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United States

decided: November 29, 1979.

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE INSTALLATION OF A PEN REGISTER OR TOUCH-TONE DECODER AND A TERMINATING TRAP, BELL TELEPHONE COMPANY OF PENNSYLVANIA, APPELLANT ; IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE INSTALLATION OF A PEN REGISTER OR A TOUCH-TONE DECODER AND TERMINATION TRAP FACILITIES, BELL TELEPHONE COMPANY OF PENNSYLVANIA, APPELLANT ; IN THE MATTER OF THE APPLICATION OF THE UNITED STATES FOR AN ORDER AUTHORIZING A TELEPHONE TRACER, NEW JERSEY BELL TELEPHONE COMPANY, APPELLANT


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 7178) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 7209) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Misc. No. 78-167)

Before Seitz, Chief Judge, and Gibbons and Higginbotham, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

These appeals raise the issue of a district court's authority to order a telephone company to assist law enforcement agents in the tracing of telephone calls. The Supreme Court has ruled that a district court may require telephone company assistance in the case of a pen register. United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977). A trace, like a pen register, decodes the signals sent out by the dialing of a telephone, but it serves an opposite function. Rather than identify the destination of calls made from a known telephone, it identifies the source of calls made to a telephone. Moreover, the execution of a trace may require a more extensive and more burdensome involvement on the part of the phone company. We now must decide how the principles developed in the pen register case apply to tracing orders.

I.

A.

Each of the three appeals arose from similar circumstances. A federal law enforcement agency had uncovered gambling enterprises operating in violation of federal law. It discovered that participants regularly received telephone calls as part of the operations and wished to trace these calls for the purpose of identifying other participants. The federal agents then sought warrants from the district court authorizing the traces. In support of the request, they filed affidavits asserting probable cause to believe that the telephone was being used to violate federal criminal laws and that a trace could lead to the identification of persons committing the crimes. In addition, they requested an order compelling the local telephone company to provide the technical means for the trace. The district court considered the request in an ex parte proceeding.

The order in the first case concerned an investigation of gambling in western Pennsylvania. On September 5, 1978, the district court for the Western District of Pennsylvania issued a warrant permitting agents of the Federal Bureau of Investigation to install a pen register and tracing equipment on a particular telephone and to monitor calls made to and from the telephone for ten days. In addition, the court ordered the Bell Telephone Company of Pennsylvania to "furnish all information, facilities, and technical assistance necessary to accomplish the assistance unobtrusively with a minimum of interference with the service that such carrier is providing."*fn1 In a supplemental order issued three days later, the district court elaborated upon the assistance required of Pennsylvania Bell. The court ordered the company to install and continually operate "card drops and other mechanical or electrical devices." When the FBI requested, the company was to "perform manual tracing operations to the extent technically feasible." Finally, the order required the company to turn over to the FBI all information gathered by the traces.

Immediately upon receipt of the orders, Pennsylvania Bell moved, under Fed.R.Crim.P. 47, to set aside the provisions requiring traces. The court held an evidentiary hearing on September 15, 1978, at which it heard one of Pennsylvania Bell's equipment engineers describe the technical requirements of tracing. After considering this testimony and the arguments of the company's counsel, the court denied the motion. Pennsylvania Bell already had carried out the traces required by the order, and after its motion failed, it turned the results over to the FBI.

On October 11, 1978, the Western District of Pennsylvania issued the second order now before us. The order authorized the FBI to install and operate a pen register and directed Pennsylvania Bell to provide the necessary technical assistance. It also directed the company to "utilize electrical devices (Electronic Switching System ESS) to trap and trace incoming calls to the extent technically feasible" and to perform traces "only when specifically requested" by the FBI. The order permitted monitoring of calls for twenty days. Finally, the company was to turn the results of traces over to the FBI.

Pennsylvania Bell again moved to set aside the tracing provisions of the order. By stipulation, the parties agreed to incorporate into the record for this motion the testimony and evidence produced at the September 15 hearing. Without any further proceedings, the court denied the motion.

The third order in this appeal was issued in the District of New Jersey on November 13, 1978, on behalf of agents of the Criminal Investigation Division of the Internal Revenue Service. The order granted authority for up to twenty days to "(t)race to the source certain telephone calls received by" a certain telephone. It further directed New Jersey Bell Telephone Company to furnish the IRS agents upon their request "with all information, facilities and technical assistance necessary to accomplish the tracing . . . unobtrusively." The order provided for compensation of New Jersey Bell "at the prevailing rates."

As its Pennsylvania counterpart had done, New Jersey Bell immediately moved to have the order set aside. The district court held an evidentiary hearing on December 1, 1978, at which it heard the testimony of one of New Jersey Bell's equipment engineers. The court then denied the motion. During the course of the district court's consideration of the motion. New Jersey Bell had executed the traces requested by the IRS. After the failure of its motion, the company turned the results over to the IRS.

B.

Most of the testimony in the district courts concerned the technical requirements of tracing a call.*fn2 The dialing of a telephone sends out electronic impulses that direct the telephone company's switching equipment to connect the lines of the calling and receiving numbers. The switching equipment for all of the telephones in a single locality or urban neighborhood is housed in a single central office. The steps required for a trace will vary with two factors: the type of equipment in a central office and whether the calling and receiving numbers are served by the same or a different central office.

The most advanced switching equipment is known as the electronic switching system (ESS). It matches telephone numbers through a form of computer search. Tracing calls on ESS is relatively simple, because the equipment has a computer-like memory which can record the source of calls made to any number. If a call is placed from a telephone served by the same central office, the trace will identify that telephone. If not, it will identify the trunk line that carried the call from another central office. The telephone company can program the ESS equipment either prior to the time at which a call is expected or while a call is in progress. The in-progress trace must be completed before the caller hangs up. Because typing the program into the equipment takes less than one minute, in-progress traces generally present no difficulties.

A less advanced switching system is known as electro-mechanical or cross-bar switching. This system forms a circuit between two telephones by means of a direct mechanical link. If the telephone company is able to prepare in advance for a trace, it can simplify the process by attaching to the equipment a device known as a terminating trap. This device will signal to another machine whenever a call to a particular number is in progress. With the latest generation of this equipment, no. 5 cross-bar, the second machine will produce a computer card that records either the number of the telephone that placed the call or the trunk line that carried the call from another central office. With the earlier generation, no. 1 cross-bar, the second machine will not produce a card or any other permanent record of ...


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