[Infowarrior] - Police Blotter: Warrantless eavesdropping rejected

[Richard Forno]

Police Blotter: Warrantless eavesdropping rejected
Federal judge denies Justice Department's request to record parts of phone
calls sans a wiretap order, concluding it violates the 4th Amendment.
By Declan McCullagh
Staff Writer, CNET News.com
Published: September 26, 2007, 5:00 AM PDT

http://www.news.com/Police-Blotter-Warrantless-eavesdropping-rejected/2100-1
036_3-6210080.html?part=rss&tag=2547-1_3-0-20&subj=news

What: Feds want to eavesdrop on touch tones pressed during phone
calls--without obtaining a wiretap order first.

When: U.S. Magistrate Judge Joan M. Azrack in the eastern district of New
York rules on September 18.

Outcome: Warrantless surveillance request rejected.

The U.S. Department of Justice asserts it doesn't need to obtain a wiretap
court order to listen to which touch tones are pressed when people are on
the phone.

Those touch tones may be revealing. To use industry lingo, "post-cut-through
dialed digits" can represent sensitive information, such as voicemail
passwords, bank account numbers, Social Security numbers, credit card
numbers and prescription numbers. They can also include much less sensitive
information, such as pressing a button to put someone on hold.

At issue in this case is not whether the FBI can legally eavesdrop on a
telephone conversation between two Americans. It can--if it obtains a
wiretap order from a judge.

But the Justice Department considers that too limiting. This is why federal
prosecutors asked a judge for permission to record post-cut-through dialed
digits (PCTDDs) without having to prove they have probable cause, meaning
actual evidence of criminal activity. Instead, prosecutors say, all they
should need to claim is that the PCTDD information is somehow "relevant" to
a criminal investigation.

Unfortunately, federal law is no model of clarity. It was written in 1986,
long before automated systems became as popular as they are today. The
original definitions seem to refer to touch tones pressed to make the
call--not ones that pressed after the call is in progress.

The Patriot Act of 2001 updated the so-called pen register law to cover
wireless technology and added that information obtained without a proper
wiretap order "shall not include the contents of any communication." Other
possibly conflicting language can be found in the 1994 Communications
Assistance for Law Enforcement Act.

(Federal courts in Texas and Florida have, in a pair of cases last year,
looked into whether PCTDDs can be obtained without a wiretap order. Both
said a wiretap order was required.)

U.S. Magistrate Judge Joan M. Azrack in New York held a secret hearing--only
government attorneys were allowed to attend--on the topic on December 13,
2006. She initially denied prosecutors' request for the touch tones pressed
after the call was made. The Justice Department asked Azrack to reconsider,
which she last week did in a more extensive opinion.

In last week's opinion, Azrack said both federal law and the Fourth
Amendment require her to reject prosecutors' request: "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."

Translation: Get a proper wiretap order.

Excerpts from Azrack's opinion:
While individuals may not have a reasonable expectation of privacy in the
numbers that they dial to connect a phone call, the content they communicate
over a phone line in the form of PCTDD is different. Technology has
transformed the way Americans use phone lines. Now, instead of a human
operator, individuals are asked to relay information to a machine by way of
PCTDD in order to process requests and obtain information. When this
communication includes content, it is the functional equivalent of voice
communication and is protected by Katz and its progeny as such. Moreover,
the information that is often transmitted via PCTDD is often sensitive and
personal. Bank account numbers, PIN numbers and passwords, prescription
identification numbers, Social Security numbers, credit card numbers, and so
on, all encompass the kind of information that an individual wants and
reasonably expects to be kept private...

"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.
Thus, the level of intrusion is a factor to be considered when addressing
constitutionality under the Fourth Amendment.
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"(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). 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.

Courts have long struggled with issues concerning the application of the
Fourth Amendment to new technologies. Here, modern technology in the form of
automated telephone systems have changed the collection capabilities of pen
registers. However, the change in technology does not alter the mandates of
the Fourth Amendment. The content of private communications remains
protected. To read the Constitution more narrowly is to ignore the role that
PCTDD and automated telephone systems have come to play in private
communication...

I am sympathetic to the government's pleas of necessity. That there is no
technology available that can sort content from noncontent 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...

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.