United States v. New York Telephone Co., 434 U.S. 159 (1977)

United States v. New York Telephone Co.

No. 76-835

Argued October 3, 1977
Decided December 7, 177
434 U.S. 159

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

On the basis of an FBI affidavit stating that certain individuals were conducting an illegal gambling enterprise at a specified New York City address and that there was probable cause to believe that two telephones with different numbers were being used there to further the illegal activity, the District Court authorized the FBI to install and use pen registers with respect to the two telephones, and directed respondent telephone company to furnish the FBI "all information, facilities and technical assistance" necessary to employ the devices, which (without overhearing oral communications or indicating whether calls are completed) record the numbers dialed. The FBI was ordered to compensate respondent at prevailing rates. Respondent, though providing certain information, refused to lease to the FBI lines that were needed for unobtrusive installation of the pen registers, and thereafter filed a motion in the District Court to vacate that portion of the pen register order directing respondent to furnish facilities and technical assistance to the FBI, on the ground that such a directive could be issued only in connection with a wiretap order meeting the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The District Court ruled adversely to respondent, holding that pen registers are not governed by Title III; that the court had jurisdiction to authorize installation of the devices upon a showing of probable cause; and that it had authority to direct respondent to assist in the installation both under the court’s inherent powers and under the All Writs Act, which gives federal courts authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Though agreeing with the District Court’s Title III rationale, and concluding that district courts have power either inherently or as a logical derivative of Fed.Rule Crim.Proc. 41, to authorize pen register surveillance upon a probable cause showing, the Court of Appeals, affirming in part and reversing in part, held that the District Court abused its discretion in ordering respondent to assist in installing and operating the pen registers, and expressed concern that such a requirement could establish an undesirable precedent for the authority of federal courts to impress unwilling aid on private third parties.

Held:

1. Title III, which is concerned only with orders "authorizing or approving the interception of a wire or oral communication," does not govern the authorization of the use of pen registers, which do not "intercept," because they do not acquire the "contents" of communications as those terms are defined in the statute. Moreover, the legislative history of Title III shows that the definition of "intercept" was designed to exclude pen registers. Pp. 165-168.

2. The District Court under Fed.Rule Crim.Proc. 41 had power to authorize the installation of the pen registers, that Rule being sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. Pp. 168-170.

3. The order compelling respondent to provide assistance was clearly authorized by the All Writs Act, and comported with the intent of Congress. Pp. 171-178.

(a) The power conferred by the Act extends, under appropriate circumstances, to persons who (though not parties to the original action or engaged in wrongdoing) are in a position to frustrate the implementation of a court order or the proper administration of justice. Here respondent, which is a highly regulated public utility with a duty to serve the public, was not so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court based on a probable cause showing that respondent’s facilities were being illegally used on a continuing basis. Moreover, respondent concededly uses the devices for its billing operations, detecting fraud, and preventing law violations. And, as the Court of Appeals recognized, provision of a leased line by respondent was essential to fulfillment of the purpose for which the pen register order had been issued. Pp. 171-175.

(b) The District Court’s order was consistent with a 1970 amendment to Title III providing that

[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier . . . furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively. . . .

Pp. 176-177.

538 F.2d 956, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined; in Parts I, II, and III of which STEWART, J., joined; and in Part II of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in part and dissenting in part, post, p. 178. STEVENS, J., filed an opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, and in Part II of which STEWART, J., joined, post, p. 178.