The Pen Register and Probable Cause Under Omnibus Crime Control*

Journal of Criminal Law and Criminology

Volume 60 | Issue 4 Article 3

1970 Warrants Upon Warrants: The eP n Register and Probable Cause Under Omnibus Crime Control George V. Higgins

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Recommended Citation George V. Higgins, Warrants Upon Warrants: The eP n Register and Probable Cause Under Omnibus Crime Control, 60 J. Crim. L. Criminology & Police Sci. 455 (1969)

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WARRANTS UPON WARRANTS: THE PEN REGISTER AND PROBABLE CAUSE UNDER OMNIBUS CRIME CONTROL*

GEORGE V. HIGGINS

The author is an Assistant Attorney General, Organized Crime Section, Criminal Division, Depart- ment of the Attorney General, Commonwealth of Massachusetts. He received his LL.B. degree from Boston College in 1967. He also holds an A.B. from Boston College (1961) and an M.A. from Stanford (1965). His "Omnicompetence and Omnibus Crime Control: The Policeman as Specialist", appeared earlier in this Journal. He is co-author, with Charles H. Rogovin, of "Organized Crime in Massachu- setts," Law and Disorder,Tufts University Assembly on Massachusetts Government, 1968. Now that Congress has passed the "Omnibus Crime Control Act" of 1968, permitting limited use of electronic surveillance which previously had been prohibited by § 605 of the Federal Communications Act of 1934, what is the present legal status of law enforcement usage of the so-called "pen register"- a device which records phone numbers called and calls received without monitoring or recording conversations? This is the question the author attempts to answer in the present paper.

probable cause to seek a warrant or order to make The pen register logs numbers dialed from a a wiretap. telephone, without monitoring any conversations. This appearance may be fatal to the successful It can be installed with a fair expectation that it prosecution of a significant case because of three will not be immediately detected. For years it has federal court decisions, handed down in 1965 and been attractive to law enforcement officers inves- 1966, condemning the use of the pen register as tigating crimes committed in whole or in part by per se violative of Section 605. the use of the telephone. Now that Section 605 of As then worded, Section 605 forbade the inter- the Federal Communications Act of 1934 has been ception and divulgence of the existence, content amended by the Omnibus Crime Control and Safe ceive or assist in receiving any interstate or foreign Streets Act of 1968 to permit interception of tele- communication by wire or radio and use the same phone communications under proper circum- or any information contained therein for his own stances, benefit or for the benefit of another not entitled the device seems more attractive than thereto; and no person having received such inter- ever.' It appears as a useful means to develop cepted communication or having become ac- * The views herein expressed are those of the quainted with the contents, substance, purport, author, ect or meaning of the same or any part thereof, and do not represent a statement of any position by the knowing that such information was so obtained, Massachusetts Department of the Attorney General. shall divulge or publish the existence, contents, I Prior to the 1968 amendment, Section 605 read as substance, purport, effect, or meaning of any part follows: thereof, or use the same or any information therein No person receiving or assisting in receiving, or contained for his own benefit or for the benefit of transmitting, or assisting in transmitting, any another not entitled thereto; Provided, that this interstate or foreign communication by wire or section shall not apply to the receiving, divulging, radio shall divulge or publish the existence, con- publishing, or utilizing the contents of any radio tents, substance, purport, effect, or meaning communication broadcast, or transmitted by ama- thereof, except through authorized channels of teurs or others for the use of the general public, or transmission or reception, to any person other than relating to ships in distress. June 19, 1934, c. 652, the addressee, his agent, or attorney, or to a person Title VI, § 605, 48 Stat. 1103, 47 U.S.C. § 605 employed or authorized to forward such com- (1962). munication to its destination, or to proper account- By the terms of the Omnibus Crime Control and ing or distributing officers of the various communi- Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 197, 7 cating centers over which the communication may U.S. CoDE CONG. & Ai. NEws 1495 § 803 the follow- be passed, or to the master of a ship under whom he ing terms were added to the initial paagraph of § 605: is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of "Except as authorized by chapter 119, title 18, other lawful authority; and no person not being United States Code, no person receiving, assisting authorized by the sender shall intercept any com- in receiving .... " munication and divulge or publish the existence, 18 U.S.C. § 2518 provides a probable cause procedure contents, substance, purport, effect, or meaning for obtaining a court order for the interception of of such intercepted communication to any person; communications. and no person not being entitled thereto shall re- 2245 F. Supp. 534 (N.D. Ill. 1965). GEORGE V. HIGGINS [Vol. 60' or effect of, telephonic communications. These de- The decisions survived upon the books, but the cisions were United States v. Guglielmo, 2 United times changed. Late in 1966, Olmstead underwent States v. Caplan,' and United States v. Dote.4 The significant erosion. In Osborn v. United States," terms of these decisions were so slack as to invite the Court attributed to the Fourth Amendment the inference that while the dispositive words what the Olmstead Court had decried as "an en- descended from Section 605, the force behind them larged and unusual meaning" 1: the inclusion of derived from the majesty of the Fourth Amend- spoken words within the definition of "things' ment. protected in possession against unreasonable At the time, this elasticity of meaning may not search and seizure. In Osborn, the Court carefully have seemed to merit much consideration. The fed- evaluated the constitutional propriety of the use eral courts had long employed Section 605 to bar of a recording device (installed upon the person from evidence at trial the words of telephonic of a consenting undercover operative) and de- communications intercepted by wiretap.5 With liberated extensively upon the adequacy of the- similar resolve, the Supreme Court of the United precedent "detailed factual affidavit" supplied to States had declined to impose this handicap upon provide the antecedent justification, noting its- state law enforcement officers. In Olmstead v. assertion of "the commission of a specific criminal United States,6 the Court decreed that the spoken offense" and stressing that the device was em- word was not protected by the Fourth Amend- ployed for a "narrow and particularized pur- ment. In Schwartz v. Texas,7 the Court refused to pose." 14 require State courts to exclude evidence of the On June 12, 1967, six months after Osborn, the- spoken word, notwithstanding the fact that it had Court decided Berger v. New York15 There "'con- been obtained in violation of Section 605. Thus no versation' was within the Fourth Amendment's reading of the Gugiielmo,8 Caplan9 and Dote" protections, and ... the use of electronic devices decisions, could, at the time the decisions were to capture it was a 'search' within the meaning of rendered, do more than dissuade federal law en- the Amendment .... 16 The decision in Olmstead forcement officers from employing the pen register was dismissed as having been "negated by our to detect the commission of crimes perpetrated in subsequent cases...,"' none of which was whole or in part by means of telephonic communi- named. cation." Berger left a vacuum. It finished off the position that the Fourth Amendment did not apply to the ' 255 F. Supp. 805 (E.D. Mich. 1966). spoken word, without indicating how the Fourth 4371 F.2d 176 (7th Cir. 1966), affirming United Amendment was to apply to the protection of the States v. Guglielmo, supra note 2. 6See Nardone v. United States, 302 U.S. 379 (1937); spoken word. That deficiency the Court sought to Nardone v. United States, 308 U.S. 338 (1939). remedy in Katz v. United States,1 decided six 6277 U.S. 438 (1928). months after Berger. 7 344 U.S. 199 (1952). 8 Supra note 2. In Katz the Court, reviewing acts committed by 9 Supra note 3. federal agents who had installed an eavesdropping 10Supra note 4. 1 Altogether too little attention has been paid to this the realities controlling appellate decisions-delivered innovation in the problems of criminal law. In his on the basis of resolution of contending ideas-and Conflict of Laws In Time: The Sweep of New Rules in pre-trial, police investigation, which is conducted, CriminalLaw, 1967 Duxx L.J. 713, Chief justice Roger ideally, with some considerable reference to the views J. Traynor of the Supreme Court of California reviewed of appellate courts, but administered in afactual con- some of the dislocations resulting from simultaneous text. Law enforcement officers are compelled to assert modification of the criminal laws by the courts and a "right to rely" upon the ideological representations of legislatures, generally accomplished without adequate the condition of the law made by appellate courts of reference to the issues raised in consequence. Pivoting record, notwithstanding the fact that this reliance may on the question of whether decisions, modifying the be rather rudely disappointed by a new appellate criminal process, ought to be prospective or retrospec- representation, contradictory of the old, and handed tive, the Traynor article was unusual in that it focussed down when curative pre-trial investigation of a given upon the effects achieved upon police work, by decisions case, developed conformably to the new position, is no aimed at influencing police work. Perhaps the failure to longer possible. make this connection lay at the root of the Guglielmo- 385 U.S. 323 (1966). Caplan-Dote series of decisions, and the difficulties "3277 U.S. 438, 466 (1928). which they now portend: in theory the cases merely 14385 U.S. 323, 330 (1966). served to reassert a long-standing limitation imposed I"388 U.S. 41 (1967). upon law enforcement officers, but in fact their reason- 16Id. at 51. ing went a good deal beyond such reassertion. This 17Ibid. reflects the occasionally frustrating disparity between -389 U.S. 347 (1967). PEN REGISTER AND PROBABLE CAUSE device on an outdoor public telephone booth, found tended to diminish the prospect of developing it "dear that this surveillance was so narrowly tactics of electronic surveillance likely to pass circumscribed that a duly authorized magistrate, constitutional muster. Katz, firmly establishing properly notified of the need for such investiga- the potential constitutional use of electronic sur- tion, specifically informed of the basis on which it veillance, eliminated that conceptual uncertainty. was to proceed, and dearly apprised of the precise Again, before the decision in Katz, those law intrusion it would entail, could constitutionally enforcement officers who were sincerely convinced have authorized, with appropriate safeguards, that electronic surveillance could be fitted into a the very limited search and seizure that the constitutional scheme of search and seizure were Government asserts in fact took place." ' 9 Con- as paralyzed operationally as those doubting its vinced that a "judicial order could have accom- primary constitutionality. Persuaded that elec- modated 'the legitimate needs of law enforcement' tronic surveillance could be constitutionally con- by authorizing the carefully limited use of elec- ducted, they were still unable to say, with any tronic surveillance,"'2 the Court concluded: realistic assurance, what methods should be employed. From a variety of procedures, it was all "The government agents here ignored 'the but impossible to choose with any confidence pre- procedure of antecedent justification ... that cisely those alternatives which a court would later central to the Fourth Amendment.' a pro- is approve as satisfying constitutional standards. we hold to be a constitutional pre- cedure that Once more it must be noted that the peculiar condition of the kind of electronic surveillance characteristics of electronic surveillance-the in this case. Because the surveillance involved delicacy of its application, the need for specialized here failed to meet that condition, and because personnel to perform it effectively, and the rela- it led to the petitioner's conviction, the judg- tive expense of its employment-which practically ment must be reversed." " limit it to use in significant cases, also functioned Notwithstanding its distastefulness to the fed- in this setting to check any inclination to experi- eral investigators directly involved, the Katz de- ment. Thus the pre-Katz uncertainty on the opera- cision constituted a substantial contribution to tional level also served to decrease the probability the resolution of a perplexing conflict among dis- that constitutionally adequate procedures would sonant concepts theretofore randomly developed be fashioned empirically by trial and error. Katz in the law of telecommunications. obviated this uncertainty." Prior to Katz there remained among law en- The importance of this definitional function forcement officers (and their legal advisors) some was immense. Taken together with Osbornu and lingering doubt whether electronic surveillance Berger,srKatz completed the chore set by the Court would ever be conclusively adjudicated as a con- for itself, the bringing of spoken words within the stitutional method of search and seizure. This protection of the Fourth Amendment. It then uncertainty was nourished by Berger v. New York: proceeded to insure that the protection conferred "It is said that neither a warrant nor a statute 2 It is significant that clarification of the conceptual authorizing eavesdropping can be drawn so as to conflicts, and those arising from procedural uncer- meet the Fourth Amendment's requirements. If tainties, was left to the Supreme Court of the United States. As was the case with problems of arrest, inter- this be true then the 'fruits' of eavesdropping de- rogation, and the extensiveness of the right to be repre- vices are barred under the Amendment." " The sented by counsel, there appears to be adequate justifi- effect of this uncertainty almost certainly was to cation for the persuasion that judicial intervention in law enforcement problems is in large part the product discourage law enforcement officers from employing of legislative refusal to act, where action is plainly electronic surveillance in cases of any importance required. As suggested in note 11 supra, the most damaging condition of the law, from a law enforcement lest they ruin a case against a defendant of more point of view, is uncertainty. Notwithstanding copious than usual significance. (In the usual course of grumbling, public and private, to the contrary, the fact events, the use of such comparatively complicated is that capable law enforcement officials are reasonably amenable to the need to adapt to new, or merely differ- measures is likely to be considered only in "impor- ent, procedural rules. But they feel themselves entitled tant" cases.) And this discouragement, of course, to demand that the reliance manifested by such adapta- tion not be capriciously rebuked by a retrospective 1"Id. at 354. declaration of new procedures, functioning to set free 20 Id. at 356. offenders caught under the previous rationale. 21Id. at 359. 2Supra note 12. 22 Supra note 15, at 63. 25 Supra note 15. GEORGE .V. HIGGINS [Vol. 60

upon the possession of spoken words should be no thirty years, was sufficient in all of its majestic un- greater than the protection given to tangible pos- reasonableness to preclude its own correction by sessions. Thus the privacy accorded to persons the Osborn-Berger-Katz rationale. Thus between communicating orally is no closer to absolute than December of 1967, when Katz became the law of the privacy vouchsafed to persons communicating the land, and June of 1968, when a new decision in writing: it may be constitutionally invaded by and a new statute again altered the law, all spoken a law enforcement officer, pursuant to a warrant, words except those communicated with mechanical issued "upon probable cause, supported by Oath assistance were open to constitutional search and or affirmation, and particularly describing the seizure, but none of those communicated by tele- place to be searched, and the persons or things to phone, radio, or other protected means could ever be seized." 26 legally be seized. To this was added a further com- There nowhere appears, in this eminently ra- plication: if words spoken into a protected system tional solution to the problems engendered by the were illegally seized by a State law enforcement contending claims of personal privacy and com- officer, they could be legally admitted into evidence munity security in the field of communications, in a State court under Schwartz. any legitimate reason to discriminate among meth- This condition was twice attacked in June of ods of oral communication, nor to pronounce on 1968. The development first in logic, the decision the basis of such discrimination any more exten- in Lee v. Florida,2 was chronologically second, sive protection for one than for another. Once the coming down on June 17. The statute, the Omnibus presumption is made, that spoken words are prop- Crime Control and Safe Streets Act of 1968,21 was erly included among "things" protected in pos- enacted on June 6, but in a universe controlled by session by the Fourth Amendment, and the pro- pure logic would have followed the decision in Lee. cedures set down forestalling that protection from Lee overruled Schwartz v. Texas,0 In Lee, the becoming absolute, the social adjustment required Court held that the exclusionary rule fashioned in for comparatively frictionless coexistence of the Nardone v. United States," to limit the zeal of interests of privacy and law enforcement would, federal officers eager to tap wires must now be in the abstract, seem to be complete. But such extended to apply to State officers and State courts. adjustments, of course, are never made in the ab- This decision failed to reach the obvious prob- stract, and this one was accomplished in the area lem created by decisions interpreting Section 605 partially occupied by Section 605 of the Federal and exacerbated by the developments in Osborn, Communications Act of 1934. Berger and Katz: the difficulty of understanding Section 605-enacted as a regulation of the com- why words spoken into a telephone, or other pro- munications industry, elevated judicially to a rule tected communications system, should be abso- of evidence, and long since unsucessfully, albeit lutely protected against all searches, when words most energetically, challenged in that guise--was spoken without such mechanical assistance were not discernibly affected by the Osborn-Berger-Katz now protected only against unreasonable searches. sequence of decisions. While those cases attacked But it did have the merit of preparing the way and demolished a great source of confusion in the for the correction of that difficulty, inasmuch as law of telecommunications, they did not explain it placed federal and State officers on the same what renders absolutely sacred all which is me- footing, and evenhandedly obliged them to bow chanically communicated. Briefly, it will be remem- to the same illogic. bered that when Olmstead v. United Statesn endured That correction had in fact been made--or at as good law denying Fourth Amendment protection to the spoken word in possession, spoken words least attempted--some twelve days before the said face-to-face were per se vulnerable to seizure decision in Lee, when Congress passed the Omnibus without warrant, but by virtue of Section 605, Crime Control and Safe Streets Act of 1968. In words spoken over the telephone were rendered Title II, Section 803, Congress amended Section different from those addressed to a person within 605 of the Communications Act of 1934 to permit earshot. That difference, championed in a number the interception and divulgence of telephonic and of high and lower decisions over a period of some - 392 U.S. 378 (1968). 29 See note 1, supra. 26 U.S. CONsT. amend. IV. "0Supra note 7. "ISupra note 6. 81 Supra note 5. 1969] PEN REGISTER AND PROBABLE CAUSE

broadcast communications, provided that the in- activities by telephone and to issue directions terception is accomplished conformably to criteria to their underlings without committing any of constitutional searches strikingly resembling overt acts themselves that might result in ap- those established in the Osborn-Berger-Katz ra- prehension by the police or other law enforce- tionale. ment officers. Thus they remain immune from This legislation, long overdue, appears to com- punishment and the only persons who are plete the corrective process urgently required by charged with crimes are the minor figures in American law of telecommunications ever since the xackets-the lowly policy runner, the pros- the first Nardone case, decided in 1937.32 At long titute, or the narcotics pusher, all of whom are last it appears that the law of telecommunications at the bottom of the ladder. They are the only has been satisfactorily adjusted to achieve a bal- ones who do something that the police can see ance between claims of equal importance, and that and testify about and therefore they are the the terms of that adjustment are the same for only ones who are arrested and charged with a federal officers working toward federal trials and crime. State officers preparing cases for trial in State "The telephone is not only a means offacili- courts. ating crime but it may be the very instrumen- Unfortunately, that word "appears" must be ality for committing certain types of crime. It stressed. In an area long characterized by uncer- is almost invariably used in such crimes as ex- tainty, some uncertainty yet endures. In part, at tortion and kidnapping, and is, of course, the least, it is the product of the decisions in United very sine qua non of bookmaking, call girl op- States v. Guglielmo,u United States v. Caplan," and erations and lewd, obscene or threatening tele- United States v. Dote.5 Primarily, it suggests that phone calls. How absurd it is to grant complete telephonic communications may still lie beyond immunity to criminals to use the telephone for the pale of "things" that can be seized in con- such purposes without fear of detection!" 7 formity with the Constitution of the United States. The Congress, in 1968, indicated its endorse- II ment of the Wilson position. "Organized criminals," the Congress asserted in findings appended In 1965, Orlando W. Wilson, then Superintend- to Title III of the Omnibus Crime Control Act, ent of the Chicago Police Department, testified Section 801 (c), "make extensive use of wire and before the Illinois Crime Commission on the sub- oral communications in their 36 criminal activities. ject of wiretapping. His remarks deserve some The interception of such communications to ob- review: tain evidence of the commission of crimes or to "Under our present law, the higher-ups in prevent their commission is an indispensable aid organized crime are given complete immunity to law enforcement and the administration of jus- in their oral and telephonic communications. tice." 3 Whatever they say over the telephone or to Agreeably to this finding, Congress established their fellow criminals, face to face, is com- a "[p]rocedure for interception of wire or oral pletely protected and immune from intercep- communications." 39 The procedure is set down as tion by law enforcement officers. This follows: shouldn't be. The very fact that the telephone "(1) Each application for an order author- exists has made law enforcement more diffi- izing or approving the interception of a wire or cult. It permits the higher-ups in organized oral communication shall be made in writing rackets to conspire and carry out their illegal upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's 2 Ibid. 13Supra note 2. authority to make such application. Each ap- 34Supra note 3. ' Supra note 4. 26It should be noted that the Wilson position is '7 Statement of Orlando W. Wilson, mimeographed cited only as exemplary. Atty. Gen. Robert F. Kennedy, for distribution at Illinois Crime Commission Hearings Atty. Gen. Nicholas deB. Katzenbach, and the Presi- of February 5, 6, 1965. (Emphasis in original.) dent's Commission on Law Enforcement and Ad- I P.L. 90-351, 82 Stat. 197, 7 U.S. CODE CONG. & ministration of justice, among sundry other spokesmen AD. NEws 1495. 1511 (1968). for law enforcement, stressed the importance of elec- 39Omnibus Crime Control and Safe Streets Act of tronic surveillance in the effort against organized crime. 1968, §802, amending 18 U.S.C. § 2518. GEORGE V. HIGGINS [Vol. 60

plication shall include the following informa- fully effective, must also affect the accretions of tion: time and decisional law which have accumulated "(a) the identity of the investigative or law upon the statute. Among those accretions are the enforcement officer making the application, decisions in United States v. Guglielmo,0 United and the officer authorizing the application; States v. Caplan,0 and United States v. Dote.M The "(b) a full and complete statement of the implications of those decisions, of fair singularity facts and circumstances relied upon by the prior to the amendment of Section 605, assume applicant, to justify his belief that an order remarkable peculiarity in the post-amendment should be issued, including (i) details as to the context. particular offense that has been, is being, or is United States v. Guglielmo was a prosecution for about to be committed, (ii) a particular de- violation of federal gambling laws. Defendants scription of the nature and location of the fa- moved to suppress evidence consisting of "[p]en cilities from which or the place where the com- register tapes which recorded the calls from de- munication is to be intercepted, (iii) a partic- fendants' lines" as a result of "the request of ular description of the type of communications agents of the Internal Revenue Service." 45 "Nei- sought to be intercepted, (iv) the identity of ther the defendants nor the parties called knew of the person, if known, committing the offense or acquiesced in this Internal Revenue request," 46 and whose communications are to be inter- which was honored by the Illinois Bell Telephone cepted; Company. "(c) a full and complete statement as to The defendants supported their motion to sup- whether or not other investigative procedures press with the argument that the use of records have been tried and failed or why they rea- made by the pen register and employed "to further sonably appear to be unlikely to succeed if develop leads and to conduct gambling investiga- tried or to be too dangerous; tions resulting in the obtaining of search warrants "(d) a statement of the period of time for which produced the instant indictments," which the interception is required to be main- amounted to a "violation of the Federal Communi- tained .... ,0 cations Act (Title 47, U.S.C.)." The court first supplied this description of the Accommodating Section 605 of the Federal Com- pen register: munications Act of 1934, to the employment of this authority to intercept telephonic communica- "The pen register is a mechanical device at- tions under judicial orders issued upon probable tached on occasion to a given telephone line, cause a Congress plainly manifested its intent to usually at central telephone offices. A pulsa- lay open to reasonable searches and seizures the tion of the dial on a line to which the pen regis- previously sacrosanct, clandestine criminal acts ter is attached records on a paper tape dashes committed in whole or in part by means of the equal to the number dialed. The paper tape telephone. then becomes a permanent record of outgoing This amendment of Section 605, in order to be calls as well as numbers called on a particular line. Immediately after the number is dialed 40 Omnibus Crime Control and Safe Streets Act of and before the line called has had an oppor- 1968, P.L. 90-351, 82 Stat. 197, 18 U.S.C. § 2518 tunity to answer (actually the pen register had (1968). 41The extent of the change accomplished by this no way of determining or recording whether or accommodation is open to some doubt. To balance the not the calls are answered) the pen register absolute view adopted by such cases as the Guglielmo- mechanically and automatically is discon- Caplan-Dote series, that all telephonic communication has ever been completely protected against intercep- nected. There is neither recording nor mon- tion, by anyone, a number of cases took the position itoring of the conversation." 4s that this protection did not apply if the communication was itself unlawful. See United States v. Beckley, 259 Upon this description, and in consideration of F. Supp. 567 (N.D. Ga. 1965), where the court held that the protections of Section 605 "were never intended for, 4423 Supra note 2. nor do they cover, such communications which are Supra note 3. 44 themselves illegal." Id. at 573, citing Casey v. United 4 Supra note 4. States, 191 F.2d 1, 4 (9th Cir. 1951). To the same effect, 1 Supra note 2, at 534. 46 Ibid. see United States v. Hanna, 260 F. Supp. 430 (S.D. Fla. 47 1966); United States v. Sugden, 226 F.2d 281 (9th Cir. 48 bid. 1955). Id. at 535. 1969] PEN REGISTER AND PROBABLE CA USE defendants' arguments, the court in Guglielmo con- osition that "the furnishing by the telephone cluded that "the instant unconsented use of a pen company to I.R.S. agents of pen register data register violated the integrity of telephone com- constituted divulgence of the existence of communications and the clear prohibition of § 605." 4 munications in violation of the statute." 17 In this It dismissed the indictments: "The fruits of such reflection the Caplan court was dearly correct, a violation are, of course, inadmissible in evidence, inasmuch as the Guglielmo court had held that, as much as proper investigation and alert detection a product of the use of a pen register, "[t]he of crime should be encouraged. (Nardone v. United existence of a communication was divulged.... " States, 308 U.S. 338)." 50 It was this divulgence, of the existence of a com- The Government appealed this decision. Before munication, which the Guglielino court, in view of the opinion in this appeal was issued sub nor. the Section 605 decree that ".... no person not United States v. Dote,51 the Cuglielmo decision was being authorized by the sender shall intercept any 2 considered in United States v. Caplan.5 communication and divulge or publish the exist- In Caplan, also a gambling case, the court con- ence, contents.., or meaning of such intercepted sidered "motions filed on behalf of all twenty-five communication to any person... ," had found defendants indicted herein to quash search war- to be in "dear and unequivocal" contravention rants issued by another judge of this court," - of the "language of the statute." 69But the Caplan because of an alleged violation of Section 605.14 court was not content merely to adopt this posi- The foundation of these assertions was the con- tion. tention that "the use of a pen register, under the Instead, the Caplan court found that the use of circumstances, constituted the 'interception' of a the pen register "... . constituted the 'intercep- communication, an act forbidden by the second tion' of a communication." 11 Further, it held, in clause of § 605 and prohibited from communica- opposition to the Government's contention that tion to others regardless of any authorization there was no "'interception' of a communication from anyone other than the sender or the re- since the pen register only records the fact that a ceiver." 11 number was dialed ... , " 62 that the fact of dialing The Caplan court, adopting a description of the the telephone is per se communication. pen register which strikingly resembled that set This holding was offered together with the down in Guglielmo,"l cited Gugliehmo for the prop- Guglielmo rationale "as an alternate basis for holding that the government made forbidden use 49 Id. at 536. of the pen register data ...."1 Itwas reached by so Ibid. reasoning 11Supra note 4. which left something to be desired: 12 Supra note 3. Id. at 806. "To the government's argument that no 'com- 'Ibid. munication' was intercepted, defendants, in "Ibid. 66Note 48 supraand accompanying text. the pen register is of very limited territorial signifi- The description of the pen register furnished in cance. It is practically significant only when the tele- United States v. Caplan, supra note 3, read as follows: phone company, or law enforcement, wishes to deter- "The pen register is a device attached to a given mine what local, or non-toll, numbers are being called telephone line usually at a central telephone office. from a given telephone. The telephone company's A pulsation of the dial on the line to which the pen automatic billing equipment, in the ordinary course of register is attached records on a paper tape dashes business, makes similar records of every toll call. So, as equal in number to the number dialed. The paper an interesting sidelight, Caplan and Dote, and perhaps tape then becomes a permanent and complete Guglielmo, stand also for the proposition that record of outgoing numbers called on a particular telephonic communications made within the toll zone line. With reference to incoming calls, the pen are entitled to a higher level of privacy than telephonic register records only a dash for each ring of the communications made between toll zones, a very telephone but does not identify the number from elevated level indeed, considering that toll calls are- which the incoming call originated. The pen register or were-deemed entitled to a higher level of privacy cuts off after the number is dialed on outgoing calls than mere face to face conversation. and after the ringing is concluded on incoming calls ,7Supra note 3, at 807. (Emphasis added.) without determining whether the call is completed IsSupra note 2, at 536. or the receiver is answered. There is neither re- 5948 Stat. 1103 (1934), 47 U.S.C. § 605 (1962), quoted in id. at 535-36. cording nor monitoring of the conversation." 255 F. 60Id. at 536. Supp. at 807. 61Supra note 3, at 806. Oddly enough, none of the courts in the Guglielmo- 12 Id. at 806-07. Caplan-Dote series of cases adverted to the fact that 11Id. at 808. GEORGE V. HIGGINS [Vol. 60

open court, demonstrated that it was possible The failure of the Caplan court to perceive these to dial a number and to permit the phone to deficiencies created a precedent for the notion ring a specified number of times and then to that the mechanical preliminaries to telephonic hang up. When this was done, the pen register communication-dialing the telephone--are them- dutifully recorded the fact that the number selves communication, and protected as such. was called. History affords us the illustration That suggestion was speedily taken up by the of a prearranged signal. Paul Revere's asso- Court of Appeals for the Seventh Circuit in deci- ciate, who hung a lantern in the Old North sion of the appeal of Guglielmo,66 sub nom. United Church, would hardly have been exculpated States v. Dote.7 In an opinion more notable for at a trial for treason if he had argued that he its dogged eclecticism than for its selectivity was not sending a communication, but only among available rationales, the Dote court blithely illuminating the befrey." 64 grounded its decision not only upon the "well- This reasoning was deficient in at least two reasoned memorandum opinion reported as United respects. The first of these deficiencies lay in the States v. Guglielmo .. .,8" but also upon the choice of example. In a generation which has presumably equally-"well-reasoned opinion... perfected the artful use of the person-to-person reported as United States v. Caplan ... , " 11 there- call (placed to a person who does not exist, or is in after contriving to intensify the misfortune created fact making the call, in order to convey informa- by the Caplan decision. tion to the answering party without incurring toll Caplan reflected a belief that the mechanical charges), the call to be made at a specified time preliminaries to telephonic communication are (but not to be answered), and the use of an agreed- themselves communication, and protected as such. upon number of rings at a specified time (again, Dote, uncritically synthesizing Caplan and Gugli- without the call being answered), as commonplace elmo, produced the outright declaration that the methods of fraud upon telephone companies, it "ringing of the telephone... may of itself be a is hardly necessary to exhume the revolutionary communication. ... -70 Rejecting the Govern- communications methods of Paul Revere to ment's argument, "that § 605 applies only to demonstrate that actual conversation is not always substantive communications, that is, to inter- required for the transmission of information over changes of thought," the Dote court passed a distance. perilouslyclose to adjudication of the question The second deficiency was the product, in part, along the more restricted lines of the Guglielno of the first. By hearkening back to Paul Revere, decision--"Our concern in the instant case is the court was able to avoid the implications of whether the existence of an intercepted com- defendants' persuasive demonstration in open munication was divulged or published," 72-- before court. Evading those implications in turn per- concluding: mitted the court to duck the genuine issue thus raised. "The ringing of a telephone may be more That issue is not whether it is possible to con- than merely a signal indicating a call. Even if trive to convey information by use of the telephone a call is not answered, a call at a certain time, without actually talking, or incurring the tariffs or a certain number of rings, or repeated calls imposed upon such telephonic communication. may well be a prearranged message or signal. Rather it is whether "the Congress" by indicating The ringing of the telephone, therefore, may of "a policy of protecting the privacy of telephone itself be a communication, and a device, at- subscribers from invasion by law enforcement tached to the telephone line, which indicates officers as well as others who may be less well to a third party that such a communication is motivated," 65consciously intended also to protect taking place or is about to take place, inter- those who undertake to use the protected system without paying for it (a species of theft), together 66 Sitpra note 2. with those who set out to employ it as an easy, 67 Supra note 4. convenient, and secure means to the commission "Id. at 178. 69Id. of more serious offenses. at 179. 70 Id. at 181. 71 64Ibid. 72Id.at 180. 65Ibid. Id.at 181. PEN REGISTER AND PROBABLE CA USE

cepts it. United States v. Caplan, supra, 255 interception of telephonic communications, upon F. Supp. at 808." 7 a demonstration of probable cause. Under the The principal, initial difficulty with this equa- Osborn-Berger-Katz decisions, conversation is a tion of mechanical preliminaries to conversation to thing protected in possession by the Fourth (protected) communication is its necessary effect Amendment. To seize it, a warrant or order is upon the definition of the word: communication. required. It is not very far from the concept of The equation, if enforced, cuts the word loose conversation-as-thing to communication-as-thing, from its moorings, and effectively deprives it of and, if that distance is travelled, some serious any determinable meaning. If dialing a telephone practical problems for law enforcement are pres- is to be treated as communication simply because aged. it is a step in the process of positioning the prospec- Those problems, proceeding from the random tive communicator to deliver his communication, development of decisional and statutory law on then it becomes virtually impossible to exlude from the subject of telecommunications as most strik- the definition of communicatiot any physical ac- ingly exemplified in the Gugliimo-Caplan-Dote tivity ultimately contributing to an exchange of series of decisions, consist principally of the pos- thought. Unless the distinction between com- sibility that it may prove almost impossible, in munication and noncommunication is to vary cases involving crimes committed by means of the arbitrarily, depositing coins in a pay telephone telephone, to secure the probable cause needed for would appear to be a form of communication, interception, without violating the law in the together with entering the phone booth, securing process. To secure the warrant or order needed change for currency, and so on. It is not too much for such interception, it is necessary to demonstrate to say that if dialing in order to signal without some present knowledge concerning the nature incurring tariffs amounts to protected conmunica- and purpose of the communication activity believed tion, then the use of a device to bewilder the toll- to be criminal, in order to show probable cause calculating equipment in order to converse without to the reviewing magistrate. But, if preliminary, paying tariffs, ought' also to be protected comn- mechanical activity, such as dialing the telephone, muniationY4 Put simply, the Dote decision suggests is communication, and if communication is pro- that the premium of protection is, or may be, tected by the Fourth Amendment, then evidence payable in the coinage of criminal ingenuity: no showing the numbers called, and the frequency matter what is done, it is protected so long as it with which they are called may not be secured and bears some faint connection with telephonic com- divulged without an order or warrant. Thus the munication. paradox: an order for interception may be had, The implications of this position cannot be but only upon a showing of facts constitutionally escaped by mere reference to the 1968 amendment obtainable only with a warrant. In other words, of Section 605,71 to permit judicially-ordered the officer must secure a warrant in order to secure the facts he needs to get the warrant. 73Ibid. (Emphasis added.) 74 The decision in United States v. Hanna supra dealt Presumably, or at least hopefully, some court with precisely this question. Defendants employed of fair impressiveness will discern a way to elimi- what was known as a "blue box" to emit tones which nate such problems, perhaps by restoring to such activated long-distance circuits without activating the telephone compnay's billing equipment, thus defraud- words as communication the definitions they en- ing the company and incidentally enabling defendants joyed prior to the time when the process of expand- to conduct a rather ambitious, inter-toll-zone, interstate, gaming operation. The court rejected defendants' ing Section 605 commenced, rendering them mean- contention that this use of the "blue box" was congres- ingless. As it is, law enforcement officers (and their sionally intended for protection under Section 605. legal advisors) might well limit More recently, the newspapers carried reports of a themselves to a blind college student, born with perfect pitch, who had very measured confidence in the permanency of learned to confuse the long-distance circuitry by the revolution wrought in the law of telecom- whistling into the handset, thus accomplishing the same ends as the "blue box," and perhaps furnishing munications by the Omnibus Crime Control and some hope for the ultimate replacement of the machine Safe Streets Act of 1968. And one prudent mani- by human beings, as an incident of his deplorable behavior. festation of such caution might take the form of 7 Supra note 40. disciplined restraint in the use of the pen register.