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 pr