Minnesota Law
Review
April, 2000
Note
IS "BIG
BROTHER" LISTENING? A CRITICAL
ANALYSIS OF NEW RULES
PERMITTING LAW
ENFORCEMENT AGENCIES TO USE DIALED DIGIT EXTRACTION
Michael A. Rosow [FNa1]
Copyright © 2000 Minnesota Law Review Foundation;
Michael A. Rosow
Imagine working for a large company under investigation for serious
criminal activity. The Federal Bureau
of Investigation (FBI) has convinced a judge to issue a warrant allowing agents
to see the phone numbers of every individual who receives a phone call from
your office or any mobile phone billed to your office, but has refused to issue
a warrant allowing the FBI to listen to those conversations. While driving home from work, you make a
call from your company mobile phone to the local pharmacy and reach an
automated system. When the computer-generated voice asks for your
prescription number, you dial in your prescription for AZT, the HIV cocktail
medication. You stop at the pharmacy
and pick up your prescription half an hour later. The following week you are approached by a FBI agent who demands
that you provide inside information for the investigation. When you refuse to provide this information,
the agent threatens to tell your parents, your boss, and your pastor that you
have HIV. Although this scenario may seem far-fetched, new rules issued by the
Federal Communications Commission (FCC) on August 31, 1999 would enable the FBI
to do this very thing.
The
device used by law enforcement agencies to obtain the numbers dialed from a
telephone is a pen register. [FN1]
Currently a pen register can only intercept the first set of numbers
dialed from a telephone. Under the new
rules, which become effective on September 30, 2001, [FN2] law enforcement
agencies will have access to digits dialed after the telephone call has been
connected (dialed digit extraction). [FN3]
This new development raises serious issues regarding the
constitutionality of these rules and the FCC's authority to enact them. Privacy groups and the telecommunications
industry argue that the rules substantially increase the type and amount of information
available via a pen register. Law
enforcement agencies, on the other hand, argue that this capability merely
allows them to keep pace with changing technology.
This Note will examine the statutory
validity and constitutionality of the new rules authorizing the use of dialed
digit extraction by law enforcement. Part I describes the technology at issue,
the statutory framework under which the rules were issued, and the
constitutional framework under which the rules should be analyzed. In Part II, this Note argues that the FCC
exceeded its authority in issuing these rules and that the rules are
unconstitutional under the Fourth Amendment.
This Note concludes by suggesting alternatives that may resolve the
issues more suitably while still providing necessary information to law
enforcement agencies.
I. TECHNICAL,
STATUTORY AND CONSTITUTIONAL SIGNIFICANCE OF A PEN REGISTER
A. Technical Difference Between a Wiretap
and a Pen Register
Although three types of electronic surveillance devices are available:
wiretaps, pen registers, and trap and trace devices, [FN4] this Part will
only examine the differences between wiretaps and pen registers. The difference between these two devices is
initially important for practical reasons; there is a radical difference
between the type and amount of information obtained from a wiretap as opposed
to a pen register. [FN5] Due to this difference, wiretaps and pen
registers are subject to different standards. [FN6]
Government-conducted wiretaps are governed
primarily by Title III of the Omnibus Crime Control and Safe Streets Act of
1968. [FN7] A Title III wiretap allows law enforcement
agencies to listen to the "content" of telephone conversations. [FN8] The criteria used to determine what exactly
constitutes "content" is central to the distinction between Title III
wiretaps and pen registers [FN9] and will be discussed in detail
later in this Note. [FN10] For now, it is sufficient to note that
conversations between two different parties constitute call
"content," while the numbers dialed to connect a call do not. [FN11] In contrast to a wiretap, a pen register
does not obtain call "content," but only records the phone number of
the called party. [FN12]
A wiretap also obtains the numbers dialed on a telephone, but
accomplishes this task in a different manner. [FN13]
Pen
registers gather different types and amounts of information as compared to
wiretaps because the current telephone switching system prevents pen registers
from intercepting the content of telephone communications. [FN14]
Modern telephone switching systems have at least two different channels
for a simple telephone communication. [FN15]
The first channel, the call data channel, routes the call through to the
proper location and remains operational only until the phone call has been
properly routed, which occurs when it rings on the other end of the line. [FN16] The call is routed at a switch into which
tone receivers are built and when the call is routed
over this first channel, the call goes through the tone receivers. [FN17]
The switch employs tone receivers to detect the dialed digits
representing the phone number. It then
connects the call, at which point the call is "cut through." [FN18] After the communication has been cut through
the tone receiver disconnects from the switch and is available for use on
another call. [FN19] At this point, the conversation is
transferred along the "call content channel." [FN20] There are fewer tone receivers built into a
switch than there are call content channels.
Therefore, a single switch may service more simultaneous communications
than it has tone receivers because the majority of the communications going
through a switch, at any given time, have been cut through and are being
carried along the call content channel instead of the call data channel. [FN21]
B. An Historical Survey of the Law on
Wiretapping and Use of Pen Registers
In
the last half-century there have been three major statutory changes to the laws
of wiretapping and pen registers. [FN22]
While this Note focuses on the rules enacted subsequent to the
Communications Assistance for Law Enforcement Act of 1994 (CALEA), it is
important to understand the progression of the law through the latter half of
the twentieth century because CALEA builds upon these other acts.
1. The Omnibus
Crime Control and Safe Street Act of 1968
The
first statute, Title III of the Omnibus Crime Control and Safe Street Act of
1968, made it illegal for an individual to conduct electronic surveillance, [FN23] but made it possible for law
enforcement agencies to obtain judicial authorization to engage in such surveillance.
[FN24] Title III was primarily a response to
advancements in technology. [FN25]
Title III had a dual purpose of protecting telephone communications from
unauthorized interception and delineating the proper circumstances and
conditions for conducting telephone surveillance. [FN26]
The
standards that Title III set for obtaining a wiretap have remained virtually
unchanged in the three decades since its enactment. In order to issue a warrant, a judge must find that "there
is probable cause [to believe] that an individual is committing, has committed,
or is about to commit a particular offense . . . [and that] normal
investigative procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous." [FN27] However, Title III did not initially address
pen registers or set a standard to issue a warrant for a pen register. [FN28]
Title III was amended slightly in 1970 after the Ninth Circuit held that
telephone companies were not required to assist law enforcement agencies in effectuating electronic surveillance. [FN29] This ruling paralyzed law enforcement
agencies; they could obtain a valid warrant for a Title III wiretap, but were
helpless to effectuate it without the assistance of the telecommunications
companies. [FN30] Without this assistance, law enforcement
would have to set up their wiretaps in plain view of the subject of the
tap. But in order to be effective, law
enforcement needed to be able to conduct these taps secretively. [FN31] The amendments required telephone companies
to furnish the law enforcement agency requesting assistance with "all
information, facilities, and technical assistance necessary to accomplish the
interception." [FN32]
This allowed law enforcement agencies to lease lines from the
telecommunications companies so that they could conduct their taps without
being observed. [FN33]
2. The Electronic
Communications Privacy Act of 1986
The
Electronic Communications Privacy Act of 1986 (ECPA) made several relevant
changes to Title III. First, it
extended the protections of Title III to "include electronic mail,
cellular phones, computer transmissions of data or video, and voice or display
paging devices." [FN34]
However, Congress somewhat negated the impact of this amendment by not
extending access to these new technologies, which in effect allowed technology
to outpace law enforcement's ability to conduct electronic surveillance. [FN35] So while these
new forms of communication were protected from being tapped without a warrant,
the statute did nothing to ensure that telecommunications companies would
continue to design their systems in a manner that facilitated electronic
surveillance by law enforcement agencies.
ECPA also added new provisions to the code concerning the use of pen
register devices. [FN36]
It amended Title III to create the first mandatory federal procedures
for obtaining a pen register warrant. [FN37]
Previously, pen registers were issued under the court's general power to
issue warrants. [FN38] Now, an order for a pen register may be
issued only after a showing that "the information likely to be obtained by
such installation and use is relevant to an ongoing criminal
investigation." [FN39]
Conversely, a Title III wiretap can only be obtained after meeting the
much more stringent "probable cause" standard. [FN40]
3. The
Communications Assistance for Law Enforcement Act of 1994
(CALEA)
a. The Path to CALEA
As
the 1980s progressed, the law enforcement community began to realize that it
was losing its ability to conduct electronic surveillance. [FN41] Technological
developments were making it increasingly difficult for Title III wiretaps and pen registers to be used
effectively. Prior to the breakup of
AT&T, the telecommunications system was quite simple. [FN42] The network consisted mainly of stationary
telephones that were connected by land-based wires to stationary switching
stations. [FN43] To install a Title III wiretap or a pen
register, a law enforcement agency only had to find a location where the wires
were exposed and either: (1) attach a listening/recording device to that
location; or (2) rent another phone line and send the tapped conversation to a
distant location to be listened to and recorded. [FN44]
After the breakup of AT&T, however, a massive technological
revolution occurred in the telecommunications industry. [FN45] Now fiber-optic cables are replacing the old
copper cables, and computers are replacing traditional switches. [FN46] Mobile phones are not connected to any fixed
location and can roam around the country sending their signal through different
switches wherever they go. [FN47]
In addition, companies are adding new features to traditional telephones
that allow a single telephone number to ring in several different places [FN48] or that allow a
user to dial an abbreviated directory number to call another party. [FN49] In total, these
advanced features have made it more difficult for law enforcement agencies to
conduct electronic surveillance. [FN50]
In
response to these technological developments, the Clinton administration introduced
a proposal that would eventually lead to CALEA. [FN51]
At the congressional hearings, the proposal was met with both support
and opposition. [FN52] Opposition to the bill came from privacy
advocate groups and the telecommunications industry. [FN53] The privacy advocate groups focused on the
threat the bill posed to the privacy of communications. [FN54] The telephone industry emphasized the lack
of need for the new legislation and the cost of the new mandates on telephone
carriers. [FN55] The industry claimed that the FBI was
overstating any problems that it had in effectuating wiretaps. [FN56]
In
support of the proposal, FBI Director Freeh spoke on behalf of the law
enforcement community. He hypothesized
that a parade of horribles would result if Congress did not act to strengthen
law enforcement's ability to conduct electronic surveillance. [FN57] Freeh also indicated that the proposed bill
would not increase the type or amount of information that law enforcement was
able to obtain. [FN58]
During the congressional debates leading up to the passage of CALEA,
Congress seemed to agree with Director Freeh, and stated that the purpose of
CALEA is "to further define the industry duty to cooperate [with law
enforcement agencies] and to establish procedures based on public
accountability and industry standards-setting." [FN59] Congress made it clear that it was carefully
balancing three key policies: "(1) to preserve a narrowly focused capability
for law enforcement agencies to carry out properly authorized intercepts; (2) to protect privacy in the face
of increasingly powerful and personally revealing technologies; and (3) to
avoid impeding the development of new communications services and
technologies." [FN60]
b. Provisions of
CALEA
The
provisions of CALEA attempt to balance the triad of sometimes-conflicting
policies that Congress identified in passing CALEA. CALEA not only imposes new requirements on telephone carriers,
but also imposes new restrictions on the type of information that can be
obtained by law enforcement agencies using particular methods of electronic
surveillance. [FN61] Pursuant to its purpose, CALEA attempts to
simultaneously balance law enforcement's ability to conduct surveillance with
privacy concerns, while still allowing telephone carriers to develop new
communication services and technologies. [FN62] These various interests are often
intertwined and difficult to separate.
This section will describe the changes that CALEA made to Title III and
ECPA by proceeding from the general changes to the specific.
CALEA requires that wireline, cellular, and Personal Communication
Services (PCS) comply with four general capability requirements. [FN63]
Telecommunications carriers are to be capable of: (1) quickly obtaining, for
government use, specific communications pursuant to a court order; [FN64] (2) quickly
allowing the government access to "call-identifying information that is reasonably available;" [FN65] (3) delivering
the intercepted communications and call-identifying information to the
government over equipment provided by the carrier for the government; [FN66] and (4)
providing the previous functions without interference to telecommunication
services and preventing unauthorized interceptions. [FN67]
Two
terms in the second clause of the capability requirements are crucial to
understanding the limits placed on law enforcement's ability to conduct
electronic surveillance: (1) the definition of call-identifying information;
and (2) what makes the information reasonably available. Call-identifying information is defined as
"dialing or signaling information that identifies the origin, direction,
destination, or termination of each communication generated or received by a
subscriber by means of any equipment, facility, or service of a
telecommunications carrier." [FN68]
Based on the legislative history, it is clear that Congress intended
this term to be narrowly tailored.
Call- identifying information was limited to those "pulses, tones,
or messages [that] identify the numbers dialed from the facility that is the
subject of the court order or other lawful authorization." [FN69] Numbers dialed for other purposes, such as
communicating with the called party, are not considered call- identifying
information. [FN70]
Unfortunately, the statute does not define the term "reasonably
available" in the context of call-identifying information. The term
reasonably available limits the amount of
call-identifying information available to law enforcement agencies. However, without a definition, the FCC and
the courts are left to interpret this vague term without any direct
guidance. It is unclear what factors
the legislature was taking into account when it attempted to limit the
availability of call-identifying information.
The statute does, however, provide a list of factors including costs to be
considered when determining if a capability is "reasonably
achievable." [FN71]
While not identical, this term is similar and may be useful in providing
some context for what Congress was thinking when it used the term reasonably
available.
CALEA also imposes a new limitation on the use of pen registers by law
enforcement agencies. [FN72]
The statute calls for law enforcement agencies to use technology that
was reasonably available to prevent pen registers from recording numbers other
than those used in the dialing or signaling process. [FN73] Prior to this amendment, the only factors
that limited the use of pen registers were the process used to obtain a warrant
[FN74] and the
definition of a pen register. [FN75]
Finally, CALEA provides a safe harbor for telecommunications carriers
that are "in compliance with publicly available technical requirements or
standards adopted by an industry association or standard-setting organization,
or by the Commission." [FN76]
Once the industry has set standards, the Government or any other
interested entity can petition the FCC to
reject the industry standards and establish new technical requirements if the
FCC finds that the industry standards are deficient. [FN77] In setting technical requirements or
standards the FCC must:
(1)
meet the assistance capability requirements of [47 U.S.C. §
1002] by cost-effective methods;(2) protect the privacy and
security of communications not authorized to be intercepted;(3) minimize the
cost of such compliance on residential ratepayers;(4) serve the policy of the
United States to encourage the provision of new technologies and services to
the public; and(5) provide a reasonable time and conditions for compliance with
and the transition to any new standard, including defining the obligations of
telecommunications carriers under [47 U.S.C. §
1002] during any transition period. [FN78] So while the
telecommunications industry has the first chance to establish technical
standards, the FCC is ultimately responsible for determining the final
standards for the safe harbor.
c. The
Standard-Setting Process
In
1995, members of the Telecommunications Industry Association (TIA) began
establishing industry standards that would satisfy CALEA. [FN79] Both telecommunications industry members and
law enforcement agencies participated in this process. [FN80] In the spring of 1997, proposed standards
were submitted for balloting to all participants in the standard-setting
process. [FN81] The law enforcement community unanimously
opposed the standards and prevented their adoption. [FN82] Furthermore, the Department of Justice and
the FBI submitted a draft of their own technical standards to satisfy CALEA. [FN83] These standards became known as the
"punch list" and contained nine items when reviewed by the FCC in the
fall of 1998. [FN84] The punch list
contained a wide variety of items, [FN85] but for the purposes of this Note
only the last item is relevant.
The
last item on the punch list required telecommunications carriers to provide
dialed digit extraction. [FN86]
This new capability would allow law enforcement agencies to record any
digits dialed after the call has been cut through. [FN87] These numbers are known as post-cut-through
numbers. In other words, law
enforcement agencies would be able to obtain additional numbers provided to a
long distance service provider, an automated system, a bank, voicemail, a
paging device, or any other numbers dialed after connection.
The
industry refused to add any of the punch list items to their standards and
reballoted using a different voting method that excluded law enforcement
representatives. [FN88] The new standard, J-STD-025, was announced in
December of 1997. [FN89]
Between July 1997 and April 1998, several parties petitioned for the FCC
to establish standards for CALEA. [FN90] The petitions ranged from requests to reject
J-STD-025 to requests for the FCC to adopt J-STD-025, with some parties asking
for it to be adopted with some alterations. [FN91] On April 20, 1998, the FCC released a Public
Notice soliciting comment on the petitions. [FN92]
Numerous comments were filed pursuant to this request. [FN93]
On
November 5, 1998, the FCC released the Further Notice of Proposed Rulemaking
(Further NPRM). [FN94] The Further NPRM tentatively concluded that
J-STD-025 would be acceptable if TIA modified it to include five items [FN95] from the punch list. [FN96] The FCC requested further comment on whether
the dialed digit extraction capability was necessary and tentatively rejected
the other three items [FN97] on the punch list. [FN98]
After receiving another round of comments on the Further NPRM, the FCC
promulgated the final rules on August 26, 1999. [FN99] In addition to the requirements of
J-STD-025, these rules ordered telecommunications carriers to provide law
enforcement agencies with the five tentatively accepted punch list items and
dialed digit extraction. [FN100]
The FCC considered and rejected arguments that dialed digit extraction
is not permitted under CALEA. [FN101] Alternative methods of obtaining
"call-identification" information were also considered and rejected
by the FCC. [FN102] The FCC concluded that while it was
"concerned about the costs of a dialed digit extraction capability to
originating carriers, as well as the privacy implications of permitting [law
enforcement agencies] to access non-call-identifying digits (such as bank
account numbers) with only a pen register," it determined that permitting law enforcement agencies access to
post-cut-through numbers was both constitutional and statutorily permitted. [FN103]
C. Fourth Amendment Protections Against
Unreasonable Search and Seizure As Applied to Wiretaps and Conventional Pen
Registers
As
noted previously, there is a substantial difference in the information obtained
via a Title III wiretap as opposed to a pen register. [FN104] Due to this radical difference, the Supreme
Court has applied the Fourth Amendment to the two processes quite differently.
1. The
Constitutionality of Wiretaps
The
United States Supreme Court first addressed the constitutionality of
wiretapping in Olmstead v. United States. [FN105]
The Court held that a wiretap, conducted without obtaining a warrant,
did not violate the Fourth Amendment. [FN106]
The wiretap did not fall within the realm of a "search and seizure"
as defined by the Fourth Amendment because the law enforcement agents never
actually entered into a structure or searched any tangible items. [FN107]
In
1967, the Supreme Court readdressed the issue of whether a federally conducted
wiretap was constitutionally permissible. [FN108]
Previously, the Court had looked to determine if the search was in a
private or public area. [FN109]
In Katz v. United States, however, the Court framed the issue in terms
of whether the target had exposed information to the public. [FN110]
Katz involved a wiretap placed on a public telephone. [FN111] The Court found
that the target of the search never exposed any information to the public and
instead was attempting to keep his conversation private. [FN112]
In a reversal of Olmstead, the Court held that the Fourth Amendment
"protects people, not places." [FN113]
As a result, it was an invasion of privacy and an unconstitutional
"search and seizure" within the meaning of the Fourth Amendment for
law enforcement officials to wiretap a telephone booth without a warrant. [FN114]
2. The
Constitutionality of Pen Registers
Unlike wiretaps, pen registers are not subject to the Fourth Amendment
protections against unreasonable searches and seizures. [FN115] In finding that pen registers are not
subject to Fourth Amendment protection, the Supreme Court applied a two-part
test: (1) whether the individual "exhibited an actual subjective
expectation of privacy," and (2) whether "'society is prepared to
recognize" ' that expectation of privacy as reasonable. [FN116] The first prong is a subjective test,
whereas the second is objective. [FN117]
With respect to the first prong, the Court held that individuals do not
generally have "any actual expectation of privacy in the numbers they
dial." [FN118] Moreover, even if an individual had a
"subjective expectation that the phone numbers he dialed would remain
private, this expectation is not 'one that society is prepared to recognize as
'reasonable." " [FN119]
The Supreme Court concluded that there is "no legitimate expectation
of privacy" in dialing information since it is turned over to a third
party, namely the phone company. [FN120]
Because pen registers are not subject to Fourth Amendment protection,
the constitutional requirements for obtaining a Title III wiretap are
substantially higher than those for a pen register. In fact, the requirements for obtaining a pen register are
encompassed by those for obtaining a Title III wiretap. This is partially due to the fact that the
information received from a pen register can be gathered via a Title III
wiretap. Given these facts, a court has
held that no separate authorization is required for a pen register when
authorization for a Title III wiretap has been obtained. [FN121]
II. DIALED DIGIT
EXTRACTION: AN UNPERMITTED AND UNCONSTITUTIONAL PROCEDURE
The
addition of dialed digit extraction to the J-STD-025 standard raises a number
issues. First, it is not clear from the
text of CALEA whether Congress contemplated dialed digit extraction when it
passed the statute. Nor is it
immediately clear whether CALEA authorizes or prohibits the use of dialed digit
extraction; there are several statutory provisions that must be analyzed to resolve this issue. Resolving these questions must begin with the text of CALEA and
then proceed to the legislative history and other related documents. Second, it
is questionable whether dialed digit extraction is constitutional. Because it is performed pursuant to a pen
register warrant, it is disputed whether the information obtained via dialed
digit extraction is protected by the Fourth Amendment or whether it is
unprotected like telephone numbers.
This Part of the Note will argue that dialed digit extraction is not
authorized by CALEA and is invalid under the Fourth Amendment. The current statutory framework prohibits
law enforcement from obtaining post-cut-through numbers with only a pen
register warrant. This Note will
provide three distinct reasons why the text of CALEA prohibits dialed digit
extraction. Additionally, this Note will argue that the rules permitting dialed
digit extraction do not conform to the requirements of the Fourth
Amendment. Thus, dialed digit extraction
is not a valid exercise of FCC authority and must be rejected.
A. Dialed Digit Extraction Is Not Authorized
by CALEA
Whether CALEA authorized the use of dialed digit extraction using only a
pen register depends on a three-part analysis.
First, are post-cut-through numbers "call-identification
information" as defined by CALEA?
Second, are post-cut-through numbers
reasonably available? Third, will the
inclusion of dialed digit extraction meet the requirements of 47 U.S.C. §
1006(b)? [FN122] If any of the questions are answered in the
negative then dialed digit extraction must be rejected as unauthorized by
CALEA.
1. Post-Cut-Through
Numbers Are Not "Call-Identification Information"
Digits dialed after connection are not call-identifying information for
several reasons. First, the numbers are
not carried on the call data channel after the initial local carrier has
connected the call [FN123]--the additional digits are carried
over the call content channel. [FN124] A pen register
is not authorized to obtain the content of a phone conversation. [FN125] Thus, by definition, digits dialed after
connection should not legally be subject to a pen register, because a pen
register warrant is not authorized to intercept information that is carried on
the call content channel.
Second, call-identification information is limited to "dialing or
signaling information that identifies the origin, direction, destination, or
termination of each communication generated or received by a subscriber by
means of any equipment, facility, or service of a telecommunications
carrier." [FN126] Digits dialed after connection may serve one
of two general functions. First, they
may constitute another phone number that is dialed through another carriers' system. An example of this is a phone number placed
through a long distance carrier after dialing an 800 number. Second, they may be numbers dialed to access
an automated system. Examples of this
include numbers dialed to access voice mail, bank records, a paging device and
the internet. For the initial local
carrier the first set of numbers identifies the direction, destination, and
termination of the call. [FN127]
Once the call has been cut through to the secondary services provider [FN128] the primary
carrier does not re-direct the call, change its destination, or alter the
call's termination point. [FN129]
The primary carrier directs the call to the secondary service provider
for the entire call. If the primary
carrier provides post-cut-through numbers, the primary carrier would be
providing more than just call-identification information, because for the
primary carrier's purposes, call-identification information is limited to the
first set of numbers dialed.
Legislative history also indicates that Congress had no intention of
providing post-cut-through numbers to law enforcement agencies via a pen
register. [FN130] Call-identifying information was limited to
the numbers dialed to signal the telephone company where to direct the call. [FN131] Other numbers
dialed to signal automated systems are not call- identification information. [FN132] Post-cut-through numbers are "other
dialing tones" as described by Congress and should be excluded from the definition of call-identifying
information. Moreover, it does not
matter if the recipient is a long distance provider or an automated system;
post-cut- through numbers signal the recipient and therefore should not be
considered call-identification information.
In
effect CALEA creates a binary division between call "content" and
"call- identifying information."
The two terms are mutually exclusive of one another. Physically, this division can be seen when
looking at a common letter, the address on the envelope is independent from the
contents of the letter inside the envelope.
The same is true of a telephone communication, except that the content
comes after the directional information, instead of inside the envelope. Call content "includes any information
concerning the substance, purport, or meaning of that communication." [FN133] Since post- cut-through numbers communicate
the "substance, purport, or meaning" of the call when a subject dials
an automated service or a paging system, they are call content and not
call-identifying information.
An
additional physical example that may be quite helpful in seeing why
post-cut-through numbers are not call-identifying information. Consider the difference between the rules
for wiretapping and pen registers in the context of the postal service. Assume that the postal service was
simultaneously subject to two different rules that coincide with the rule for
wiretapping and pen registers. Under
the wiretap rule, a law enforcement agency could have the postal service intercept an entire package sent
from a particular individual and have it delivered to the law enforcement
agency. Using the pen register rule,
the law enforcement agency could have the postal service copy the address of a
package and deliver this information to the law enforcement agency. Now, assume that the law enforcement agency
had received a warrant under the pen register rule, so that the postal service
was required to inform it of the destination of any mail sent by a particular
individual. If that individual were to
send a package to a second individual, and inside the initial package there was
a pre-addressed secondary package that the second individual was to send to a
third party, the postal service would have no reason to know that the contents
of the package were really destined for the third party and not the
second. Furthermore, it would be
unreasonable to order the postal service to open each package and check to see
whether there was a secondary destination, especially when the law enforcement
agency could obtain the entire package under the wiretap rule.
2.
Post-Cut-Through Numbers Are Not Reasonably Available
Law
enforcement agencies are not authorized by CALEA to require telephone carriers
to provide all call-identification information regardless of the availability
of the information. [FN134]
Telephone carriers are only required to isolate call-identification
information if it is "reasonably available"
to the carrier. [FN135] Because of the way in which telecommunications
systems are currently set-up and the way they will be set-up in the near
future, post-cut-through numbers are not "reasonably available" to
the initial carrier.
Although there is no definition of "reasonably available"
provided by the Code, [FN136] the definition of "reasonably
achievable" [FN137] sheds some light on what Congress
may have intended. A majority of the
elements to be considered when determining whether an item is "reasonably
achievable" relate to the cost of the item. [FN138] Although no firm figures are available, most
observers believe that adding the dialed digit extraction feature will be very
expensive for telecommunications carriers. [FN139]
In
order to isolate the post-cut-through numbers dialed during a particular
telephone call, telecommunications carriers would have to radically alter their
existing switching systems resulting in additional costs. [FN140] Currently,
switches detect numbers with a tone receiver, [FN141] a device that is
built into the switch. However, there
are not as many tone receivers as channels for simultaneous calls going through
the switch. [FN142] The switches are built in this manner so
that once a call is cut- through, the tone receiver used on the first call can
be made available for use on another call. [FN143]
Under the new standards, telecommunication carriers would have to
install additional tone receivers on all of their switches because in order to effectuate dialed
digit extraction the tonereceivers would need to be operational during the
entire call, not just during the routing of the call. [FN144] Current switches do not have enough tone
receivers to allow them to be connected for an entire call without causing disruption
to the system. [FN145]
In
order to understand how telecommunication switches operate, consider an art
museum that limits the number of visitors that can be in the museum at the same
time. The limited number of people
allowed in the museum is analogous to the number of channels in the
switch. Instead of tone receivers
directing the calls, the museum has employees direct visitors to their desired
exhibit at each door to the museum.
Instead of connecting a tone receiver to a call for its entirety, assume
employees were instructed to follow certain visitors during their entire visit
in case the visitor decided to go to another exhibit and needed
directions. In order to ensure that
when an employee left her door to follow a visitor there was another employee
to direct visitors at the door, the museum would need more employees. In the same way, telecommunications
companies will be forced to install extra tone receivers if they are forced to
monitor calls for post-cut-through numbers with a pen register, because
currently there are not enough tone receivers to monitor calls for their
entirety but only until they are cut-through.
Although closing the door may be an option for the museum, closing a
switch is not an option for the telephone
industry; if they decide not to install additional tone receivers into their
switches, telephone calls would simply go unconnected.
Therefore to comply with the dialed digit extraction requirements,
telecommunications carries would need to undertake a massive upgrade of their
existing switching system to include the additional tone receivers. The cost of
such an upgrade is estimated to range in the billions of dollars. Over 20,000
switches of differing ages, some dating back to the early 1900s, will need to
be modified to have extra tone receivers installed. [FN146] Adding further
to the cost, each modification will be different as older switches operate much
differently than modern switches. [FN147] Furthermore, the installation of
these capabilities into network switches will most likely occur outside of the
normal upgrade cycle [FN148] and installing these capabilities
out-of-cycle will greatly increase the cost because extra personnel will need
to be hired as current personnel will continue to be modifying switches on
their normal upgrade cycle. [FN149]
In
addition to a lack of tone receivers, further advances in technology will make
it even more difficult to detect post-cut-through numbers. For instance, voice-recognition dialing
allows an individual to speak the name of the person whom she is calling
instead of dialing the numbers. [FN150]
In order for the initial local carrier to determine if an individual had
used such a feature after being connected, the local carrier would need to
"directly integrate its network
intercept facilities with the equipment or databases of the second carrier, or
possibly to install voice-recognition hardware and software in its own
switches." [FN151] In addition, all of the systems would need
to be standardized so that they operated in the same way. [FN152] Integrating these systems would be
prohibitively expensive. [FN153]
The
definition of reasonably achievable also takes into consideration the
"privacy and security of communications not authorized to be
intercepted" [FN154] and the
"policy of the United States to encourage the provision of new
technologies and services to the public." [FN155] Dialed digit extraction runs counter to both
of these goals. First, by providing law
enforcement agencies with post-cut-through numbers, dialed digit extraction is
giving them information that they are not authorized to obtain. [FN156] Secondly, these
capabilities hamper the development of new technologies by diverting resources
that could be used for research and development, or installation of new
technology to pay for the installation of additional tone receivers, which will
provide no additional services to consumers.
3. The Inclusion
of Dialed Digit Extraction Violates the Requirements of 47
In
addition to the issues raised above, the FCC is specifically prohibited from
including dialed digit extraction in the technical standard. [FN157] Section 1006(b) of Title 47 establishes a
framework for the FCC to set the technical standards for CALEA. [FN158] Requiring dialed digit extraction is
contrary to this framework because of the costs it will entail and the
potential loss of privacy it poses to the public.
Minimizing costs is central to several of the framework's
guidelines. [FN159] The first and third guidelines specifically
refer to minimizing costs, while the fourth guideline directs the FCC to issue
technical standards that encourage new technologies and services. [FN160] As discussed earlier, dialed digit
extraction will be very expensive, [FN161] and these costs will be passed
along to consumers. [FN162]
There are several reasons for the high costs for implementation. First, not only will existing technologies
need to be redesigned to comply with the new standards, but new emerging
technology will also need to be redesigned. [FN163]
Redesigning technology just before it is introduced will drive up the
cost of technology and delay implementation. [FN164]
Second, the short period of time to accomplish compliance will also
present problems because telecommunications companies will be strapped to find
qualified individuals to perform the necessary work to make their systems
CALEA-compliant while at the same time ensuring system reliability. [FN165] Telecommunications companies will be forced
to hire more personnel and spend additional resources on training new personnel
to implement the new standards. [FN166]
All of these expenses will effect whether
or not telecommunications companies are able to offer new services and
technologies because increasing the cost of providing new services decreases
the likelihood that they will become available. [FN167]
In
addition, dialed digit extraction does not "protect the privacy and
security of communications not authorized to be intercepted" and thus
violates the second guideline. [FN168]
While some of the post-cut-through numbers are secondary phone numbers,
other post-cut-through numbers access automated systems and are not authorized
to be intercepted. [FN169] Telecommunications carriers are not
able to differentiate between the different types of post-cut-through numbers. [FN170] Dialed digit extraction will therefore
provide law enforcement agencies with post-cut-through numbers that represent
responses to automated systems. Since
law enforcement agencies are only authorized to obtain phone numbers when they
have a pen register warrant, [FN171] they will be
violating the privacy of communications they do not have the authority to
intercept.
B. Dialed Digit Extraction Violates the
Fourth Amendment
While the Supreme Court has held that the unauthorized use of a Title
III wiretap violates the Fourth Amendment, [FN172] there is no Fourth Amendment
violation for unauthorized use of a pen register. [FN173] However, the expansion of a pen register to
include dialed digit extraction alters this analysis
because it expands the type and amount of information that a pen register
obtains. [FN174] Pen registers with dialed digit extraction
capabilities should receive the same treatment as Title III wiretaps do under
the Fourth Amendment.
The
Court has previously held that the Fourth Amendment applies when there is a
"legitimate expectation of privacy." [FN175] Determining if there is a "legitimate
expectation of privacy" involves a two prong test: the first prong looks
at the subjective expectation of the individual targeted for electronic
surveillance. The second prong looks at
whether or not society recognizes that individual's subjective expectation of
privacy. [FN176] Obtaining post-cut- through numbers with a
pen register violates both prongs of the test.
While individuals may not have a subjective expectation of privacy in
the numbers that they dial, they most likely do have such an expectation when
it comes to content transmitted over the telephone line in the form of
post-cut-through digits. There is no
functional difference, in terms of expectations, between an individual who
calls a bank and speaks to an actual banker to get his balance or an individual
who calls a bank and uses an automated system to get his balance. Either way, the individuals are transmitting
information over the telephone wire that they do not wish to expose to the
public. [FN177] The type of information typically
transmitted over the telephone by use of post- cut-through numbers is
incredibly far-reaching: bank account numbers and codes, prescription identification numbers, paging
messages, social security numbers, driver license numbers, airline flight
information, credit card numbers, voicemail passwords, general account passwords,
and responses to automated systems. In
Smith v. Maryland, the Court noted that individuals know or should know that
the numbers dialed to connect a call are made into a permanent record. [FN178] Accordingly, an individual has no
expectation of privacy in the numbers dialed. [FN179] However, post-cut-through numbers present a
different issue. These numbers do not
appear on the monthly bill, nor are they documented on a permanent record. Thus, while individuals may knowingly expose
the telephone numbers they dial to make telephone call, they may still wish to
keep information communicated via post-cut-through numbers private, a
subjective expectation of privacy that warrants Fourth Amendment protection.
Furthermore, the subjective expectation of privacy is one that society
recognizes as reasonable. In the past,
information carried in post-cut-through numbers was transmitted via voice
communications over telephone systems.
For instance, the information now dialed into a telephone to transfer
money from one bank account to another used to be done by talking to a banker
instead of using an automated system.
The different method of communication does not change the type of
information that is transmitted, nor should it change the type of protection
that it receives. [FN180]
This information has generally been
viewed as protected by the Fourth Amendment [FN181] and should continue to be so
protected.
III. ALTERNATIVES
TO DIALED DIGIT EXTRACTION THAT DO NOT POSE LEGISLATIVE
AUTHORITY OR
CONSTITUTIONAL PROBLEMS
There are three alternatives that have been proposed by the
telecommunications industry to meet the demands of the law enforcement
community. Two of these alternatives
provide law enforcement agencies with post-cut-through numbers dialed through a
secondary provider without reaching beyond CALEA or violating the Fourth
Amendment. The third alternative
reduces the cost of compliance for telecommunication companies, but presents
significant constitutional problems.
First, law enforcement agencies could obtain a Title III wiretap when
they are concerned about the possibility of the subject dialing through an 800
number. Obtaining a Title III wiretap
would allow law enforcement agencies to record the entire conversation,
including post-cut-through numbers.
With this information, the law enforcement agency will be able to
decipher the post-cut- through numbers and identify the final telephone number
that was dialed.
Law
enforcement agencies may argue that this alternative will eliminate their
ability to conduct pen register wiretaps.
Because the requirements for obtaining a Title III wiretap are substantially
higher than those to secure a pen register
warrant, [FN182] this alternative
prohibits law enforcement agencies from obtaining post-cut-through numbers in
instances where the law enforcement agency has enough information to obtain a
pen register but not enough to obtain a Title III wiretap. Although these concerns may be relevant,
they overlook the fact that the current rules ignore the statutory language of
CALEA and invade the privacy of individuals. [FN183]
Law enforcement agencies should not be making policy decisions because
Congress has already defined the limits of what law enforcement agencies are
allowed to do in terms of conducting wiretaps and pen registers. [FN184]
Second, law enforcement agencies could serve long distance 800 carriers
with pen register warrants in addition to the initial carrier. The post-cut-through numbers for the initial
carrier are call-identifying numbers for the long distance carrier. [FN185] Those numbers inform the long distance
carrier how to direct the call. [FN186]
By obtaining a pen register warrant and serving it upon both the initial
local carrier and the long distance carrier, the law enforcement agency would
be informed of the final number dialed and the path that the subject took to
dial that number. This seems to be
exactly what Congress had in mind when it passed CALEA since the legislative
history indicates that CALEA was not intended to provide "one-stop
shopping." [FN187]
Law
enforcement agencies may argue that this alternative allows criminals to defeat pen registers by frequently
changing the 800 number that they use.
This problem could be dealt with in one of two ways. First, long distance providers could be
required to keep records of all calls made through their system for a certain
period of time. Law enforcement agencies
could then subpoena those records when a call was made through that provider.
Alternatively, long distance providers could be required to participate in a
national network that would gather information from each provider to be made
available to law enforcement agencies.
With this method, law enforcement would only have to serve two warrants,
one on the initial local carrier and one on the national network.
A
third alternative is to provide law enforcement agencies with the content of
all calls when the law enforcement agency has obtained a pen register
warrant. The law enforcement agency
would then be required to install the necessary equipment to extract the
post-cut-through numbers. This would
avoid the need to install extra tone receivers in the telecommunications
switches and avoid the expense of developing the dialed digit extraction
feature. The device used by law
enforcement would be similar to a device currently used to decipher what number
have been dialed from the different tones.
However, while this alternative shifts the cost of extracting the
post-cut- through numbers from the telecommunications companies to law
enforcement agencies and reduces the cost by eliminating the need to install
extra tone receives, [FN188] it still
requires delivery of the content of telephone calls to law enforcement agencies
without a Title III wiretap warrant.
This would have constitutional implications because law enforcement
agencies would be conducting a "search and seizure" without meeting
the requirements of the Fourth Amendment.
Law enforcement agencies would have the responsibility to make sure that
no one accessed the content of the conversation. They alone would be responsible for limiting their use of the information
and not accessing the information contained in the post-cut-through
numbers. Given the fact that law
enforcement agencies would possess post-cut-through numbers that represent
content and the probability that they would be tempted to access this content,
this alternative would potentially create more problems than solutions.
CONCLUSION
As
argued by this Note, the inclusion of dialed digit extraction should be
invalidated for a number of reasons.
Dialed digit extraction violates three specific provision of CALEA. Post-cut-through numbers are not
call-identifying information nor are they reasonably available to the initial
carrier. Additionally, including dialed digit extraction breaches the framework
established for technical standards in 47 U.S.C. §
1006(b). Requiring
telecommunication carriers to provide law enforcement agencies with dialed digit extraction overreaches the authority that
Congress gave to the FCC in CALEA.
In
addition to its statutory problems, the inclusion of dialed digit extraction
poses substantial constitutional issues.
The Supreme Court's previous decisions on the constitutionality of pen
registers are no longer applicable because those decisions assumed that pen
registers did not have the capability to record post-cut-through numbers. Pen registers are now capable of obtaining
the type of information that was traditionally protected by the Fourth Amendment. However, because pen register warrants can
be issued without meeting the strict requirements of the Fourth Amendment, the
inclusion of dialed digit extraction as a part of a pen register warrant is
unconstitutional.
Although the needs of the law enforcement community should be considered
when developing the standards under CALEA, those needs should not be given
priority over other concerns.
Alternatives such as obtaining a Title III wiretap or serving pen
register warrants on secondary carriers will provide law enforcement agencies
with the information that they need within the statute and without violating
the Constitution.
[FNa1]. J.D. Candidate 2001, University of
Minnesota Law School; B.A. 1998, University of Redlands. The author would like to thank his mom, dad,
little sister, and Mona for their support
and encouragement.
[FN1]. See infra Part I.A for an in-depth
description of pen registers.
[FN2]. Several parties have challenged
the new rules in the U.S. Court of Appeals for the District of Columbia. See Motion for Expedition, United States
Telecom Ass'n v. FCC, (D.C. Cir. 1999) (No. 99-1442); Motion to Consolidate and
to Expedite Review, Cellular Telecomm. Indus. Ass'n, v. FCC, (D.C. Cir. 1999)
(No. 99-1475).
[FN3]. See Third Report and Order app. A
§ 22.1103 (No. 97-213) (Aug. 31, 1999)
[hereinafter Third Report].
[FN4]. This Note avoids extensive
discussion of trap and trace devices, but due to their similarity with pen
registers, they will be discussed tangentially. A trap and trace device works like a caller ID box installed by a
third party. The device "captures
the incoming electronic or other impulses which identify the originating
number" from which a telephone call was made. 18 U.S.C. § 3127(4) (1994).
[FN5]. See United States v. New York Tel. Co., 434 U.S. 159,
166-67 (1977).
[FN6]. Compare Katz v. United States, 389 U.S. 347, 353 (1967), with New York Tel. Co., 434 U.S. at 168-69 (distinguishing
wiretaps and pen registers).
[FN7]. See United States v. Kail, 612 F.2d 443, 446 (9th Cir.
1979).
[FN8]. See New York Tel. Co., 434 U.S. at 166.
[FN9]. Compare Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding that
since a pen register did not obtain the "content" of a telephone call
it was not a "search and seizure" under the Fourth Amendment), and New York Tel. Co., 434 U.S. at 167 (holding that a
pen register did not intercept because it did not obtain call
"content"), with Katz, 389 U.S. at 359 (holding that
listening to the telephone call of an individual constitutes a "search and
seizure" under the Fourth Amendment), and Kail, 612 F.2d at 447 (holding that
once a valid wiretap order has been issued law enforcement agencies do not need
to obtain additional authorization to use a pen register).
[FN10]. See infra note 133 and
accompanying text.
[FN11]. See Smith, 442 U.S. at 741. "Content" is defined as
including "any information
concerning the substance, purport, or meaning of communication." 18 U.S.C. §
2510(8) (1994).
[FN12]. See Smith, 442 U.S. at 736 n.1 (citing New York Tel.
Co., 434 U.S. at 161 n.1); see also Michigan Bell Tel. Co. v. United States, 565 F.2d
385, 386 (6th Cir. 1977) ("[A] pen register only records the
telephone numbers dialed by a monitored telephone."). A pen register performs a very limited
function. It does not record or monitor
the contents of a call and does not indicate whether or not the call was
completed. See id. at 386 n.1 (citing United States v. Giordano, 416 U.S. 505, 549 (1974) (Powell, J.,
concurring in part and dissenting in part)).
[FN13]. See Kail, 612 F.2d at 448. Since a Title III wiretap records the
electrical impulses that identify numbers dialed on a telephone, it is possible
to decipher these numbers without the use of a pen register. See id.
The "mechanical refinement provided by the pen register is thus
comprehended within the terms of the wiretap order, making separate
authorization unnecessary." Id. (citation omitted).
[FN14]. See 18 U.S.C. §
3127(3) (defining a pen register as "a device which
records or decodes electronic or other impulses which identify the numbers
dialed or otherwise transmitted on the telephone line to which such device is
attached").
[FN15]. See Michael W. Mowery, Comments of
Airtouch Communications, Inc. at 18 (No. 97-213) (May 20, 1998) [hereinafter
May Airtouch Petition].
[FN16]. See Stewart A. Baker, Comments of
the Telecomms. Indus. Ass'n at 44 (No.
97-213) (May 20, 1998) [hereinafter May TIA Petition].
[FN17]. See id.
[FN18]. See id.
[FN19]. See id.
[FN20]. See May Airtouch Petition, supra
note 15, at 18.
[FN21]. See May TIA Petition, supra note
16, at 44 ("Because tone receivers can be repeatedly used in this manner,
manufacturers build switches with a number
of tone receivers that is far lower than the number of simultaneous calls that
the switch can support.").
[FN22]. See Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended in
scattered sections of 5 U.S.C., 18 U.S.C., and 42 U.S.C.); Electronic
Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848
(codified as amended in scattered sections of 18 U.S.C.); Communications
Assistance for Law Enforcement Act of 1994, Pub. L. No. 103-415, 108 Stat. 4279
(codified as amended at 47 U.S.C. § §
1001- 1010 and in scattered sections of 18
U.S.C.).
[FN23]. See 18 U.S.C. § §
2511, 2520 (1994).
[FN24]. See id.; see also Notice of
Proposed Rulemaking P 27 (No. 97-213)
(Aug. 26, 1999).
[FN25]. See H.R. Rep. No. 103-827, at 11
(1994) ("'[T]he tremendous scientific and technological developments that
have taken place in the last century have made possible today the widespread
use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communications is
seriously jeopardized by these techniques of surveillance."
' (quoting S. Rep. No. 90-1097, at 67 (1968)).
[FN26]. See id.
[FN27]. 18 U.S.C. §
2518(3). Under Title
III law enforcement agencies could obtain a court order to conduct electronic
surveillance upon a showing that includes the following:
(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 description of the type of communications
sought to be intercepted, (iv) the identity of the person, if known, committing
the offense and whose communications are to be intercepted.
Id. § 2518(1).
[FN28]. See Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended in
scattered sections of 5 U.S.C., 18 U.S.C., and 42 U.S.C.).
[FN29]. See In re United States for Relief, 427 F.2d 639,
643-44 (9th Cir. 1970).
The court refused to extend its authority to order a telephone company to assist law enforcement
agencies. See id. It held that such authority could not be
found in law enforcement's duty to keep the peace nor in the court's statutory
or inherent authority to issue orders.
See id.
[FN30]. See id.
[FN31]. See id.
[FN33]. See id.
[FN34]. Lillian R. BeVier, The
Communications Assistance for Law Enforcement Act of 1994: A Surprising Sequel
to the Breakup of AT&T, 51 Stan. L. Rev. 1049, 1069 (1999).
[FN35]. See Digital Telephony and Law
Enforcement Access to Advanced Telecommunications Technologies and Services:
Joint Hearings on H.R. 4922 and S. 2375 Before the Subcomm. on Tech. and the
Law of the Senate Comm. on the Judiciary and the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. 6 (1994)
[hereinafter Hearings] (statement of Louis
J. Freeh, Director, Federal Bureau of Investigation).
[FN36]. See 18 U.S.C. §
3122 (1994).
[FN37]. See id.
[FN38]. See United States v. New York Tel. Co., 434 U.S. 159,
168-69 (1977).
[FN39]. 18 U.S.C. §
3122(b)(2). Note that
these requirements are very different from the requirements necessary to obtain
a wiretap: (a) the identity of the law enforcement officer making the
application; (b) a statement of the facts and circumstances relied upon by the
applicant, including a detailed description of the particular offenses alleged,
the location of the intercept, and the types of communications to be
intercepted, and the identity of the persons whose communications are to be intercepted;
(c) an explanation of why other investigative measures have failed or why they
are unlikely to be successful; (d) a statement of the time for which the
interception will be active; (e) a statement of all previous applications for
electronic surveillance of the same individual; and (f) where the application
is for an extension, a statement setting forth the information so far
obtained. See id.
[FN40]. See id. § 2518(3); see also supra
note 27 and accompanying text.
[FN41]. See U.S. Cong. Office of Tech.
Assessment, Electronic Surveil-lance in a Digital Age 2 (1995) [hereinafter
Electronic Surveillance].
[FN42]. See id.
[FN43]. See id.
[FN44]. See id. at 1 ("When the
telephone system was largely a network that connected handsets like the plain
old black rotary dial telephones, wiretapping was largely a simple procedure of
physically connecting a listening or monitoring device to a circuit associated
with a telephone number. It was simple
and inexpensive.").
[FN45]. See id. at 1-2.
[FN46]. See id. at 2 .
[FN47]. See id. at 42-50 (describing the
problems with finding a fixed location for
cellular phones and for Personal Communication Services (PCS) phones).
[FN48]. See id. at 40.
[FN49]. See id. at 39.
[FN50]. See Hearings, supra note 35, at
5-35 (statement of Louis J. Freeh, Director, Federal Bureau of
Investigation). But see id. at 57,
65-78 (statement of Roy Neel, President, U.S. Telephone Association) (stating
that he "is aware of only a handful of instances in which there has been
difficulty in providing assistance [to law enforcement agencies]"); id. at
70 (statement of Jerry Bergman, Executive Director, Electronic Frontier
Foundation) (stating that "there is no evidence that current law
enforcement efforts are being jeopardized by new technologies...[and the]
industry is cooperating with appropriate authorities to avoid future problems
and to expand existing capacities").
[FN51]. See BeVier, supra note 34, at
1069, 1075-77.
[FN52]. See H.R. Rep. No. 103-827, at
10-11 (1994). See generally S. Rep. No. 103-402 (1994). Since the hearings were conducted jointly the reports are almost
identical. This Note will only cite to
the House Report unless there is a major difference between the two reports.
[FN53]. See BeVier, supra note 34, at
1077.
[FN54]. See Hearings, supra note 35, at
65-78 (statement of Jerry Bergman, Executive Director, Electronics Frontier
Foundation). Bergman also raised cost
and certainty issues. See id. at
69-70. He argued that the bill imposed
uncertain requirements on mobile telephone providers and that the cost
reimbursement provisions were not adequate.
See id. at 69.
[FN55]. See id. at 53-64 (statement of Roy
Neel, President, U.S. Telephone Association).
[FN56]. See id. at 57. Speaking for the telephone industry, Roy
Neel stated that he "was not aware of a single instance in which a wire
line local telephone company has not been able to effect a lawful intercept due
to complications related to advancements in technology." Id.
[FN57]. See id. at 17-21 (statement of
Louis J. Freeh, Director,Federal Bureau of
Investigation). Specifically, Freeh
provided a long list of what was to come if Congress did not act. See id. at 21. He "pushed the right political buttons with repeated
references to salient terrors, invoking the World Trade Center bombing and
reminding the subcommittee of every parent's nightmare of having a child
kidnapped." BeVier, supra note 34,
at 1077. Director Freeh stressed that telephone companies have historically
been uncooperative in providing technical assistance necessary to effectuate
electronic surveillance. See Hearings, supra note 35, at 22 (statement of Louis
J. Freeh, Director, Federal Bureau of Investigation).
[FN58]. See id. at 16. Freeh stressed that the legislation would
only provide law enforcement agencies with information that they had typically
received from electronic surveillance.
See id. In many ways Freeh seemed
to imply that the legislation was just a technology update to outdated laws. See id.
[FN59]. H.R. Rep. No. 103-827, at 14
(1994).
[FN60]. Id. at 13.
[FN61]. See Hildegarde A. Senseney,
Interpreting the Communications Assistance
for Law Enforcement Act of 1994: The Justice Department Versus the
Telecommunications Industry & Privacy Rights Advocates, 20 Hastings Comm. & Ent. L.J. 665, 668 (1998).
[FN62]. See H.R. Rep. No. 103-827, at 13.
[FN63]. See 47 U.S.C. §
1002(a) (1994).
[FN64]. See id. §
1002(a)(1).
[FN65]. Id. §
1002(a)(2).
[FN66]. See id. § 1003(a)(3).
[FN67]. See id. § 1003(a)(4).
[FN69]. H.R. Rep. No. 103-827, at 21.
[FN70]. See id.
[FN71]. See 47 U.S.C. §
1008(b)(1). The factors to
be considered are as follows:
(A)
The effect on public safety and national security.
(B)
The effect on rates for basic residential telephone service.
(C)
The need to protect the privacy and security of communications not authorized
to be intercepted.
(D)
The need to achieve the capability assistance requirements of section 1002 of this title by
cost-effective methods.
(E)
The effect on the nature and cost of the equipment, facility, or service at
issue.
(F)
The effect on the operation of the equipment, facility, or service at issue.
(G)
The policy of the United States to encourage the provision of new technologies
and services to the public.
(H)
The financial resources of the telecommunications carrier.
(I)
The effect on competition in the provision of telecommunications services.
(J)
The extent to which the design and development of the equipment, facility, or
service was initiated before January 1, 1995.
(K)
Such other factors as the Commission determines are appropriate.
Id.
[FN72]. See 18 U.S.C. §
3121(c) (1994).
[FN73]. See id.
[FN74]. See id. § § 3121(a), 3122, 3123.
[FN75]. See id. § 3127(3) ("[T]he
term 'pen register' means a device which records or decodes electronic or other
impulses which identify the numbers dialed or otherwise transmitted on the
telephone line to which such device is attached....").
[FN76]. 47 U.S.C. §
1006(a)(2).
[FN78]. Id.
[FN79]. See Further Notice of Proposed
Rulemaking P 11 (No. 97-213) (Oct. 22, 1998) [hereinafter Further NPRM].
[FN80]. See id.
[FN81]. See id. P 12.
[FN82]. See id.
[FN83]. See id. P 13.
[FN84]. See id.
[FN85]. When submitted to Commission, the
Punch List contained nine items: (1)
Content of subject-initiated conference calls; (2) Party hold, join, drop; (3)
Subject-initiated dialing and signaling information; (4) In-band and out-
of-band signaling (notification messages); (5) Timing information; (6)
Surveillance status; (7) Continuity check tone (c-tone); (8) Feature status;
and (9) Dialed digit extraction. See
id.
[FN86]. See id. (citations omitted).
[FN87]. See id. & n.34.
[FN88]. See id. P 14.
[FN89]. See id. P 15.
[FN90]. The Cellular Telecommunications
Industry Association, the Electronic Frontier Foundation, the Center for
Democracy and Technology, the Department of Justice, the FBI, and the TIA all
petitioned for the Commission to establish standards for CALEA. See id. PP 16-22.
[FN91]. See id. PP 16-19.
[FN92]. See id. P 21.
[FN93]. See id.
[FN94]. See id. at 1.
[FN95]. See id. P 129. The following items were tentatively
approved: content of subject-initiated conference calls; party hold, join, drop
on conference calls; subject-initiated dialing and signaling information;
in-band and out-of-band signaling; and
timing information. See id. PP 73, 85,
91, 99, 104.
[FN96]. See Third Report, supra note 3, P
8.
[FN97]. See Further NPRM, supra note 79, P
129. The following items were
tentatively rejected: surveillance status, continuity check tone and feature
status capabilities. See id. PP 109,
114, 121.
[FN98]. See Third Report, supra note 3, P
8.
[FN99]. See id. at 1.
[FN100]. See id.; see also 47 C.F.R. § §
22.1103, 24.903, 64.2203
(1999).
[FN101]. See Third Report, supra note 3, PP
114-23.
[FN102]. See id.
[FN103]. Id. P 123.
[FN104]. See supra notes 4-21 and
accompanying text.
[FN105]. 277 U.S. 438 (1928) overruled in
part by Berger v. United States, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). At the time of
the decision, there were no federal statutes on the issue of wiretapping. See id. at 465-66. The wiretap, however, was carried out in the state of Washington,
where it was a misdemeanor for any person to "'intercept, read or in any
manner interrupt or delay the sending of a message over any telegraph or
telephone line." ' Id. at 468
(quoting Remington Compiled Statutes § 2656-18) (1922)).
[FN106]. See id. at 464 ("The [Fourth]
Amendment does not forbid what was done here.
There was no searching. There
was no seizure. The evidence was
secured by the use of the sense of hearing and that only. There was no entry of the houses or offices
of the defendants."). But see id.
at 478 (Brandeis, J., dissenting) ("To protect, that right [the right to
be let alone,] every unjustifiable intrusion by the Government upon the privacy
of the individual, whatever the means employed, must be deemed a violation of
the Fourth Amendment.").
[FN107]. See id. at 464.
[FN108]. See Katz, 389 U.S. at 347. Katz had been convicted for violating 18
U.S.C. § 1804, which prohibited the
interstate use of wire communications for use in the business of betting or
wagering. See id. at 348-49. At trial the FBI introduced evidence which
it collected by using a wiretap attached to a phone booth that Katz frequently
used. See id.
[FN109]. See id. at 351.
[FN110]. See id.
[FN111]. See id. at 348-49.
[FN112]. See id at 352. The Court specifically rejected the argument
that because Katz was visible after he entered the phone booth he had forfeited
his expectation of privacy. See id. Instead, the Court held that because Katz
had "shut[] the door behind him, and p[aid] the toll that permits him to
place a call" he was "entitled to assume that the words he utter[ed]
into the mouthpiece [would] not be broadcast to the world." Id.
In doing so, the Court implied that the Fourth Amendment's protection is
an evolving concept. See id.
[FN113]. Id. at 351. The Court concluded "that the
underpinnings of Olmstead and Goldman have been so eroded by our subsequent
decisions thatthe 'trespass' doctrine there enunciated can no longer be
regarded as controlling." Id. at
353. Thus, the Court held that the act
of listening to and recording the telephone conversation was key to determining
the constitutionality of the activity instead of whether the police had
penetrated the telephone booth during the wiretap. See id. at 351-53.
[FN114]. See id. at 353, 359.
[FN115]. See Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Chadwick, 433 U.S. 1, 7 (1977); United States v. Miller, 425 U.S. 435, 442 (1976); United States v. Dionisio, 410 U.S. 1, 14 (1973); Couch v. United States, 409 U.S. 322, 335-36 (1973); United States v. White, 401 U.S. 745, 752 (1971) (plurality
opinion); Mancusi v. DeForte, 392 U.S. 364, 368 (1968); Terry v. Ohio, 392 U.S. 1, 9 (1968)).
[FN116]. Id. (quoting Katz, 389 U.S. at 361 (Harlan, J.,
concurring)).
[FN117]. See id.
[FN118]. Id. at 742.
[FN119]. Id. at 743 (quoting Katz, 389 U.S. at 361 (Harlan, J.,
concurring)).
[FN120]. Id. at 743-44. The Court based its conclusion on the
assumption that telephone users are aware that they are communicating the
telephone numbers that they dial to the telephone company and that the company
has the capability to record this information and in fact does so for long
distance phone calls. See id. at
743. This may be even more true in the
case of mobile phones. Most cellular or
PCS phone bills indicate the numbers that were dialed from the phone and some
even indicate the phone numbers of incoming calls.
[FN121]. See United States v. Kail, 612 F.2d 443, 448 (9th Cir.
1979). In Kail, government agents
installed a pen register without obtaining a separate warrant. See id.
The government agents had already obtained a warrant to conduct a
wiretap. See id.
[FN122]. 47 U.S.C. §
1006(b) (1994) establishes criteria that the FCC must use when establishing a technical standard
after it has been petitioned to do so.
See supra notes 76-78 and accompanying text for a more detailed
description of the requirements.
[FN123]. See supra notes 15-21 and
accompanying text. This occurs when the
initial number (1-800-XXX-XXXX) is dialed and the individual is connected to
either the next carrier (a long distance provider), to an automated system, or
to another individual.
[FN124]. See supra notes 15-21 and
accompanying text.
[FN125]. See supra notes 15-21 and
accompanying text.
[FN127]. See supra notes 15-21 and
accompanying text.
[FN128]. Secondary service providers
include secondary carriers, such as AT&T or Sprint, and automated systems.
[FN129]. See supra notes 15-21 and
accompanying text.
[FN130]. See H.R. Rep. No. 103-827, at 21
(1994).
[FN131]. See id.
[FN132]. See id.
[FN133]. 18 U.S.C. §
2510(8) (1994).
[FN134]. See 47 U.S.C. §
1002(a)(2) (1994).
[FN135]. Id.
[FN136]. 47 U.S.C. §
1008(b)(1).
[FN137]. Id.
[FN138]. See id.
[FN139]. See John H. Harwood, Comments of
U.S. West, Inc. at 9 (No. 97-213) (May
20, 1998). Total costs estimates range
into the billions of dollars. See id.
[FN140]. See supra notes 14-21 and
accompanying text (describing switching systems).
[FN141]. See supra notes 16-19 and
accompanying text.
[FN142]. See supra note 21 and accompanying
text. For example assume that a switch
could connect 50 different calls through it at any given time. That switch may only have 5 to 10 tone
receivers.
[FN143]. See supra notes 19-21 and
accompanying text.
[FN144]. See May TIA Petition, supra note
16, at 44-45.
[FN145]. See id.
[FN146]. See Electronic Surveillance, supra
note 41, at 38.
[FN147]. See id.
[FN148]. See Eric W.
DeSilva et. al., Comments of the Personal Communications Indus. Assoc. at 12
(No. 97-213) (Dec. 14, 1998) [hereinafter December PCIA Petition]. On a periodic basis telephone carriers
update the technology in all of their switches. See id. Upgrades are made
when it is no more expensive to upgrade the switch than to continue using
it. See id. By mandating that all switches be modified to meet the new rules,
the FCC is forcing telephone carriers to modify their switches when it is more
efficient to continue to operate them.
See id.
[FN149]. See id.
[FN150]. See id. at 45.
[FN151]. Id.
[FN152]. See id.
[FN153]. See id.
[FN154]. 47 U.S.C. §
1008(b)(1)(C) (1994).
[FN155]. Id. §
1008(b)(1)(G).
[FN156]. See supra notes 123-33 and
accompanying text.
[FN157]. See 47 U.S.C. §
1006(b).
[FN158]. See id.
[FN159]. See id. §
1006(b)(1)-(5).
[FN160]. See id. §
1006(b)(1), (3) .
[FN161]. See supra notes 139-40, 148-53 and
accompanying text.
[FN162]. See December PCIA Petition, supra
note 148, at 12. Congress initially
allocated $500 million dollars to subsidize telecommunications companies. See Barbara J. Kern, Ameritech's Comments on
the Further Notice of Proposed Rulemaking to establish Technical Requirements
and Standards for CALEA at 4 (No. 97-213) (Dec. 24, 1998) [hereinafter
Ameritech Petition]. This figure falls
drastically short of the over $2 billion that it will cost just to implement
the J-STD-025 standards. See December
PCIA Petition, supra note 148, at 11. The cost difference will be passed along to
consumers in the form of higher rates.
See id. at 12.
[FN163]. See May TIA Petition, supra note
16, at 44-45.
[FN164]. See id.
[FN165]. See December PCIA Petition, supra
note 148, at 12.
[FN166]. See id.
[FN167]. See id. at 14-15.
[FN168]. 47 U.S.C. §
1006(b)(2) (1994).
[FN169]. See supra notes 123-33 and
accompanying text.
[FN170]. See Ameritech Petition, supra note
162, at 11.
[FN171]. See supra notes 123-33 and
accompanying text.
[FN172]. See supra notes
105-14 and accompanying text.
[FN173]. See supra notes 115-21 and
accompanying text.
[FN174]. See supra notes 123-31 and
accompanying text.
[FN175]. See supra notes 105-21 and
accompanying text.
[FN176]. See supra note 116 and
accompanying text. The first prong
looks at the subjective expectation of privacy of the individual subject to the
pen register. See Smith v. Maryland, 442 U.S. 735, 740 (1979). The second prong compares that subjective
expectation of privacy against what society is ready to recognize as
reasonable. See id.
[FN177]. See Third Report, supra note 3, P
123. A typical individual would not
freely disclose this type of information.
[FN178]. See Smith, 442 U.S. at 742. The Court noted that individuals see a list
of all long distance numbers that they have dialed on their monthly phone
bill.See id. With mobile telephones,
most users see a listing of all numbers that they dial on their bill.
[FN179]. See id. at 742-43.
[FN180]. See Katz v. United States, 389 U.S. 347, 352-53 (1967).
[FN181]. See Berger v. New York, 388 U.S. 41, 54-55 (1967).
[FN182]. See supra Part I.C.
[FN183]. See supra Part II.
[FN184]. See supra Part I.B.
[FN185]. See supra Part II.A.1.
[FN186]. See supra Part II.A.1.
[FN187]. H.R. Rep. No. 103-827, at 23
(1994) ("The bill is not intended to guarantee 'one-stop shopping' for law
enforcement.").
[FN188]. See Ameritch Petition, supra note
162, at 12-13.
END OF DOCUMENT