September 26, 2007 5:00 AM PDT

Police Blotter: Justice Dept.'s warrantless eavesdropping rejected

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Police Blotter is a weekly CNET News.com report on the intersection of technology and the law.

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.

What happened, according to court records and other documents:
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 voice mail 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.)

Judge 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.

"(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.

See more CNET content tagged:
Police Blotter, prosecutor, government, telephone call, Judge

9 comments

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Incredible
I cannot believe the lengths to which this Justice Dept will go. First, the most obvious thing: Many computer systems now allow the caller to speak the numbers, rather than to press the touch tone buttons. Second, it's not a very large step from pressing touch tones to the binary tones that are used to send e-mail, browse the Internet, etc. Third, why can't this Justice Dept just get a search warrant? I haven't read anything but lies and half-truths that address that, especially since if it involves terrorism, there have been, pre-Busy and company, laws that allow such searches with a delayed issuing of a warrant. I'll tell you the answer: Because this Justice Dept. wants to monitor every communications, and they know that no court in the land will give them that approval!!!!!

--mark d.
Posted by markdoiron (1138 comments )
Reply Link Flag
the Justice Dept has been watching...
... too much "24"

come on, seriously: you want to go after phreaks from the 70's & 80's

I wonder how many responses would go to babies pressing tones on the phone when their "talking" to their grandmas.
Posted by ColdMast (186 comments )
Link Flag
Fix the system and it's a non-issue.
Speed up the warrent process and it becomes a non-issue. If they still want to bypass and go warrentless, then I'd question their motives.

But fix the system first so they can't use it as an excuse for demanding warrent-less eavesdropping.
Posted by M_K_Higa (43 comments )
Reply Link Flag
The system isn't broken
When needed the Feds can establish a wiretap without a warrant legally as long as they apply to the FISA court within three days.

Apparently they just don't want anyone looking over their shoulder - and that is scary.
Posted by rcrusoe (1305 comments )
Link Flag
warrentless searches
Let me just say that I am in law enforcement. My beliefs are in the freedom of America and it's inhabitants. The Fourth amendment is being trampled on every day by law enforcement. I hate that. It is time to say no to this sort of Nazi type so called law enforcement. Car stops and searches and the fourth amendment are not done to the letter, so it is time say no. If we want to stay a free nation, then this sort of violation needs to be stopped. If we don't, say good by to freedom. Yes the fear of terrorism is a real thing, but it has always been that way, not just now. During WWII, we see what happens due to fear, people were imprisoned without due process of law, during Korea, we observed a total overrun of the constitutional rights of any citizen that didn't go with the status quo. During Vietnam era, we found the government becoming a police state. Now that we are in another war, and the combatants are undercover, the government now again wants to overrun the constitutional rights of anyone who may not agree or say a word that a computer tags as subversive. This has got to stop. It is time for our protectors get off their buts and do the job of safe guarding within the boundaries of the constitution. If we don't demand and get this, say good by to freedom for all.
Posted by paulruppert (4 comments )
Reply Link Flag
all i gots to say
Three quotes that are as American as apple pie(except we seen to have forgotten them and everything we should stand for in practice, not words):
"Live free or die"

"Give me liberty or give me death"

"Those who sacrifice freedom for security deserve neither."

otherwise we're no better than North Korea, Iran, former Soviet Union(and today's Russia) and other places we like to bash for their restrictions of freedom and lack of. If we strip our freedoms for a false sense of security, then the terrorists have won.

Just think about this one:

South and north border is WIDE open. Now, why we need to snoop on people in the US(citizens and legal residents) to fight against terrorism if we have 4000 miles of wide open borders? Terrorists can't come through those borders b/c ___(your answer here).
Posted by dondarko (261 comments )
Link Flag
It's time to wake up
I do appreciate your appreciation of freedom. I would add some more example to yours. During the height of communism fear, McCarthy has used that to put many people in jail without proving anything (fear is a wonderful thing). During WWII, the Japanese American was put in concentration camp (you can call it any other name) for being Japanese descendants. During Nixon's time, FBI put tab on activists who demonstrated their rights. Even as of now, the FBI still put tabs on anti-war protestors because their opposed views to the current adminsitration. The Bush administration justified warrantless wiretap (mail, phone, etc) as a tools to fight terrorism. If that is true then warrantless wiretaps should be used against all Americans because the fear of homegrown terrorism. We do need that tool to protect ourselves from *ourselves* ???
If you like your phone tapped so the government can protect you, please raise your hands.
Posted by vhac (68 comments )
Link Flag
This is why we need Ron Paul for President!
Just more reasons why the nation needs Ron Paul for President!

See <a class="jive-link-external" href="http://ronpaul2008.com" target="_newWindow">http://ronpaul2008.com</a>
Posted by libertyforall1776 (650 comments )
Reply Link Flag
Ron Paul for Pres?
Doesnt matter who is president ...we are owned by the justice department and big corporations...freedom is just another word for warrentless wiretaps...the age of the police state is here and guess what the terriosts have won...freedom is a word used to cover up bull ****...
Posted by akita96th (144 comments )
Reply Link Flag
 

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