The opinion of the court was delivered by: TENNEY
On March 19, 1976, this Court granted the application of the Department of Justice
for an order directing New York Telephone Company
("Telephone") to furnish the information, facilities, and technical assistance necessary to enable agents of the Federal Bureau of Investigation ("FBI") to install "pen registers" on two telephones. The application specified two telephones subscribed to by a specified individual and located at a specific address. In response to the Court's order, Telephone moved, by order to show cause, to vacate or to modify the order. While not contesting the right of the Government to employ the "pen register", Telephone objected to so much of the Court's order as directed it to provide all information, facilities (including lease lines), and technical assistance necessary for the utilization of the "pen register".
Based upon the papers submitted and the arguments heard and for the reasons stated below, the motion to vacate or modify this Court's previous order is hereby denied.
Telephone challenges the Court's direction that it furnish technical assistance, including lease lines, to law enforcement officials for installation and utilization of the "pen register". Telephone does not challenge the Court's jurisdiction to authorize use of the "pen register", nor does it contend that there was no probable cause supporting the Court's order. Indeed, Telephone has been willing and continues to be willing to provide the Government with all the necessary information that would enable the FBI to install a "pen register". It is Telephone's position, however, that its facilities and technical assistance may be furnished to law enforcement officials only pursuant to an application under 18 U.S.C. §§ 2510 et seq. These sections constitute Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"). Title III "prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses." United States v. Giordano, 416 U.S. 505, 507, 94 S. Ct. 1820, 1823, 40 L. Ed. 2d 341 (1974). Briefly, the Act confers power upon the Attorney General or a specially designated Assistant Attorney General to apply for a federal court order authorizing wire interceptions. 18 U.S.C. § 2516(1).
A "pen register" is a mechanical device which picks up electrical impulses which are used to decode the telephone numbers dialed in outgoing calls.
Telephone concedes that the application for a "pen register" is not an application for a wire or oral interception within the purview of Title III. (Telephone's Memorandum of Law at 5).
There is significant authority for this Court to find that the "pen register" in this instance was not a device for wire or oral interception covered by the prescriptions of Title III. 18 U.S.C. § 2510 contains the following definition:
"As used in this chapter --
(4) 'intercept' means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device."
"Aural" has been defined as "'of or relating to the sense of hearing.'" United States v. Focarile, 340 F. Supp. 1033, 1039 (E.D.Mo.), aff'd sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), quoting Webster's Third New International Dictionary. A "pen register" decodes phone numbers by responding to electric impulses and not to aural stimuli.
The legislative history of Title III clearly discloses a Congressional intent to exclude "pen registers" from the Act's strictures.
"Paragraph (4) defines 'intercept' to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. See Lee v. United States, 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); Corngold v. United States, 367 F.2d 1 (9th 1966). An examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an 'interception.' (United States v. Russo, 250 F. Supp. 55 (E.D.Pa.1966)). The proposed legislation is not designed to prevent the tracing of phone calls. The use of a 'pen register,' for example, would be permissible. But see United States v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication." (Emphasis added). S.Rep.No.1097, 90th Cong., 2d Sess. at 90 (1968), 1968 U.S.Code Cong. & Admin. News, p. 2178.
Various federal courts have adopted the position that a "pen register" device is not governed by Title III. See United States v. Illinois Bell Telephone Co., 531 F.2d 809 (7th Cir., 1976); United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975); United States v. Falcone, 505 F.2d 478, 482 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975); United States v. Finn, 502 F.2d 938, 942 (7th Cir. 1974); United States v. Brick, 502 F.2d 219, 223 (8th Cir. 1974); Korman v. United States, 486 F.2d 926, 931 (7th Cir. 1973); United States v. King, 335 F. Supp. 523 (S.D.Cal.1971), aff'd in part, rev'd in part on other grounds, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S. 920, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974); United States v. Vega, 52 F.R.D. 503 (E.D.N.Y.1971). Finally, Mr. Justice Powell reiterated this conclusion in his opinion (concurring in part and dissenting in part) joined by The Chief Justice and Mr. Justice Blackmun and Mr. Justice Rehnquist in United States v. Giordano, supra, 416 U.S. at 553-54, 94 S. Ct. 1820.
This Court likewise holds that a "pen register" falls outside of Title III's definition of "interception".
Without disputing the nonapplicability of Title III, Telephone contends, however, that this Court's order authorizing the use of a "pen register" device "directs Telephone to furnish the FBI with the capability to perform an interception " (Natoli Affidavit at 3), and that a court order directing an interception must comply with the strictures of Title III. (Natoli Affidavit at 3; Telephone Memorandum of Law at 7). Although the order employs the term "interception", it clearly does not direct that type of interception contemplated by Title III. The order specifically permits only that interference, from the installation and operation of the device, necessary for the limited purpose of obtaining the telephone numbers of outgoing calls.
This Court adopts the jurisdictional basis for the issuance of a "pen register" that was enunciated by Mr. Justice Powell in the Giordano case. ...