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In re Application of United States

United States District Court, E.D. New York

June 9, 2017

IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER 1 DIRECTING [REDACTED SERVICE PROVIDER TO PROVIDE TECHNICAL ASSISTANCE WITH RESPECT TO THE INTERCEPTION OF WIRE COMMUNICATIONS; 2 AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE; AND 3 THE PROVISION OF SUBSCRIBER INFORMATION.

          MEMORANDUM AND ORDER

          JAMES ORENSTEIN U.S. Magistrate Judge

         In a motion submitted earlier today, the government seeks an order pursuant to the All Writs Act, 28 U.S.C § 1651(a) (the "AWA"), requiring a provider of electronic communications services (the "Provider") to furnish certain technical assistance to law enforcement agents in the interception of the communications of a specific cellular telephone (the "Subject Telephone"). See Application at 1; [Proposed] Sealed Order of Authorization at 1-2; [Proposed] Sealed Order to Service Provider at 1.[1] The government has provided the Subject Telephone to a person (the "Witness") who is willing to use it to engage in communications relevant to the government's investigation, and who has consented to have the government monitor all of the Witness's communications (relevant and otherwise) made using that device. The Provider declines to provide the assistance the government seeks in the absence of a court order. For the reasons briefly set forth below, I deny the government's motion.[2]

         I. Background

         As part of an investigation into suspected criminal activity, the government has secured the agreement of the Witness to engage in monitored communications with subjects of the investigation. Beginning over a year ago, agents provided the Subject Telephone to the Witness, who in turn provided written consent to the interception and recording of all calls made and received over that device. The Witness further agreed in writing not to "permit any third person to use the SUBJECT TELEPHONE to make or receive telephone calls or to participate in telephone calls to which [the Witness was] not a party." Application at 6-7. The Witness again provided written consent to the monitoring of the Subject Telephone several months later, and then did so a third time two days ago; in this most recent writing, according to the government, the Witness again committed "not [to] allow third parties to use the telephone." Id. at 7 & Ex. A.[3]

         Until recently, the agents consensually monitored the Subject Telephone's communications and location by using "a software-based solution" that did not require the Provider's participation. Id. at 7 n.6. The government reports that the latter product was recently "discontinued" without explaining how that discontinuance renders the product it was already using ineffective (although I assume that it must be so). Id. The government does not discuss whether any alternative products or services are available, or whether there is any other way for it to engage in the consensual monitoring of a person's telephone communications without requiring the Provider to install a wiretap. Instead, it simply reports the discontinuance of one product and then writes: "Thus, the government is requesting this proposed Order." Id.

         The Provider is unwilling to install the wiretap the government seeks without a court order. Id. at 7. Given that refusal, the government posits, "a Court order is necessary." Id. at 8. The government proposes that if its request is granted, it will instruct its agents "that they may intercept and record communications over the SUBJECT TELEPHONE only in accordance with 18 U.S.C. § 2511(2)(c), i.e., that they may intercept and record only those calls (or portions of calls) over the SUBJECT TELEPHONE in which the [Witness] is personally involved as a party to the communication." Id. at 8-9.

         II. Discussion

         A. The All Writs Act

         The AWA provides that a federal court "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).

         The plain text of the statute thus confers on all federal courts the authority to issue orders where three requirements are satisfied:

1. issuance of the writ must be "in aid of" the issuing court's jurisdiction;
2. the type of writ requested must be "necessary or appropriate" to provide such aid to the issuing court's jurisdiction; and
3. the issuance of the writ must be "agreeable to the usages and principles of law."
If an application under the AWA meets all three of those requirements, the court "may" issue the requested writ in the exercise of its discretion - but it is never required to do so. See, e.g., Application of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956, 961 (2d Cir. 1976), rev'd on other grounds, United States v. N.Y. Tel. Co., 434 U.S. 159 (1977); Morrow v. District of Columbia, 417 F.2d 728, 736 (D.C. Cir. 1969); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360 (10th Cir. 1964); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962).

         A court deciding whether to take such discretionary action should ...


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