United States v. New York Telephone Company – Oral Argument – October 03, 1977

Media for United States v. New York Telephone Company

Audio Transcription for Opinion Announcement – December 07, 1977 in United States v. New York Telephone Company

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Warren E. Burger:

We will hear arguments next in 76-835, United States against New York Telephone Company.

Mr. Wallace, you may precede when you are ready.

Lawrence G. Wallace:

Mr. Chief Justice, may it please the Court.

The issue in this case is the validity of an order authorizing FBA — FBI Agents to install and use Pen Registers, as these devices are commonly called, on two designated telephones and ordering the respondent telephone company to furnish all information, facilities and technical assistance needed to install the Pen Registers unobtrusively.

The order was based on a finding of probable cause to believe that certain named individuals and others unknown were conducting an illegal gambling enterprise in violation of Federal Law by the use of the two designated telephones at a certain address specified in the order and these findings were based on an affidavit by an FBI Agent showing the reasons for believing this information to be true.

The sufficiency of that affidavit and of the order’s specificity and reasonableness under the Fourth Amendment are not disputed here, indictments have since been returned with respect to this investigation and motions to suppress have been denied, it is in that preceding that such issues would be litigated.

Now, the order itself appears in the Appendix at pages 6 and 7 preceded by the affidavit incidentally, the order has considerable particularity in Fourth Amendment terms and it contains a couple of provisions to which I want to draw a particular attention, one is at page 7 at the Conclusion of the first paragraph.

The order specifies that the telephone company is to be compensated for — at the prevailing rates for providing the facilities and technical assistance required and the other is in the next where for Clause part B, the purpose of the orders specified here, it is to ascertain by the — identifying outgoing calls, the numbers that are dialed in outgoing calls, to identify Associates and Confederates of those who prior to investigation, including a prior authorized wire tap indicated were involved in this enterprise.

And this is for purposes in looking at the outgoing calls of ascertaining the scope of the gambling conspiracy where it is that bets maybe being laid off as the expression is when they may receive more in the way of particular bets than they can handle than confederates, other gambling enterprises will be called to see if they can take a portion of the bet and this is an investigative technique to indicate the scope of the gambling conspiracy and that was the purpose of what was involved here.

Now the Pen Registered Devices themselves are familiar to this Court.

They were involved in the case of United States against Giordano and the District Court there described in some detail, how they operate and what they do.

They disclose only the telephone numbers that are dialed from the telephone to which line the device is attached.

In the absence of some further attachments to the Pen Registered Device which are, were not authorized by this order, the Pen Register does not indicate whether any conversation is occurring over the line, let alone hear any conversation.

It does not indicate whether as a result of the dialing.

There is a ring or a busy signal at the other end.

How many rings?

Whether the telephone was answered?

None of that can be ascertained by means of the use of what was authorized by this order.

So, essentially the information that is received, is nothing different from what can be secured from telephone company records to the extent that they are maintained of a telephone toll calls or a message unit billing records, for long distance calls every telephone company has records that can be secured without any showing of probable cause by a Grand Jury subpoena.

Potter Stewart:

Then there just are no records, however, of a — of a non-toll local calls made from an ordinary telephone?

Lawrence G. Wallace:

There is no indication that there are such records here.

Some local telephone companies do keep track of local calls and they do have records of them because of billing practices based on message units in the limited —

Potter Stewart:

That may show the number of calls, but does not show the numbers called?

Lawrence G. Wallace:

In some telephone companies it does, that is my understanding.

There is nothing in this record (Voice Overlap) that one way or the other.

Potter Stewart:

My experience was it was not possible to get those in response to a subpoena?

Lawrence G. Wallace:

To the extent that they are available, they can be secured that way.

The telephone company here says that they are not available.

Potter Stewart:

And your argument is, that this as I thought, the inference to be derived from your argument was this would provide a known — more information and could have been secured by a subpoena and if (Voice Overlap)

Lawrence G. Wallace:

That is right.

Lawrence G. Wallace:

If that should — to the extent those records are available, they can be secured by subpoena (Voice Overlap).

Potter Stewart:

Well, to the extent they are and that is the whole —

Lawrence G. Wallace:

That is correct.

Potter Stewart:

Critical if in — in your argument?

Lawrence G. Wallace:

Now, that is correct and that if the Pen Registered Devices often used by the telephone company to ascertain this kind of thing for billing purposes and to make its own records when it has or concerns relating to toll billing, but —

There is a record show that was tolled?

Lawrence G. Wallace:

Not — it is not shown in this —

— the internal use of the Pen Registered, for its own purposes by the telephone company?

Lawrence G. Wallace:

Not directly does it not show it, but there is a showing of this in sources that we have cited in our brief dealing with the use of Pen Registers.

Those sources show a wide spread use, continuous use, by the telephone company of Pen Register for their own internal purpose?

Lawrence G. Wallace:

They show that that is the principal use of Pen Registers by the telephone company rather than by Law Enforcement Official.

Thurgood Marshall:

Mr. Wallace, this is New York City?

Lawrence G. Wallace:

That is correct.

Thurgood Marshall:

You tell me that in New York City, they have Pen Registers on every phone in New York City?

Lawrence G. Wallace:

Oh no, not on every phone, it is just the telephone company does use them.

I am sure that counsel for the telephone company can shed more light on this.

There is nothing in the record on the extent to which they use it.

Thurgood Marshall:

Well, I mean, what is the percentage number?

Lawrence G. Wallace:

I have no idea–

Thurgood Marshall:

It would be very small —

Lawrence G. Wallace:

I have no idea Mr. Justice Marshall.

Thurgood Marshall:

There is quite a few phones in New York City?

Lawrence G. Wallace:

That is correct.

It would be a spot check situation as Mr. Justice Stewart suggests, so far as I am aware.

The purpose of my comparison is merely to point out the very limited nature of the information that can be ascertained through the use of these devices.

Many generalizations that are heard about the evils of electronic surveillance are not responsive to the limited authorization, limited investigatory technique that is involved here which gives you nothing more than what you can get from the telephone company with respect to long distance calls, whatever the situation is with respect to local calls.

It is hard to see why there is a Constitutional difference between local and long distance calls for these purposes and those records, that is not contested, would be available under this Court’s decision that is analogous to this in United States against Miller with respect to bank records and more specifically the Second Circuit Court of Appeals some years ago addressed this question in a case cited in brief called United States against Gallo, a panel consisting of the two judges, Hand and Judge Swan who wrote the opinion, holding that the evidence was competent, taken from the telephone company by subpoena, showing calls between a telephone in the appellant’s home and telephones registered in the names of certain codefendants who pleaded guilty.

It was of limited probative value because it shows nothing, but the existence of such calls, but it was admissible and the admission was upheld and the Court explained there, that this was not a violation of Section 605 of the Communications Act which at that time forbade the telephone company or anyone else from disclosing the contents of wire communications.

The Statute they held, I wish I had known about this in connection with United States against Miller, I wish I had known about this case, the Statute was not intended to prescribe long standing reasonable business practices of communication companies.

When a person takes up a telephone, he knows that the company will make or may make some kind of a record of the event and he must be deemed to consent to whatever record the business convenience of the company requires.

Lawrence G. Wallace:

If by any stretch of the language of Section 605 which no longer applies in this area, the making of such a record could be termed as interception of the communication, it is one which the sender has authorized, hence it is not within the ban of the Statute.

Warren E. Burger:

We take it that case is not cited in your brief —

Lawrence G. Wallace:

It is cited.

Warren E. Burger:

What is cited (Voice Overlap)

Lawrence G. Wallace:

United States against Gallo.

Warren E. Burger:

(Voice Overlap) Xerox company.

Lawrence G. Wallace:

Well, I was just reading from the opinion, a pertinent portion, which goes to this question to the extent of what is involved here could be characterized as a communication at all, it is a communication to the telephone company requesting service, the dialing of the number.

It is not the kind of communication that either the Old Section 605 or current Statutes have been concerned about.

Now, in response to the order, the telephone company here did furnish all the information required to enable the FBI to do the installation itself, identifying where the lines could be found in that sort of thing and if there had not been compliance to that extent, the FBI would have been physically unable to carry out the order.

Byron R. White:

Well, do you agree that the — that the — that an Official Pen Register must have Court consent and approval?

Lawrence G. Wallace:

Well, not necessarily Court consent, we think that it — it would require a warrant that can be issued by a Federal Magistrate.

Byron R. White:

Yes, but you do not — you do not say that — you do not say that without any — any official approval at all, the FBI could install a Pen Register, you need a warrant?

Lawrence G. Wallace:

Well, absent exigence circumstances at least.

There is that exception.

The warrant requirement under the Fourth Amendment and no statutory reason why it would not apply here.

Byron R. White:

Okay.

Thank you.

Lawrence G. Wallace:

Here we did secure a warrant, based on a finding of Probable Cause.

John Paul Stevens:

Mr. Wallace —

Warren E. Burger:

Go ahead —

John Paul Stevens:

I am not sure I follow that.

If these were records which were available which you assumed in your colloquy with Justice Stewart, why could not the FBI just go and asked the telephone company to see what they had?

Lawrence G. Wallace:

Well, my understanding is that these records are not available.

John Paul Stevens:

Well, to the extent if they are available — now, why could not the FBI just go and say what have you got in the nature of Pen Register records, maybe just long distance calls from this number, is there anything –?

Lawrence G. Wallace:

They could have done that.

John Paul Stevens:

Then why did they need a warrant?

Lawrence G. Wallace:

They needed a warrant to install the Pen Register to ascertain all numbers that are being dialed from these telephones —

John Paul Stevens:

Well, you say that, but what required the warrant?

What — what legal rule required them to get a warrant, to get additional numbers beyond those that were already recorded by the telephone company?

Lawrence G. Wallace:

Well, they show it indeed in their criminal investigation to get the numbers —

John Paul Stevens:

I understand, the practical reason why they wanted them, but why could not they just do it independently, assume they had the technical know how.

Lawrence G. Wallace:

Well, it could be argued that they could it —

Potter Stewart:

In the Gallo case it might follow that they could?

Lawrence G. Wallace:

Yes.

It might follow.

It has been argued in some of the literature that they could.

We think that the implications of the Court of Appeals’ decisions on this question and of the opinion agreed to by four members of this Court in United States against Giordano is that there is a search within the meaning of the Fourth Amendment involved here and in order to conduct the search where there is time to get a warrant, we ordinarily will get a warrant on that showing.

Thurgood Marshall:

Mr. Wallace, we do not have to get into the point of the right the FBI to walk into a business establishment to tap a phone, do we?

Do we have to get to that point to decide this case?

Lawrence G. Wallace:

We are not, not at all.

We are not involved with a tap in this case or what is commonly called the tap.

Well physically, how do you install Pen Registers?

Lawrence G. Wallace:

It is installed by; it is installed to the line.

It is a tap in that sense, but it is not a tap that enables you to listen on line.

What I mean is if you are going to install a Pen Register, say on my telephone, how is it done?

Lawrence G. Wallace:

Well, the way that it normally is done in order for it to be it done unobtrusively is by leasing a line from the telephone company which the telephone company can indicate how that line can be connected at a box where the two lines emerge to the telephone that you want to attach the Pen Register to and then the leased line can be extended to a location where the Pen Register can be attached to the leased line, otherwise cables would have to be attached to the box in the apartment building or on the back of the building where the telephone line makes what is called an appearance, in order to have a line to which the Pen Register could be attached and as a matter of fact that was the precise problem here.

While the telephone company was willing to provide the information, it was not willing to lease the line to the FBI which would enable the FBI to install the Pen Register unobtrusively without having to string cables and instead the telephone company suggested to the FBI that they should string their own cables from this apartment building in order to install the Pen Register and comply with the order and after (Voice Overlap)

A Pen register I gather is just a recording device, is it not?

Lawrence G. Wallace:

That is correct.

And — and does the FBI keep an inventory of Pen Registers?

Lawrence G. Wallace:

They do have them, that is correct.

In this instance would, they want the telephone company to provide the Pen Registers from the telephone company stock or what they do?

Lawrence G. Wallace:

They would have provided their own, although if it would have been agreeable to them, if the telephone company had wanted to install its Pen Registers.

Who manufactures them, the telephone company or –?

Lawrence G. Wallace:

I do not know the answer to that, but the registers here were FBI property.

How large — how large are the devices, are they small?

Lawrence G. Wallace:

There are pictures, I do not know, precisely, but the point is that the FBI made a 4-day surveillance of the neighborhood knowing that counter surveillance techniques were being used by this gambling enterprise which had a history, the record shows, of changes of address and changes of telephone numbers quite frequently and they concluded that they could not execute the warrant unobtrusively without the leased line.

Sending agents into string the lines there would have resulted in cessation of the gambling activities and frustration of the Court’s order.

So, in the meantime, the telephone company filed a motion in the case seeking vacation of that part of the order requiring them to provide facilities and that order was denied in all respects by the District Court, but granted by the Court of Appeals in a two to one decision.

The majority agreeing with the Court of Appeals with the Seventh Circuit in a prior decision, and since then the Eighth Circuit has also agreed with this, held that the District Court did have authority to authorize the FBI to install the Pen Register and it assumed arguendo that there was also authority that inherently or under the All Writs Act to require the telephone company to provide the assistance to enable that order to be carried out, but it held that it would be an abuse of discretion in the absence of Specific Legislative Authority on this subject how it exercised that authority on the basis of what might be called the first step down to slippery slope kind of rationale.

Lawrence G. Wallace:

What is significant for our purposes in the opinion, it can be found in Paragraph on Pages 13a and 14a of the Appendix to the Petition in which the Court of Appeals specifies that what it calls the most persuasive point argued by the government in support of the order is that without the appellant’s technical aid, the order authorizing the use of a Pen Register will be worthless.

Federal Law Enforcement Agents simply cannot implement Pen Register surveillance without the telephone company’s help.

The assistance request did require no extraordinary expenditure of time or effort by appellant.

Indeed as we understand it, providing lease or private lines is relatively simple routine procedure and I will interject there that the dissenting judge specified, this is on Page 20a of the Appendix, that the telephone company concedes that the assistance require that was not burdensome, all that was required was the provision of certain plans and the flicking of a switch at the Central Terminal.

Warren E. Burger:

Now, I notice that rather sweeping concession which perhaps the telephone company might not be happy to rely on, that they can provide this technical assistance without fear of civil or criminal liability, does the Court cite any authority for the proposition?

Lawrence G. Wallace:

The Court did.

The Court cited Section 2520 of Title XVIII which is part of Title III of the Omnibus Crime Control Act of 1968 and that provision specifies —

Warren E. Burger:

Does that deal a Civil Liability?

Lawrence G. Wallace:

It deals with both Civil and Criminal Liability and it specifies that a good faith reliance on a Court order or on legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

The Court of Appeals for the Seventh Circuit referred to certain other legislation that would grant immunity from liability.

The finding here was that because of Section 2520, the telephone company need have no fear of liability if it acts pursuant to a Court Order and of course the order provides for financial remuneration to the company.

Harry A. Blackmun:

So, Mr. Wallace has the Congress been invited to Legislatively Pen Registered —

Lawrence G. Wallace:

I am not aware of any pending legislation, Mr. Justice Blackmun.

Now, the argument that respondent seeks to renew here, although it did not petition and we have agreed that it is sufficiently closely connected with the rest of what else is at issue, that it should be considered by the Court.

The Title III governs this.

It seems to us to have been adequately answered in — of the concurring and dissenting opinion filed by four Justices in Giordano and I will have to leave that argument to their opinion and to the brief.

The legislative history is very specific on that point that Pen Registers are not covered and that it was the content of the communication rather than the fact of the communication that was to be protected.

What remains here are the question about the validity of the order with respect to the authorization itself which we think Rule 41 applies to, has it seems to us the Court of Appeals assumed in Katz and Osborne with respect to seizure of intangible and electrical impulses of this sort or since it sometimes referred to as an order in the nature of a search warrant, one could instead resort to Rule 57 (b) of the Criminal Rules, which authorizes the District Court to proceed in any manner not prohibited elsewhere.

But either way, the protections of the Fourth Amendment are satisfied in this area and the rule with some adaptation because it does not specify, it is not drafted in terms of a durational search of the sort that is involved here.

John Paul Stevens:

(Voice overlap)Mr. Wallace you do not — you do not contend that Rule 57 (b) is a Grant of Jurisdiction, do you?

Lawrence G. Wallace:

Well, we really are relying on Rule 41. Rule 57 (b), I think gives some authority to proceed in a nature of Rule 41, when the terms of Rule 41 need to be varied somewhat, because of the kind (Voice Overlap)

John Paul Stevens:

Let me ask the question again.

Do you — do you or do you not contend that Rule 57 is an independent Grant of Jurisdiction to a Federal Court?

Lawrence G. Wallace:

Well, we have not made that contention.

I do not want to concede that it is not, however.

We think Rule 41 is satisfactory for our purposes here and that the issue then becomes whether when an order issued under Rule 41 cannot be carried out without the technical assistance of a third party, whether a Court or the telephone company in this case is to decide whether the order will be carried out.

We think the Court has ample authority under the All Writs Act to effectuate its order, as has been done in many situations involving Injunctive Orders to third parties, including cases in which convictions have been upheld for contempt of such injunctions when they are issued to uphold school desegregation decrees for example and there are other examples which I really do not have time to go into.

William H. Rehnquist:

Why do you — why do you need the All Writs Act, Mr. Wallace?

Does not 41 authorize the issuance of — Subpoenas and discovery from persons not parties to the action?

Lawrence G. Wallace:

Well it does, but the contention that is being made is that, it does not authorize the requirement of an unwilling third party assist in the execution of a search warrant.

William H. Rehnquist:

Well, is that a sub — is that a matter of substantive law or of — of the right form of action as you understand the contention?

Lawrence G. Wallace:

I think the contention is a matter of substantive law, but I am not sure, I am not sure Mr. Justice Rehnquist, but there is a long history of the use of such matters and if I may I just want to refer the Court to one case, the United States against McHie, which is not cited in the Briefs, 196 Federal Reporter 586, which I informed opposing counsel about last week, one has to go back here to 1912 to find an answer being made in some detail to the contention that the All Writs Act does not permit writs to be issued to third parties and the court’s answer at that time was that has not been the practice at all.

There have been many instances for the use of the All Writs Act in its history for that purpose.

It has been true of Injunction, Execution, subpoena, Testificandum, subpoena Duces Takem, Writ of Prohibition, etc.

It is an argument that one has to go back into history to find an answer for and if I may, I would like the reserve the balance of my time.

Warren E. Burger:

Very well, Mr. Wallace.

Mr. Ashley.

George E. Ashley:

Mr. Justice and may it please the Court.

New York telephone company is pleased that the Court has granted certiorari in this case to resolve the — to provide guidance and to resolve the conflict that exists in the Circuits as to the right of the government to proceed to get the orders for the installation of Pen Registers and to order the Affirmative Assistance of the telephone company, when it has not chosen to proceed under Title III of the Omnibus Crime Act of 1968.

We of course have no desire to obstruct law enforcement authorities in the discharge of their vital functions and in fact we have a long history of extensive cooperation in that regard.

At the same time, we also have a long standing policy of protecting the privacy of communications to the maximum extent that is feasible with the needs of a law enforcement when those exceptions are spelled out by clear requirements of law.

While we believe, we do have a legitimate concern with potential Civil Liability if the orders that are here sought are not lawful and there have been a of number cases in which the telephone companies have been sued because we are sort of in the middle in this kind of situation, nevertheless our primary purpose for being here and in cooperating in bringing this matter before the Court is because of its implications for the Protection of the privacy of communications.

Given the extent to which the telephone system is used for social and business intercourse in this country, we believe it is inconsistent with the rights of a free society to have the privacy invaded anymore than it is found to be warranted by the clear definitions and exceptions in the Statutes.

This Court and Congress have long been concerned with balancing these two interests.

The history goes back to the Olmstead case in 1928 and then to the Nardone Case in the 30s when this Court, on its own initiative instituted the Exclusionary Rule and then you come on down through the many cases intervening to the cases in the 60s, Osborne, Katz and Burger, which left the whole matter so complex and confused around the country, that Congress addressed that head on in enacting the Omnibus Crime and Safe Treats Control Act in 1968.

And Title III of that Act deals very extensively with the whole matter of electronic surveillance and we believe that the senate report indicates that Congress intended to legislate comprehensively and preemptively that in the area of electronic surveillance —

Byron R. White:

Did the Court of Appeals agree with you?

George E. Ashley:

It agrees, I think that Title III is a very sweeping and very comprehensive in the scope.

It does not agree that the requirement for a Pen Register is covered by Title III.

Byron R. White:

Is covered by Title III and you disagree with that?

George E. Ashley:

And we think that is certainly a serious question.

Byron R. White:

Well, are you entitled to urge that here?

George E. Ashley:

We believe that it is implicit in the issue that is here because there would be no authority to order the telephone company to provide the lease line facilities unless the court also decides that the basic underlying order was properly granted.

Byron R. White:

But the Court of Appeals’ opinion is much narrower than that.

It — it said that the Title III does not cover this?

George E. Ashley:

You are correct, Your Honor.

Byron R. White:

And if you wanted to challenge that, you really should have cross-petitioned I suppose?

George E. Ashley:

Well, it is my understanding that the — that the government also believes that this is subsumed in the issue that it is before the Court —

Byron R. White:

The government does not mind this either?

George E. Ashley:

No, I think that is true, but I think if the Court goes — handles this case and passes upon the requirement that the telephone company provide lease line facilities under these circumstances, then it will for the first time really have come to grips with the issue as to whether Pen Register can be issued outside the scope of Title III and this Court up to that — this time has not specifically addressed that.

Byron R. White:

Well, the Court of Appeals also thought that Rule 41 authorized issued some warrants for Pen Register, did not they?

George E. Ashley:

Yes.

Byron R. White:

And you disagree with that?

George E. Ashley:

Yes, we do.

Byron R. White:

And you are urging us to overturn the Court of Appeals in that regard?

George E. Ashley:

We are saying that this case being properly before the Court, that that issue ought also be addressed head on by the Court because of the wide disagreement, not by Circuits, but there had been other —

Byron R. White:

But no one has challenged that rule here?

George E. Ashley:

Well, Judge Oliver in the Western District of Missouri felt so.

Byron R. White:

I know, but nobody has presented that issue to us in any of the papers here?

George E. Ashley:

I think the matter is fully briefed Your Honor and both the government’s brief —

Byron R. White:

But if we agreed with you — you would — you would be enlarging the relief of that the Court of Appeals — the Court of Appeals gave you?

We will be giving you relief that the Court of appeals never gave you?

George E. Ashley:

It would be finding that the basic underlying order is not warranted and that is not a finding that has been made by the Court below.

But — but would the order that — the relief you did get —

If you were to prevail on these, assuming we could entertain your arguments that the Court of Appeals is wrong in both respects —

George E. Ashley:

We merely here —

If we did, would that support the order that the Court of Appeals had —

George E. Ashley:

Our position with respect to —

Or give you a broader order —

George E. Ashley:

I am sorry Your Honor, I did not understand.

What was the relief you got below?

George E. Ashley:

The relief that was allowed below, it really goes to the issue of the extent of the order that should be directed to the telephone company and that is the matter that does directly impinge upon us and it is (Voice overlap)

And would you — would you be entitled to the order you got below, had you prevailed on your argument that the Safe Streets Act (Voice Overlap)

George E. Ashley:

If a different resulted had been really reached as to whether the Title III order was warranted in the first place, there would have been no need to reach the second order.

There would been no order to the telephone company at all in all the circumstances.

Even though you didn’t cross-petition and are you not in the position to urge these questions on us?

George E. Ashley:

We believe that it is inherently involved in the issue (Voice Overlap) before the Court.

Well, are you — the ordinary rule is; that you are entitled here to defend the order below on whatever ground is available?

George E. Ashley:

There are various cases to that affect cited in the government’s brief in which they agree that the issue (Voice Overlap)

Well, you can do that without expanding your relief, can you not?

George E. Ashley:

Yes.

Alright.

George E. Ashley:

Well, before I move on from that point, I am merely here urging because of the fundamental nature of it and because that issue has not been directly addressed by this Court even though there are no numerous decisions, assuming that Pen Register orders are outside the scope of Title III, that this Court in providing guidance to the Court’s around the country, not start with the predisposition and with a closed mind with respect to that, but instead address that issue in this case, so that it will not be merely assumed without being addressed and analyzed.

Thurgood Marshall:

Mr. Ashley, does this record show that you use Pen Registers yourself?

George E. Ashley:

Not the record itself, but the briefs and the statements that we had made, in fact, we state positively that the customer use of Pen Registers is for very limited purposes within the operation of the telephone business.

For example, we maybe need — we maybe required to check on the accuracy of billing and we need, this is the way in that is done, we may in certain difficult situations where there are harassing calls and things of that sort, we may need to — to trace that call.

Thurgood Marshall:

It means that are you not listening all conversations?

George E. Ashley:

No, no —

Thurgood Marshall:

Oh! Yes you do when there is fraud involved or you suspect it?

George E. Ashley:

Yes and in other circumstances through —

Thurgood Marshall:

No I what mean is it is not just the clear and unclear.

You do violate the rights of privacy of people.

George E. Ashley:

Well Your Honor, I — I — I hesitate to accept that characterization.

There is certain service of deserving that is done on the way in which operators handle a call, but when that is done, those are timed out, so that they do not go into the conversation itself.

Thurgood Marshall:

But they do listen in?

George E. Ashley:

And the Pen Register that we are talking about when it is, we do it only at the extent to prevent fraud and to protect the integrity of the system, so that there is no violation of —

Thurgood Marshall:

So you do it to prevent violence law — violation law?

Now, what is this Pen Register that the government wants?

George E. Ashley:

This is one by the government in which they want to intercept and listen in.

Thurgood Marshall:

To prevent violation of the law?

George E. Ashley:

Yes sir, but that — that the extent to which government has been permitted to use Pen Registers has a long history.

It goes back to the enactment of the Communications Act in 1934 and for the entire period of time, from 1934 until the passage of the Act in 1968, the use of Pen Registers by law enforcement authorities was prohibited by Section 605 and the case was unanimous —

Potter Stewart:

Well, I thought the Gallo Case held otherwise?

George E. Ashley:

No, the Gallo case had to do with securing the total records of the telephone company under subpoena, not with the use of Pen Registers.

In fact at — in a much, much later case, the Dote Case, when the government secured the Pen Register information, where the telephone company had used the Pen Register in the regular course of its business, it was found that that was an unauthorized interception by the government, that they have no right to those Pen Registers.

Well, Mr. Ashley I do not know that I fully understand how much use New York telephone company makes of Pen Registers in the ordinary course of business?

George E. Ashley:

They use them when there is a complaint about a billing error to check the dialing, to see whether the machinery is working properly and so that the party is truly billed for the number of calls that they make.

They maybe required in certain instances, limited instances to trace calls and that is done with the consent of the party and as Mr. Justice Marshall has brought out, in order to protect the system against fraud to prevent, you know, the use of blue boxes and things which — which may call — enable them to making calls without the charging on a selective basis, there is that sort —

Well what you are telling me then I gather is that, is the exception?

George E. Ashley:

Oh! Yes.

Not the ordinary course —

George E. Ashley:

It is not ordinarily done and I am also telling the Court that throughout the long history of the use of Pen Registers, that there has been exceptions in the law for the limited use by telephone companies in the necessary conduct to the business and that has been one set of rules and the extent to which law enforcement authorities have had the right to use Pen Registers has been governed by — has been prohibited by Statute until 1968.

William H. Rehnquist:

Well then — when you say to protect the system against fraud and other way of saying this is to maximize the company’s revenues, is it not?

George E. Ashley:

Well, we are required under the Communications Act to bill for all calls that are made and if parties are unable to bypass the billing mechanism and so forth and perpetuate fraud on the system, we are in no position then to carry out our responsibility under the Communications Act to provide service without discrimination and to bill for all calls that are made.

William H. Rehnquist:

Well, are you suggesting that Communications Act did not require you to bill for all calls made, you would not do that?

George E. Ashley:

Well, we also have an independent interest in saying that we hope to lose the revenue as well.

Yes, Your Honor, of course.

Warren E. Burger:

But I suppose, as a utility like railroads and others who would not be permitted to tolerate free service to some customers?

George E. Ashley:

That is correct.

It would be an unlawful rebate or it would be discriminatory as between customers, if that were to be — that end result were to be permitted.

I would like to —

Mr. Ashley, go ahead, I am sorry.

George E. Ashley:

Excuse me?

John Paul Stevens:

I just wondered, have you had any experience with a law enforcement agency wanting to get from you the results of a Pen Register surveillance that the company has conducted for its own purposes?

George E. Ashley:

Yes, there are efforts to do that.

John Paul Stevens:

And what is the company’s practice then, to require a subpoena or what?

George E. Ashley:

Yes, we would require a subpoena and but prior to — if you go back to the Dote Case which is no longer the law because now it would be ruled by whatever the provisions of the Omnibus Crime Bill are, whereas Dote arose under Section 605, but the Dote Case was a case in which the telephone company had Pen Register information, turned it over to the law enforcement agencies and this was held to be an unlawful acquisition of that information by the law enforcement agencies.

In other words, if the telephone company had Pen Register information as distinguished from total billing records, those were not available to law enforcement agencies.

John Paul Stevens:

Without official process anyway, I suppose a Grand Jury could subpoena them in your hand?

George E. Ashley:

Yes, of course.

I would like to move to the second issue because while I do urge the Court to address this underlying issue because there have been numerous decisions that have been assumed that Title III permitted that Pen Register surveillances outside Title III and four Justices of this Court in the concurring and dissenting opinion in Giordano assumed the same, so it is quite an uphill struggle, nevertheless, I do not believe the issue has been directly addressed and I urge you to do that.

John Paul Stevens:

Mr. Ashley, before you leave the point, do I correctly understand that in addition to arguing the Title III makes the underlying order invalid that there was no authority for the Court order the Pen Register, you also argued in the alternative that the underlying order is invalid because it is not authorized by Rule 41 or any other Federal (Voice Overlap)

George E. Ashley:

Yes, that is correct and we add to that argument Justice Stevens, that given the intent of Congress to act so comprehensively in this area and the long history that is behind it, we believe that there ought not to be assumed to be an inherent power and that since Rule 41 also does not cover it because the nature of the rule, dealing with intangibles, the fact that there are numerous reasons that are set forth in our brief, we believe that Title III ought to be covered any use that is made a Pen Registers or else there should be (Voice Overlap) for legislation.

John Paul Stevens:

So your position is that not only is this particular order unauthorized by Title III or Rule 41, but under neither, may the law enforcement agencies get a warrant for a Pen Register?

George E. Ashley:

If they proceed under Title III, they can.

John Paul Stevens:

Yes, but not elsewhere?

George E. Ashley:

But not elsewhere, yes.

And you say if Title III does not reach you and the rule does not reach you, then they ought not be permitted without additional legislation which does authorizes them?

George E. Ashley:

We believe that Pen Registers being a lesser invasion of privacy than full wire tapping capability are within the power of the Courts to authorize under Title III.

If —

If you were wrong about that?

George E. Ashley:

Well, if we are wrong about that then we see no authority —

And until there is such authority, you say, no Court order can authorize?

George E. Ashley:

Yes, we believe that if they follow the procedures under Title III and they are getting Pen Registers across the country and we have not resisted cooperating under those circumstances.

Potter Stewart:

Judge Medina for the Court of appeals took even a narrower review I guess, did he not?

He said there was power, but that it was an abusive of discretion exercise?

George E. Ashley:

This is on the second issue at which I would like to turn because I believe that it is a very fundamental issue and it is Justice Rehnquist, from our perspective a substantive issue as well as a procedure of issue and that is the extent to which Courts have the power to order private citizens, even telephone companies to actively participate in the act of criminal investigation without explicit statutory authority to do so.

Warren E. Burger:

Now you consistently equate the telephone company with the private citizen.

Is there not a substantial difference between the telephone or the private individual and utility which has received this monopoly a virtue franchise from government?

Is not there a difference in duties?

George E. Ashley:

Oh! Yes sir.

We do not deny that there is, but we believe that we are private citizens and our employees are private employees with private employer except to the extent that depicts, you know, special duties and responsibilities have been imposed upon us by the Regulatory Statutes and there are no questions that what goes over there.

Warren E. Burger:

But over the years, you have construed that duty also to lead, at least the record suggests, a good deal of voluntary cooperation with law enforcement officers?

George E. Ashley:

What we have done in the way of voluntary cooperation, we believe are within the scope of our privileges and rights as a private employer and we have responded in those instances to the extent that we believe it is —

Warren E. Burger:

You do not — then are you rejecting the idea that as a utility having a monopoly over communications that you have a higher duty than the ordinary citizen?

George E. Ashley:

No, we are not rejecting that, but we say the extent to which that exists is spelled out by statutes and it should be spelled out by statutes rather than be something that we would assumed ourselves without any — any limits.

Particularly in this instance in which we would be cooperating in the invasion of the private use in the telephone system, without explicit statute authority to that effect.

We do not believe we should assume to do that through any inherent obligation of a public utility.

We believe that should be spelled out.

Warren E. Burger:

In that respect your — as Mr. Justice Stewart suggested your disagreeing with Judge Medina’s view that there is authority, but that it was an abuse of the discretion or exercise here?

George E. Ashley:

Yes, we believe that there is no actual power.

We believe the Ninth Circuit so held in the application of the United States case in 1970 which was a Title III Case, but on this issue, this secondary issue, as to the obligation of the telephone company whether it is appropriate for a Court to order the provision lease facilities and the active involvement of the telephone company.

On that issue, we believe the Ninth Circuit decision is indistinguishable on the facts from this and what happened there was that the telephone — that the telephone company was ordered to provide lease lines as here, but in the Title III situation the Court, the Ninth Circuit held it had no such power.

It could find no such power to order it and felt it would be unwise to do so without specific statutory authority and subsequent to that then it was taken to Congress.

Congress did enact a statute which authorized that the telephone companies to provide lease lines when Title III Orders were secured and under those circumstances provided immunity in the statute, the immunity to which, my learned colleague here has — has — made illusion, but he is giving us, he is relying upon the very statute that he says they do not need to follow in securing the underlying authority.

He would — he would use the very Title III which he says, does not apply to this case and which they do not have to follow as a basis to give us the immunity which I find very strange.

Thurgood Marshall:

When you get authority to put you up Pen Registers only?

Except that if you do not assume authority as a public utility, you are just a private citizen.

Well, private citizens, I have trouble finding authority to put a Pen Register?

George E. Ashley:

No, not in this respect we are not relying upon our rights as a private citizen, under both the 605, the Communications Act before 1968 and under the Omnibus Crime Bill in 1968.

George E. Ashley:

Exception was made for the telephone company in the necessary conduct of its business to do that.

Thurgood Marshall:

And also to listen in?

George E. Ashley:

Well, only to the extent necessary to carry out its — its functions as a telephone company.

If we — if we exceeded appropriate, you know, bounds in that respect we would not be protected either.

Thurgood Marshall:

So, one or two words in 41 would give the gov (Inaudible)?

George E. Ashley:

Well, and I would say in Title III, in Title III, It is 12 o’clock here.

Warren E. Burger:

We will resume at 1 o’clock.[Lunch Break]

Mr. Ashley, you may continue, you have a few minutes left.

George E. Ashley:

Thank you, Mr. Chief Justice and may it please the Court.

I would like to continue on the point that regardless of the validity of the underlying Title III order in so far as it authorized the government that the Court had no power to order the telephone company to actively participate in the act of a criminal investigation.

I would just like to say that this is another example of where we try to strike a reasonable balance between the degree of involvement of the communications common carrier with a need for the efficient carrying out of the requirements of law enforcement.

William H. Rehnquist:

Of course the typical recipient of a subpoena, it does not feel he is entitled to strike the balance himself, you know, when you subpoena to produce something before a Grand Jury, you know, you are certainly privileged to argue that subpoena is unauthorized, but I do not think ordinarily a private organization feels that its duty is to make the decision as to whether to produce them or not?

George E. Ashley:

No I think, generally speaking that is true, of course there are (Voice Overlap)

Potter Stewart:

Again, normally — normally a subpoena is not, is to require, affirmatively require by a specific affirmative action, the active cooperation of a private citizen with law enforcement agency?

George E. Ashley:

Yes, that was the distinction I was going to make.

Preliminary to that I was going to say to Justice Rehnquist that private parties may raise the question of the burdensomeness of course of the subpoena and so forth and appeal to the sense of equity of the Court, but I think (Voice Overlap)

William H. Rehnquist:

Is not the remedy usually simply to provide financial compensation where the issue of burdensomeness is raised?

George E. Ashley:

That certainly is a major factor in whether the Court would decide to go that far —

William H. Rehnquist:

And the Court did supply compensation for you, did it not?

George E. Ashley:

It is prepared to pay for the use of the facilities at the regular tariff rate, yes.

William H. Rehnquist:

Do you have any — do you challenge the fairness of the compensation?

George E. Ashley:

No, we do not.

That is not the basis.

The basis is really the precedent for us and for citizens in general of requiring affirmative participation and acts in a criminal investigative process.

We believe there is no precedent for that.

Warren E. Burger:

Well, you are now — you suggested a precedent this morning.

You do it for your own — in the execution of what you consider your own notion as a public utility?

George E. Ashley:

We do that only in the conduct for our own business within what we, you know, it is lawful.

Warren E. Burger:

I would not want to call that a selfish interest because it is not selfish, you — you got to collect your revenues, but you do it for your own purposes, however, appropriate those purposes are?

George E. Ashley:

Yes and so do all citizens and all individuals, but it is extraordinary to expect citizens to directly involve themselves in the law enforcement process.

George E. Ashley:

The Ninth Circuit found that there was no precedent for that and when the matter was presented to Congress, then Congress did amend Title III and provide that this should be done, but only when there was a Title III order.

It did not go beyond that and authorized it, except within those very strict requirements of Title III.

William H. Rehnquist:

How about a Posse Comitatus, that certainly had traditional way in which citizens are involved in the law enforcement process, is it not?

George E. Ashley:

Yes, you have the precedent of the Posse Comitatus.

You have the precedent of individual citizens in an emergency situations where a felon maybe escaping and a law enforcement officer asked for assistance, there are a couple of cases of that sort that are cited in the petition by the Cert — by the government.

One was the opinion by Judge Cardozo in the Court of Appeals in New York and another was here in Washington, involving the Evening Star, but those incidents are really a time honored marshaling of the resources of the community in an emergency situation which the Ninth Circuit said, it was unwilling to find was a precedent for the kind of thing which is at bar here which is ahead of judgment and without the emergency condition (Voice Overlap)

Byron R. White:

(Inaudible) the Ninth Circuit said that they — that absent Title III, that they would have reach the result, they did?

George E. Ashley:

I was responding to — to the analogy to the Possee Comitatus.

They specifically refused —

Byron R. White:

Well, how about the Ninth Circuit (Voice overlap) had acted if — with respect to a Pen Register, absent Title III, you do not know whether they would have analogized it to a Possee Comitatus or not?

George E. Ashley:

Well, we are on the issue as to whether the telephone company could be required to —

Byron R. White:

I understand, exactly.

George E. Ashley:

And — and they found no authority for doing that.

Byron R. White:

They found the Title III impliedly for bad, I should think?

George E. Ashley:

No, I do not think so, except in so far as I said Congress has legislated comprehensively in this area and if they intend —

Byron R. White:

And they did not go any further than this, so we will stop there?

George E. Ashley:

But I think — I think with all do respect that if they felt this was an appropriate power of the Court, they would have been more inclined to do it within Title III where there was the basic underlying authority spelled out, then they would be in a situation where that was not the case and Congress as I say came along and authorized it in Title III, but did not go beyond that and authorized it outside of Title III and I think it is very significant that when congress acted in this respect and this goes back to the point that you Mr. Chief Justice, asked me just before the luncheon recess that the Congress did not act solely with respect to communication is common carriers, but realized that the problem was with respect to the right to require affirmative assistance of citizens in general and the language includes custodians of property and other citizens than communications common carriers.

They were all dealt with indiscriminately and the rights and responsibilities where no distinction was made between the communications common carriers and others.

Thurgood Marshall:

Mr. Ashley, what worries me is it that FBI comes and says, “Do you have a Pen Register on phone number 333-6589” and you say, “Yes” and they subpoena it, you deliver, right?

George E. Ashley:

Well, we would not do it under the Title III order.

Thurgood Marshall:

They issue a Grand Jury subpoena, you will deliver?

George E. Ashley:

Not without a Title III Order.

Thurgood Marshall:

I thought you said if you were Subpoenaed, you would deliver anything that they ask for?

George E. Ashley:

Toll billing records, ordinary business records, yes.

Thurgood Marshall:

You would not deliver a Pen Register?

George E. Ashley:

But there was a precedent of the Pen Register which was forbidden prior to the enactment of 1968 and which was found that a telephone company should not turn those records over to law enforcement agencies, they had no right —

Thurgood Marshall:

This is the Grand Jury I asked for?

George E. Ashley:

Well, I do not believe there is any authority under at that time to deal with it.

We would have of course turnover any of our business records.

Thurgood Marshall:

And that would not include the Pen Register?

George E. Ashley:

I think we would raise the question as to the possible distinction between Pen Register information and — and ordinary business records in view of the previous state of the law and the question as to whether Pen — Title III (Voice Overlap)

Thurgood Marshall:

If the Pen — if the Pen Register was transcribed on the — on your records, you would produce it.

If it was not on your records, you would not produce it and then I will like you hear to you explain that?

George E. Ashley:

I think with the question of the coverage of Title III, whether Pen Register interception is included within the scope of Title III.

Thurgood Marshall:

I am not talking about Title III?

George E. Ashley:

We would raise the question as to whether we should respond to such —

Thurgood Marshall:

If you put a Pen Register on a man’s phone and you bill them pursuant to the Pen Register, you would produce the bill upon subpoena?

George E. Ashley:

We would produce our billing records, yes.

Thurgood Marshall:

Upon the subpoena, but you would not produce the Pen Register?

George E. Ashley:

We would certainly raise the same kind of question we have raised here because of the precedent that existed before the enactment of the Title III in 1968 and raise the question as to whether that did not carry over now.

There was a distinction made between Pen Register records and toll billing records before 1968 and I think if Pen Registers are covered under Title III, you have the same question at least raised as to whether it would not be an indirect way of accomplishing the same result.

Warren E. Burger:

Suppose Mr. Ashley that there were wide spread complaints in a particular area that Pen Registers were being abused by the telephone company for their own purposes and perhaps for purposes unnecessary involving invasions of privacy.

Could the Federal Communications Commission require you by subpoena or other process to produce all of your Pen Registers for the purposes of that inquiry?

George E. Ashley:

The question did not occur to me before you, Your Honor.

In investigations involving whether we are lawfully carrying out our duties, I suppose under proper safeguards of confidentiality and impoundment and that sort of thing, yes, they would be, probably would —

Warren E. Burger:

Confidentiality for what purpose, to what end?

George E. Ashley:

Well, to limit the disclosure only to this Federal Communications Commission and only within such circumstances as were necessary for it to carry out its lawful functions.

We have had situations like that with respect to National Security matters and all.

I am speculating with you, but I think the — the question, if — if they had a legitimate investigation going as to whether the telephone company was conducting itself properly in carrying out its functions under the Act, but then I think it would have to set about to try to have the necessary safeguards to prevent disclosure of the information to anyone else, but probably under those circumstances it could be done.

Warren E. Burger:

Do you see a lack of safe guards in the present situation?

George E. Ashley:

Well, I see that there has been a long history of trying to limit the circumstances under which the law enforcement authorities do get this kind of information and there had been, throughout decades before this was unavailable to them and Congress in enacting Title III set up only certain limited crimes and required the permission to be secured from the Attorney General or his designated assistant in order to centralize the extent to which electronic surveillance was available to the law enforcement authorities and all of that is circumvented, if this can be done outside the scope of Title III.

I would just like in conclusion to call the attention again to Court to the pictures which are at the end of our brief.

Questions were asked earlier about —

What is the size of that device?

George E. Ashley:

Well, the Pen Register and the modern version which is the last page is an electronic cabinet about this wide and that high, with the —

And that one?

George E. Ashley:

It is about maybe 18 to 24 inches long, but the modern version has all of these nes — these access points where you can plug in whatever circuits or whatever function you wanted in a phone.

Warren E. Burger:

Very well, thank you, Mr. Ashley.

Potter Stewart:

Mr. Ashley, our rules require when the argument portion of a brief exceeds 20 pages, that there be a summary of argument inserted.

I do not think that rule has complied that here and I do suggest that you do it the next time, makes it a little easier for us.

George E. Ashley:

Thank you, You Honor.

This is a precedent for me and I am sorry if I did not abide by the rule.

Warren E. Burger:

Mr. Wallace?

Lawrence G. Wallace:

I have three brief points, Mr. Chief Justice.

In the first place, even though the telephone company is here challenging the authority to issue the warrant under Rule 41, it did comply in part, it did everything that was required of it under the warrant except the leasing of the line and it well might have felt some obligation to do so.

It is not standing here in the shoes of an ordinary third party, an innocent bystander.

It is not only as a public utility, but there is a finding of probable cause to believe that its facilities, which it is operating for a profit or being used in the conduct of an enterprise violating the Criminal Law in the circumstances where it would be very difficult to conduct the enterprise without the use of the telephone company’s facilities and that matter should not be lost sight of, when arguments are made, generalizing about bystanders and whether Courts can impose duties on them.

The second point is, that Title III, not only does the legislative history specifically disclaim that it is intended to limit the use of Pen Registers, but if Title III were to be applied in this area, it would be a very serious interference with legitimate use of Pen Registers in criminal investigations.

Title III, because it deals with wire tapping, overhearing the contents of telephone communications is very restricted, not only are there conversant procedures to follow which are quite time consuming, but the list of crimes for which it can be used is quite limited, whereas Pen Registers can be very useful in the investigation of a escaped fugitive offenses, Civil Rights Act offenses and various others that we have mentioned in the footnote in our brief that are not covered by Title III.

Since we here complied with all the requirements that would be necessary in order to be able to get a search warrant, to go into someone’s premises and search through his papers, there is no reason to limit a far less intrusive investigatory technique which can be very useful in these areas of detecting criminal activity and finally (Voice Overlap)

William H. Rehnquist:

The search warrant analogy, though you do not compel the person whose place is being searched to help you?

Lawrence G. Wallace:

Well, this is — it is not the individual whose telephone is being used, who is compelled to help in these circumstances, it is the telephone company who facilitates are being used.

William H. Rehnquist:

Well, if you are searching a hotel room, you do not commit or you do not order the proprietor of the hotel to help so?

Lawrence G. Wallace:

There maybe circumstances in which he can be asked to cooperate in executing the search if his help is needed to gain access.

There is a provision in Title XVIII, Section 3105 which indicates that when needed, persons can be required to help in the execution of a search warrant.

We do not rely on that here, but it is not an unprecedented or unheard of thing.

Warren E. Burger:

You can require them to furnish a key to get in the room?

Lawrence G. Wallace:

That is correct.

That is the kind of help that I am speaking of and we frequently do get that kind of help when someone is operating a facility for profit and that facility is being used in furtherance of criminal enterprise, at least there is a probable cause to believe that.

My final point is, what about the absence of action by Congress here other than its indication and the legislative history of Title III, that the use of Pen Registers is not to be restricted.

The contention of the telephone company in effect is that in the absence of action by Congress, the telephone company rather than the Court is to decide whether an order of this kind can be carried out when the telephone company’s facilities are needed, but I think that the jurisprudence of this Court is to the contrary.

Of course, Congress is free to act.

There is a case sited at page 18a of the Appendix to the petition for certiorari by Judge Mansfield in his dissenting opinion.

In the middle of the page, there is a quotation from, this is page 18a, there is a quotation from this Court’s opinion in Adams v. United States ex rel.McCann, in which a unanimous Court speaking through Mr. Justice Frankfurter, it was unanimous on this point, upheld the authority of the Court of Appeals to issue a Writ Habeas Corpus in circumstances where the Court of Appeals concluded that there were obstacles to the taking of a pro se appeal that warranted using Habeas Corpus for review.

That was not an unanimous Court, if I am right?

Lawrence G. Wallace:

Well, they split on the merits, but they were unanimous that it was proper for the Court of Appeals in that case to use the extraordinary writ and the point that I want to make is that the quotation that appears in the middle of the page there leaves out the first part of the sentence, but the first part of the sentence by a careful judicial craftsman, speaking on behalf of the Court, reads, “unless appropriately confined by Congress, a Federal Court may etc.,”the idea is that in the absence of action by Congress, there is power in the Courts and it should be exercised in order to effectuate the Court’s orders and if Congress wants to specify another method of preceding, that of course is part of the legislative authority and that is one reason why we think it is more respectful of that authority to rely on the All Writs Act rather than a concept of inherent power which some of the Court of Appeals had preferred in this area, but there is no reason to think that in the absence of action by Congress, someone other than the Court should decide whether these warrants should be effectuated.

Warren E. Burger:

Thank you, Mr. Wallace.

Thank you, gentleman.

The case is submitted.