Pen Register Order is Insufficient Basis to Obtain Post-Cut-Through Dialed Digits (PCTDD)

In an order issued on September 18, 2007, United States Magistrate Judge Joan M. Azrack held that PCTDD may not be obtained with a pen register order. In the Matter of Application 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). In so holding, Judge Azrack concurred with prior decisions from district courts in Texas and Florida. Id. at 327.

PCTDD consists of any numbers dialed from a telephone after the call is initially set up or cut-through. Id. at 328. In most instances, any digit dialed after the first ten is a PCTDD. Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like. Id. In such circumstances, PCTDD contain the contents of communication. Id. At other times, PCTDD are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party, or when an extension number is dialed. Id.

The case arose as a result of the United States Attorney’s ex parte application for the installation and use of a pen register under the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127. Id. at 327. A pen register reveals the numbers dialed from a particular telephone line and the Pen/Trap Statute only requires the Government to certify that the information likely to be obtained is relevant to an ongoing criminal investigation. In the application, the Government requested access to all dialed digits, including PCTDD, even if such digits may contain the contents of a telephone communication. In deciding an issue of first impression in the Second Circuit, the Court granted the application in part, but denied access to any PCTDD. Id.

The Government argued that pen register authorization entitles it to all digits dialed from a target telephone, including PCTDD that may include content. Id. at 328. Relying on 18 U.S.C. § 3121(c), the Government maintained that federal law requires it only to minimize the collection of content by using reasonably available technology. If no technology exists that can sort content from non-content, the Government argued that it is entitled to access all digits dialed subject only to Department of Justice guidelines, which forbid the use of content gathered with a pen register absent extenuating circumstances, and federal wiretap laws. Id.

Section 3121(c) reads as follows:

A government agency authorized to install and use a pen register ... shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as to not include the contents of any wire or electronic communications.

The Government successfully demonstrated that no technology exists which would enable it to separate all PCTDD containing content from that containing no content. Id. at 332. However, Judge Azrack rejected the Government’s argument for several reasons.

First, she noted that the Fourth Amendment bars the Government from obtaining the contents of communication without a showing of probable cause. Because the Government’s reading of the Pen/Trap Statute would violate this principle, the application must be denied. Id. at 335.

Second, she noted that 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 because technology has transformed the way Americans use phone lines. Id. at 336. 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. Moreover, the information that is transmitted via PCTDD is often sensitive and personal information that individuals would reasonably expect to remain private (e.g., bank account numbers, pin numbers and passwords, prescription identification numbers, social security numbers, credit card numbers). Id. Judge Azrack rejected the Government’s argument that individuals have no expectation of privacy in PCTDD because it is conveyed to a third party, i.e., the phone company. She noted that in the cases that have endorsed this argument, the information conveyed to a third party was retained by the third party in the ordinary course of business or appeared on the individual’s monthly bill. PCTDD is neither kept in the ordinary course of business, nor does it appear on a monthly bill. Id. at 337.

Finally, she looked to precedent in the Second Circuit related to digital-display pagers. Id. at 338. Pagers are intended to receive telephone numbers, but can actually receive and display combinations of up to twenty-five numbers and dashes and are sometimes used to send substantive communications. Id. at 338-39. Thus, like PCTDD, pagers may contain hybrid communications of both content and non-content. Precedent in the Second Circuit and other circuits holds that because pagers have the capacity to receive coded substantive messages, a showing of probable cause is necessary to intercept pager communications.