# Petition — Southwestern Bell Telephone Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1711%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1008 ## Text 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 GS GD vc kcccccccecccccecescccésceduees« 2 PED Saccccucécscusbeceusescesscceseeeeas 2 SY SE cc cneveupessctansedabaceuane 2 Statutes, Rules and Constitution Involved ............. 3 EE o6 ddd eneusensedesetbasénccncesconessdc 4 Reasons for Granting the Writ ................0555. 9 SD cn cnnnvovec cavesécodecsecencahscsaces< 23 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 To) ff >.) |) eee eee < m | of > eer oor 5,22 Al. of 2+) | Se ooo 22 TE of Ub), ) Pe eeeTEEEEEEE EEE 2,3, 10 2B UBCA 6 IGGL 2... ccc cccccccceseecceseses 3, 14, 18 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. j : i f ; 4 i E ti . } I oi ce 4 : i ut i ; Ht i | + z 4 it a l 4 an ii@ies 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1711%3A1. Public record. Not legal advice.