*1 UNITED STATES NEW YORK TELEPHONE CO. Argued 7, 1977
No. October 76-835. 1977 Decided December *2 Deputy Solicitor General argued Wallace cause United States and was the brief as Acting Gen- Solicitor eral. him With on the brief Attorney were Assistant General Civiletti, Deputy Solicitor General Randolph, Harriet S. Shapiro, Feit, Jerome M. Philip and Marc Richman.
George E. Ashley argued the for respondent. cause With him on the brief Frank R. Natoli.
Mr. Justice White opinion delivered the of the Court. presents case question This whether United States *3 District Court properly company a telephone direct to provide federal law enforcement officials the facilities and necessary technical implementation assistance the order authorizing registers1 use of pen investigate the to probable offenses which being there was cause were to believe committed the telephone. means of
I On March the District Court for 19, 1976, United States authoriz- the New York issued an order Southern District Investigation to ing agents (FBI) the Federal Bureau of registers respect telephones use with to install and two Telephone (Company) York Co. to directing the New information, furnish FBI facilities and technical the “all necessary pen registers unobtru- employ assistance” the FBI sively. compensate Company was ordered to App. furnished. rates for prevailing at assistance on the basis of an sub- 6-7. The order was issued affidavit a device that records numbers dialed pen. 1A is mechanical impulses monitoring caused the dial on telephone by the electrical when It oral communications and telephone is released. overhear does actually completed. calls are does not indicate whether by an FBI which stated agent mitted that certain individuals illegal enterprise were at 220 East conducting gambling York City Street in New on the basis facts that, I4th therein, probable forth there was to believe that set cause telephones being two different numbers at bearing were used activity. Id., at illegal that address furtherance of probable The District Court found that 1-5. there cause conclude enterprise using that an illegal gambling facilities interstate commerce was conducted at being 14th East address in C. .371 and §§ Street 18 U. violation currently two had were telephones been, and that being, and connection with would to be used in continue operate those Its order FBI to offenses. authorized the registers respect telephones two until knowl- identity of the of the edge numbers dialed led to the associates conducting illegal confederates of those believed to be operation days, or for 20 “whichever earlier.” court Company comply fully declined to with the FBI order. It did inform the of the relevant location “appearances,” is, places specific telephone where In emerge lines telephone addition, from sealed cable. Company agreed identify “pairs,” or the relevant pairs circuits specific of wires that constituted the of the two required lines. This information is install *4 pen register. however, The refused to lines Company, lease FBI registers pen to the which were needed to install the lines required by an unobtrusive fashion. Such were the registers install pen FBI in order to the in inconspicuous away from the the building containing telephones. locations telephone A “leased line” is an unused line which makes an same box “appearance” telephone in the terminal as the line pen which desired to a register. in connection with it is install If line to the subject is connected the leased line, then register can be installed the leased pen the line aat point. monitored from location and remote Company, instead it providing lines, the leased conceded court’s the order the required do, it to advised FBI to from string cables “subject apartment” the to another location registers FBI pen where could be installed. The canvassing determined after neighborhood apart the for days ment four there was no location where could string its own wires and pen registers attach the without the alerting suspects,2 which event, course, gambling operation App. would cease to function. 15-22.
On March 30, 1976, Company moved in the District portion Court to register vacate that pen directing order it to furnish facilities technical assistance FBI to the connection with the pen use of the registers on the ground that such only a directive could be issued connection with wiretap conforming order III requirements to the of Title Omnibus Crime Control and Safe Streets Act of (1970 U. S. C. Supp. §§2510-2520 ed. and con- V). It that neither Fed. tended Rule Crim. Proc. nor the All Act, Writs C. 1651 provided for such (a), any basis App. order. 10-14. pen The District Court ruled that registers are not III governed proscriptions of Title they because not devices intercept are used oral communi- cations. It concluded jurisdiction it had to authorize pen upon registers installation of showing prob- both able cause and that the All Writs Act and its inherent authority powers provided order Com- directing to assist pany in the installation of the registers. April On after the District Court Appeals the Company’s stay denied motion to pending appeal, Company provided leased lines.3 employ gambling operation was known countersurveillance
techniques. App. 21. judge On the same date another United States District Court extended original days. Id., order March 19 for an additional at 33. *5 The of Appeals Court affirmed in in part part, reversed judge dissenting with one on the ground that order below should entirety. have been Application affirmed Order, Pen Register States re 538 F. 2d (CA2 1976). agreed It pen with the District Court that do registers fall scope within the III of Title and are not otherwise prohibited regulated by or Appeals Court of statute. The also concluded that district courts have power, either inherently logical or as a derivative of Crim. Proc. Fed. pen register upon authorize adequate surveillance show an ing probable majority held, however, cause. The that the District Court abused its discretion the Com ordering pany to assist operation installation and It registers. arguendo, “a assumed, that has district court discretionary authority discretionary power inherent under All compel the Writs Act to technical assistance the Tele phone Company,” but concluded that “in the absence of specific properly Congressional limited it was action, abuse discretion the District Court to order the Tele phone Company to furnish technical assistance.” 2d, 538 F. majority expressed at 961.4 The concern “such an could establish a most undesirable, if not dangerous and unwise, precedent authority for the impress of federal courts to unwilling private aid parties” third and that “there is no assurance the court will always protect able '[third parties] from excessive or overzealous Government activity or compulsion.” Id., at 962-963.5 Appeals recognized Company’s] "without tech [the aid, authorizing
nical the order use of will be worthless. agents simply Federal law enforcement implement pen register cannot Telephone Company’s help. surveillance without the re assistance quested requires extraordinary expenditure no of time or effort by [the Company]; indeed, it, providing private as we understand lease or lines relatively is a simple, procedure.” 2d, routine at F. 961-962. 5Judge part ground Mansfield dissented in on the District Court possessed discretionary power under All Act Writs to direct the *6 granted
We petition the United States’ for certiorari chal the lenging Appeals’ Court of invalidation of the District against respondent.6 Court’s order 429 U. 1072. S.
II We first reject respondent’s renewed contention, here, that District authority Court the order lacked Company provide assistance pen because use regis of ters only be authorized in conformity procedures with the set III7 forth in Title for securing authority judicial to inter- company necessary to render such implement assistance as was its valid pen authorizing registers the use compelling and that a had case been established for the exercise of discretion in favor of the assistance argued judges order. He that district court could be trusted to exercise powers only their necessity under the All Writs Act in cases clear imposed upon party required balance the burden to render assistance against necessity. 6Although pen register completed by had surveillance been the time July of Appeals 13, 1976, issued its decision fact this does moot, controversy render the case “capable because the here is one repetition, yet evading ICC, review.” Southern Terminal Co. v. Pacific (1911); Wade, 219 U. (1973). Roe U. S. Pen register pursuant orders issued to Fed. Rule Crim. Proc. authorize only periods. Here, despite surveillance for brief expedited by the action Appeals, order, expired Court of as.extended, days six after oral argument. Moreover, pen register stayed had pending even order been appeal, problem the mootness showing would have remained, because probable upon cause authorizing which the order the installation of the pen registers certainly was based would almost have become stale before completed. given review could been plain, Company’s have It is also policy voluntary refusing pen to render in installing registers assistance and the Government’s them,, continue determination to to utilize Company subjected will be to similar orders in the future. See Weinstein Bradford, 147, 149 Appeals The Court held register subject surveillance requirements of the Fourth Amendment. This conclusion not chal lenged party, either and we find it unnecessary to consider the matter. application concedes that Government order did requirements not' conform to the Title III. language statute Both the communications.8
cept wire
beyond any doubt
history establish
legislative
and its
III.9
by Title
pen registers
governed
are “authorizing or
only
III
is concerned
with orders
Title
or oral communica-
a wire
approving
interception of
added).10
§2518(1)
(emphasis
. . .”
C.
tion .
18 U. S.
*7
of
acquisition
aural
“intercept” to mean “the
Congress defined
through
of
or
communication
any
the contents
wire
oral
C.
device.” 18
S.
any
of
or other
electronic, mechanical,
use
U.
scope
Although
of
Crim.
nor
of the
Fed. Rule
neither this issue
question posed
petition
encompassed
Proc. 41
within
cross-petition,
discretion
Company
certiorari and the
has not filed a
we have
judgment
prevailing party
them
defend a
to consider
because
any
expand
ground
permit
and the record
would not
the law
Langnes
Green,
538-539
granted.
relief it has been
v.
only
Dandridge Williams,
(1931);
471, 475 n. 6
397 U.
by
by
granted
Appeals: the
sought
Company is that
the Court
relief
directing it to assist in the installation
of the District
reversal
Court’s
questions
registers.
III and
operation
pen
The Title
Rule 41
and
and
by
Appeals
District
and the
were considered
both the
Court of
fully argued here.
Giordano,
in United
Four Justices
this conclusion
States v.
reached
joined by
J.,
(1974)
J.,
and
Burger, C.
416 U. S.
553-554
(Powell,
JJ., concurring
part
dissenting in
and
Rehnquist,
Blackmun
part).
opinion
did not reach the issue
the evidence
Court’s
since
pen
suppressed
being
register
derived from a
as
in turn
from
derived
illegal
Every
interception.
Appeals
wire
Court of
that has considered
registers
agreed
scope
the matter has
are
within the
Co.,
(CA7
Title III. See United States v.
Bell Tel.
Illinois
2d 809
F.
1976);
Co.,
(CA8
United States v. Southwestern Bell Tel.
2d 243
F.
Michigan
1976);
(CA6
Bell Tel. Co. v. United
§ 2510 Pen do not registers acquire communications, they because do the “contents” of by (8).11 term is defined 18 U. Indeed, S. C. § law official enforcement could not even determine from the use a communication These whether existed. They only telephone devices do sound. not hear disclose numbers that have been com establishing dialed —a means munication. purport Neither communication between recipient the caller call, identities, their nor whether completed by pen the call was even is disclosed registers. Furthermore, pen registers accomplish do not “aural acquisition” of tele anything. outgoing decode They phone voltage by numbers electrical responding changes caused turning (or pressing dial buttons on pushbutton telephones) present the infor mation in a form be interpreted by sight rather than hearing.12 *8 legislative history con- there was that no confirms
gressional subject pen registers requirements intent to the to of Report Title III. The the explained Senate that definition of “intercept” designed pen registers: was to exclude include
“Paragraph 'intercept’ § 4 defines to [of 2510] any the aural of oral acquisition the contents of wire or by any or other electronic, mechanical, communication device. forms of Other surveillance are not within the proposed not legislation. proposed legislation . . The is . designed prevent'the tracing phone of calls. The register/ for 'pen example, permissible. use of a would be Dote, United States 1966). (7th 371 F. But see 2d legislation the proposed protect is intended to privacy of communication of itself means “11 concerning identity of ‘Contents’. . . includes information parties substance, purport, or 'existence, communication or the [the] meaning of communication.” [the] 2d, See 538 P. at 957. Rep.
communication.” No. 90th 1097, Sess., 2d Cong., (1968).13 Congress It is clear pen registers that did view posing as privacy a threat of interception the same dimension as the of impose oral communications and did not Title III intend to upon restrictions their use.
Ill agree Appeals also with We of District Court had pen regi to authorize the installation of the undisputed It sters.14 the order in this case was predicated upon probable proper finding and no cause, any way claim is it made that inconsistent Dote, (CA7 1966), United States v. F. 2d 176 held that § prohibited Act of Communications U. S. C. § “any divulgence radio, interception and communication” wire registers scope III, pen within the In Title included ban. 803 of § 223, Congress by restricting interception it to 82 Stat. amended § “any pen registers Thus are no radio communication.” it is clear that longer scope 486 F. 2d of 605. See Korman United within (CA7 1973). Report is 931-932 The reference to Dote in the Senate place upon their Congress’ indicative of intention not to use. restrictions Company’s suggestion to Dote find no merit in the reference We oblique expression merely Congress’ com desire ordinary business, registers panies permitted to use in the course of allowed, long they are not used to assist law enforcement. as Dote so preceding the reference to' Dote Respondent 16. The sentences Brief for pen registers scope Title III. unequivocally that are not within state (2) (a) (i), III, 18 addition, separate provision of Title In C. § telephone company practices from business specifically excludes all normal clearly Dote prohibitions intended disavow of the Act. registers by enforcement prohibited the use of law the extent that *9 authorities. 14 question agreed have have Appeals that considered The Courts of by 41 Fed. Crim. Proc. or register by are authorized Rule orders that closely to to issue search warrants under akin it inherent Michigan conforming Amendment. See Bell Fourth to the circumstances Co., supra; Co., Tel. Bell Illinois Bell supra; Tel. Co., Southwestern Tel. supra.
Fourth Amendment. Federal Rule Crim. Proc. author- (b) izes the issuance of a warrant to: any (1) property
“search that constitutes seize evidence of the commission offense; of a criminal or (2) contraband, things the fruits of or crime, otherwise criminally possessed; property designed or intended (3) for use or which is or has been used as the means of com- mitting a criminal offense.”
This encompass authorization is broad “search” enough designed to ascertain use which is of a tele being made phone suspected being employed facilitating as a means of a criminal venture and the “seizure” of evidence which the (h) “search” of telephone produces. Rule Although property defines documents, books, papers “to include tangible purport other not restrict or objects,” does exhaustively may all items which be seized enumerate in Katz pursuant Rule Indeed, recognized 41.15 we United which held (1967), U. S. Fourth protected Amendment,
conversations were sufficiently items but tangible Rule not limited scope include within its author flexible to electronic intrusions finding probable 354-356, cause. 389 upon S., ized U. at States, also Osborn v. n. 16.16 U. (1966). 329-331 (h) in Rule 41 intended all the definition of a term to be Where
inclusive, phrase “to mean” rather than “to include.” it is introduced Helvering, 121, 125 Morgan’s, Inc., Cf. n. 1 question FBI, implementation whether the in its authorization, complied require with all District Court’s Katz, In ments 41 is not before us. the Court that the of Rule stated require invariably requirement (d) of Rule 41 is not so inflexible notice given person prior that notice be “searched” to the commencement S., 355-356, Similarly, U. at n. 16. it is clear to us that the search. 389 requirement (c) of Rule 41 command warrant days of search within 10 its issuance does not mean that be conducted days. pen register not exceed 10 Thus surveillance duration *10 170 pen Rule 41 use of
Our conclusion that authorizes the by is appropriate supported under circumstances registers proce- (b), provides: Rule Proc. 57 “If no Fed. Crim. may proceed specifically prescribed by dure is rule, court any with rules or lawful manner not these inconsistent 17 applicable we not and Although statute.” need by do not decide 57 itself would authorize (b) whether Rule conclusion the issuance of reinforces our orders, it intangi- 41 sufficiently that Rule include seizures of broad to by pen registers as impulses ble items dial recorded such as tangible well as items. lacked
Finally, we could not hold
the District Court
that
defy
any power
pen registers
the use
without
authorize
registers
congressional judgment
the use of
ing
permissible.”
Rep.
supra,
Indeed,
at
1097,
“be
No.
90.
S.
recording of
permit
would be anomalous to
conversations
far
prohibiting
means of electronic
while
surveillance
accomplished
pen registers. Congress
intrusion
lesser
it in the
unwilling
impose
no such
We are
intended
result.
orders
issuance of such
showing
absence
some
supra.18
with Rule 41. Cf. Rule
(b),
be inconsistent
57
would
order,
20-day
the District
which authorized surveillance for a
Court’s
period, did not
with Rule 41.
conflict
17
Baird,
700,
(CA2 1969),
See United States v.
2d
cert.
F.
Jackson v. United
denied,
(1970);
App.
IV Appeals Court of though held that even the District Court had ample authority pen register to issue the warrant even assuming All applicability Writs Act, of the order compelling Company provide technical assist- ance constituted abuse of the Court discretion. Since Appeals of compelling conceded that a requir- case existed for ing Company the assistance of the any and did not point to particular to this finding fact case which would warrant of of discretion, interpret abuse we its holding generally barring ordering any courts from party district in assist operation pen register. the installation or It appar- was ently concerned sustaining that the District Court's order would authorize compel parties courts to third to render assist- without limitation regardless ance of the burden involved and pose severe threat the autonomy parties of third who for prefer whatever reason not such to render assistance. Conse- quently the Court of Appeals concluded courts should not (h) by phrase, is 'property’ Rule introduced term used is “[t]he added), include" (emphasis this rule to which indicates that was supra, intended be at exhaustive. See 169. comprehend logic supporting are
We unable dissent’s conten- post, 184-185, tion, at conclusion Katz v. United States that tangible property was not Rule confined to survive did not the enact- III ment Title Title IX of the Omnibus Crime Control and Safe expand Congress Streets because Act failed to the definition of property (h). obviously contained Rule There was no need for light such action Court’s construction the Rule Katz. The credulity” Congress dissent’s assertion that it “strains to conclude that permit intangibles scope intended to the seizure of outside of Title III safeguards disregards congressional judgment without that the use of registers permissible Indeed, III without Title restrictions. pen registers governed by concedes that dissent are Title III. What credulity” conclusion, directly by “strains dissent’s contradicted history III, legislative permit of Title intended to the inter- ception prohibiting conversations while registers use of to obtain much more limited information. upon
embark specific such a course without legislative author agree ization. We that the of federal impose courts to upon parties duties third limits; not without unreasonable imposed. burdens not be We conclude, however, against the order issued here respondent clearly author ized the All Writs Act and was with the intent consistent of Congress.19 All provides: Act Writs Supreme
“The Act Court and all courts established Congress may necessary appropriate issue all writs *12 in respective aid of their jurisdictions agreeable to usages principles (a). law.” 1651 § 28 U. S. C. The Company imple- assistance to required was here pen register ment a order which we have held the District empowered was by Court 41. This has issue Rule repeatedly recognized power of a federal to issue court necessary such commands under the All may Writs Act as be appropriate to prevent effectuate and the frustration of previously it has in jurisdiction orders issued its exercise of obtained: statute otherwise “This has served since its inclu- original Judiciary in sion, substance, ‘legisla- Act as a tively approved procedural designed source of instruments ’ ” Nelson, achieve “the rational ends of law.” Harris v. 394 Johnston, Price 286, (1969), quoting U. 334 U. S. (1948). “[ujnless 266, Indeed, appropriately confined question Appeals The three other Courts of which have considered the reached different conclusion from the Second The Sixth Circuit Circuit. Michigan (1977), Bell Tel. Co. v. 2d 565 F. Co., in United States v. Illinois Bell 2d Seventh Circuit Tel. 531 F. (1976), compel held that Act did authorize issuance of orders ling telephone company assist in the use of surveillance devices pen registers. Eighth covered Title III such as The Circuit found such authority part power to be of the inherent of district courts and “con pen register comitant of the to authorize surveillance.” United Co., Southwestern Bell States v. Tel. 2d, 546 F. at 246.
Congress, a federal court auxiliary avail itself of all writs performance as aids in the of its when the use of such duties, historic aids calculated in judgment its sound to achieve justice the ends of entrusted to it.” Adams v. United States ex McCann, rel. 269, (1942). U. S. consistently Court has applied .flexibly in con the Act
formity with these principles. Although § 262 of Judicial predecessor Code, did 1651, expressly § authorize courts, as § does “appropriate” issue writs to the proper jurisdiction exercise of their only “necessary” but writs, supplemental Adams held that these powers not limited are to those situations where it is “necessary” to issue the writ or order “in the sense that the court could not otherwise physically discharge appellate S., duties.” 317 U. at 273. Johnston, supra, In Price v. supplied authority § 262 for a Appeals United States Court of to issue commanding an order prisoner that a be before court for brought purpose his arguing appeal. Similarly, own frus order to avoid trating “very purpose” of 28 U. § S. C. furnished authority the District Court with to order that a prisoner produced federal for purposes hearing. court Hayman, United States v. 220-222 Nelson, question supra, despite in Harris v. whether, *13 specific statutory absence of District could authority, discovery corpus issue a order in connection with a habeas pending it. Justices proceeding Eight agreed before power require discovery district courts to essential have when corpus proceeding to render a habeas Court has effective. The despite express statutory held that absence of author also ity may petition to the Federal Trade Commission so, for, do Appeals may issue, pursuant and a Court § preventing merger pending hearings order before the Com frustrating Appeals’ mission to avoid the Court of impairing FTC jurisdiction. Foods Co., appellate v. Dean 384 597 U. S. 174 appropriate under extends, conferred Act orig persons though parties not to the
circumstances, who, position to wrongdoing, inal action or are in a engaged proper court or the implementation frustrate the Co. Barge Line Mississippi Valley administration justice, States, 273 (ED 1967), summarily Supp. 1, F. 6 Mo. York, 429 (1968); Board Education v. aff’d, U. S. 579 (CA10 (1971), 1970), denied, F. 2d 66 cert. U. S. any affirmative encompasses who have not taken even those McHie, 196 justice. action to hinder United States v. F. States, 193 2d 95-96 (ND 1912); Ill. Field v. United F. (1951).20 cert. 342 U. (CA2), denied, Turning to this we do not think that case, the facts of Company was from the under party a third so far removed permissibly lying controversy that its assistance could be A compelled. District Court found that there United States were probable Company’s cause to believe facilities enterprise to facilitate a criminal on a continu being employed For ing Company, basis. with this to refuse knowledge, supply meager required assistance FBI in its by the efforts of an put an end to this venture threatened obstruction Company’s investigation which would determine whether the be being hardly facilities were used. it can lawfully Moreover, utility public contended that the Company, highly regulated duty public,21 with a to serve the had a substantial interest not providing Certainly pen registers assistance. the use of no means offensive to it. The concedes that Company regularly employs such devices without court order for the purposes checking billing operations, detecting fraud, and County Moulton, See Labette Comm’rs U. S. (1884): jurisdiction does not follow because in mandamus “[I]t [now ancillary merely included in it cannot be exercised over 1651] § persons parties judgment sought to the enforced.” (a) (McKinney C. 201 and N. Y. Pub. Serv. Law 91 § 1977-1978). Supp. 1955 and *14 violations of law.22 It also to
preventing agreed supply required pen FBI with all the information to install its own way Nor registers. was the District Court’s order in provided fully burdensome. The order Company rates, required reimbursed at and with prevailing compliance effort on part Company disruption minimal of the and no operations. to its
Finally,
note, as
Appeals
we
the Court of
recognized,
Company’s
without the
is
assistance there
no conceivable way
in which the
by
authorized
the District Court
surveillance
could
successfully
have been
accomplished.23 The
after
FBI,
an exhaustive search, was unable to find a location where it
could install
own pen registers
without
off the
tipping
targets
investigation.
provision
leased
line
Company
purpose—
essential to the fulfillment of the
to learn the identities of those
the gambling
connected with
operation
pen register
which the
order had been issued.24
—for
Arg. 27-28, 40.
Tr. of Oral
attempt
The dissent’s
to draw a distinction between
in aid of a
orders
jurisdiction
court’s
duties
designed
own
better
orders
to
enable a
party
rights
duties, post,
189-190,
specious.
to effectuate his
a.t
normally
jurisdiction
protect
exercise their
only
Courts
in order to
legal rights
parties.
Johnston,
In
(1948),
Price v.
24 We are directly extraordinary in the expect citizens to involve themselves law *15 provide order to compelling Company assistance only was not consistent with the Act but also with more recent congressional As II, supra, actions. established in Part Con- clearly gress permit intended to of pen the use registers federal law enforcement officials. of Without assistance Company circumstances presented here, such as those however, simply employed. these devices cannot be effectively Moreover, Congress provided in Title a 1970 amendment to III that order authorizing interception of wire or “fa]n upon oral communication of shall, request applicant, direct that a communication common . carrier . . shall furnish the applicant forthwith all information, facilities, and technical necessary assistance accomplish to the interception unobtru- sively . . .” In . C. light direct this process.” Arg. enforcement private Tr. of Oral 41. The conviction that duty provide have a citizens assistance to law enforcement officialswhen required foreign it is no traditions, Company means to our as the Babington apparently believes. See Corp., 14, v. Yellow Taxi 250 N. Y. 17, 726, (1928) E. (Cardozo, J.) days N. (“Still, C. I, citizenry may Edward upon justice be called to enforce the state, faintly lagging bravely steps, honestly and with and but and implements with whatever hand”). and facilities are convenient and at Quarles Butler, 532, In re (1895) (“It also and 158 U. S. is the duty every citizen, prosecuting, securing ... assist and in of, punishment any peace States”); breach of the United Hamil Regents, ton 245, (1934) (Cardozo, concurring) ; 293 U. J., 265 n. Moss, (CA4 1921). Elrod v. concept F. citizens duty to part have a assist in enforcement of laws is at least in predicate clearly Fed. contemplates power Rule Crim. Proc. ssubpoenas subpoenas the district courts to issue duces tecum to nonparty noncomplying, nonparty witnesses to hold in con witnesses tempt. (1957) (“The Roviaro Cf. v. United 353 U. S. privilege recognizes obligation of citizens to communi [informer’s] knowledge cate their of the commission of crimes to offi law-enforcement and, by preserving anonymity, encourages perform their them to cials question Of obligation”). course we do address the whether duty may legally general to what extent such a enforced in the diverse which it contexts in arise. upon
command to federal courts
compel,
request,
necessary
accomplish
assistance
interception,
electronic
beyond
it would
if
be remarkable
Congress thought
power federal
to exercise,
courts
where
required,
discretionary
authority
companies
to assist
*16
operation
in the
of pen registers,
installation and
which accom
plish far lesser invasion of privacy.25 We are
that
convinced
a
reject
Appeals’ suggestion
Congress
We
the Court of
that the fact that
require
amended Title III
provide
to
that
common
communication
carriers
necessary assistance in connection with electronic
within the
surveillance
congressional
scope of Title III
a
possessed
reveals
“doubt that the courts
power
inherent
to issue such
orders”
therefore “it
reasonable to
seems
required
conclude
similar
that
authorization should be
in connection with
2d,
pen
orders .
.”
. .
538 F.
at 962. The
passed
amendment was
following
Application
the decision of the Ninth Circuit
in
United
(1970),
specific statutory
Moreover, as indicating acceptance if action were viewed even authority of the Ninth Circuit’s view that there was no for the issuance of compelling companies telephone provide orders to assistance in connection wiretaps explicit statutory provision, without would not follow congressional explicit to authorization also needed order companies operation registers to in the installation and which, assist by wiretaps, comprehensive statutory regulated are not a unlike scheme. any event, by amending required III In Title has that at now request telephone companies provide the Government’s directed challenged here would frustrate the prohibit by Congress a pen register per- is clear indication enabling public law tool utility missible enforcement required judicial thwart a its use determination employing the prosecute successfully those apprehend and utility’s venture. The con- facilities to conduct criminal trary judgment Appeals accordingly Court of reversed. ordered.
So Stewart, Me. concurring part dissenting Justice part.
I agree governed the use of is not pen registers requirements III of Title and that the District Court had authority issue the order installation of the authorizing opinion. III register, join II, and so Parts of the Court’s I, *17 Mr. Justice Stevens that District However, agree with I power to order to assist company lacked installing pen join the Government in and thus register, II of dissenting opinion. Part his Stevens, Justice with whom Mr. Justice Brennan
Mr. part. Mr. Justice Marshall dissenting and join, departure Today’s appears present to no radical decision upon previous from It prior holdings. this Court’s builds a power district court’s to issue intimations a federal search under Fed. Rule Crim. is a flexible warrant Proc. strictly by it one, statutory authorization, restrained to the All Writs applies analysis same flexible Act, (a). But for one thinks of federal courts U. S. C. 1651 who difficult courts of the Court’s decision is jurisdiction, as limited unlikely interceptions. plainly with wire It assistance connection at the same to without intended time leave federal courts pen requiré registers. authority to in connection assistance accept. principle jurisdiction limited federal fundamental; never is important it more than when a federal purports court implement authorize and the secret invasion privacy. of an individual's Yet principle was entirely ignored on March 19 and April 2, 1976, when the District Court granted the Government’s application permission engage by surveillance means of a and ordered register, respondent cooperate in the covert operation. Congress has not given the federal district courts the either to authorize the use of a or to register, require private parties to assist in carrying such out surveillance. Those de- fects cannot be remedied patchwork a interpretation of Rule 41 which regards the Rule applicable as as grant of authority, but inapplicable insofar as it limits the exercise such authority. they Nor can by reading corrected the All Writs Act though gave federal judges the wide-ranging powers of an ombudsman. The Court’s decision may be moti- vated belief that Congress would, question if the were presented to it, authorize both pen register order and the order directed to Telephone history But the Company.1 interpretation consistent of the federal power to court’s issue search conclusively warrants that, show these ?reas, the Court’s rush to logical achieve a result must await con- gressional thp deliberation. From beginning of our Nation’s history, we have sought prevent arbitrary accretion of police powers in the federal courts; that accretion is no less dangerous unprecedented because the first step appears to *18 only be minimally intrusive.
I with the Act of Beginning July 31, 1789, 29, 43, Stat. and concluding with the Omnibus Crime Control and Safe Streets 1968, Act of 219, 238, Congress Stat. has enacted a fact, In III presented amended Title when with a similar ante, question. 177-178, See at 25. n. judges federal granting of 35 different statutes
series over form or another. These warrants of one power to issue search they specific in common: are characteristic statutes have one limitations authority of and in their inclusion of grants in their objects search, of the places searched, to be on either This is issuance of a warrant.2 requirements or the for the deeply of a concern it is a reflection not a random coincidence; revolutionary history for the abuses imbedded in our search warrants. broad issue delegation attend any oppressive practice In British period, the colonial courts to warrants” or “writs of assist “general issue allowing major catalysts of the struggle ance” was one of independence.4 After one the first state independence, provided that “no warrant expressly ought constitutions cases, formalities, prescribed but in and with the issued principle adoption This same motivated the the laws.” prior catalogued Appendix The statutes enacted 1945 are eloquent States, 328 Frankfurter’s dissent in Davis v. United Mr. Justice U. 616-623. the indiscriminate search and seizure of unde- These writs authorized persons suspicion. property Lasson, N. The scribed based mere History Development and of the Fourth Amendment to the United States (1937). par were viewed as Constitution 51-55 writs assistance ticularly oppressive. They subjects commanded "all officers and execution,” they after to assist in their were returnable Crown authority execution, during the lifetime of but rather served as continuous reigning sovereign. Id., at 53-54. general importance the colonial resistance to writs writs Supreme history emphasized in has been several assistance our Henry 363-365; cases, g., Maryland, United e. Frank v. 359 U. S. 476, 481-485, 98, 100-101; Texas, States, 379 U. S. 361 U. S. Stanford Fraenkel, Concerning Lasson, supra, in detail in and is set forth Seizures, 34 Harv. L. Rev. 361 Searches and Fourth Constitution of 1780. The Article XIV of the Massachusetts provision. See Harris v. patterned after this Amendment was (Frankfurter, J., dissenting). 145, 158 331 U.S.
181 the Fourth Amendment and the contemporaneous, specific legislation judicial limiting authority to search issue warrants.6
It
unnecessary
develop
this historical and legislative
background
great
at any
for
length,
rough
even the
contours
it abundantly
make
clear that
judges
federal
were
intended
any
to have
roving commission to issue search warrants.
Quite properly,
today
therefore,
avoids the error
committed
of Appeals
Courts
which have held that a
district court
power”
has “inherent
to authorize the installa
tion of a
private
on a
line.7
Federal
courts have no
power.8
such inherent
6 It was
not until 1917
granted
courts,
part
the federal
Act,
Espionage
powers
broad
to issue search warrants.
40 Stat.
217,
(allowing
228
property,
warrants
for
property
stolen
used in the
felony,
commission of a
property
unlawfully
used to
foreign
aid a
government).
provisions
These
Espionage
Act formed the basis of
Advisory
Rule 41.
Rules,
See Notes of
App.,
Committee
U.
S. C.
on
p. 4512.
It
clear
the Espionage
delegate authority
Act did not
compatible
all
issue
warrants
with the Fourth Amendment. After the
Act, Congress
legislation
authorizing
continued
enact
search warrants
particular
items,
recognized that,
and the courts
if a warrant was not
specifically
congressional
authorized
the Act —or another
enactment—
prohibited.
Colyer
Skeffington,
17,
(Mass.
was
v.
1920),
See
F.
grounds,
(CA1 1922).
rev’d on other
8 I recognize opinions involving there are warrantless electronic nonstaturory surveillance which assume that courts have some sort of Giordano, to issue search United States warrants. See v. 416 U. S. (Powell, J., concurring); States, 347; Katz United 389 U. S. assumption Osborn v. United not, U. 323. That how ever, necessary cases, to the decisions in of those and Katz rest a reading discussion, infra, on of Fed. Rule Proc. Crim. see at 184-185. Admittedly, appears rely Osborn part nonstatutory permit recording lawyer attempted a secret with a conversation who But, subsequently to bribe a witness. as the Court made clear White, judicial 745, prior States authorization was not a neces sary Moreover, element of that case. since the court in Osborn was *20 the notion of inherent decision eschews Court's While the the authorizes holding that Fed. Rule Crim. Proc. its power, the at odds order pen register equally Court's District country ignores in this history of search warrants 200-year very the Rule of on legislative history meaning and plain the Rule, the of the reading Court’s Under the which it relies. limits places Rule no “property” term the of definition the merely seizure, but proper search objects on the 41 as Ante, treats Rule 169. The Court at illustrative. for district courts general it a authorization though were Ante, 170. at prohibited. not otherwise issue warrants no face, grants its Rule approach. On startling This is a steps of authority. Instead, it follows open-ended such limits nature preceded it: It of enactments that the dozens under may and the circumstances be seized property continuing obtained. warrant which valid congressional demonstrated limitations is force these of Control and Safe compose Omnibus Crime actions 1968. Act of Streets comprehensively legislated III Act,
In
of that
Title
surveillance.
of
and electronic
subject
wiretapping
power to
judges the
federal
Specifically, Congress granted
carefully de-
certain
surveillance under
authorize electronic
II
Part
As
demonstrates in
the Court
fined circumstances.
of pen register
I
(which
join),
installation
opinion
authority.
within that
What
encompassed
is not
devices
in Title
point
however,
fails to
is that
majority opinion
out,
provi-
another, distinct
Act, Congress
IX
enacted
of that same
search
to issue
extending
power
judges
federal
sion
procedures,
argument
integrity of its own
with the
concerned
nonstatutory
possessed
investigation
had
an inherent
authorize
ordinary
greater strength than it has in the context of an
criminal
far
Werckmeister,
investigation.
American Tobacco Co. v.
9In the edition of his treatise after the Warden written decision in Hayden prior, in 1967 to the 1972 amendment Rule Professor Wright acutely observed:
“Immediately Hayden apparent anomaly, after decision there was might seized, (b) since the case held be but did that evidence Rule not authorize issuance a for search warrant evidence. This would have might may permissibly meant that be seized where a evidence search warrant, made without a but in a search warrant. This would not under strongly-held that, have been inconsistent with the notion save in wholly a special cases, prerequisite few search, classes of a warrant should be a encouraged police it would have to search without a warrant. Congress, quickly apparatus, move rulemaking can more than the responded passage making permissible of a statute it to issue a search ‘property warrant for that constitutes evidence of a criminal offense in supplements, violation laws of United States.’ This up, well grounds soon swallow the other set for a warrant out in search (b).” (Footnotes omitted.) Rule 41 3 Wright, Federal Practice and C. (1969). Procedure 664§ Allott, Senate, See comments of Senator who Title IX in the introduced 114 Cong. Rec. 14790 congressional from ineluctably follow
Two conclusions 41 was intended First, Rule never of Title IX. enactment not otherwise any to issue warrant general authorization be a been, If had Con Amendment. it by the Fourth prohibited IX, need to Title perceived not enact would have gress prohibit as it stood in did law, constitutional since warrants for evidence.11 the issuance of theory IX disproves of Title the enactment Second, only illus (h) in Rule “property” definition of Court in forward suggestion put This was first trative. 347. The issue was Katz Katz, indicated that Rule Court, dicta, briefed in but the the merits tangible property. Whatever was not confined to no force this absolutely at suggestion of that has comprehensively time. In issue dealt provided itAct, In the electronic searches in.-Title III. same property covered under expanding scope authority has property Rule 41. But the Rule never definition item final changed. Each listed is and the reference tangible,12 surely other now be tangible “and items” must read It strains describing category.13 the outer limits the included *22 11 Indeed, interpretation the flexible entire under Court’s of Rule the power” concept, series of statutes that the was also an belie “inherent futility Congress pro exercise in not have because silence of would Many any of hibited warrant that did not the Fourth Amendment. violate g., effect, (seizure these remain in e. of statutes 49 U. C. certain 782§ (customs seizures); contraband); duties; 19 U. S. C. 1595 and searches any (h) expressly provides modify and Rule that Rule “does act, it, regulating search, issuance and inconsistent seizure and the execution of search . . .” warrants . (h) provides part: in Rule books, 'property’ documents,
“The in term is used this rule to include any papers tangible objects.” other acknowledges (b) to- Rule amendment against Ante, eliminated a “restriction” at of seizure mere evidence. nothing 170-171, n. 18. What the Court to as a refers “restriction” more grant authority. than silence-—-the absence of an express Since of
credulity to suggest Congress, having circum carefully scribed the use of electronic in III, surveillance Title would expand authority Title then, IX, judicial warrants issue for the electronic seizure of “intangibles” the safe without guards of Title III.14 In fact, safeguards contained 41 make suppose thought Rule it absurd to draftsmen they were authorizing any form of electronic surveillance. The paragraphs relating warrant, to issuance of the Rule 41 (c), preparation of property inventory presence of person whose has property taken, been Rule (d), the motion for return 41 (e), Rule property, are meaningless relating almost if read as sur to electronic any veillance kind.
To reach
its result
this case, the Court has had to overlook
just
subject
Rule is
as silent
seizing intangibles
as it was on the
subject
seizing
evidence,
why
mere
it is
difficult
understand
recognize
Court does not
against
the same “restriction”
such seizures.
argues
permit
The Court
that it
recording
“would be
anomalous
prohibiting
of conversations means of electronic
surveillance while
accomplished
far
by pen registers.” Ante,
lesser intrusion
at 170. But
Congress
respondent
claim
prohibited
does not
has
the use of
registers. Admittedly
permitting
pro
there is
no
now
statute either
hibiting the
If
use of such devices.
that use
ais
“search” within the
question
meaning of the Fourth Amendment —a
the Court does
decide—
nothing
concluding
activity
there is
anomalous
that it is a
about
forbidden
safeguards
accompany
prescribed
has
until
that should
engage
anomaly
exist,
warrant
in it. Even if an
it should be cured
does
by Congress
interpretation
“property”
rather than
a loose
under
techniques
sophisticated
Rule 41 which
tolerate
electronic surveillance
by Congress
greater
presenting
dangers
never considered
far
of intru
Michigan
registers.
sion than
Bell Tel. Co. v. United
(CA6 1977)
2d
(indicating
increasing sophistication
565 F.
techniques
pen registers);
surveillance
similar
cf. United
States
Pretzinger,
(CA9 1976) (use
devices).
II I order in this pen register Even were to assume if I accept Court’s conclusion valid, could not case the All Writs Act, had under the District Court York Telephone the New Com- (a), require § S. C. 1651 U. unsup- conclusion is its installation. This pany assist history, previous judicial language, ported Act. interpretations 14 of originally enacted, § All Writs Act was part, was, Act 81.15 The Act Judiciary Stat. Judiciary Act, from 13 statute was also derived prohibition, a statute of mandamus Stat.
concerned writs *24 is, necessary because federal courts are courts limited juris Cong diction powers those having only expressly by granted and ress,16 provides statute these courts with the procedural tools—the various historic common-law writs— necessary for to jurisdiction.17 them exercise their limited The statute does not contain, and has interpreted never before been open-ended as containing, grant authority to federal ' courts that today's purports decision Instead, uncover. language the statute there two itself, are fundamental scope. limitations on its purpose order authorized by the Act must be to aid the court in the exercise of its jurisdiction;18 analogous and the means selected must be a common-law writ. The Court's both opinion ignores limitations.
dealing exeat, with writs of ne Stat. 334. The All Writs Act now reads:
“(a) Supreme by Court and all courts established Act may necessary issue all appropriate respective writs or in aid of their jurisdictions agreeable usages principles to the of law.” proposition by This was well so settled 1807 that Mr. Chief Justice Marshall no support following needed citation to statement: preliminary
“As any investigation motion, of the merits of this this court proper jurisdiction given deems it it declare that disclaims all by constitution, by or of the United laws States. originate possess jurisdiction
“Courts which common law regulated by law, must be change their common until some statute shall principles; by law, their established but courts which are created written jurisdiction law, and whose defined written cannot transcend jurisdiction. unnecessary reasoning It is opinion state the on which this founded, given repeatedly court; because has been this point,, the decisions heretofore rendered on this member no of the bench instant, has, parte Bollman, for an been Ex even dissatisfied.” 4 Cranch 75, 93. Nelson, U. Harris v. 299. requirement frequently This has considered this in the context necessary appropriate appellate jurisdic of orders or the exercise of Ward, Lucas, Moore, J. tion. See B. & J. Federal Moore’s Practice (1975). Here, 110.27-110.28 we are faced with an must be ¶¶ necessary appropriate original in the exercise a district court’s jurisdiction. court premise district
The Court starts from the prevent “to effectuate and writ under the Act issue a issued in its exercise previously of orders it has frustration *25 Ante, stated, As this at 172. otherwise obtained.” jurisdiction conforms nor objectionable remarkable is neither premise the court to aid the Act was intended principle to the free if were jurisdiction. Clearly, parties exercise its ability judgment a court or the court’s ignore order, And the court’s duties be undermined. perform its would carry out the a requiring party to issue an order power Root v. well settled. See original judgment terms of the is Woolworth, The courts have also 410-413. U. S. subject to certain this is recognized, however, may writ granted instance, restraints. For the relief from principle” “of a kind” or “on a different not be different id., judgment. order or See underlying that accorded at 411-412.19 undisputed necessary of the fact These restraints are concomitants independent provide All Act federal courts with
that the Writs does Wood, 504; jurisdiction. Rosenbaum v. grant McIntire v. Cranch Bauer, The be relevant in U. S. 450. factors mentioned above ancillary jurisdiction dispute. determining the court has over the whether County Surety Dugas Co., 414; v. Labette American 300 U. S. See Columbia, Moulton, 217; Morrow v. District Commr’s v. (1969). case, F. 2d In this App. D. 135 U. S. C. party against Telephone a third District Court’s order was entered —the Company. explains what basis the Court had Court never District Possibly, the jurisdiction to this order. District Court believed enter controversy, jurisdiction or that ancillary had failure over question posed Company aid the a under Government federal York, (CA10 2d 66 Board 429 F. U. S. C. 1331. See Education v. 1970), denied, 401 U. I that the District Court cert. S. 954. Since believe aid event since it was could not enter its order question necessary I find it there jurisdiction, do not reach the whether “dispute” jurisdiction, apart Act, from the All over the between Writs However, Company. Telephone and the the Court’s the Government jurisdiction inexplicable. the basis of to indicate failure consistently recognized have the courts significantly, More court takes whatever action the the limitation that applied fact jurisdiction.20 duties and its be in aid of its must or rights to effectuate its be better able party may that a and under the lan been, never has if writ is issued duties a for issuance sufficient basis be, cannot of the statute guage Commer Murray, 415 U. S. Sampson 61; writ. Co., F. 2d 1352 Bank & Trust Security Bank Walker cial 9 Moore’s Ward, Lucas, & J. Moore, B. (CA10, 1972); J. 110.29 Federal Practice ¶ the decisions of the decision or in in the Court’s
Nowhere why writ is indication slightest courts is there lower District to aid the case necessary appropriate this the writ Court, to the According jurisdiction. Court’s *26 obstruc- “threatened refusal Company’s necessary because the in why order was explain the District Court’s The Court’s failure compared particularly notable when jurisdiction is of its aid See, g., e. Harris v. which it relies. prior cases on rationale duty jurisdiction (“the corpus and habeas Nelson, 394 U. S. of may appropriate modes fashion being present, the courts it to exercise inescapable require it, duties this is their procedure Where .... Co., Dean Foods added); FTC courts”) (emphasis obligation of the upheld All Act (injunction issued under Writs 597, 604 U. S. quo while administrative necessary preserve the status “to it was because impairment exercise (cid:127)prevent progress and proceedings are effective of added). jurisdiction”) (emphasis appellate distinction that there is no functional apparently concludes The Court rights and its party to effectuate designed to enable a orders between Ante, jurisdiction. the exercise of its to aid a court necessary orders by pointing out that this conclusion Court reaches 23. The at 175 n. rights. party’s Nelson, supra, protected a Harris v. cases such as orders in jurisdiction will in aid of a court’s course, Orders is, true. This The con- the court. parties before to one of the usually be beneficial enable all orders clearly true. Not however, verse, is jurisdiction. its exercise of the court in rights aid its party to effectuate Co., v. Dean Foods FTC Murray, Sampson Compare supra. , Ante, at 174. Concededly,
tion of an investigation cooperation always citizen is a desired element in govern- ment lack investigation, cooperation may such thwart an investigation, though legitimate even judicially it is sanctioned.21 opinion But unless the Court is of the that the District Court’s jurisdiction interest its was coextensive with the Government’s interest a successful investigation, there is simply concluding inability no basis for the Government purposes to achieve the which for it obtained any way order in from or detracted threat- jurisdiction. ened the District Court’s the District Plainly, jurisdiction Court’s does ride the Government’s shoulders until completion successful of an electronic surveillance.
If All authority persons Writs confers Act to order aid Government performance in the of its duties, longer no to be confined orders must be entered to carry enable the court to functions, out its provides sweep- ing grant authority entirely precedent without in our history. Nation’s Of course, precedent there such authority in the common writ of assistance. use law—the that writ judges appointed by King George III was one practice British the Revolution was specifically intended to terminate. supra. n. I can understand why today the Court does support holding not seek to cannot, reference I writ, to that but disregard understand its statutory requirement be “agreeable *27 writ usages principles of law.” not, 21 A however, forcibly prevent citizen is free to the execution imposes search warrant. Title U. C. penalties criminal person “forcibly assaults, resists, who opposes, prevents, impedes, intimi dates, any person or interferes with to> authorized serve or execute search .” warrants . . . This originally part section was enacted of the Espionage Act supra, only statutory see n. provision is the any duty imposing general citizenry on the to “assist” in the execution aof warrant.
III case is this Company against directed The order wel- probably Company Indeed, offensive. particularly of com- profit out a normal will make since it its defeat comes Nevertheless, future. kind this with orders of pliance powers that troubling portent as a deeply the order language of lurking in the arcane may find courts future All Act. Writs and the Rule Appeals. judgment of the
I affirm the would