Citation[edit | edit source]

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

Factual Background[edit | edit source]

The U.S. District Court had authorized the FBI to install and use a pen register[1] on two telephones used by the suspects of a government investigation. The court also directed the telephone company to furnish the FBI "all information, facilities and technical assistance" necessary to install and use the device.

The telephone company refused to comply with the court's order. The company informed the government agents of the location of the "appearance" — the spot where the specific telephone line emerges from the sealed telephone cable — to help the FBI install its own wires, but the company refused to provide a “leased line” to the FBI, a process the FBI argued was needed to ensure the unobtrusiveness of the surveillance device.

Appellate Court Proceedings[edit | edit source]

The Court of Appeals held that the District Court had abused its discretion in ordering the telephone company 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 the federal courts to impress unwilling aid on private third parties.

It found "that the most important factor weighing against the propriety of the order is that without Congressional authority, 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." Further, the Second Circuit appeared to accept the company's argument that a major reason for its opposition to the order was the "danger of indiscriminate invasions of privacy."

U.S. Supreme Court Proceedings[edit | edit source]

The U.S. Supreme Court looked at the All Writs Act, which states:

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.

The Court noted that "[t]he assistance of the Company was required . . . to implement a pen register order which . . . the District Court was empowered to issue." It also noted that "without the Company's assistance there is no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished. . . . The provision of a leased line by the Company was essential to the fulfillment of the purpose — to learn the identities of those connected with the gambling operation — for which the pen register order had been issued."

Citing the All Writs Act, the Court held that "[u]nless appropriately defined by Congress, a federal court may avail itself of all auxillary writs as aids in the performance of its duties, when the use of such historical aids is calculated in its sound judgment to achieve the ends of justice entrusted to it." Further, "[t]he power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who (though not parties to the original action or engaging in wrongdoing) are in a position to frustrate the implementation of a court order or the proper administration of justice. Here respondent . . . was not so far removed as a third party from the underlying controversy that its assistance could not permissibly by 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."

The Court concluded that: "[t]he conviction that private citizens have a duty to provide assistance to law enforcement officers when it is required is by no means foreign to our traditions." However, the Court seemed to imply certain limits on what a court could order, noting that the District Court's original order "required minimal effort on the part of the Company and no disruption to its operations."

Justice White noted that "[t]he power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress." This passage suggests at least two inquiries in an All Writs Act analysis. First, whether the compelled assistance would pose an “unreasonable burden” on the company, and second, whether the order would be "consistent with the intent of Congress." Additionally, the Court provided a third inquiry: whether the private party's assistance is necessary to carry out the court's order.

As to the burden on the company, the Court applied a seemingly non-exhaustive list of factors. Some of the factors focused on the actual burden on the company in complying with the order. The Court observed, for example, that the order required only “meager assistance” from the company; the order was in no way "burdensome"; compliance with the order required "minimal effort" by the company; the company regularly employed such devices for billing purposes; and the order provided the company be fully reimbursed for its efforts. An additional component of the unreasonable burden inquiry appears to be the level of the company's perception of the request. Justice White noted that the use of the pen register was not "offensive" to the company; the company had not proffered a "substantial interest in not providing assistance"; and the company had previously promised to provide the FBI instructions on how to install its own pen register.134 Finally, the Court suggested that "disruptions to the company's operations" should be taken into consideration in an All Writs Act analysis.

Next, the Court inquired whether this application of the All Writs Act was consistent with the intent of Congress. Justice White observed that "Congress clearly intended to permit the use of pen registers by federal law enforcement officials” and without the assistance of the telephone companies “these devices simply cannot be effectively employed." He continued:

We are convinced that to prohibit the order challenged here would frustrate the clear indication by Congress that the pen register is a permissible law enforcement tool by enabling a public utility to thwart a judicial determination that its use is required to apprehend and prosecute successfully those employing the utility’s facilities to conduct a criminal venture.

Lastly, the Court assessed whether the company's assistance was "essential to the fulfillment of the [government's] purpose," noting that "without the Company's assistance there is no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished"; this help was "essential to the fulfillment of the purpose—to learn the identities of those connected with the gambling operation—for which the pen register order had been issued."

References[edit | edit source]

  1. Pen registers do not “intercept” because they do not acquire the “contents” of communications, as that term is defined by 18 U.S.C. §2510(8). Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.
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