In re United States
256 F. Supp. 3d 246
E.D.N.Y2017Background
- Government provided a cellular phone (Subject Telephone) to a Witness who repeatedly consented in writing to interception/recording of all calls on that device and agreed not to allow third-party use.
- For over a year agents monitored the device using a software solution that did not require the service Provider's cooperation; that product was recently discontinued.
- The Provider declined to install the technical assistance/wiretap the government now requests absent a court order.
- Government moved under the All Writs Act (AWA), seeking a court order compelling the Provider to assist installing/intercepting communications for 60 days, representing it would follow the wiretap statute for intercepted communications.
- Magistrate Judge Orenstein denied the motion, concluding the AWA does not authorize the requested relief and that discretionary factors weighed against issuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the AWA authorizes compelling a third-party provider to assist interception when no court order is being frustrated | AWA permits courts to issue necessary writs to aid governmental investigations; a court order is needed because Provider refuses voluntary assistance | Provider resists being conscripted; there is no court order whose execution is impeded | Denied — relief not "in aid of" the court's jurisdiction because no prior court order relies on Provider assistance |
| Whether AWA can be used to bypass statutory wiretap requirements (18 U.S.C. § 2518) | Government will comply with wiretap statute in practice and seeks AWA order to obtain Provider help | Wiretap statute prescribes detailed prerequisites (probable cause, DOJ approval, necessity, 30-day limit) that cannot be bypassed by AWA | Denied — AWA cannot be used to circumvent or expand requirements of the wiretap statute |
| Whether a magistrate judge may authorize interception or expand statutory jurisdictional limits | Government sought relief in this court (magistrate), asserting authority under AWA | Wiretap statute limits authorization to judges of competent jurisdiction; Second Circuit excludes magistrate judges for §2518 authorization | Denied — AWA cannot expand the statutorily defined scope of a magistrate judge's authority |
| Whether discretionary AWA factors (relationship, burden, necessity) favor issuance | Assistance not burdensome; reimbursement offered; government previously used providerless monitoring but product discontinued | Provider has no close relationship to underlying crime; government failed to show necessity or lack of alternatives | Denied — closeness and necessity factors weigh against; burdensomeness favors government but is insufficient |
Key Cases Cited
- In re Apple, Inc., 149 F. Supp. 3d 341 (E.D.N.Y. 2016) (discussion of AWA limits and interplay with statutory schemes)
- United States v. N.Y. Tel. Co., 434 U.S. 159 (1977) (AWA factors and limits on compelling provider assistance)
- Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) (historic scope of auxiliary writs in aid of jurisdiction)
- Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34 (1985) (AWA fills interstitial gaps but cannot override statutes)
- In re United States, 10 F.3d 931 (2d Cir. 1993) (magistrate judges excluded from §2518 "judge of competent jurisdiction")
- Application of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956 (2d Cir. 1976) (AWA discretionary nature and considerations)