The government sought an order for access to all post-cut-through dialed digits under pen/trap statute. A U.S. M.J. for the E.D. N.Y. held such an order would violate the Fourth Amendment. “Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD.” In the Matter of Applications of the United States of America for Orders (1) Authorizing the Use of Pen Registers and Trap and Trace Devices and (2) Authorizing Release of Subscriber Information, 515 F. Supp. 2d 325 (E.D. N.Y. 2007):
The Government also argues that there is no reasonable expectation of privacy in PCTDD because the information is voluntarily conveyed to a third party, the telephone company. This assumption of risk argument has been adopted by the Supreme Court in a variety of contexts. See, e.g., United States v. Miller, 425 U.S. 435, 442-44 (1976) (no legitimate expectation of privacy in bank records); Couch v. United States, 409 U.S. 322, 335-36 (1973) (no legitimate expectation of privacy in financial records submitted to taxpayer’s accountant); United States v. White, 401 U.S. 745, 752 (1971) (no legitimate expectation of privacy in taped conversations to third party). It was also a component of the majority’s reasoning in Smith.
“In Smith, the Court noted that all telephone users realize that they must ‘convey’ telephone numbers to the telephone company so that their calls can be completed, that records of their calls are kept for billing purposes, and that such records can be used to detect fraud and harassment and thus [are] potentially available to law enforcement and other investigators.” Beckwith v. Erie County Water Authority, 413 F. Supp. 2d 214, 223 (W.D. N.Y. 2006) (citing Smith, 442 U.S. at 742). When the petitioner in Smith “used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” Smith, 442 U.S. at 744. Under this logic, even if a person harbored some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as reasonable.” Katz, 389 U.S. at 361.
Miller also addresses the Fourth Amendment and the risk assumed when information is conveyed to an institutional third party. 425 U.S. 435. In Miller, the Supreme Court rejected a defendant’s challenge to the use of grand jury subpoenas to obtain banking records from his bank, concluding that no legitimate expectation of privacy existed in the contents of the bank records. Id. at 442. An individual “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. at 443. The Court reasoned: “All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442 (emphasis added).
The Government argues for an extension of the logic behind these cases, but ignores the important distinctions between them and the instant application for PCTDD. Unlike the dialed digits discussed in Smith and the bank records addressed in Miller, PCTDD are not kept in the “ordinary course of business,” see Smith at 744 and Miller at 442, nor do they appear on a user’s monthly bill. The Government argues that these distinguishing facts are inconsequential and that by dialing digits into a phone, a telephone user has “assumed the risk” that the telephone company, capable of accessing all digits dialed, will do just that and relinquish the information to the Government.
The Sixth Circuit recently spoke to this issue in the context of email content and held that: “It is true … that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person.” Warshak v. United States, 490 F.3d 455, 470 (6th Cir. 2007). However, “[t]he same does not necessarily apply … to an intermediary that merely has the ability to access the information sought by the government.” Id. Indeed, the “assumption of risk” so trumpeted by the Government, is far from absolute. “Otherwise phone conversations would never be protected, merely because the telephone company can access them; letters would never be protected, by virtue of the Postal Service’s ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company’s ability to access them.” Id. These consequences of an extension of the assumption of risk doctrine are not acceptable under the Fourth Amendment. A caller “‘is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,’ and therefore cannot be said to have forfeited his privacy right in the conversation.” Warshak, 490 U.S. at 470 (citing Katz, 389 U.S. at 352). The same can be said for PCTDD that contain content.
. . .
C. Level of Intrusion
“Courts judge the reasonableness of a search ‘by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.'” Cassidy v. Chertoff, 471 U.S. at 652-53 (citing Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995) (internal quotation marks omitted)). Thus, the level of intrusion is a factor to be considered when addressing constitutionality under the Fourth Amendment.
“[S]uspicionless searches … are highly disfavored since they dispense with the traditional rule that a search, if it is to be deemed reasonable, must be either supported by a warrant based on probable cause, or justified by evidence establishing individualized suspicion of criminal misconduct.” United States v. Amerson, 483 F.3d 73, 77-78 (2d Cir. 2007) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (“A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.”)). Government installed pen registers were held to be permissible warrantless searches in Smith because, by their nature (their inability to collect content), they were minimally intrusive. Today’s pen registers, as advocated by the Government in the instant application, have the potential to be much more intrusive than when their constitutionality was first examined. The evolution of technology and the potential degree of intrusion changes the analysis.
. . .
I am sympathetic to the Government’s pleas of necessity. That there is no technology available that can sort content from non-content is unfortunate, but it is not for this Court to fashion a solution. Rather, this is an issue for Congress to address, particularly in light of sophisticated criminals who will soon be wise, if they are not already, to this investigative loophole. Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD.
III. CONCLUSION
Because the Government’s request for access to all post-cut-through dialed digits is not clearly authorized by the Pen/Trap Statute, and because granting such a request would violate the Fourth Amendment, the Government’s application is denied.
