United States for an Order Authorizing the Roving Interception of Oral Communications v. United StatesUnited States for an Order Authorizing the Roving Interception of Oral Communications v. United States
Eric Johnson, Senior Litigation Counsel, and Kathleen Bliss, Assistant United States Attorney, Organized Crime Strike Force, Office of the United States Attorney, Las Vegas, Nevada, for the appellee.
Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CV-01-01495-LDG.
Opinion by Judge BERZON. Dissent by Judge TALLMAN.
OPINION
BERZON, Circuit Judge:
Giving new meaning to the automotive advertising slogans “The Ultimate Driving Machine”1 and “We‘ve Got You Covered,”2 some luxury cars are now equipped with telecommunication devices that provide a set of innovative services to car owners. These on-board systems assist drivers in activities from the mundane — such as navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant — to the more vital — such as responding to emergencies or obtaining road-side assistance. Such systems operate via a combination of GPS (global positioning system, using satellite technology) and cellular technology. The appellant (“the Company“) runs one such service (“the System“).
One feature of the System allows the Company to open a cellular connection to a vehicle and listen to oral communications within the car. This feature is part of a stolen vehicle recovery mode that provides assistance to car owners and law enforcement authorities in locating and retrieving stolen cars. The same technology that permits the interception of the conversations of thieves absconding with the car also permits eavesdropping on conversations within the vehicle.
The Federal Bureau of Investigation (“FBI“), realizing that the System can be used as a roving “bug” and following the procedures mandated for “bugging” private individuals suspected of criminal activity, sought and obtained a series of court orders requiring the Company to assist in intercepting conversations taking place in a car equipped with the System. The Company challenges the court‘s authority to order the use of the Company‘s equipment, facilities, system, and employees. The question for decision is whether the statute governing private parties’ obligations to assist the federal government in intercepting communications permits such an order.
A. The System
The physical components that permit the System to operate are manufactured by an independent company but installed by the car maker. The car maker then subcontracts with the Company for the provision of the service aspects of the System. When a new car is purchased, owners have the option to subscribe, for a fee, to the System. The System is serviced by two different call centers, one of which is operated by the Company.
A national cellular telephone company provides the cellular airtime for the System and sends bills in batches to the Company. The Company then “forwards” these bills to its customers. It is our understanding from oral argument that the Company includes the cellular phone charges on its own bill sent out to its customers rather than sending on the cellular phone company‘s bill, but the record is not clear on this matter. Customers write only a single check, payable to the Company, for all System-related fees, including cellular airtime. The System does not allow users to make traditional cellular telephone calls; it only permits a user to communicate with one of the two designated call centers.
Each System console has three buttons: (1) an emergency button, which routes customers’ calls to the Company; (2) an information button, which routes customers’ calls to the other company that assists the customer with navigation; and (3) the roadside assistance button, which routes customers’ calls to the other company for assistance in getting on-site service for vehicles.3 The System automatically contacts the Company if an airbag deploys or the vehicle‘s supplemental restraint system activates.
If a customer‘s car is stolen and the customer verifies the theft, the customer can ask the Company to put the car into stolen vehicle recovery mode. Once the car is in this mode, the Company sends a signal to the car‘s System. The signal is sent continuously until the car responds or until the Company deactivates the mode. If the System has cellular reception and the engine is running, the System will automatically call the Company. The call will be directed to the next available operator. The Company maintains that it cannot determine when such a call will be made from the car or direct the call to a specific operator.
Once the call from the System is answered, the operator and anyone else listening in can hear sound from inside the vehicle. Occupants of the vehicle will not know of the cellular phone connection and will be unaware of the eavesdropping.4 The connection remains active until the driver turns off the ignition or loses cellular reception, or the Company disconnects the call. The System returns to normal when the Company deactivates vehicle recovery mode. At this point, one of two things happens: (1) if the radio in the vehicle is on, it will be muted and its screen will display a message saying “[System] Active;” or (2) if the radio is not on, the System will emit a beeping tone, regardless of whether the vehicle is on at the time. There is no way to prevent such signals that the car has been in recovery mode from reaching the customer.
When the System is in stolen vehicle recovery mode, the customer cannot use any of the other System services. If a customer presses any of the non-emergency buttons — for example, the roadside assistance or information buttons — nothing will happen. If the customer presses the emergency button or the airbags deploy while the recovery mode is enabled, it appears to the user that the system is attempting to open up a cellular phone connection to the response center but it is not. Instead, an audio tone is sent over the already open connection. The Company is concerned that if no operator is on the line and only the FBI is listening in, there will be no response to the subscriber‘s emergency signaled by the transmitted tone.
B. This Case
Upon request by the FBI, the district court issued several ex parte orders pursuant to
II
A. Mootness
Although the court orders requiring the Company to assist the FBI have now expired, the case readily fits the “capable of repetition, yet evading review” exception to the mootness doctrine.
The “capable of repetition, yet evading review” exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.
Bernhardt v. County of L.A., 279 F.3d 862, 871-72 (9th Cir.2002) (quoting Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000)). Here, the relevant time period was too short for court review. Each court order was effective for thirty days, and the statute precludes orders of greater length. See
Also, similar orders requiring the Company‘s cooperation are likely in the future. The government asserts that it will most probably seek orders to monitor oral communications in other vehicles containing the System. When there have been challenges to expired tracing and pen register7 orders, courts have consistently found that they meet the capable of repetition, yet evading review exception. See, e.g., N.Y. Tel. Co., 434 U.S. at 165 n. 6, 98 S.Ct. 364; United States v. Mountain States Tel. & Tel. Co., 616 F.2d 1122, 1128 n. 5 (9th Cir.1980). We therefore conclude that the case is not moot.
B. Overview of 18 U.S.C. § 2518
Section 2518 was first enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351(1968). Title III of the Act, Wiretapping and Electronic Surveillance, has the dual goals of: “(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” S.Rep. No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Title III therefore attempts to balance protecting the privacy interests of individuals with facilitating the investigation of crime, especially organized crime. Pub.L. No. 90-351, § 801 (1968); S.Rep. No. 90-1097, at 66-73, reprinted in 1968 U.S.C.C.A.N. at 2153-63; see also Bartnicki v. Vopper, 532 U.S. 514, 523-24, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001); Dalia v. United States, 441 U.S. 238, 252-53 & n. 13, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (citing S.Rep. No. 90-1097, at 70); United States v. Kalustian, 529 F.2d 585, 588 (9th Cir. 1975); Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 1.6 (2d ed.1995).
To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers.
S.Rep. No. 90-1097, at 66, reprinted in 1968 U.S.C.C.A.N. at 2153. Law enforcement officers may only intercept communications after receiving “the authorization of a court order obtained after a showing and finding of probable cause.” Id. Any person who illegally intercepts oral, wire, or electronic communications is subject to civil and criminal penalties.
The statute also has provided, since 1970, that certain enumerated entities and individuals must assist law enforcement in wiretapping or eavesdropping when directed by a court order to do so. See Pub.L. No. 91-358, § 211(b) (1970);
that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the [law enforcement] applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted.
The question before us is: When may a company, not a common carrier9 but possessing a unique ability to facilitate the interception of oral communications, be required to assist law enforcement in intercepting such communications?
The district court held that the Company was a “provider of wire or electronic communication service” and therefore obligated to assist the FBI under
1. Type of Communications Intercepted
Court orders in this case required the Company to assist the FBI in eavesdropping on conversations occurring inside a vehicle equipped with the System. An “oral communication” is defined in the Act, solipsistically, as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
True, the FBI used wire communications via the System‘s cellular phone technology to intercept11 the oral communications made within the vehicle.12 The FBI, however, sought to intercept the oral communications between the occupants of the vehicle, not the wire communications between the vehicle‘s occupants and the Company. The manner in which the communication was intercepted does not change the fact that the FBI intercepted oral communications. As one House Report explained:
[t]he definitions of wire communication and oral communication are not mutually exclusive. Accordingly, different aspects of the same communication might be differently characterized. For example, a person who overhears one end of a telephone conversation by listening in on the oral utterances of one of the parties is intercepting an oral communication. If the eavesdropper instead taps into the telephone wire, he is intercepting a wire communication.
H.Rep. No. 99-647, at 34; see also United States v. Borch, 695 F.Supp. 898, 899, 901-02 (E.D.Mich.1988) (oral communications intercepted via inadvertently open phone line are not wire communications), rev‘d on other grounds sub nom. United States v. Baranek, 903 F.2d 1068 (6th Cir.1990).
The Company contends that title III does not cover the interception of oral communications via a wire transmission. The statute, however, does include such interceptions within its purview. “Both wiretapping and bugging are regulated under Title III.” Dalia, 441 U.S. at 241 n. 1, 99 S.Ct. 1682 (citing
2. “Provider of Wire or Electronic Communication Service”
The question next becomes whether the Company had an obligation pursuant to
The Company contends that it is not a “provider of wire or electronic communication service” because it does not operate the cellular service used as part of the System.13 This contention lacks force.
There is a clear, albeit somewhat complicated, textual basis for concluding that the Company‘s contract with the cellular phone company does not allow it to evade the duties imposed by the wiretapping statute. For purposes of
“wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of... communications;
“electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications;
Second,
Third,
The Company‘s customers are billed by the Company for the airtime and have no direct dealings with the cellular telephone company. Using the term “provides” as one would in ordinary discourse, it is the Company, not the cellular telephone company, that “provides” the communication service to its customers.
The service-providing structure here is very much akin to circumstances in which an established long-distance telephone carrier offers local phone service even though it does not own or operate any of the local infrastructure. Cf. Verizon Communications, Inc. v. FCC, 535 U.S. 467, 475-76, 491-92, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002); see also Mike Langberg, Bundles Can Offer Phone Bargains, SAN JOSE MERCURY NEWS, Jan. 23, 2003, at 1E; Yochi J. Dreazen, Supreme Court Rules Against Bells, WALL ST. J., May 14, 2002, at A2. Customers pay the long-distance carrier for local service; the long-distance carrier then pays fees to the local telephone company for use of its lines. Nevertheless, from the point of view of the customers, the long-distance carrier is clearly the “provider of [the] wire or electronic communication service.”17 Similarly, the Company provides “a wire or electronic communication service” to its customers even though it could not do so without the cellular telephone company‘s services.18
That the “provider of wire or electronic communication service” mentioned in
There is a second, distinct reason for concluding that the Company is covered by
Section 2510 et seq. do not define the term “other person.” “Person” is defined as “any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.”
Other sections of the statute do apply to “any person.” Section 2511, for example, states that ”any person” can be liable for violating that prohibition. See
That limited meaning can be determined by a careful reading of
Second, an “other person,” as that term is used in title III, § 2510 et seq., must also be an entity or individual who can provide information, technical assistance, or facilities to law enforcement. Throughout § 2510 et seq., the term “other person” is often followed by: “who furnishes facilities or technical assistance....” Section 2518(4) itself directs the “provider ..., landlord, custodian or other person” to “furnish the applicant... all information, facilities and technical assistance necessary....”
The common threads among the otherwise disparate list of individuals and entities in
Similarly, landlords and custodians are uniquely situated to assist law enforcement in placing interception devices in buildings they own or manage. The premises are under the landlord‘s control, so he or she controls access to the building, access that may be necessary to place surveillance equipment. See Dalia, 441 U.S. at 250 n. 10, 99 S.Ct. 1682. A custodian is often in charge of a building when a landlord is absent. See Oxford English Dictionary (2d ed. 1989) (defining “custodian” as “[o]ne who has the custody of a thing or person; a guardian, keeper“).
The Company argues that the entities specifically named in
For all these reasons, we read the term “other person” in
The Company regularly supplies to the car owner the services provided by the System. The Company is also uniquely situated to facilitate the interception of the oral communications within the vehicle; only it can contact the car and place it into stolen vehicle recovery mode by opening a phone line to the car. Even though it might be possible for the cellular phone company to assist law enforcement in monitoring the oral communications within the vehicle once the phone line is open, the Company can do so much more simply, as the System is programmed to place a call to the Company‘s operators.
4. Scope of the Order
The Company contends that even if it falls within the list of entities in
We may not read the legislative history to limit a statute‘s unmistakable directive. See United States v. Hagberg, 207 F.3d 569, 574 (9th Cir.2000); Or. Nat. Res. Council, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir.1996). The language of the statute explicitly permits an order that requires covered entities to provide not only “information,” but also “facilities and technical assistance.” The legislative history cannot take back authority indisputably granted by the statute.
Nor do we think the Committee Report meant to indicate that the statute means something other than what it says. Instead, the Senate Report signifies the Committee‘s understanding of the practical realities encountered in wiretapping traditional telephones: Such wiretapping requires only minimal assistance from carriers, because law enforcement is familiar with the technology and needs only access to wires remote from the carrier‘s premises. See S.Rep. No. 99-541, at 29-30. Section 2518(4) limits assistance to only that which is “necessary” to accomplish the interception: “[A] provider of wire or electronic communication service... or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception....”
In contrast to standard land line wiretaps, the FBI cannot intercept communications in the vehicle without the Company‘s “facilities [or] technical assistance.” Since such hands-on assistance is necessary, assistance may be mandated by an order under
D. Requirement of a Minimum of Interference
That the Company is both a “provider of wire or electronic communication service” and an “other person” within the meaning of
Looking at the language of the statute, the “a minimum of interference” requirement certainly allows for some level of interference with customers’ service in the conducting of surveillance.24 We need not decide precisely how much interference is permitted. “A minimum of interference” at least precludes total incapacitation of a service while interception is in progress. Put another way, eavesdropping is not performed with “a minimum of interference” if a service is completely shut down as a result of the surveillance.25
Our interpretation of the “a minimum of interference” language is bolstered by our reading of title III, which, we believe, does not evince a congressional intent to authorize surveillance in the face of complete disruption of a wire and electronic communication service for a particular customer. As the Supreme Court stated in United States v. New York Telephone Co., “[t]he conviction that private citizens have a duty to provide assistance to law enforcement officials when it is required is by no means foreign to our traditions.” 434 U.S. at 175 n. 24, 98 S.Ct. 364. At the same time, the Supreme Court stressed that the order in question in that case (approved under the All Writs Act, not title III) “required minimal effort on the part of the Company and no disruption to its operations.” Id. at 175, 98 S.Ct. 364 (emphasis added). The obligation of private citizens to assist law enforcement, even if they are compensated for the immediate costs of doing so, has not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business, and, as we read title III, Congress did not intend that it would.26
We hold that whatever the precise limits Congress intended with its “a minimum of interference” limitation, the level of interference with the System worked by the FBI‘s surveillance is not “a minimum of interference with the services” that the Company “accord[s] the person whose communications are to be intercepted.”
Conclusion
The Company can properly be considered an “other person” for purposes of
I respectfully dissent. I agree that
The majority opinion nonetheless invalidates the district court‘s order, despite express statutory language commanding the Company to assist the government in such eavesdropping. The court reaches this result by erroneously concluding that the district court‘s order cannot be carried out “with ‘a minimum of interference.‘” Maj. Op. at 1146. This holding cannot be reconciled with the plain text of the statute.
I
Section 2518(4) sets out the requirements for the execution of a judicially authorized intercept order where the assistance of a communication service provider is necessary. Specifically, the provider
shall furnish the [government] forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted.
As a threshold matter, there is no evidence that any service disruption actually occurred. The record does not indicate that the subjects of the surveillance tried to use the System while the FBI was listening. One cannot disrupt a service unless and until it is being utilized. Moreover, even accepting arguendo the majority‘s characterization of the emergency call function as “severely hampered” by the surveillance, Maj. Op. at 1146, this characterization by its own terms belies the claim that the Service was ”completely shut down,” id. at 1145 (emphasis in original). The record reflects that the emergency call function was still operational, albeit monitored by the FBI rather than a Company operator. In any event, as there is no record that an emergency signal or a call for service was ever transmitted on the System during government surveillance, the majority can only speculate that federal agents would have done nothing had the occupants sought help by pushing a button or if the emergency call function had been automatically activated by the deployment of an airbag.
These definitions confirm that “a minimum of interference” must mean the lowest, least, and smallest amount of interference possible, whatever that amount might be. The record indicates that the only method of executing the intercept order in this case involved activating the car‘s microphone and transferring the car‘s cellular telephone link to the FBI. This conduct might have amounted to a service disruption had the subjects of the surveillance attempted to use the System, but there is no evidence that they did. The majority concludes that “eavesdropping is not performed with ‘a minimum of interference’ if a service is completely shut down as a result of the surveillance.” Maj. Op. at 1144-45. However, even the complete shutdown of a service can represent the minimum interference, so long as no lesser amount of interference could satisfy the intercept order. It is not an ineluctable conclusion that no compliance is required if nothing less will do the job.
The majority creates — under the guise of limiting the assistance a provider or other person may be required to render — a wide-ranging form of protection for the legitimate targets of government surveillance. But Congress legislated only very limited restrictions on the effect of intercept orders once authorized by Article III judges under § 2518. As it fails to identify any real service disruption, much less explain how the Company could have administered the intercept in a way that would cause less interference, the majority‘s statutory argument is unsupportable.
II
Furthermore, it is important to recognize that giving the phrase “a minimum of interference” its proper reading does not foreclose providers from pursuing other remedies where an order causes them some hardship.2-1 Service disruption that is severe enough to result in serious adverse effects on a provider may be prohibited by the doctrine of undue burden. As a general principle, an intercept order may not impose an undue burden on a company enlisted to aid the government. See United States v. New York Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (“[T]he power of the federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed.“); see also United States v. Mountain States Tel. & Telegraph Co., 616 F.2d 1122 (9th Cir.1980) (affirming a district court‘s order compelling Mountain States to perform a trace of telephone calls by means of electronic facilities within the company‘s exclusive control because “the obligations imposed... were reasonable ones.“) (citing New York Tel., 434 U.S. at 172, 98 S.Ct. 364). If such an order is determined to be unreasonably burdensome, then relief may be available.3-1
III
It is undisputed in this case that the intercept order was administered in the manner that caused the least possible interference with the subscriber‘s service and that the district court determined that the order was not unduly burdensome. This should end the analysis and lead to the conclusion that the district court properly ordered the provider to comply. Instead, the majority repeats the error of Application of the United States, 427 F.2d 639 (9th Cir.1970), the very decision that prompted Congress to amend
Notes
Tracing allows law enforcement to determine the telephone numbers from which incoming calls originated. See In re Application of the United States for Order Authorizing Installation of Pen Register, Touch-Tone Decoder, Terminating Trap, 610 F.2d 1148, 1152-53 (3d Cir.1979).
“A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications ....” United States v. N.Y. Tel. Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).
A “wire communication” is defined as:
any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.
The dissent relies on New York Telephone for the proposition that “[s]ervice disruption that is severe enough to result in serious adverse effects on a provider may be prohibited by the doctrine of undue burden.” Post at 1148. New York Telephone, however, was decided under the All Writs Act, not title III. 434 U.S. at 168, 98 S.Ct. 364. It is one thing to read an undue burden limitation into the seemingly unbounded authority to issue orders that the generally worded All Writs Act appears to provide the federal courts. It is quite another to read limitations into title III that do not appear in it. Title III is an intricately worded statute that contains its own guidelines on the issuance of judicial orders; there is no gap to fill. Instead, Congress captured some of the same concerns addressed by the “undue burden” concept in the “a minimum of interference” limitation.
Similarly, Mountain States also was decided under the All Writs Act, and does not interpret the language here at issue. The dissent‘s apparent reliance on Mountain States, post at 1148, is therefore misplaced.