United States District Court, E.D. New York
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
ORENSTEIN U.S. Magistrate Judge
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
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.
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.
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.
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.
The All Writs Act
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).
plain text of the statute thus confers on all federal courts
the authority to issue orders where three requirements are
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).
deciding whether to take such discretionary action should