial branch of government

can thwart congressional intent and purpose by conjur-

ing up some convenient, mystical authority through the

pseudonym of ‘inherent power.’ ”

=

IV

The Court of Appeals in approving pen register intercep-

tions outside of Title II] procedures have relied in part on

the statement of Justice Powell in his concurring and dissent-

ing opinion in U.S. v. Giordano, 416 US 505, 553 (1974),

that pen register monitoring and recording of telephone num-

bers is not governed by Title III. The rationale for the state-

ment is his conclusion that pen registers do not “hear” sound

and Title III only prohibits aural acquisition of the contents

of wire communications. Included in his opinion is a descrip-

tion of a pen register which is factually inaccurate with regard

to currently used pen registers. See note | at 416 US 549.

The dialed number recorders currently in use do stamp the

date and time incoming calls are completed and record the

date and time outgoing calls are initiated and terminated.

Moreover, they also “hear” the Touch Tone @ sounds and

record the numbers they represent. A VU meter (volume unit)

will also indicate conversation in progress.'*

There has been some indication that pen register intercep-

tions constitute a lesser privacy invasion than recorded voice

interceptions. For innocent citizens this may not be the case.

A lawful call from a suspect's wife to a school teacher will

be recognized as innocent and disregarded where the conver-

sation is monitored. In pen register situations, the call places

the school teacher on a list of suspects. His or her innocence

will now have to be determined by actual surveillance and

police interviews with the teacher's neighbors, fellow workers,

and supervisors. The extent to which pen register intercep-

tions constitute impermissible invasions of privacy is an issue

that this court should consider based on the actual capabilities

of those pen registers and dialed number recorders currently

used by the Department of Justice.

'4 The Bushneil pen register, K, A-61, is described

in footnote 1, U.S. v. Focarile, MOE Supp. i633, 1038 (Md. 1972).

A transitional tone decoder, with dial add on, is described in the

1039. Petitioner's case involves the use

same case at page

of dhe tahhoten dlehed sauder secender. Seo Appendia K, page A-61.

= =

Vv

After years of study, hearings and debate, Congress passed

a comprehensive statute, 18 USCA §2510-2520, authorizing

under strict regulation the electronic seizure of intelligence

transmitted between two citizens. The Fourth Amendment

protections are elaborate, allowing for this type of intrusion

only after all other investigative techniques have been ex-

hausted, limiting the intrusion to only certain specified crimes

and then only in those cases of such serious importance to the

public as to warrant the personal attention of the Attorney

General of the United States or his specially designated As-

sistant Attorney General.

The statute also provides, 18 USCA §2518(8)(d), for no-

tice, within ninety days after the application to the citizen

whose privacy was invaded, of the fact that an order of inter-

ception was entered and the right to inspection of the intelli-

gence seized. The district court's order in this case provided

only that the intrusion be limited to thirty days and did not

provide for other Fourth Amendment protections correspond-

ing to or analogous to that provided by Congress in 18 USC

$2510-2520 or to that provided by the Supreme Court in

Rule 41, Civil Rules of Criminal Procedure.

Section 2519 of Title 18, United States Code, provides for

extensive reporting to Congress of all electronic surveillance

orders under Title II]. The order of the district court outside

of Title III, circumvents the review and control procedures

set up by Congress to oversee government use of electronic

surveillance devices.

The case presents to the court the question of whether or

not the procedures set forth in 18 USC §2510-2520 are not

the exclusive procedures to be followed in authorizing elec-

tronic surveillance, and, if not, whether the district court

abused its discretion in fashioning an order that did not pro-

am 23 a=

vide for Fourth and Fifth Amendment protections for peti-

tioner and its telephone subscribers, corresponding to those

Congress required in 18 USC §2510-2520.

CONCLUSION

Petitioner, as a telephone company, has a special responsi-

bility to foster and safeguard the privacy of communications.

Persons have an inherent right to feel that they can use the

telephone with the same degree of privacy they have when

talking face to face. Any undermining of this confidence

would seriously impair the usefulness and value of telephone

communications. Given the extent to which social and busi-

ness intercourse is today conducted by telephone, any undue

disclosure of the use of the telephone is inconsistent with the

rights of a free society. The minimum safeguards necessary to

be observed for dialed number interceptions should be set

forth either by Congressional statute or by Supreme Court

rule, in a fashion similar to the standards provided in Rule

41, Federal Rules of Criminal Procedure, and 18 USC §2510-

2520. Petitioner does not desire to participate in criminal in-

vestigative procedures that have not been expressly authorized

by Congress or promulgated by the Supreme Court of the

United States. Accordingly, petitioner respectfully requests

favorable consideration of its Petition for Writ of Certiorari.

Respectfully submitted,

WAYNE E. BABLER

LEO E. EICKHOFF, JR.

1010 Pine Street

St. Louis, Missouri 63101

Telephone: 314-247-4492

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix |

Appendix J

Appendix K

APPENDIX

Decision of U.S. Court of Appeals, 8th Circuit

Order Denying Petition for Rehearing

Order Granting Stay

Order of District Court

Memorandum of District Court

Order to Show Cause

Motion to Reconsider and Withdraw Order

Application for Order to Show Cause

Order Authorizing Installation and Use of Pen

Register

Constitution, Statutes and Rules Involved

Pen Registers

—_

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 76-1725

Application of the United States for )

an Order Authorizing Installation

and Use of a Pen Register Appeal from the

United States of America, United States Dis-

Appellee, | trict Court for the

v. Eastern District of

Missouri.

Southwestern Bell Telephone Com-

pany, a Missouri Corporation,

Appellant.

Submitted: October 14, 1976

Filed: December 9, 1976

Before Lay, Ross and Stephenson, Cir-vit Judges.

Stephenson, Circuit Judge.

This case involves the government's application for an order

authorizing the installation and use of a pen register’ and di-

ow Shas

recting the Southwestern Bell Telephone Company to provide

facilities, information and technical assistance to special agents

of the Federal Bureau of Investigation in the installation and

use of the device. Southwestern Bell contends in this appeal

that the district court* erred in authorizing the use of the pen

register and in ordering appellant to provide technical assistance

to the government. We affirm the order of the district court.

In an in camera ex parte proceeding on July 26, 1976, the

United States Attorney sought and received the permission of

the district court to install and monitor a pen register device to

identify the outgoing telephone numbers dialed from a particular

telephone. An affidavit signed by a Federal Bureau of Investiga-

tion agent set forth facts which disclosed probable cause to be-

lieve the telephone in question was being used to further the

commission of a racketeering offense prohibited by Title 18,

United States Code. Although the offense is one for which

governmental electronic surveillance is permitted by the pro-

visions of Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§ 2510-2520, the United States

Attorney did not make the application thereunder. The order

issued by the district court affirmatively required Southwestern

Bell Telephone Company to “furnish the applicant forthwith all

facilities including lease lines, information, including the iden-

tification of leased line pairs, subscriber pairs and the location

of a suitable junction box where a connection can occur, and

technical assistance necessary to accomplish the interception

unobtrusively and with a minimum of interference with the

services that such carrier is providing.”*

On July 27, 1976, the appellant moved the district court

to reconsider its order and to remove the appellant from the

2 The Honorable H. Kenneth Wangelin, United States District

Judge for the Eastern District of

* The order also provided that the furnishing of such facilities or

technical assistance was to be compensated for by the applicant at

the prevailing rates.

oifiaes

provisions of the order. On July 30, 1976, the district court

denied appellant's motion and held appellant in contempt for

failure to comply with the order of July 26, 1976. No citation

was issued and compliance with the order was stayed pending

appeal to this court.‘ We will consider separately the two

substantial questions raised on this appeal: first, whether the

district court erred in holding that pen register orders are not

covered by Title III of the Omnibus Crime Control and Safe

Streets Act of 1968; and second, whether it erred in ordering

the appellant to provide technical assistance to the government.

Title Il] of the Omnibus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. §§ 2510-2520, prescribes the procedure 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). Appellant contends

that pen register devices fall within the purview of Title III. The

greater weight of authority, however, is contrary to that posi-

tion. United States v. Giordano, supra, 416 U.S. at 553-54

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

States v. lilinois Bell Telephone Co., 531 F.2d 809, 812 (7th

Cir. 1976); United States v. Clegg, 509 F.2d 605, 610 (Sth

Cir. 1975); United States v. Falcone, SOS F.2d 478, 482 (3d

Cir. 1974), cert. denied, 420 U.S. 955 (1975); United States

v. Brick, 502 F.2d 219, 223 (8th Cir. 1974); United States v.

Finn, 502 F.2d 938, 942 (7th Cir. 1974); Korman v. United

States, 486 F.2d 926, 931 (7th Cir. 1973).

—_ye

Title IT's applicability to a pen register device turns on the

definition of an “interception” of wire communications. “Inter-

ception” as defined by 18 U.S.C. § 2510(4) is “the aural ac-

quisition of the contents of any wire or oral communication

through the use of any electronic, mechanical, or other device”

(emphasis added). An “aural acquisition” by definition en-

gages the sense of hearing. United States v. Falcone, supra, 505

F.2d at 482. The pen register device does not possess this

sense. It acquires its information (the recording of numbers

dialed at a telephone) by interpreting and printing out eleciric

pulses. The conclusion is therefore inescapable that a pen

register device falls outside the ambit of Title III. This con-

clusion is bolstered by the legislative history of the Act. As

Mr. Justice Powell stated in a concurring and dissenting opinion,

joined by Chief Justice Burger, Mr. Justice Blackmun, and Mr.

Justice Rehnquist, in United States v. Giordano, supra, 416

U.S. at 553:

The installation of a pen register device to monitor and

record the numbers dialed from a particular telephone line

is not governed by Title III. This was the conclusion of

the District Court in the instant case and of the courts in

United States v. King, 335 F. Supp. 523, 548-549 (SD

Cal. 1971), and in United States v. Vega, $2 F. R. D. 503,

507 (EDNY 1971). This conclusion rests on the fact

that the device does not hear sound and therefore does not

accomplish any “interception” of wire communications as

that term is defined by 18 U.S.C. § 2510(4)—“the aural

acquisition of the contents of any wire or oral communica-

tion through the use of any electronic, mechanical, or other

device” (emphasis added). Any doubt of the correctness of

this interpretation is allayed by reference to the legislative

history of Title II]. The Report of the Senate Committee

on the Judiciary in discussing the scope of the statute ex-

plicitly states “[t}he use of a ‘pen register, for example,

rr

—_Y

would be permissible.” S.Rep.No. 1097, 90th Cong., 2d

Sess., 90 (1968).

It is our view that the properiety of a pen register's usage de-

pends entirely upon compliance with the Fourth Amendment

rather than Title II]. United States v. Giordano, supra, 416 U.S.

at 553-54 (Powell, J., concurring in part and dissenting in part).

United States v. John, 508 F.2d 1134, 1141 (8th Cir.), cert

denied, 421 U.S. 962 (1975). The court's power to order pen

register surveillance is the equivalent of the power to order a

search warrant and is inherent in the district court.” It is clear

of a Pen Register, $38 F.2d 956 (2d Cir. 1976); United States

v. Illinois Bell Telephone Co., supra, 531 F.2d at 812-13.

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plication of the United States, 427 F.2d 639 (9th Cir. 1970),

and the Congressional action which followed. In that case the

government had obtained a valid wiretap order pursuant to Title

III and the question arose whether the district court had inherent

authority to compel the cooperation of the telephone company.

The Ninth Circuit concluded that the district court had no

statutory or inherent authority to enter such an order. Applica-

tion of United States, supra, 427 F.2d at 644. Soon after this

decision Congress adopted amendments to Title II] which avu-

thorized the district court to direct that a communication com-

mon carrier furnish all information, facilities, and technical

assistance necessary. 18 U.S.C. § 2518(4). Appellant argues

that the Congressional reaction to the Ninth Circuit decision

was in the nature of an acceptance of the views expressed therein.

The clear Congressional intent, according to appellant, was to

authorize active participation on the part of the telephone com-

pany only in connection with orders issued under Title III.

An equaily persuasive argument can be made, however, that

the Congressional reaction was more in the nature of an over-

ruling of-the Ninth Circuit opinion. Congress may have orig-

inally presumed that power existed in the courts to compel com-

States v. Illinois Bell Telephone Co., supra, 531 F.2d at 813-14.

When faced with the Ninth Circuit decision, Congress reacted

by legislating in an area where they had presumed the court's

inherent power was sufficient. In this light Congress’ amend-

ments to Title III provide “strong and persuasive authority, by

analogy, for the propostion that district courts in the area of

electronic surveillance, inherently have power to effectively com-

pel compliance with validly issued orders.” United States v.

Illinois Bell Telephone Co., supra, 531 F.2d at 814.

More important than the interpretation of Congressional

action, however, ts the district court's finding in its memorandum

of July 30, 1976. There it was stated “(t)}hat without the in-

—_Y

formation, leased lines and assistance [of Southwestern Bell

Telephone Company] the Federal Bureau of Investigation can-

not carry out the Order of this Court.” In view of this finding,

the inherent power of the district court to order pen register

surveillance would be a nullity without the authority to compel

the assistance of the telephone company. It is in a sense con-

comitant of the power to authorize pen register surveillance.

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

814. Therefore, we hold as did the Seventh Circuit, that the

district court had inherent authority to order the telephone

company’s assistance.’ United States v. Illinois Bell Telephone

Co., supra, 531 F.2d at 811. To hold otherwise would ef-

On the record before us we find no abuse of discretion by the

district court in directing that the telephone company render

‘ An argument can be made that the All Writs Act gives the dis-

trict court the power to compel the telephone company’s assistance.

As stated by the Seventh Circuit:

| +

‘i

:

:

anfiGias

assistance. See Application of the United States in re Order

Authorizing the Use of a Pen Register, supra, 538 F.2d at 964-

66 (Mansfield, J., dissenting).

Affirmed.

Lay, Circuit Judge, Dissenting.

I respectfully dissent.

In Application of the United States, 427 F.2d 639 (9th Cir.

1970), the government appealed from the United States Dis-

trict Court for the District of Nevada's refusal to require the

telephone company to assist the F.B.I. in an investigation pur-

suant to a valid Title II] wire interception. The government

argued that the posse comitatus rule authorized the court to

order telephone company assistance. The Ninth Circuit ruled:

We are not convinced that the authority which the Gov-

ernment would have the court exercise, to compel a tele-

phone company to assist in the investigation of suspected

law violators can be derived, by analogy, from the power

law enforcement officers may have to assemble a posse

comitatus to keep the peace and to pursue and arrest law

violators. Nor do we find, outside Title Il, any district

court authority, statutory or inherent, for entry of such an

order. We think the district court correctly decided that it

was without power to grant the relief requested. If the

Government must have the right to compel regulated com-

munications carriers or others to provide such assistance,

it should address its plea to Congress.

427 F.2d at 644 (emphasis added).

Thereafter the government applied to Congress for express

Statutory authority to require the needed assistance and Congress

_—_Y

amended Title III to provide for such assistance. See 18 U.S.C.

§§ 2511(2)(a) (ii), 2518 and 2520."

It is inconceivable to me that although congressional action

was necessary to supply the requisite court authority to compel

telephone company assistance for wire interceptions under Title

III, this court can find some inherent power to require such as-

sistance when an application is made for use of a pen register

outside of the safeguards of Title II]. This makes little sense.

The majority opinion adopts the reasoning used by the

Seventh Circuit in United States v. Illinois Bell Telephone Co.,

531 F.2d 809 (7th Cir. 1976). They urge that congressional

reaction to the Ninth Circuit decision can be explained by stating

that Congress was legislating in an area where it had presumed

the court's inherent power was sufficient. The majority reasons,

1 18 U.S.C. § 2511(2)(a)(ii) reads:

It shall not be unlawful under this chapter for an officer, em-

ployee, or agent of any communication common carrier to pro-

vide information, faci , or technical assistance to an investi-

e or law enforcement officer who, pursuant to this chapter

18 USCS §§ 2510-2520}, is authorized to intercept a wire or

oral communication.

18 U.S.C. § 2518 provides, in pertinent part:

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

munication shall, upon request of the , direct that a

communication common carrier, , custodian or other

shall furnish the applicant forthwith all information, fa-

cilities, and technical assistance to accomplish the

interception unobtrusively and with a ao = Bl of interference

with the services that such carrier, landlord, custodian, or per-

son is according the person whose communications are to be

intercepted. Any communication common carrier, landlord,

custodian or other person furnishing such facilities or technical

assistance shall be compensated therefor by the applicant at the

prevailing rates.

18 U.S.C. § 2520 states, in pertinent part:

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

tion shall constitute a complete defense to any civil or criminal

action brought under this chapter [18 USCS §§ 2510-2520) or

wader any other law.

— A-10 —

on this theory, that Congress’ amendments to Title III “provide

strong and persuasive authority, by analogy, for the proposition

that district courts in the area of electronic surveillance, in-

herently have power to effectively compel compliance with va-

lidly issued orders.” See also United States v. Illinois Bell Tele-

phone Co., supra, 531 F.2d at 814.

With all due respect to my learned brothers on the Seventh

Circuit, this reasoning is difficult to follow. It provides an

innovative explanation, but certainly a strange and new prin-

ciple in the area of statutory construction. I always thought it

was a fundamental rule of statutory construction that Congress

does not legislate needlessly. See Uptagrafft v. United States,

315 F.2d 200, 204 (4th Cir. 1963); Mogis v. Lyman-Richey

Sand & Gravel Corp., 189 F.2d 130, 141 (8th Cir. 1951); and

Continental Ill. Nat'l Bank & Trust Co. v. United States, 403

F.2d 721, 724 (CuCl. 1968), cert. denied, 394 US. 973

(1969).

Contrary to the Ninth Circuit's holding, the majority opinion

does find “inherent authority” to compel the telephone com-

pany’s assistance in the area of electronic surveillance. The

under the All Writs Act, 28 U.S.C. § 1651,* as it only men-

tions, in a footnote, “[aJn argument can be made that the All

Writs Act gives the district court the power to compel the tele-

phone company’s assistance.” (Emphasis added). I sense a

reluctance by the majority to fully adopt the Seventh Circuit's

reasoning and hold that inherent power to require the telephone

company to assist the government is found in the All Writs Act.

* 28 U.S.C. § 1651 provides:

{2) The Supreme Court and all courts established by Act of

ongress May issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and

principles of law.

(b) An alternative writ or rule nisi be issued by a justice

or judge of court which hes jurisdiction’ ”

— A-1l —

It is axiomatic that the All Writs Act does not provide an in-

dependent federal jurisdictional base but can only be used in

aid of the court's jurisdiction.*

a a ——

some “inherent authority” in the district court “equivalent of the

power to order a search warrant” under Fed. R. Crim. P. 41,

to allow government installation of pen registers. Precedent for

this reasoning is found in Application of the United States, 538

F.2d 956, 959 (2d Cir. 1976),* and United States v. Illinois

Bell Telephone Co., supra, 531 F.2d at 812-13. These cases

recognize that Fed. R. Crim. P. 41, the recognized rule govern-

Familiar principles state in cases such as Brittingham v. U. S.

Commissioner of Int. Rev. (5 Cir. 1971), 451 F.2d 315, 317

need only to be stated in order to demonstrate that the govern-

anne 25 Wie ss Cuteniien & aaeenee. Lept Fh

cases to support its statement of the following applicable general

—_V

warrant by a federal officer; and (3) it provides the safeguard

of notice to the party concerned.’ It is reasoned, however, that

courts should be “practical” and recognize that Rule 41 may be

disregarded as long as probable cause for the search exists. Cf.

United States v. Agrusa, No. 76-1036 (8th Cir., filed July 6,

1976). The argument is, of course, that notice is not necessary

where it would defeat the purposc of the search. See Katz v.

United States, 389 US. 347 (1967); and Ker v. California,

374 US. 23 (1963).

All of this may be true, but Congress was cognizant of these

facts when it passed Title III governing the circumstances when

wire interception would be allowed. Under Title III, although

notice, of course, is not required, additional safeguards are

found in the strict rules of minimization and reporting of in-

ventory within a fixed point of time. See 18 U.S.C. §§ 2518 and

2519.

Assuming, arguendo, that pen registers do not fall within the

literal definition of interceptions* under Title III,’ still, the only

reasonabie inference, based on the cumulative history of wire-

tap legislation,” is that the only wire interceptions to be author-

° It ts interesting to note that the government conceded before the

district court in Application of the United States, supra, 407 F. Supp.

at 402, that Fed. R. Crim. P. 41 was not applicable to a request for

the installation of a pen register to investigate a crime not l

in Title 111. The government also conceded they knew of no other

— Lee Sule ciew Go cous co lame © gen cugiter ext

* 18 U.S.C. § 2510(4) defines “intercept” as:

; This view is tenuous. See The Honorable John W. Oliver's dis-

cussion in Application of the United States, supra, 407 F. Supp at

~ Judge Oliver set forth this history:

to recognize that Congress does not legislate in a vacuum; Con-

— A-13 —

ized are those subject to the safeguards of Title II]. The Su-

preme Court decision in Gelbard v. United States, 408 US. 41

(1972), supports this view. Mr. Justice Brennan succinctly

observed:

In Title Ill, Congress enacted a comprehensive scheme

for the regulation of wiretapping and electronic surveil-

lance. See United States v. United States District Court,

407 U.S. 297, 301-306. Title III authorizes the intercep-

proval that may not be given except upon compliance with

stringent conditions. 18 U.S.C. §§ 2516, 2518(1)-(8).

If a wire or oral communication is intercepted in accord-

ance with the provisions of Title Ill, the contents of the

communication may be disclosed and used under certain

circumstances. 18 US.C. § 2517. Except as expressly

authorized in Title Ill, however, all interceptions of wire

gressional iegislation must be viewed in light of earlier legisia-

tion enacted im connection with the same subject matter and

tecisi hich | 7 ‘ ined -

and scope of that ier legislation. Of particular significance,

; action in regard to electronic surveillance

314 (1937): Weiss v. United States, 308

269, 84 L.Ed. 298 (1939): Nardone v. United States, ( Nardone

84 L.Ed. 307 (1939). and

. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L_Ed.2d

) : .

Nardone v. United States, 302 US. 379, 58 S.Ct. 275,

US. 321

ow

v

126 (1957). Every case which considered the precise

concluded that pen regi were embraced in the

of Section 605. See Judge Campbell's in United

18 U.S.C. § 2511(1), and the victim of such interception,

disclosure, or use is entitled to recover civil damages, 18

U.S.C. § 2520. Title Ill also bars the use as evidence

before official bodies of the contents and fruits of illegal in-

terceptions, 18 U.S.C. § 2515, and provides procedures for

moving to suppress such evidence in various proceedings,

18 U.S.C. § 2518-(9)-(10).

408 U.S. at 46 (emphasis added).

of Title III apply. See United States v. John, 508 F.2d 1134 (8th

Cir.), cert. denied, 421 U.S. 962 (1975); United States v. Brick,

502 F.2d 219 (8th Cir. 1974). Pen registers may also be

used without court authority by the telephone companies for

the limited purpose of policing their own equipment. See

United States v. Harvey, 540 F.2d 1345 (8th Cir. 1976):

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

Congress failed to specifically include pen registers under Title

III. Nonetheless, when pen registers are sought to be used to

be assumed Congress knew that register devices were

inchaded within the coverage of Section 605 fl the Communion.

Act of 1934 (47 USC. S\

pen register was taken out of the ban of Section

the use of such a device would still 1 Section

of the Omnibus Crime Control and Streets Act amended

Section 605 to clearly reflect that all electronic surveillance is

now to be by Title Ill. Senate No. 1097, re-

2 U.S.C. Code Congressional and istrative News,

— A-15 —

investigate a crime included under Title III, as here (racketeer-

ing offense), compliance with either Title III or Rule 41 is the

only means which provides constitutional safeguards for their

use.

The majorit’’s rationale is surely dangerous precedent. Ju-

dicial authority to compel a private party to assist the govern-

ment in the invidious act of electronic surveillance should be

based on defined authority. Wire interception of any com-

munication constitutes a direct invasion of privacy. Congress

initially outlawed all wire interceptions. Act of June 19, 1934,

c. 652, Title VI, § 605, 48 Stat. 1103 (Federal Communications

Act) (amended 1968). Subsequently Congress carefully

be utilized, subject to constitutional safeguards. The result of

that study was the passage of Title IT]. Under that Act, Con-

gress authorized wire interceptions for the investigation of

specific crimes, as long as the safeguards of minimization and

supervision by the court were evinced. It is troublesome to me

that we now not only authorize government agents, but compel

a resisting private corporate enterprise, to conduct pen register

surveillance without court supervision. It is conceded by the

parties that such surveillance can be abused and that private

conversations on touch-tone telephones (as involved here) can

be intercepted. Cf. United States v. Harvey, supra.

To me it is wrong that the judicial branch of government can

thwart congressional intent and purpose by conjuring up some

convenient, mystical authority through the pseudonym of “in-

herent power.”

Clerk, U. S. Court of Appeals, Eighth Circuit

— A-16 —

United States Court of Appeals

for the Eighth Circuit

76-1725 September Term, 1977

In Re: ‘

Application of the United States for an :

Order Authorizing Installation and | rey wangrchy

Use of a Pen Register, 7 District of

Southwestern Bell Telephone Company, Missouri.

Appellant. -

Appeal from the

The Court having considered petition for rehearing en banc

filed by counsel for appellant and, being fully advised in the

premises, it is ordered that the petition for rehearing en banc be,

and it is hereby, denied.

the petition for rehearing en banc as a petition

for sahsasing, is is endesed Gat Go gutiiien Ger eheasan aaa

and it is hereby, denied.

January 18, 1977

— A-17 —

APPENDIX C

United States Court of Appeals

for the Eighth Circuit

No. 76-1725 September Term, 1976

In Re: .

Application of the United States for an sg ncaa

+e le er Installation and | trict Court for the

a Pen Register, Eastern District of

Southwestern Bell Telephone Company, Missouri.

Appellant.

On motion of appellant, it is now here ordered that the

issuance of the mandate herein be, and the same is hereby, stayed

for a period of thirty days from this date. If within that time

there is filed with the Clerk of this Court a certificate of the

Clerk of the Supreme Court of the United States that a petition

for writ of certiorari has been filed, the stay hereby granted shall

continue until the final disposition of the case by the Supreme

Court.

January 24, 1977

— A-18 —

In the United States District Court for the

Eastern District of Missouri

Eastern Division

In Re: |

Application of the United States for an . No. 76 Misc. 58.

Order Authorizing Installation and f

Use of a Pen Register. J

Order

In accordance with the Memorandum of this Court filed this

date and incorporated herein,

It Is Hereby Ordered that the motion of Southwestern Bell

Telephone Company to reconsider and withdraw this Court's

Order of July 26, 1976, authorizing the installation and use of a

pen register, be and is Denied; and

It Is Further Ordered that Southwestern Bell Telephone Com-

pany be and is held in contempt of this Court for failure to com-

ply with this Court’s Order of July 26, 1976; and

It Is Further Ordered that Southwestern Bell Telephone Cum-

pany comply with this Court's Order of July 26, 1976; and

It Is Further Ordered that the compliance of Southwestern

Bell Telephone Company with this Court’s Order of July 26,

1976 be and is Stayed pending appeal.

Dated this 30th day of July, 1976.

/s/ H. KENNETH WANGELIN

United States District Judge

— A-19 —

In the United States District Court for the

Eastern District of Missouri

F Divisi

In Re:

)

Application of the United States for | No. 76 Misc. 58

an Order Authorizing Installation and{

Use of a Pen Register,

Memorandum

This matter arises from an Order of this Court authorizing

installation and use of a pen register and the motion of South-

western Bell Telephone Company to reconsider and withdraw

said Order and the application of the United States for an

Order to Show Cause why Southwestern Bell Telephone Com-

pany should not be held in contempt for failure to obey the

Order of this Court.

Findings of Fact

1. That on July 26, 1976, upon showing by the Government

of probable cause, an Order was issued authorizing the installa-

tion and use of a pen register on a certain telephone line and

further ordered Southwestern Bel! Telephone Company to fur-

nish certain information, leased lines and assistance.

2. That said Order was served upon Southwestern Bell Tele-

phone Company on July 26, 1976, and Southwestern Bell Tele-

phone Company has refused to comply.

3. That the pen register equipment to be utilized in this

matter will be such that no voice interceptions on the telephone

line can be made.

—vvy =

4. That the information, leased lines, and assistance requested

and ordered are not available from any other source.

5. That for reasons of security of the equipment and security

in execution of the Order, the leased lines are necessary, and

the request for same is reasonable.

6. That without the information, leased lines and assistance

the Federal Bureau of Investigation cannot carry out the Order

of this Court.

Findings of Law

1. That pen register orders are not covered by Title III of

the Omnibus Crime Control and Safe Streets Act of 1968, Title

18 U.S.C. Sections 2510-2520. U.S. v. lilinois Bell Telephone

Company, 531 F.2d 809 (7th Cir., 1976); U.S. v. Giordano,

416 U.S. 505 (1974); In Re Application of the United States

in the Matter of a Pen Register, No. 76-1155 (2nd Cir. Slip,

July 13, 1976.

2. That pen register orders involve a search and seizure under

the Fourth Amendment, and the Court may issue such an order

upon a showing of probable cause. U. S. v. /ilinois Bell Tele-

phone, supra; In Re Application, supra.

3. That the Court has the inherent authority and power un-

der the All Writs Act, Title 28 U.S.C. Section 1651(a), to

compel the cooperation and assistance of Southwestern Bell

Telephone Company to implement the use of a pen register.

U.S. v. Illinois Bell, supra.

4. That compliance by Southwestern Bell Telephone Com-

pany with this Court's lawful order will be a complete defense

to any claim of criminal or civil liability of Southwestern Bell

Telephone Company.

Dated this 30th day of July, 1976.

/s/ H. KENNETH WANGELIN

United States District Judge

—_y

APPENDIX F

United States District Court

Eastern District of Missouri

Eastern Division

In Re:

ee ’ )

Application of the United States for No. 76 Misc. 58

an Order Authorizing Installation

and Use of a Pen Register.

Order to Show Cause

Upon the application and affidavit of David W. Harlan, As-

sistant United States Attorney duly verified the 27th day of

July, 1976, it is hereby

Ordered that Southwestern Bell Telephone Company show

cause before this Court at 9:30 A.M. on the 29th day of

July, 1976, or as socn thereafter as the same may be heard,

at the United States District Court for the Eastern District

of Missouri, 12th and Market Streets, St. Louis, Missouri, be-

fore the Honorable H. Kenneth Wangelin why Southwestern

Bell Telephone Company should not be adjudged and held in

contempt of the Court and punished for such contempt of this

Court by reason of the fact that Southwestern Bell Telephone

Company willfully and contemptuously disobeyed the Order

of this Court commanding Southwestern Bell Telephone Com-

pany to provide certain information, technical assistance and

telephone facilities to the Federal Bureau of Investigation. The

matter will be submitted on memoranda to be submitted by

the Parties.

/s/ H. KENNETH WANGELIN

United States District Judge

Dated this 27th day of July, 1976

— A-22 —

APPENDIX G

United States District Court

Eastern District of Missouri

In the Matter of the Application of the

United States of America for an Or-

der Authorizing the Installation and

Use of a Pen Register. )

l No. 76 Misc. 58

Motion to Reconsider and Withdraw Order Authorizing Tres-

pass on Southwestern Bell Telephone Company Lines and

Facilities and to Remove Southwestern Bell From the Pro-

visions and Requirements of Said Order

Comes now Southwestern Bell Telephone Company and

moves the Court to reconsider and withdraw its Order authoriz-

ing Installation and Use of a Pen Register, dated July 26, 1976,

and for its Motion states:

1. The Order, in subparagraph (1), authorizes Special Agents

of the Federal Bureau of Investigation to trespass upon the

communications lines and property of Southwestern Bell for

the purpose of installing mechanical devices commonly de-

scribed as pen registers on telephone wires used by serve one

of its customers. In this respect the Order requires a taking

and appropriation of Southwestern Bell’s property for public

use without just compensation, and a taking of property with-

out due process of law, both in violation of the Sth Amendment

to the Constitution of the United States.

2. The designated customer has touch-tone dialing service

and the outgoing telephone numbers are pulsed at voice ire-

— A-23 —

quency. Any interception and recording of the touch-tone pulses

will also intercept and record all voice communications oc-

curring on the line of the designated customer.

3. Subparagraph (2) of the Order specifically states that the

Order does not authorize recording of voice communications

but the Order does not require the use of devices that have

no voice recording capability. Any tap of the line and con-

nection with private line facilities of Southwestern Bell will

transmit all voice communications occurring over the desig-

nated line to the offices of the Federal Bureau of Investigation.

Moreover, the Order does not incorporate the protective pro-

visions of Title 18 USCA §§ 2510-2520 which are applicable

to interception of wire communications authorized under that

statute.

4. The Order also requires Southwestern Bell to breach its

contractual obligations with the designated customer by requir-

ing Southwestern Bell to disclose information concerning the

customer's service and participate in providing support facili-

ties which will disclose the existence of customer communica-

tions and will invade the privacy of its customer's communica-

tions and, as such, is in contravention of the 4th and 5th Amend-

ments of the Constitution of the Uniied States and Title 18

USCA §§ 2510-2520.

5. The Order, on its face, is not issued pursuant to Title 18

USCA §§ 2510-2520 and consequently subjects Southwestern

Bell to liability tor civil damages, including punitive damages

and attorney fees under Title 18 USCA § 2520 for participating

in an unauthorized interception of wire communications.

6. The Order, on its face, requires Southwestern Bell to par-

ticipate in activities which will result in the disclosure of the

“existence” of communications transmitted by the designated

customer and will cause it to violate Title 47 USCA § 605 and

—_— =

subject it to criminal penalties provided in Title 47 USCA

§ 13, and does not come within the exception of 47 USCA

§ 605 for interceptions undertaken pursuant to 18 USCA

§§ 2510-2520.

7. If the Order has been issued pursuant to Title Ill of the

Omnibus Crime Control and Safe Streets Act of 1968, 18

USCA §§ 2510-2520, the Order is defective upon its face.

8. If the Order has purportedly been issued pursuant to

Rule 41 of the Federal Rules of Criminal Procedure, it is de-

fective in that Rule 41 does not authorize the Court to direct

persons other than “a civil officer of the United States authorized

to enforce or assist in enforcing any law thereof, or to a person

so authorized by the President of the United States” to carry

out the provisions and requirements of a search warrant.

9. Even if the Order were properly directed to Southwestern

Bell pursuant to Rule 41 of the said Federal Rules of Criminal

Procedure and purports to be a search warrant authorized

thereby, the Order is defective in that:

(a) It does not relate to search for or seizure of any prop-

erty within the meaning of Rule 41(h); and

(b) is not required to be executed within 10 days as re-

quired by Rule 41(c).

Wherefore, Southwestern Bell Telephone Company moves

the Court reconsider and withdraw its Order authorizing the in-

stallation and use of a pen register said Order being dated July

26, 1976, or in the alternative to modify its Order so as to

not authorize agents of the Federal Bureau of Investigation to

make any attachments to the lines of Southwestern Bell Tele-

phone Company and to not require Southwestern Bell Telephone

— A-25 —

essary to accomplish the interception.

SOUTHWESTERN BELL TELEPHONE

By /s/ (Illegible)

LEO E. EICKHOFF, JR.

JOHN D. RAHOY

THAD HOLLIE, JR.

H. EDWARD SKINNER and

LINDA S. LEGG

Its Attorneys

100 North Twelfth Boulevard

St. Louis, Missouri 63101

Telephone: 247-5878

—_v =

In Re:

I

Application of the United States for an | :

>» No. 76 Misc. 58.

Order Authorizing Installation and | . .

Use of a Pen Register, }

Application for an Order to Show ( ause

Comes now the United States of America, by its attorneys and

hereby applies to the Court for an Order to Show Cause why

Southwestern Bell Telephone Company should not be found in

contempt of this Court. In support of this application, Assist-

ant United States Attorney David W. Harlan being duly sworn

States as follows:

1. That on July 26, 1976, affiant applied to the Court on

behalf of the United States of America for an order authorizing

the installation and use of a pen register on a certain telephone.

2. That on the same date the Honorable H. Kenneth Wangelin

signed an order authorizing the installation and use of a pen

register and including an order to Southwestern Bell Telephone

Company to furnish applicant “forthwith all facilities including

pairs, subscriber pairs and the location of a suitable junction box

where a caption can occur, and technical assistance necessary to

accomplish the interception unobtrusively and with a minimum

of interference with the services that such carrier is providing.

The furnishing of such facilities and technical assistance by the

ab ies

Southwestern Bell Telephone Company is to be compensated for

by applicant at the prevailing rates.”

3. That on July 26, 1976, Special Agent William Ahler

served a copy of said order upon Southwestern Bell Telephone

Company.

4. That on July 27, 1976, Southwestern Bell Telephone

Company, throug). Leo E. Eickhoff, Jr., its attorney, informed

United States Attorney Barry A. Short that Southwestern Bell

Telephone Company refused to comply with the order of this

Court.

5. That as of the date and time of this application the South-

western Bell Telephone Company has continued to refuse to

comply with the order of this Court.

Wherefore, the United States of America requests the Court

to issue an Order to Show Cause why said Southwestern Bell

Telephone Company should not be held in a direct contempt of

the lawful order of this Court.

BARRY A. SHORT

United States Attorney

I, David W. Harlan, Assistant United States Attorney for the

Eastern District of Missouri, being duly sworn, do say that the

information contained in the foregoing application is true to the

best of my knowledge, information and belief.

/s' DAVID S. HARLAN

Subscribed and sworn to before me this 27th day of July

1976.

— A-28 —

WILLIAM Q. RUND

Clerk, United States District Court

MURLENE A. THAYER

Deputy Clerk

—_—r =

In Re:

Order Authorizing Installation wd | No. 76 Misc. 58.

Use of a Pen Register

To: Special Agent Allan J. Rogers and other duly authorized

Special Agents of the Federal Bureau of Investigation.

United States Department of Justice

Affidavit having been made before me by Allan J. Rogers,

Special Agent, Federal Bureau of Investigation, United States

Department of Justice and full consideration having been given

to the matters set forth therein, the Court finds:

(a) There is probable cause to believe that telephone number

snes located at ......, St. Louis, Missouri subscribed to

ee has been and is now being used in connection with

the commission of offenses in violation of Sections ...... ;

Title 18, United States Code.

(b) There is probable cause to believe that evidence of the

commission of the above-described offenses will be obtained

through the installation of a device to register telephone numbers

called from telephone number ...... located at ...... Ave-

Wherefore, it is hereby Ordered that Special Agent Allan J.

Rogers and other duly authorized Special Agents of the Fed-

eral Bureau of Investigation, United States Department of Jus-

tice are authorized to

—y

(1) Install mechanical devices commonly described as a pen

register, on telephone number ...... located at ...... , Mt.

Louis, Missouri and subscribed to by ...... :

(2) Record, by means of the mechanical device described

above the telephone numbers of all outgoing calls dialed from

the above-described telephone. This Order does not authorize

the interception of voice communications taking place on the

above-described telephones but authorizes only the interception

of signals which disclose the numbers of outgoing calls;

(3) Such mechanical device may continue in operation for a

period not to exceed thirty (30) days from the date of this Order

or until the telephone numbers of all outgoing calls dialed lead

to the location and identities of all persons committin;

above-described offenses, whichever is earlier.

It is further ordered that the Southwestern Bell Telephone

Company shall furnish the applicant forthwith all facilities in-

cluding lease lines, information, including the identific:

leased line pairs, subscriber pairs and the secation of © exitaiile

junction box where a connection can occur, and technical as-

sistance necessary to accomplish the interception unobtrusively

and with a minime > of interference with the services that such

carmier is providing. The furnishing of such facilities or technical

assistance by the Southwestern Bell Telephone Company is to

be compensated for by the applicant at the prevailing rates.

s/ H. Kenneth Wangelin

United States District Judge

Dated this 26th day of July, 1976.

— A-31 —

CONSTITUTION, STATUTES AND RULES INVOLVED

Section 3771 of Title 18, United States Code, being the re-

vised form of this provision in the Act of June 29, 1940, 54

Stat. 688, as amended, 18 USCA §3771, provides as foliows:

The Supreme Court of the United States shall have the power

to prescribe, from time to time, rules of pleading, practice, and

procedure with respect to any or all proceedings prior to and

including verdict, or finding of guilty or not guilty by the court

if a jury has been waived, or plea of guilty, in criminal cases

and proceedings to punish for criminal contempt of court in the

United States district courts, in the district courts for the Dis-

trict of the Canal Zone and the Virgin Islands, in the Supreme

Court of Puerto Rico, and in proceedings before United States

magistrates. Such rules shall not take effect until they have

been reported to Congress by the Chief Justice at or after the

beginning of a regular session thereof but not later than the first

day of May, and until the expiration of ninety days after they

have been thus reported. All laws in conflict with such rules

shall be of no further force or effect after such rules have taken

effect.

Nothing in this title, anything therein to the contrary notwith-

standing, shall in any way limit, supersede, or repeal any such

rules heretofore prescribed by the Supreme Court.

All Writs Act

Section 1651 of Title 28, United States Code, 62 Stat. 944,

a» amended, commonly known as the All Writs Act, 28 USCA

§1651, provides as follows:

— A-32 —

(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.

(b) An alternative writ or rule nisi may be issued by a justice

or judge of a court which has jurisdiction.

Federal Rules of Criminal Procedure

Rule 41, Search and Seizure, Federal Rules of Criminal Pro-

cedure, provides as follows:

(a) Authority to Issue Warrant. A search warrant authorized

by this rule may be issued by a federal magistrate or a judge of

a state court of record within the district wherein the property

is located, upon request of a federal law enforcement officer or

an attorney for the government.

(b) Property Which May Be Seized With a Warrant. A war-

rant may be issued under this rule to search for and seize any

(1) property that constitutes evidence of the commission of a

criminal offense; or (2) contraband, the fruits of crime, or things

otherwise criminally possessed; or (3) property designed or in-

tended for use or which is or has been used as the means of

committing a criminal offense.

(c) Issuance and Contents. A warrant shall issue only on an

affidavit or affidavits sworn to before the federal magistrate or

State judge and establishing the grounds for issuing the warrant.

If the federal magistrate or state judge is satisfied that grounds

for the application exist or that there is probable cause to be-

lieve that they exist, he shall issue a warrant identifying the

property and naming or describing the person or place to be

searched. The finding of probable cause may be based upon

hearsay evidence in whole or in part. Before ruling on a request

for a warrant the federal magistrate or state judge may require

— A-33 —

the affiant to appear personally and may examine under oath

the affiant and any witnesses he may produce, provided that such

proceeding shall be taken down by a court reporter or recording

equipment and made part of the affidavit. The warrant shall be

directed to a civil officer of the United States authorized to en-

force or assist in enforcing any law thereof or to a person so au-

thorized by the President of the United States. lt shall command

the officer to search, within a specified period of time not to

exceed 10 days, the person or place named for the property

specified. The warrant shall be served in the daytime, unless

the issuing authority, by appropriate provision in the warrant,

and for reasonable cause shown, authorizes its execution at

times other than daytime. It shall designate a federal magis-

trate to whom it shall be returned.

(d) Execution and Return With Inventory. The officer taking

property under the warrant shal! give to the person from whom

or from whose premises the property was taken a copy of the

warrant and a receipt for the property taken or shall leave the

copy and receipt at the place from which the property was taken.

The return shall be made promptly and shall be accompanied

by a written inventory of any property taken. The inventory

shall be made in the presence of the applicant for the warrant

and the person from whose possession or premises the property

was taken, if they are present, or in the presence of at least one

credible person other than the applicant for the warrant or the

person from whose possession or premises the property was

taken and shall be verified by the officer. The federal magis-

trate shall upon request deliver a copy of the inventory to the

person from whom or from whose premises the property was

taken and to the applicant for the warrant.

(e) Motion for Return of Property. A person aggrieved by

an unlawful search and seizure may move the district court for

the district in which the property was seized for the return

of the property on the ground that he is entitled to lawful pos-

—_ Xe

session of the property which was illegally seized. The judge

shall receive evidence on any issue of fact necessary to the de-

cision of the motion. If the motion is granted the property shall

be restored and it shall not be admissible in evidence at any

hearing or trial. If a motion for return of property is made or

comes on for hearing in the district or trial after an indictment or

information is filed, it shall be treated also as 2 motion to sup-

press under Rule 12.

(f) Motion to Suppress. A motion to suppress evidence may

be made in the court of the district of trial as provided in Rule

12.

(g) Return of Papers to Clerk. The federal magistrate before

whom the warrant is returned shall attach to the warrant a copy

of the return, inventory and all other papers in connection there-

with and shall file them with the clerk of the district court for

the district in which the property was seized.

(h) Seope and Definition. This rule does not modify any act,

inconsistent with it, regulating search, seizure and the issuance

and execution of search warrants in circumstances for which

special provision is made. The term “property” is used in this

rule to include documents, books, papers and any other tangible

objects. The term “daytime” is used in this rule to mean the

hours from 6:00 a. m. to 10:00 p. m. according to local time.

The phrase “federal law enforcement officer” is used in this rule

to mean any government agent, other than an attorney for the

government as defined in Rule 54(c). who is engaged in the en-

forcement of the criminal laws and is within any category of

officers authorized by the Attorney General to request the issu-

ance of a search warrant.

Rule 57, Rules of Court, Federal Rules of Criminal Proce-

dure, provides as follows:

(a) Rules by District Courts. Rules made by district courts for

the conduct of criminal proceedings shall not be inconsistent

~~

>

— A-35 —

with these rules. Copies of all rules made by a district court

shall upon their promulgation be furnished to the Administra-

tive Office of the United States Courts. The clerk shall make

appropriate arrangements, subject to the approval of the Di-

rector of the Administrative Office of the United States Courts,

to the end that all rules made as provided herein be published

promptly and that copies of them be available to the public.

(b) Procedure Not Otherwise Specified. 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.

Communications Act of 1934

Section 605 of the Communications Act of 1934, 48 Stat.

1103, as amended by Section 803, Omnibus Crime Control and

Safe Streets Act of 1968, 82 Stat. 223, provides as follows:

Except as authorized by chapter 119, Title 18, no person re-

ceiving, assisting in receiving, transmitting, or assisting in trans-

mitting, any interstate or foreign communication by wire or

radio shall divulge or publish the existence, contents, substance,

purport, effect, or meaning thereof, except through authorized

channels of transmission or reception, (1) to any person other

than the addressee, his agent, or attorney, (2) to a person em-

ployed or authorized to forward such communication to its desti-

nation, (3) to proper accounting or distributing officers of the

various communicating centers over which the communication

may be passed, (4) to the master of a ship under whom he is

serving, (5) in response to a subpena issued by a court of com-

petent jurisdiction, or (6) on demand of other lawful authority.

No person not being authorized by the sender shall intercept

any radio communication and divulge or publish the existence,

contents, substance, purport, effect, or meaning of such inter-

cepted communication to any person. No person not being en-

— A-36 —

titled thereto shall receive or assist in receiving any interstate

or foreign communication by radio and use such communica-

tion (or any information therein contained) for his own benefit

or for the benefit of another not entitled thereto. No person

having received any intercepted radio communication or having

become acquainted with the contents, substance, purport, effect,

or meaning of such communication (or any part thereof) know-

ing that such communication was intercepted, shall divulge or

publish the existence, contents, substance, purport, effect, or

meaning of such communication (or any part ther-of) or use

such communication (or any information therein contained) for

his own benefit or for the benefit of another not entitled thereto.

This section shall not apply to the receiving, divulging, publish-

ing, or utilizing the contents of any radio communication which

is broadcast or transmitted by amateurs or others for the use of

the general public, or which relates to ships in distress.

Title 111, Omnibus Crime Control and

Safe Streets Act of 1968

Section 801, Omnibus Crime Control and Safe Streets Act

of 1968, 82 Stat. 112, provides as follows:

Sec. 801. On the basis of its own investigations and oi pub-

lished studies, the Congress makes the following findings:

(a) Wire communications are normally conducted through

the use of facilities which form part of an interstate network.

The same facilities are used for interstate and intrastate com-

munications. There has Seen extensive wiretapping carried on

without legal sanctions, and without the consent of any of the

parties to the conversation. Electronic, mechanical, and other

intercepting devices are being used to overhear oral conversa-

tions made in private, without the consent of any of the parties

to such communications. The contents of these communications

und evidence derived therefrom are being used by public and

ee ee Oe a ee ee

—_

private parties as evidence in court and administrative proceed-

ings, and by persons whose activities affect interstate commerce.

The possession, manufacture, distribution, advertising, and use

of these devices are facilitated by interstate commerce.

(b) In order to protect effectively the privacy of wire and

oral communications, to protect the integrity of court and ad-

ministrative proceedings, and to prevent the obstruction of

interstate commerce, it is necessary for Congress to define on a

uniform basis the circumstances and conditions under which

the interception of wire and oral communications may be au-

thorized, to prohibit any unauthorized interception of such com-

munications, and the use of the contents thereof in evidence in

courts and administrative proceedings.

(c) Organized criminals make extensive use of wire and oral

communications in their criminal activities. The interception

of such communications to obtain evidence of the commission

of crimes or to prevent their commission is an indispensable aid

to law enforcement and the administration of justice.

(d) To safeguard the privacy of innocent persons, the inter-

ception of wire or oral communications where none of the par-

ties to the communication has consented to the interception

should be allowed only when authorized by a court of compe-

tent jurisdiction and should remain under the control and super-

vision of the authorizing court. Interception of wire and oral

communication should further be limited to certain major types

of offenses and specific categories of crime with assurances that

the interception is justified and that the information obtained

thereby will not be misused.

Section 802, Omnibus Crime Control and Safe Streets Act

of 1968, 82 Stat. 112, added a new chapter at the end of Part

I of Title 18, United States Code, 18 USC § 2510-2520, and as

amended by the D.C. Court Reform Act, 84 Stat. 654, provides

as follows:

2520.

— A-38 —

. Interception and disclosure of wire or oral communi-

' hibited

. Manufacture, distribution, possession, and advertising

of wire or oral communication intercepting devices

prohibited.

. Confiscation of wire or oral communication intercepting

devices.

. Immunity of witnesses.

. Prohibition of use as evidence of intercepted wire or

oral communications.

. Authorization for interception of wire or oral communi-

cations.

. Authorization for disclosure and use of intercepted wire

or oral communications.

. Procedure for interception of wire or oral communica-

tions.

. Reports concerning intercepted wire or oral communi-

cations.

Recovery of civil damages authorized.

* 2510. Definitions

As used in this chapter—-

(1) “wire communication” means any communication

made in whole or in part through the use of facilities for

the transmission of communications by the aid of wire,

— A-39 —

cable, or other like connection between the point of origin

and the point of reception furnished or operated by any

person engaged as a common carrier in providing or operat-

ing such facilities for the transmission of interstate or

foreign communications,

(2) “oral communication” means any oral communica-

tion uttered by a person exhibiting an expectation that such

communication is not subject to interception under cir-

(3) “State” means any State of the United States, the

District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States;

(4) “intercept” means the aural acquisition of the con-

tents of any wire or oral communication through the use

of any electronic, mechanical, or other device.

(5) “electronic, mechanical, or other device” means any

device or apparatus which can be used to intercept a wire

or oral communication other than—

(a) any telephone or telegraph instrument, equip-

ment or facility, or any component thereof, (i) fur-

nished to the subscriber or user by a communications

common carrier in the ordinary course of its business

and being used by the subscriber or user in the or-

dinary course of its business; or (ii) being used by a

communications common carrier in the ordinary

course of its business, or by an investigative or law

enforcement officer in the ordinary course of his

duties:

(b) a hearing aid or similar device being used to

correct subnormal hearing to not better than normal,

(6) “person” means any employee, or agent of the United

States or any State or political subdivision thereof, and any

—_~v

individual, partnership, association, joint stock company,

trust, or corporation:

(7) “Investigative or law enforcement officer” means

any officer of the United States or of a State or political

subdivision thereof, who is empowered by law to conduct

investigations of or to make arrests for offenses enumerated

in this chapter, and any attorney authorized by law to

prosecute or participate in the prosecution of such offenses:

(8) “contents”, when used with respect to any wire or

oral communication, includes any information concerning

the identity of the parties to such communication or the

existence, substance, purport, or meaning of that com-

munication,

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or a

United States court of appeals: and

(b) a judge of any court of general criminal juris-

diction of a State who is authorized by a statute of

that State to enter orders authorizing interceptions

of wire or oral communications,

(10) “communication common carrier” shall have the

same meaning which is given the term “common carrier”

by section 152(h) of title 47 of the United States Code; and

(11) “aggrieved person” means a person who was a

party to any intercepted wire or oral communication or a

§ 2511. Interception and disclosure of wire or oral communi-

cations prohibited

—_Y

(a) willfully intercepts, endeavors to intercept, or pro-

cures any other person to intercept or endeavor to intercept,

any wire or oral communication,

(b) willfully uses, endeavors to use, or procures any

other person to use or endeavor to use any clectronic, me-

chanical, or other device to imtercept any oral communica-

tion when—

(i) such device is affixed to, or otherwise transmits

a signal through, a wire, cable, or other like connec-

tion used in wire communication, or

(ii) such device transmits communications by radio.

or interferes with the transmission of such communi-

cation; or

(iii) such person knows, or has reason to know,

that such device or any component thereof has been

sent through the mail or transported in interstate or

foreign commerce, or

(iv) such use or endeavor to use (A) takes place

on the premises of any business or other commercial

establishment the operations of which affect inter-

State or foreign commerce; or (B) obtains or is for

_ the purpose of obtaining information relating to the

operations of any business or other commercial estab-

lishment the operations of which affect interstate or

foreign commerce; or

(v) such person acts in the District of Columbia,

the Commonwealth of Puerto Rico, or any territory

or possession of the United States;

(c) willfully discloses, or endeavors to disclose, to any

other person the contents of any wire or oral communica-

tion, knowing or having reason to know that the informa-

tion was obtained through the interception of a wire or

oral communication in violation of this subsection; or

(1) Except as otherwise specifically provided in this chapter

any person who—

— A-42 —

(d) willfully uses, or endeavors to use, the contents of

any wire or oral communication, knowing or having reason

to know that the information was obtained through the

interception of a wire or oral communication in violation

of this subsection;

shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

(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 communi-

cation, to intercept, 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 monitoring except for mechanical or

(ii) oe caches cere eg reer tenho gpm

carvier to poovide taformation, facilities, or technical exsies-

ance to an investigative or law enforcement officer who,

porprch: tome gy is authorized to intercept a wire

00 & Gat wm te cele Gilde Gh ame

for an officer, employee, or agent of the Federal

Communications Commission, in the normal course

of his employment and in discharge of the moni-

toring responsibilities exercised by the Commis-

sion in the enforcement of chapter 5 of title 47 of the

United States Code, to intercept a wire communica-

to disclose or use the information thereby obtained.

— A-43 —

(c) It shall not be unlawful under this chapter for

a person acting under color of law to intercept a wire

or oral communication, where such person is a party

to the communication or one of the parties to the

communication has given prior consent to such inter-

ception.

(d) It shall not be unlawful under this chapter for

a person not acting under color of law to intercept a

wire or oral communication where such person is a

party to the communication or where one of the parties

to the communication has given prior consent to such

interception unless such communication is intercepted

for the purpose of committing any criminal or tortious

act in violation of the Constitution or laws of the

United States or of any State or for the purpose of

committing any other injurious act.

(3) Nothing contained in this chapter or in section

605 of the Communications Act of 1934 (48 Stat. 1143;

47 U.S.C. 605) shall limit the constitutional power of the

President to take such measures as he deems necessary to

protect the Nation against actual or potential attack or

other hostile acts of a foreign power, to obtain foreign

intelligence information deemed essential to the security

of the United States, or to protect national security infor-

anything contained in this chapter be deemed to limit the

constitutional power of the President to take such measures

as he deems necessary to protect the United States against

the overthrow of the Government by force or other unlaw-

ful means, or against any other clear and present danger to

the structure or existence of the Government. The contents

of any wire or oral communication intercepted by authority

of the President in the exercise of the foregoing powers

may be received in evidence in any trial hearing, or other

— A-44 —

and shall not be otherwise used or disclosed except as is

necessary to implement that power.

§ 2512. Manufacture, distribution, possession, and advertis-

ing of wire or oral communication intercepting

devices prohibited

(1) Except as otherwise specifically provided in this chapter,

any person who willfully—

(a) sends through the mail, or sends or carries in inter-

state or foreign commerce, any electronic, mechanical, or

other device, knowing or having reason to know that the

design of such device renders it primarily useful for the

purpose of the surreptitious interception of wire or oral

communications;

(b) manufactures, assembles, possesses, or sells any

electronic, mechanical, or other device, knowing or having

reason to know that the design of such device renders it

primarily useful for the purpose of the surreptitious inter-

ception of wire or oral communications, and that such de-

vice Or any component thereof has been or will be sent

through the mail or transported in interstate or foreign

commerce; or

(c) places in any newspaper, magazine, handbill, or

other publication any advertisement of —

(i) any electronic, mechanical, or other device

knowing or having reason to know that the design of

such device renders it primarily useful for the purpose

of the surreptitious interception of wire or oral com-

munications; or

(ii) any other electronic, mechanical, or other de-

vice, where such advertisement promotes the use of

— A-45 —

such device for the purpose of the surreptitious in-

terception of wire or oral communications.

knowing or having reason to know that such advertise-

ment will be sent through the mail or transported in inter-

state or foreign commerce,

shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

(2) It shall not be unlawful under this section for—

(a) a communications common carrier or an officer,

agent, or employee of, or a person under contract with, a

communications common carrier, in the normal course of

the communications common carrier's business, or

(b) an officer, agent, or employee of, or a person

under contract with, the United States, a State, or a political

subdivision thereof, in the normal course of the activities

of the United States, a State, or a political subdivision

thereof, to send through the mail, send or carry in inter-

state or foreign commerce, or manufacture, assemble, pos-

sess, or sell any electronic, mechanical, or other device

knowing or having reason to know that the design of such

device renders it primarily useful for the purpose of the

surreptitious interception of wire or oral communications.

§ 2513. Confiscation of wire or oral communication inter-

cepting devices

Any electronic, mechanical, or other device used, sent,

carried, manufactured, assembled, possessed, sold, or adver-

tised in violation of section 2511 or section 2512 of this chapter

may be seized and forfeited to the United States. All provisions

of law relating to (1) the seizure, summary and judicial for-

feiture, and condemnation of vessels, vehicles, merchandise, and

=Adian

baggage for violations of the customs laws contained in title 19

of the United States Code, (2) the disposition of such vessels,

vehicles, merchandise, and baggage or the proceeds from the sale

thereof, (3) the remission or mitigation of such forfeiture, (4)

the compromise of claims, and (5) the award of compensation to

informers in respect of such forfeitures, shall apply to seizures

and forfeitures incurred, or alleged to have been incurred, under

the provisions of this section, insofar as applicable and not in-

consistent with the provisions of this section; except that such

duties as are imposed upon the collector of customs or any other

person with respect to the seizure and forfeiture of vessels, ve-

hicles, merchandise, and baggage under the provisions of the

customs laws contained in title 19 of the United States Code

shall be performed with respect to seizure and forfeiture of elec-

tronic, mechanical, or other intercepting devices under this

section by such officers, agents, or other persons as may be au-

thorized or designated for that purpose by the Attorney Gen-

eral.

§ 2515. Prohibition of use as evidence of intercepted wire or

oral communications

Whenever any wire or oral communication has been inter-

cepted, no part of the contents of such communication and no

evidence derived therefrom may be received in evidence in any

trial, hearing, or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body, legislative

committee, or other authority of the United States, a State, or

a political subdivision thereof if the disclosure of that informa-

tion would be in violation of this chapter.

§ 2516. Authorization for interception of wire or oral com-

munications

(1) The Attorney General, or any Assistant Attorney General

specially designated by the Attorney General, may authorize

— A-47 —

an application to a Federal judge of competent jurisdiction for,

and such judge may grant in conformity with section 2518 of

this chapter an order authorizing or approving the interception

of wire or oral communications by the Federal Bureau of In-

vestigation, or a Federal agency having responsibility for the

investigation of the offense as to which the application is made,

when such interception may provide or has provided evidence

of—

(a) any offense punishable by deaths or by imprisonment

for more than one year under sections 2274 though 2277

of title 42 of the United States Code (relating to the en-

forcement of the Atomic Energy Act of 1954), or under

the following chapters of this title: chapter 37 (relating to

espionage), chapter 105 (relating to sabotage), chapter 115

(relating to treason), or chapter 102 (relating to riots).

(b) a violation of section 186 or section SO1(c) of title

29, United States Code (dealing with restrictions on pay-

ments and loans to labor organizations), or any offense

which involves murder, kidnapping, robbery, or extortion,

and which is punishable under this title;

(c) any offense which is punishable under the following

sections of this title: section 201 (bribery of public officials

and witnesses), section 224 (bribery in sporting contests),

subsection (d), (e), (f) (g), (h) or (i) of section 844 (unlawful

use of explosives), section 1084 (transmission of wagering

information), section 1503 (influencing or injuring an

officer, juror, or witness generally), section 1510 (obstruc-

tion of criminal investigations), section 1511 (obstruction

of State or local law enforcement), section 1751 (Presi-

dential assassinations, kidnapping, and assault), section

1951 (interference with commerce by threats or violence),

section 1952 (interstate and foreign travel or transportation

in aid of racketeering enterprises), section 1954 (offer,

acceptance, or solicitation to influence operations of em-

— A-48 —

ployee benefit plan), section 1955 (prohibition of business

enterprises of gambling), section 659 (theft from interstate

shipment), section 664 (embezzlement from pension and

welfare funds), sections 2314 and 2315 (interstate trans-

pertation of stolen property), section 1963 (violations with

respect to racketeer influenced and corrupt organizations)

or section 351 (violations with respect to congressional

assassinations, kidnaping and assault);

(d) any offense involving counterfeiting punishable under

section 471, 472, or 473 of this title;

(e) any offense involving bankruptcy fraud or the manu-

facture, importation, receiving, concealment, buying, sell-

ing, or otherwise dealing in narcotic drugs, marihuana, or

other dangerous drugs, punishable under any law of the

United States;

(f) any offense including extortionate credit transactions

under sections 892, 893, or 894 of this title; or

(g) any conspiracy to commit any of the foregoing

offenses.

(2) The principal prosecuting attorney of any State, or the

principal prosecuting attorney of any political subdivision there-

of, if such attorney is authorized by a statute of that State to

make application to a State court judge of competent juris-

diction for an order authorizing or approving the interception

of wire or oral communications, may apply to such judge for,

and such judge may grant in conformity with section 2518 of

this chapter and with the applicable State statute an order

authorizing, or approving the interception of wire or oral com-

munications by investigative or law enforcement officers having

responsibility for the investigation of the offense as to when the

application is made, when such interception may provide or

has provided evidence of the commission of the offense of mur-

— A-49 —

ing in narcotic drugs, marihuana or other dangerous drugs, or

other crime dangerous to life, limb, or property, and punishable

by imprisonment for more than one year, designated in any

applicable State statute authorizing such interception, or any

conspiracy to commit any of the foregoing offenses.

§ 2517. Authorization for disclosure and use of intercepted

wire or oral communications

(1) Any investigative or law enforcement officer who, by any

means authorized by this chapter, has obtained knowledge of

the contents of any wire or oral communication, or evidence

derived therefrom, may disclose such contents to another in-

vestigative or law enforcement officer to the extent that such

disclosure is appropriate to the proper performance of the official

duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any

means authorized by this chapter, has obtained knowledge of

the contents of any wire or oral communication or evidence

derived therefrom may use such contents to the extent such

use is appropriate to the proper performance of his official duties.

(3) Any person who has received, by any means authorized

by this chapter, any information concerning a wire or oral

communication, or evidence derived therefrom intercepted in

accordance with the provisions of this chapter may disclose

the contents of that communication or such derivative evidence

while giving testimony under oath or affirmation in any pro-

ceeding held under the authority of the United States or of

any State or political subdivision thereof.

(4) No otherwise privileged wire or oral communication in-

tercepted in accordance with, or in violation of, the provisions of

this chapter shall lose its privileged character.

— A-50 —

(5) When an investigative or law enforcement officer, while

engaged in intercepting wire or oral communications in the

manner authorized herein, intercepts wire or oral communica-

tions relating to offenses other than those specified in the order

of authorization or approval, the contents thereof. and evidence

derived therefrom, may be disclosed or used as provided in sub-

sections (1) and (2) of this section. Such contents and any

evidence derived therefrom may be used under subsection (3)

of this section when authorized or approved by a judge of

competent jurisdiction where such judge finds on subsequent

application that the contents were otherwise intercepted in ac-

cordance with the provisions of this chapter. Such application

shall be made as soon as practicable.

§ 2518. Procedure for interception of wire or oral communi-

cations

(1) Each application for an order authorizing or approving

the interception of a wire or oral communication shall be in

writing upon oath or affirmation to a judge of competent juris-

diction and shall state the applicant’s authority to make such

application. Each application shall include the following in-

formation:

(a) the identity of the investigative or law enforcement

officer making the application, and the officer authorizing

the application,

(b) a full and complete statement of the facts and cir-

cumstances relied upon by the applicant, to justify his be-

lief that an order should be issued, including (i) details as

to the particular offense that has been, is being, or is about

to be committed, (ii) a particular description of the nature

and location of the facilities from which or the place where

the communication is to be intercepted, (iii) a particular

— A-51 —

description of the type of communications sought to be

intercepted, (iv) the identity of the person, if known, com-

mitting the offense and whose communications are to be

intercepted;

(c) a full and complete statement as to whether or not

other investigative procedures have been tried and failed

or why they reasonably appear to be unlikely to succeed

if tried or to be too dangerous;

(d) a statement of the period of time for which the

interception is required to be maintained. If the nature of

the investigation is such that the authorization for inter-

ception should not automatically terminate when the de-

scribed type of communication has been first obtained, a

particular description of facts establishing probable cause

to believe that additional communications of the same type

will occur thereafter;

(e) a full and complete statement of the facts concern-

ing all previous applications known to the individual au-

thorizing and making the application, made to any judge

for authorization to intercept, or for approval of intercep-

tions of, wire or oral communications involving any of the

same persons, facilities or places specified in the applica-

tion, and the action taken by the judge on each such ap-

plication; and

(f) where the application is for the extension of an or-

der, a statement setting forth the results thus far obtained

from the interception, or a reasonable explanation of the

failure to obtain such results.

(2) The judge may require the applicant to furnish additional

testimony or documentary evidence in support of the applica-

tion.

(3) Upon such application the judge may enter an ex parte

order, as requested or as modified, authorizing or approving

— A-$2 —

interception of wire or oral communications within the terri-

torial jurisdiction of the court in which the judge is sitting, if

the judge determines on the basis of the facts submitted by the

applicant that—

(a) there is probable cause for belief that an individual

is committing, has committed, or is about to commit a

particular offense enumerated in section 2516 of this

chapter;

(b) there is probable cause for belief that particular

communications concerning that offense will be obtained

(c) normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed

if tried or to be too dangerous;

(d) there is probable cause for belief that the facilities

from which, or the piace where, the wire or oral com-

munications are to be intercepted are being used, or are

about to be used, in connection with the commission of

such offense, or are leased to, listed in the name of, or

commonly used by such person.

(4) Each order authorizing or approving the interception of

any wire or oral communication shall specify—

[See main volume for text of (a) to (c))

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

mterception unobtrusively and with a minimum of interference

with the services that such carrier, landlord, custodian, or person

is according the person whose communications are to be inter-

— A-$3 —

todian or other person furnishing such facilities or technical

assistance shall be compensated therefor by the applicant at the

prevailing rates.

(5) No order entered under this section may authorize or

approve the interception of any wire or oral communication for

any period longer than is necessary to achieve the objective of

the authorization, nor in any event longer than thirty days.

Extensions of an order may be granted, but only upon applica-

tion for an extension made in accordance with subsection (1)

of this section and the court making the findings required by

subsection (3) of this section. The period of extension shall be

no longer than the authorizing judge deems necessary to achieve

che purposes for which it was granted and in event for longer

than thirty days. Every order and extension thereof shall con-

tain a provision that the authorization to intercépt shall be ex-

ecuted as soon as practicable, shall be conducted in such a way

as to minimize the interception of communications not otherwise

subject to interception under this chapter, and must terminate

upon attainment of the authorized objective, or in any event in

thirty days.

(6) Whenever an order authorizing interception is entered

pursuant to this chapter, the order may require reports to be

made to the judge who issued the order showing what progress

has been made toward achievement of the authorized objective

and the need for continued interception. Such reports shall be

made at such intervals as the judge may require.

(7) Notwithstanding any other provision of this chapter, any

investigative or law enforcement officer, specially designated by

the Attorney General or by the principal prosecuting attorney of

any State or subdivision thereof acting pursuant to a staute of

that State, who reasonably determines that—

(a) an emergency situation exists with respect to con-

—_ve

terest or to conspiratorial activities characteristic of or-

ganized cmme that requires a wire or oral communication

to be intercepted before an order authorizing such inter-

ception can with due diligence be obtained, and

(b) there are grounds upon which an order could be

entered under this chapter to authorize such intercep-

aon

may intercept such wire or oral communication if an appli-

cation for an order approving the interception is made in ac-

interception has occurred, or begins to occur. In the absence

of an order, such interception shall immediately terminate when

the communication sought is obtained or when the application

for the order is denied, whichevcr is earlier. In the event such

application for approval is denied, or in any other case where

the interception is terminated without an order having been

issued, the contents of any wire or oral communication inter-

cepted shall be treated as having been obtained in violation of

this chapter, and an inventory shall be served as provided for

in subsection (d) of this section on the person named in the ap-

phcation.

(8) (a) The contents of any wire or oral communication

intercepted by amy means authorized by this chapter shall,

if possible, be recorded on tape or wire or other comparable

device. Tue recording of the contents of any wire or oral com-

munication under this subsection shall be done in such way as

will protect the recording from editing or other alterations.

Immediately upon the expiration of the period of the order, or

extensions thereof, such recordings shall be made available to

Custody of the recordings shall be wherever the judge orders.

They shail not be destroyed except upon an order of the issuing

or denying judge and in any event shall be kept for ten years.

Duplicate recordings may be made for use or disclosure pur-

suant to the provisions of subsections (1) and (2) of section

— A-55 —

2517 of this chapter for investigations. The presence of the

seal provided for by this subsection, or a satisfactory explana-

tion for the absence thereof, shall be a prerequisite for the

use or disclosure of the contents of any wire or oral commu-

nication or evidence derived therefrom under subsection (3)

of section 2517.

(b) Applications made and orders granted under this chapter

shall be sealed by the judge. Custody of the applications and

orders shall be wherever the judge directs. Such applications

and orders shall be disclosed only upon a showing of good

cause before a judge of competent jurisdiction and shall not be

destroyed except on order of the issuing or denying judge, and

in any event shall be kept for ten years.

(c) Any violation of the provisions of this subsection may

be punished as contempt of the issuing or denying judge.

(d) Within a reasonable time but not later than ninety days

after the filing of an application for an order of approval under

section 2518(7\b) which is denied or the termination of the

period of an order or extensions thereof, the issuing or deny-

ing judge shall cause to be served, on the persons named in the

order or the application, and such other parties to intercepted

communications as the judge may determine in his discretion

that is in the interest of justice, an inventory which shall include

notice of —

(1) the fact of the entry of the order or the applica-

tion,

(2) the date of the entry and the period of authorized,

approved or disapproved interception, or the denial of the

Rete aot

(3) the fact that during the period wire or oral com-

munications were or were not intercepted.

The judge, upon the filing of a motion, may in his discretion

make available to such person or his counsel for inspection such

—_—v =

orders as the judge determines to be in the interest of justice.

On an ex parte showing of good cause to a judge of competent

jurisdiction the serving of the inventory required by this subsec-

tion may be postponed.

(9) The contents of any intercepted wire or oral communica-

tion or evidence derived therefrom shall not be received in evi-

dence or otherwise disclosed in any trial, hearing, or other pro-

ceeding in a Federal or State court unless each party, not less

than ten days before the trial, hearing, or proceeding, has been

furnished with a copy of the court order, and accompanying ap-

plication, under which the interception was authorized or ap

proved. This ten-day period may be waived by the judge if he

finds that it was not possible to furnish the party with the above

information ten days before the trial, hearing, or proceeding and

that the party will not be prejudiced by the delay in receiving

(10) (a) Any aggrieved person in any trial, hearing, or pro-

ceeding in or before any court, department, officer, agency, reg-

ulatory body, or other authority of the United States, a State, or

a political subdivision thereof, may move to suppress the con-

tents of any intercepted wire or oral communication, or evi-

dence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which

it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with

the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceed-

ing unless there was no opportunity to make such motion or the

person was not aware of the grounds of the motion. If the mo-

—_Y

tion is granted, the contents of the intercepted wire or oral com-

munication, or evidence derived therefrom, shall be treated as

having been obtained in violation of this chapter. The judge,

upon the filing of such motion by the aggrieved person, may in

his discretion make available to the aggrieved person or his

counsel for inspection such portions of the intercepted com-

munication or evidence derived therefrom as the judge deter-

mines to be in the interests of justice.

(b) In addition to any other right to appeal, the United States

shall have the right to appeal from or order granting a motion

to suppress made under paragraph (a) of this subsection, or the

denial of an application for an order of approval, if the United

States attorney shall certify to the judge or other official granting

such motion or denying such application that the appeal is not

taken for purposes of delay. Such appeal shall be taken within

thirty days after the date the order was entered and shall be

diligently prosecuted.

§ 2519. Reports concerning intercepted wire or oral communi-

cations

(1) Within thirty days after the expiration of an order (or

each extension thereof) entered under section 2518, or the de-

nial of an order approving an interception, the issuing or deny-

ing judge shall report to the Administrative Office of the United

States Courts—

(a) the fact that an order or extension was applied for;

(b) the kind of order or extension applied for;

(c) the fact that the order or extension was granted as

applied for, was modified, or was denied;

(d) the period of interceptions authorized by the order,

and the number and duration of any extensions of the

order,

— A-58 —

(e) the offense specified in the order or application, or

extension of an order,

(f) the identity of the applying investigative or law en-

forcement officer and agency making the application and

the person authorizing the application; and

(g) the nature of the facilities from which or the place

where communications were to be intercepted.

(2) In January of each year the Attorney General, an Assist-

ant Attorney General specially designated by the Attorney Gen-

eral, or the principal prosecuting attorney of a State, or the

principal prosecuting attorney for any political subdivision of a

State, shall report to the Administrative Office of the United

States Courts—

(a) the information required by paragraphs (a) through

(g) of subsection (1) of this section with respect to each

application for an order or extension made during the

preceding calendar year;

(b) a general description of the interceptions made under

such order or extension, including (i) the approximate

nature and frequency of incriminating communications in-

tercepted, (ii) the approximate nature and frequency of

other communications intercepted, (iii) the approximate

number of persons whose communications were inter-

cepted, and (iv) the approximate nature, amount, and cost

of the manpower and other resources used in the intercep-

tions;

(c) the number of arrests resulting from interceptions

made under such order or extension, and the offenses for

which arrests were made;

(d) the number of trials resulting from such intercep-

tions;

— A-59 —

(e) the number of motions to suppress made with re-

spect to such interceptions, and the number granted or

denied;

(f) the number of convictions resulting from such inter-

ceptions and the offenses tor which the convictions were

obtained and a general assessment of the importance of the

interceptions; and

(g) the information required by paragraphs (b) through

(f) of this subsection with respect to orders or e°. ensions

obtained in a preceding calendar year.

(3) In April of each year the Director of the Administrative

Office of the United States Courts shall transmit to the Congress

a full and complete report concerning the number of applica-

tions for orders authorizing or approving the interception of wire

or oral communications and the number of orders and exten-

sions granted or denied during the preceding calendar year. Such

report shall include a summary and analysis of the data required

to be filed with the Administrative Office by subsections (1) and

(2) of this section. The Director of the Administrative Office of

the United States Courts is authorized to issue binding regula-

tions dealing with the content and form of the reports required

to be filed by subsections (1) and (2) of this section.

§ 2520. Recovery of civil damages authorized

Any person whose wire or oral communication is intercepted,

disclosed, or used in violation of this chapter shall (1) have a

civil cause of action against any person who intercepts, dis-

closes, or uses, or procures any other person to intercept, dis-

close, or use such communications, and (2) be entitled to recover

from any such person—

(a) actual damages but not less than liquidated dam-

ages computed at the rate of $100 a day for each day of

violation or $1,000, whichever is higher,

—_—e l=

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs

reasonably incurred.

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

tion shall constitute a complete defense to any civil or criminal

action brought under this chapter or under any other law.

Constitutional Provisions

The Fourth Amendment to the Constitution of the United

States of America provides as follows:

Amendment IV —Searches and Seizures

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause supported by Oath or affirmation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.

The Fifth Amendment to the Constitution of the United

States of America provides as follows:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of

law. nor shall private property be taken for public use, without

just compensation.

— A-61 —

Ink Rolier ané ————— —-

Dust Snraeia- ——_ 1 oe

Pristing

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Printing Lever Retrectiie Spring

KS-3107 Pen Register

© American Telephone and Telegraph Company, 1962

Printed in USA.

Pen Register manufactured by Foote-Pierson Company

and J. H. Bunnell Company

— A-62 —

Dialed Number Recorder manufactured by

Hekimian Laboratories, Incorporated

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