Application of the United States of America in the Matter of an Order Authorizing the Use of a Pen Register or Similar Mechanical Device
538 F.2d 956
2d Cir.
1976
Check Treatment

*2 MEDINA, Before FEINBERG and with a minimum of interference with the MANSFIELD, Judges. Circuit service that such carrier is according the person whose communications are to be in

MEDINA, Judge: * * tercepted *.” Pursuant to this or important der, This case interesting Telephone Company agreed pro application involves the Government’s vide such as information terminal locations authorizing identifications, an order the installation and pair and cable and de but lease telephone private except lance dined to furnish law enforcement officials lines, citing Telephone Company regulations investigating specified certain crimes. The such assistance. Govern-0 prohibited which requires compliance statute pro- with strict Agents determined that with Special cedures, judicial all under supervision. lines could not these lease success parties agree out Both register orders *3 surveillance; pen register implement fully by are not covered Title III because its Company assistance in this re only to provisions apply surveillance which 30, 1976, was thus crucial. On March gard “interception” involves an of wire commu- appellant by nication, moved order to show cause to acquisition,” or an “aural as inter- portion modify Judge vacate or of Ten in ception is defined 18 U.S.C. Section 19, 1976 order ney’s 2510(4), March which mandated the legislative history and because by technical Com that there Congression- makes clear was no of pany pen registers, in the installation subject pen registers al intent to the contending legal that the order was without proscriptive standards of Title III.1 2, 1976, authority. opinion April In an proposed legislation The is not designed yet reported, Judge Tenney denied the tracing prevent phone calls. respects. Appellant motion in all then “pen register,” The use of a example promptly appeal filed a notice of and moved permissible, would be [citatiоn omitted]. for a of both District Court stay orders proposed legislation The is intended to pending appeal. This Court denied the mo protect privacy of the communication 8, 1976, stay April tion for a and ordered itself and not means of communica- appeal. expedited an S.Rep.No.1097, 90th Sess., tion. Cong., 2d (1968), Cong. 90 U.S.Code & Admin.News separately ques- We will consider the two 2112, 1968, pp. first, appeal: this whether tions raised on authorizing Court erred the District question Other courts faced with the second, register; and whether pen use of a applicability of Title III pen register ordering appellant it erred in have likewise orders concludеd they assistance to the Government. As technical are excluded. See United States v. Illinois this is the first time these appears 408, 410, 531 F.2d (N.D.Ill, Bell Tel. have been reviewed this important issues 1976); Giordano, v. United States 416 U.S. Court, they we believe merit some extended 505, 553-54, 1820, 94 S.Ct. 40 L.Ed.2d 341 discussion. J., (1974) (Powell, concurring part joined

dissenting part, by Burger, J.,C. Rehnquist, JJ.); Blackmun & United I States Falcone, (3d v. 505 F.2d 1974), 478 cert. 1968, enacted the Omni- denied, 955, 1339, 95 S.Ct. 43 Act, Control and bus Crime Safe Streets (1975); L.Ed.2d 432 United Vega, States v. III which added 2510-2520 Title Sections (E.D.N.Y.1971).2 52 F.R.D. 503 Title 18 of the Code and United States amended 605 of Federal Com- It is also clear that register Section or Act of 47 are covered by munications U.S.C. Section ders not now Section 605 of comprehensive electronic 605. Title III is a the Federal Communications Act of 1934. statute, prohibiting wiretap- III, all surveillance Prior to the enactment of Title there of electronic surveil- ping types and other for the ‍​​​‌‌​​‌​​‌​‌​‌‌‌‌‌​​‌​‌‌​​‌‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‍was broad applicability of Blakey, Proposed Lanza, “A Electronic Sur- 1. See also F.Supp. 2. But see United States v. Act,” Notre Dame L.Rev. 657 veillance (M.D.Fla. 1972), where the court held Blakey, (1968). Professor who has been credit- orders fall within Title III III, primary authorship ed with of Title see when are issued in connection with a Giordano, United States v. U.S. 517 n. wiretap order. 526 n. 40 L.Ed.2d 341 (1974), states that Title III was not intended to prevent tracing phone calls the use of pen register. quirements interception and disclo- Fourth Amendment. Section communication,” including pen “any case In this sure Government secured a Dote, v. States order, registers. equivalent See court pur- 1966); United (7th Cir. States warrant, F.2d a search for each of the pose of (E.D.Mich.1966). F.Supp. 805 Caplan, 255 of its two extensions authorization to use 605 effected of Section amendment pen register. coverage of that III restricted statement We take this to mean that a communications, with- radio Section order involves a search and seizure interception of wire or oral com- drew the Amendment, the Fourth and that a Section, the ambit of that municаtions may issue such an only upon governing provi- sole Title III the making probable showing cause. of the amend- legislative history sion. The In United Illinois Bell Tel. seems to us to indicate intention Co., supra, Circuit, the Seventh *4 in consider proge- to disavow Dote and its power of the federal ing the courts to issue ny.3 orders, pen register concluded that ample section 605 This section amends [new] * authority could be found either the inher Act of 1934 *. of the Communications power by ent of the courts or analogy to merely is not intended to be This section 41, F.R.Cr.P. The Rule court held that a The a of section 605. new reenactment approach” “commonsense dictated that au as a substitute. The provision is intended thority tantamount to that found in Rule 41 interception of wire or regulation of for the search and seizure of tangible ob in the future is to be oral communications * jects found to exist for an order autho *. governed by proposed [Title III] rizing the search and seizure non-tangi Cong., 90th 2d S.Rep.No.1097, Sess. bles, gleaned such as information (1968), Cong.' pen & Admin.News U.S.Code Id., 1968, register surveillance. p. 2196. at 411. We agree with this reasoning. While the elec agreement pen regis While in that impulses tronic recorded pen registers not within Title III or ter orders are thus “property” are not in the strict sense of parties conflicting draw Section term as it 41(b), that is used in Rule we coverage. from this absence of inferences concur in the Seventh suggestion Circuit’s Telephone Company argues that absent power there exists a akin to that statutes, in Title III or other authorization in Rule 41 to lodged order the seizure of authority Court had no to order the District non-tangible property. But see In the Mat pen register. a installation and use of Application ter of the of the United States argues that a District The Government of America for an Order Authorizing Use of power inherent un Court has Device, Register Pen a F.R.Cr.P., F.Supp. Rule to issue such an der (W.D.Mo.1976). Moreover, оrder, relying princi subject only to the restraints of the Justice Powell’s pally on statement in Unit They point Amendment. to the Fourth Giordano, supra, agree we with of Justice Powell in United ed States statement Giordano, supra, pen register at 553— the or U.S. Seventh 1844,1845 only showing at where he stated be issued after a der way of dictum: We cannot in the probable cause. concur commentators, view, voiced some register pen

Because a device is not constitutionally orders are in III, pen register subject of Title provisions to the covers, distinguishable from mail which are permissibility of its use law enforce- by subpoena, and therefore should depends entirely ment initiated authorities re- Rule 41. See Statement of compliance with the constitutional fall' outside Dote, United States v. 371 F.2d 176 See United States v. Illinois Bell Tel. however, 1966), may, 408, 411, 1976); (N.D.Ill., retain some residual vi- United States v. F.2d tality Lanza, order is F.Supp. (M.D.Fla.1972). in cases where conjunction wiretap with a order. issued in Blakey, NWC Law En- whether the Telephone Robert Professor G. could vol- Effectiveness Conference 38-39 untarily forcement assist in effectuating pen register Note, (1976); Legal Upon surveillance, “The Restraints but rather only with whether Register Pen as a Law they may compelled the Use of the to do so. Further- Tool,” L.Q. 60 Cornell more, Enforсement we deem unfounded the Telephone (1975). anything, argu- If we think this Company’s stated fear of criminal liability speaks stringent in favor of more under 47 U.S.C. Section 501 and civil liabili- covers, regulation of mail and in no way ty under 47 U.S.C. Section 206 for volun- our conclusion detracts from here. compelled tary or assistance in operating pen register. 18 U.S.C. Section view, power In our to order a civil provides which cause of action for surveillance, register whether considered a whose wire any individual or oral communi- logical derivative of Rule 41 or a matter of intercepted III, in violation cation of Title judicial authority, equivalent inherent is the “good faith states reliance on a court warrant, of the to order a search * * * shall constitute a complete subject requirements is thus any civil or defense criminal action Amendment. As the order Fourth autho brought chapter any or under rizing the installation and use of a [emphasis other law.” inquiry Our added]. by Judge was here issued Tenney question is limited to the of whether or not cause, showing probable we upon con the District Court had authority compel properly granted. clude that it was assistance, so, and if whether or not that *5 power properly was exercised. II Prior to its amendment in Title III question The next whether or not thе was silent as to whether or not a court properly appellant court below ordered to private could order a party, such as a tele- technical provide assistance to federal law phone company, provide to technical assist- agents in operation enforcement their of ance to law enforcement officials in the pen register. question the This is of some installation and use of wiretap devices. In significance only because of its immedi- Ninth May, the Circuit held in Appli- impact Company, ate on the but States, cation of the United 427 F.2d 639 implications also because of its brоader re- 1970) that absent express statutory garding power of a federal court to authorization, a federal district court was mandate law enforcement assistance pri- power compel without to technical coopera- corporations vate and citizens under the tion the Central Telephone Company of contempt threat of the sanction. interception Nevada in the of wire commu- At the outset it should be noted that nications. ‍​​​‌‌​​‌​​‌​‌​‌‌‌‌‌​​‌​‌‌​​‌‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‍Some two months after that de- question we are not concerned with cision, of 2511,4 18 U.S.C. Sections 25185 and 4. That the carrier of such communication: tion common whilе tion in the normal course in the transmission of a wire shall not utilize service to the sary officer, employee, chapter or oral communications § (2)(a)(i) It shall not be unlawful under this intercept, 2511. incident engaged said communication protection [******] for an Interception disclose, to the rendition of his service or carrier, operator in any activity or agent whose facilities are used or use that communica- of a and prohibited observing rights of of his switchboard, disclosure of wire common which is a neces- any communication, or employment communica- property or random Provided, carriers or an whо, pursuant formation, interception ter for an communication intercept a wire or oral an communication. oral communications quality shall monitoring except § (4) (ii) 2518. Procedure investigative specify— Each order It shall not be unlawful [******] [******] control checks. facilities, officer, employee, any to this common authorizing or law enforcement wire or oral communication for mechanical or service or technical assistance to for chapter, interception carrier to or under this or is authorized to approving agent provide of wire or of officer chap- any in- were amendеd to that a com- independent basis, empowers Act carrier, other munication common or firm court to enter such orders as it deems neces- individual, compelled could be to furnish or discretion, sary, in preserve its pro- and requested by technical assistance as such tect jurisdiction. its It emphasized must be government agents, without fear of crimi- Act, that the even if applicable found to be liability. nal or civil here, entirely permissive nature; it in no way particular mandates a result or the however, already said, weAs have entry particular of a order. It is addressed of pen regis- III does not cover issuance discretionary power of the court. corollary ter or orders compelling orders Similarly, speaks when one judi- inherent conceding technical assistance. While this cial argues authority and for exercise, its as coverage, absence of the Government con- here, does the Government one invokes the tends that the federal courts have either discretionary power of the court and peti- authority power inherent or under the All entry tions an order not Act, 1651(a) other- Writs 28 U.S.C. Section to com- provided wise for by specific statutory pel au- assist Thus, thority. even if we were to operating installing register. assume do, arguendo, as we that a district support argument their court cite has discretionary inherent authority or United States v. Illinois Bell Tel. supra, discre- tionary power under the All 'authority where found Writs the court for the Act to compel technical an assistance by issuance of such order to exist on both the Tele- phone it is Company, appears such bases. It was the court to deter- whether, balance, mine first time a court construed the All Writs exercise of Act, judicial or the pow- notion inherent below was proper er, provide justification whether it constitutes an entry for the abuse of discre- such an in aid tion. jurisdiction of its For thе reasons below, detailed we that, order a assuming search conclude seizure. Seventh the existence of powers reasoned that since federal found Circuit, Seventh courts specific have to enter orders autho- the absence of and properly limited rizing government agents employ action, a pen Congressional was *6 abuse of register, they analogous must have authori- discretion the for District Court to order ty compel telephone to assistance by a com- Telephone the Company to furnish technical non-compliance the pany by as company assistance. would frustrate the pen issuance the Probably persuasive the most point ar-

register by pen rendering register order gued by the Government in support of such technically surveillance infeasible. an order is that without the appellant’s aid,

The All Writs Act provides that a technical the order authorizing the use federal issue any writ of a will “necessary register be worthless. Federal appropriate or in aid of respective [jur law agents enforcement simply [its] cannot im- agreeable usages and to plement the isdiction] surveillance without of law.” principles jurisdiction Once is the Telephone Company’s help. The assist- in a vested fedеral properly court on some ance requested requires no extraordinary authorizing interception An order the of a wire person furnishing custodian or other such facil- shall, upon request or oral communication ities or compen- technical assistance shall be applicant, the direct that a communication applicant sated the prevailing therefor at the carrier, landlord, common custodian or other rates. person applicant shall furnish the forthwith all Recovery damages 6. § 2520. of civil authoriz- information, facilities, and technical assistance ed necessary accomрlish interception to the unob- (cid:127) trusively *****:{: a and with minimum of interference good carrier, landlord, A legis- faith reliance on with a court order the services that such or custodian, according person person lative complete or authorization shall constitute a any intercepted. civil brought whose communications are to defense to or criminal action Any carrier, landlord, chapter any communication common this or under other law. possessed doubt that courts by appellant; or effort inherent time expenditure it, providing orders, lease to issue such indeed, we or that courts as understand simple, rou- relatively unwilling to find lines is would be or exercise such private Moreover, have specific as we not- that in the power, and absence of procedure. tine action, that above, Congressional we other courts would believe ed reject applications this technical assist- similarly by the can Govern- compliance. criminal liabili- In compelled any of civil or ment for without fear ance provides case, for finan- Congressional authority itself as was the order ty; and necessary cases, for as- to be III appellant thought compensation cial argu- An additional seems reasonable conclude that similar it renders. sistance the Government’s should be granting required authorization connec- ment in favor of orders, concern that if the request pen register is its tion with legitimate especially as compliance, compel law do not act to the two are so often issued in courts tandem. particular and the general, enforcement Perhaps the most important factor here, may be severe- investigation involved against the propriety of the weighing order Notwithstanding alacrity ly hampered. Congressional without authority, that Congress acted amend which the with such an order could establish a most unde- Ninth Circuit decision in аfter the Title III unwise, sirable, dangerous not prece- if States, supra, Application authority dent for federal courts to Congress certainty will is no there impress unwilling private par- aid third legislation authorizing enact or- similarly were told counsel ties. We for the Tele- assistance in the compelling technical ders on the phone Company argument oral surveillance, or even if case of principal appeal basis for the do, promptly. will act Un- they opposition Company to an predictably impede if delay here would due compelling give it to technical order aid and at- entirely negate Govеrnment’s danger is the assistance of indiscriminate apprehend suspected illegal tempts privacy. .of this best invasions of all operators. gambling worlds possible it is law of nature that considerations, however, leads another. Against thing these one It is better not weighed step. the factors which militate take first must mandating against issuance of can clearly While the limit au- We think a assistance. considera- technical specific such orders types thorization compels these factors the conclusion tion of and to federal law enforce- issuance of such an order investigations specified of certain represented an abuse of discre- court below crimes, limitations the courts cannot so tion. drawn, our as must be easily be *7 general quite rapidly remedy very to the All Congress did act derived from Writs any provision III of amorphous the even more the absence Act or notion judicial aid by power. technical communication We must be compelling inherent con- Ninth only carriers after the Circuit with the Fourth common cerned not Amend- not agree rights telephone its We do of those whose decision. calls rendered may only pen register surveillance, that one by Circuit are with the Seventh monitored the privacy rights action that the speedy from this Con- but with of those third infer parties, have assumed that federal communication gress must common carriers power compel parties alike, inherent to possessed private might and who courts telephone companies upon or that to aid the assistance called Government in its assist. United v. law voluntarily enforcement endeavors. While a would court Co., supra, party Bell Tel. at On the immunize such a may Illinois third just reasonable, liability it is as if contrary, we think criminal or civil for its technical reasonable, assistance, to infer that no more there is assurance that not Congress was due to a able always prоtect action court will to prompt that

963 Giordano, 505, or overzealous 416 553-54, from excessive U.S. party ‍​​​‌‌​​‌​​‌​‌​‌‌‌‌‌​​‌​‌‌​​‌‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‍94 third S.Ct. compulsion. 1820, The activity or (1974) (Powell, J., 40 L.Ed.2d 341 Government con- such dangers judicial inherent in potential curring dissenting); and United States v. order, spawns, it com- the future orders Telephone Co., and Bell Illinois 531 809, F.2d if that indeed us to conclude pel (7th 1976). 812-13 The majority then assistance, technical it requires (without Government expressly assumes deciding) that for or- with, to have far better is provides the All Writs Act the court dering clearly assistance defined such it authority as require needs to Tele- agree with the We thus advice statute. phone Company my assistance. view “If Circuit: the Government the Ninth assumption also clearly correct. compel regulated to right have the must The All provides Writs Act that “The pro- carriers or others to communications Supreme Court and all courts established assistance, it should such address its vide Congress may Act of issue all writs neces Application Congress.” of the Unit- plea to sary appropriate in aid of respec their States, 644. We supra, every at have ed jurisdictions agreeable tive and usag hope promptly will un- principles es law.” and of. 28 U.S.C. of these consideration dertake 1651(a). Although the Act § does not itself required the technical and assistance orders jurisdiction, g., Covington furnish see e. & and operate to install them. Bridge Hager, Cincinnati Co. v. 203 U.S. Accordingly, Judge Tenney’s we affirm 109, 24, (1906), 51 27 L.Ed. 111 it S.Ct. does as authorizes the order insofar use of a proper authorize the court in cases issue register, part and reverse that auxiliary orders necessary to render effec which mandates by appel- order jurisdiction tive of. its exercise otherwise operation in the installation lant federal obtained. avail may it “[A] register. auxiliary self all writs as aids in the duties, performance of its when the use of MANSFIELD, Judge (concurring such historic aids calculated in its sound dissenting): judgment to achieve the justice ends of agree I holding with the majority’s entrusted to it.” Adams United States possessed McCann, 269, the district court power 273, ex rel. U.S. 63 S.Ct. “pen 239, (1942). register.” installation 87 L.Ed. 268 See Hamilton However, agree Nakai, I Cir.), cannot it was an 453 F.2d cert. denied, require abuse discretion U.S. 92 S.Ct. Company installing (1972) (“[Ojnce jurisdiction assist in On it. the L.Ed.2d has attached, contrary, powers the Telephone 1651(a) direction that should be § construed.”) broadly render assistance was The obviously conferred implement injunctions pen regis- issuing essential to court’s the Act extends to against persons ter order since who, otherwise that order would and other writs more than nothing empty though parties original aсtion, amount gesture. assistance order was there- thwart the effectuation of the court’s Mississippi Valley Barge well within the district fore court’s discre- decision. See Line States, Act, tionary authority (E.D. All F.Supp. under the Writs Co. v. United mem., 1651(a) Mo.1967), U.S.C. and no further aff’d specifica- § *8 (1968). authority by Congress required. 692, of 779 tion was 19 L.Ed.2d I Accordingly, would affirm. that, It until true the recent decision of is Judge opinion on Medina’s starts out a the in United Seventh States v. satisfactory enough by correctly Telephone note con- supra, Illinois Bell the au- cluding jurisdic- granted by that the district court had the thority All Writs Act was installation of the apparently- tion to authorize never used to issue orders auxil- agents upon showing a iary federal warrant. to search But such an v. probable cause. See United States of order is no more novel than others issued 964 Act, targets the surveillance their com- upheld have been of and the which

under less than occur had a court’s deci municants was would implement to needed when sought See, government of Education v. the of a g., e. Board authorization sions. destination, 1970), wiretap; only cert. not (10th Cir. Title III the York, F.2d 66 429 968, content, 954, telephone messages 28 of was to denied, 91 S.Ct. the 401 U.S. It is the the (order requiring parents function of (1971) be monitored.1 237 L.Ed.2d weigh to to such particular school further considerations sоn to district send to discretion, exercising its in this Presi plan); Application of when desegregation clearly points toward re- College, Georgetown case the balance Directors of & dent Telephone Company assistance. Inc., (D.C.Cir.), rehearing quiring en F.2d 1000 denied, F.2d U.S.App.D.C. banc compelling made out Despite the case denied, 377 U.S. 84 S.Ct. cert. of discretion in favor of here for exercise 1883,12 (1964) (one-judge order L.Ed.2d 746 order, the con- majority has the assistance transfusion); United States requiring blood repre- court’s action the district cluded that (2d Cir.), cert. Field, 95-96 193 F.2d of the of discretion. None an abuse sented denied, 894, 74 96 L.Ed. 342 U.S. S.Ct. support in of that conclu- reasons offered (order bail committee (1951) requiring however, sion, scrutiny. can withstand questions regarding to answer members that the 1970 amend- suggested it First is fleeing defendants). the of Title III Omnibus Crime ment of Act of had and Safe Streets agree the district court Control we that Once seq., following et the deci- to order U.S.C. jurisdiction issue §§ States, of Act Application Writs to direct in authority under the All sion 1970), represented implic- assistance as F.2d 639 to such parties render third Congressional approval the Cir- implement its exer- it Ninth reasonably necessary to a court impossible it that does not have I find cuit’s view jurisdiction, cise otherwise, majority’s Writs Act conclu- under the All accept the record this require Company of discretion to assistance in it an abuse that was sion in Supreme be rendered surveillance.2 The assistance electronic that such direct notes, however, long opinion has, against cautioned majority As Court case. the Telephone Company inference drawing express the that an Con- of the assistance the gressional grant agency for the installation of to an necessary was here that physical pecu- necessarily implies agency previ- the register; due the put ously authority. to be such As Justice location lacked liarities Wong Yang Sung have bеen difficult if wrote in would Jackson surveillance 33, 47, McGrath, 445, 453, agents to impossible, for the install not (1950), without “we on their own detection. 94 L.Ed. 616 will not draw the device Furthermore, . Telephone Company agency con- inference . . admits required acting upon a wrong of it was that it cedes that assistance construction burdensome; required was was ratification by seeking Congress. all that plans requires agencies and the flick- feel provision policy of certain Public legislation a central terminal. Fi- which terminate ing of a switch at free ask will into the privacy litiga- the intrusion or avoid adverse contentions and nally, ance, primary holding simply possible even if their result of interest lies It is 1. required determining Telephone Company cannot be which calls are locations ‍​​​‌‌​​‌​​‌​‌​‌‌‌‌‌​​‌​‌‌​​‌‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‍to pen reg- placed monitoring give in the installation of a rather than of content assistance in the be, wiretap permit. paradoxically, would to increase which the ister surveillance. Since amount of electronic required Telephone Company majority’s Congressional under the can view in- 2. III, to Title 18 U.S.C. 1970 amendment tent amendment can find no behind installing meager legislative history 2518(4), support in the § amendment, wiretap, agents may approved was as a III law enforcement which rider to wirеtap authority compelled such the District of Columbia Court Reform and seek Procedure Act assist- Criminal to receive *9 Walsh, FTC v. Dean Foods (2d tions.” See 1957). 249 F.2d 308 We 597, 608-12, 86 S.Ct. 16 L.Ed.2d U.S. have had sufficient confidence in our dis- requests for (1966) (FTC specific au- judges past over century trict to vest injunctions against thority mergers, to seek discretionary them with power to issue such granted, imply such pow- even if would extraordinary relief temporary as restrain- Act). All lacking under the Writs er was ing injunctions. preliminary orders and I Thus, impossible it is to conclude that be- trusting see no reason for not them to em- provide express acted to cause ploy in deciding sensible standards whether authority require the cоurts to Telephone granted relief auxiliary should under the in Company installing assistance Title III All Writs Act. Because the combination wiretaps, express similar authorization is necessity Telephone of clear for present to issue the required order involv- assistance and the minimal burdens on ing parties agree both which company, this application is case where wholly is outside the ambit of Title III. such standards mandates assistance from Although Congressional clarification of the Company. Were the necessi- power Telephone Company court’s to order lesser, ty or greater, the burden in some of pen regis- assistance in the installation case, future a district court might not be place beyond argu- ters would the matter justified invoking in its extraordinary pow- ment, unnecessary to wholly impose it is ers. That what exercise of discretion is upon Congress. The district this burden all about. I see no reason to assume that possesses under clearly the district courts inwill gránt future Act. the All Writs agencies law enforcement such relief on that, next concludes al majority anything less than a showing of the compel- be desirable though assistance ling made, that, nature here or in reviewing case, it present in the circumstances orders, panels such future of this court will step slippеry would be the first down a any less sensitive present than the ma- agents in law enforcement slope which jority the problems involved. judicial requiring pro obtain orders would Nor I agree majority can with the gressively par more assistance third Congress, distinguished as from federal government ties furtherance investi in courts, in a position better to define the disagree. I gations. respectfully Here must conditions under which assistance by third proper To that the district court acted hold parties may be or ordered the scope of that powers ly scope its in the within Surely it did assistance. not do so its not write a present case would carte 1970 amendment Title III3 and no neces- any and all orders which law blanche for sity doing present for so in the case has agencies seek in the might enforcement fu Aside from been shown. the obvious need the powers ture. While conferred help minimal from the Com- broad, are are to be All Act Writs case, pany present in the there is no basis necessity, clear as this reserved for cases of believing government will frequently passing observed in court has need, demand, types much less other upon its demands exercise investigation of other to district Act issue mandamus event, any In types of crimes. since the See, g., e. v. Wein courts. terms, conditions аnd limits such assist- stein, (2d Cir.), 511 F.2d cert. de vary according ance would nied, circum- U.S. S.Ct. case, particular subject stances of each (1975); L.Ed.2d 693 United States Dool 192,198 (2d Cir.), denied, judicial ing, cert. is better suited to exercise of discre- 406 F.2d All L.Ed.2d 224 tion under the Writs Act than to a (1969); Musical Electric & Industries Ltd. detailed precise statutory blueprint. simply broadly necessary” 3. The 1970 amendment au- installing technical assistance Ti- require thorizes courts communications car- wiretaps. 2518(4). tle III 18 U.S.C. § information, facilities, “all riers *10 principle ignoring majority, short evil day is the unto the

that “Sufficient unlikely imaginary thereof,”4 paints However, should these the wall.

devils life, I am confi- in real appear ever devils exercise courts’ sound that the district

dent be more than power would discretionary with them. deal

sufficient POWER

NIAGARA MOHAWK Petitioner, CORPORATION, ‍​​​‌‌​​‌​​‌​‌​‌‌‌‌‌​​‌​‌‌​​‌‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‍COMMISSION, POWER

FEDERAL

Respondent, York, Massena, Intervenor. New

Town of 75-4263. Docket

No. Appeals, Court of

United States

Second Circuit.

Argued April 1976. July 1976.

Decided Matthew, vi, 34. New Testament: