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Applying Pen Register and Trap and Trace Devices to Internet Communications Vanderbilt Journal of Entertainment & Technology Law Volume 5 Issue 2 Issue 2 - Spring 2003 Article 11 2003 Applying Pen Register and Trap and Trace Devices to Internet Communications Rich Haglund Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Communications Law Commons, and the Fourth Amendment Commons Recommended Citation Rich Haglund, Applying Pen Register and Trap and Trace Devices to Internet Communications, 5 Vanderbilt Journal of Entertainment and Technology Law 137 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol5/iss2/11 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. a~~~Oa - a a a - - a a it - a a a a a a a a a- a aa - . a- a a- a a. a a% - a a * a * a a a *a * a a a~aaW4 Asa sa a a va-hanges,a * . a 1.s-C-a- - 0a a *- - ,a - r- a a F ,-a, a a 1 a.av P ), a0 a,~~ ~ ~ ~ ~- ~~8- a- Ril-- ch, - .. .* a-aeB S* * a a - aa a - . *4, , a a - a - , a - - a Applying Pen Register and Trap and Trace Devices .o Internet Cormmnunications not exist when the Fourth Amendment was drafted did not mean that telephone conversations could not possibly be protected by the same. 22 Brandeis quoted Boyd v. United A Wiretps States, 116 U.S. 616, 627-630 (1885), in which the history of the Fourth and Fifth Amendments was reviewed: It is not the breaking of his doors, and (1) Supreme Court Decisions the rummaging of his drawers, that consti- on Wiretaps tutes the essence of the offence; but it is the invasion of his indefeasible right of per- Before pen register and trap and trace devices sonal security, personal liberty and private were developed, law enforcement agents used wiretaps to property, where that right has never capture the real-time content of telephone calls. These been forfeited by his conviction of some devices need not be placed inside an individual's home or public offence -- it is the invasion of this office. 0 They may be attached to the telephone line at sacred right which underlies and consti- other points and still provide surveillance officers with the tutes the essence of Lord Camden's judg- ability to hear the actual conversations taking place on the ment. Breaking into a house and opening phones. II boxes and drawers are circumstances of Olmstead v. United States 2 was the first Supreme aggravation; but any forcible and compul- Court case to rule on the constitutionality of obtaining sory extortion of a man's own testimony evidence-without a warrant-via a telephone wiretap. or of his private papers to be used as evi- The wiretapped telephone conversations enabled federal dence of a crime or to forfeit his goods, is agents to identify Olmstead's partners in the (then) unlaw- within the condemnation of that judgment. ful possession, transportation and sale of liquor. "3The wiretaps were placed without physically entering the opera- tion's headquarters. 14 The Olmstead majority held that the Fourth Amendment does not protect telephone calls since overhear- ing them does not disturb or invade the speakers' property.'" "The Amend- ment itself shows that the search is to be of material things -- the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized" I6 Sealed mail, the court reasoned, sent under protection of In this regard the Fourth and Fifth Amend- the federal government, is a thing protected by the Fourth ments run almost into each other.23 Amendment from unlawful seizure. '7 A telephone call, Brandeis' dissent laid the foundation for the decision in however, placed "voluntarily" and "overheard", is not simi- Katz v. United States2 4 that eventually overruled Olmstead. larly protected. 8 Mr. Katz was suspected of violating a federal stat- The dissenting opinion, written by Justice Brandeis, ute that prohibited transmitting betting information across focused on whether the wiretapping done by government state lines via telephone.2" To catch him in the act, federal agents constituted an unreasonable search and seizure. Even authorities placed a listening and recording device on top of the government conceded that if wiretapping constituted a a telephone booth from which Katz regularly made calls.26 The search and seizure, wiretapping without a warrant would be device did not intercept telephone conversations; instead, unlawful. '9 Rejecting the government's argument that the it amplified the sounds within the booth and transmitted Fourth Amendment "cannot properly be held to" protect them to officers listening nearby. 27 telephone conversations, 20 Brandeis stressed that "clauses Since by this time the Court had held that oral guaranteeing to the individual protection against specific statements as well as tangible items may be "seized" within abuses of power, must have a similar capacity of adaptation the meaning of the Fourth Amendment, 28 the Court found to a changing world: 2' Simply because the telephone did the eavesdropping methods employed by the government INTERNET without a warrant constituted a search, and that the search issued after an application is submitted that states facts was improper. 29 The Court emphasized that the Fourth showing"probable cause for belief that an individual is com- Amendment protects individuals rather than "protected mitting, has committed, or is about to commit a particular areas:' and declared the "trespass" doctrine of Olmstead offense, ... [and] probable cause for belief that particular no longer controlling. 10 Whether the wall of the telephone communications concerning that offense will be obtained booth was penetrated by the listening device, the Court through such interception." "42 The judge must also deter- 3 explained,"can have no constitutional significance." ' mine, "on the basis of the facts submitted by the applicant," Katz illustrates the Court's ability to rectify rules that alternative means of obtaining the information have that were easily manipulated. Federal agents, attempting been exhausted.43 Court orders identify the specific com- to meet the Olmstead standard, conducted surveillance that munications that law enforcement officers hope to inter- did not involve a physical trespass. 32 The Katz majority cept, the target of their surveillance and the government recognized that the Olmstead "trespass" doctrine had been agency allowed to conduct the surveillance.44 Orders also "eroded," and did not 3 adequately protect individuals. Jus- require the surveillance cease once the described informa- tice Brandeis must have smiled, recognizing that the Court tion has been obtained, 4 and the surveillance cannot last was slowly coming around to the logic of his Olmstead dis- longer than 30 days without specific approval for extension.' sent: "A principle to be vital must be capable of wider appli- cation than the mischief which gave it birth."34 Application B. Pen Registers and of constitutional principles, Brandeis insisted, must contem- Trap and Trace Devices plate the past and the future." Otherwise, those princi- (1) Supreme Court Decisions ples defining what constitute Fourth Amendment violations in surveillance "would have little value and be converted on Pen Registers by precedent into impotent and lifeless formulas. Rights and Trap and Trace Devices declared in words might be lost in reality."36 The standard outlined by Justice Harlan in his con- Unlike wiretaps, pen register and trap and trace curring opinion formed the basis for analysis of surveil- mechanisms only capture the telephone numbers an indi- lance activities over the next several decades. It was Justice vidual dials or the number of persons calling the target of Harlan who explained that the Fourth Amendment pro- surveillance. The Supreme Court held in United States tects people, not places, from interference with their rea- v. New York Telephone Co. that pen registers were not cov- sonable expectations of privacy: "My understanding of the ered by Title IIIsince they do not intercept the content rule that has emerged from prior decisions is that there is of communications. 47 Pen register devices (and trap and a twofold requirement, first that a person have exhibited trace devices, since their function is identical for incoming an actual (subjective) expectation of privacy and, second, calls) "disclose only the telephone numbers that have been that the expectation be one that society is prepared to dialed. 48 recognize as 'reasonable."' 7 Conversations conducted in In another case two years later, the Court articu- the presence of others would not be protected from being lated a clear analogy to e-mail addresses and IP addresses. overheard, "for the expectation of privacy under the cir- A pen register was installed on Michael Lee Smith's tele- cumstances would be unreasonable" 38 Applying this stan- phone line as part of the investigation of a robbery.49 The dard to Katz, Harlan said: pen register brought evidence to light that led to a search The critical fact in this case is that "one warrant. 50 The subsequent search uncovered evidence who occupies [a telephone booth] shuts leading to Smith's arrest."' The Supreme Court held that the door behind him, and pays the toll that no reasonable expectation of privacy existed in the num- permits him to place a call is surely entitled bers a person dials on his or her telephone, because that to assume" that his conversation is not information is recorded by telephone companies for busi- being intercepted.
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