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In the Matter of the Application of the United States for an Order Authorizing the Roving Interception of Oral Communications, the Company v. United States
Citations: 349 F.3d 1132; 2003 Cal. Daily Op. Serv. 9891; 2003 U.S. App. LEXIS 23443Docket: 02-15635
Court: Court of Appeals for the Ninth Circuit; November 17, 2003; Federal Appellate Court
The legal case, 349 F.3d 1132, involves the United States seeking an order for the roving interception of oral communications from a luxury car service operated by the appellant, referred to as the Company. The service includes a feature that allows the Company to establish a cellular connection to vehicles, enabling the interception of conversations inside the car, particularly during stolen vehicle recovery. The FBI utilized this technology to obtain court orders for the Company to assist in intercepting communications, prompting the Company to challenge the legal authority of these orders under the statute governing private parties' obligations to assist in such interceptions. The System operates through components manufactured by an independent company and installed by car makers, which then contract the Company for service. Vehicle owners can subscribe to this service for a fee, and it is supported by a national cellular company that provides airtime. Although the Company handles billing by consolidating charges, it does not allow users to make traditional cellular calls, limiting communication to designated call centers. The central issue is whether the statute permits the federal government to compel the Company to utilize its equipment and personnel for interception purposes. Each System console has three buttons: an emergency button that connects calls to the Company, an information button that routes calls to a partner company for navigation assistance, and a roadside assistance button that directs calls for on-site vehicle service. The System automatically contacts the Company if an airbag deploys or the supplemental restraint system activates. In cases of vehicle theft, customers can request the Company to activate a stolen vehicle recovery mode, which sends a continuous signal to the vehicle until it responds or the mode is deactivated. If the vehicle’s engine is running and the System has cellular reception, it will automatically call the Company, which cannot predict when the call will occur or direct it to a specific operator. Once connected, the operator can hear sounds from inside the vehicle without the occupants' knowledge, and the connection remains active until the ignition is turned off or cellular reception is lost. Upon deactivation of recovery mode, the vehicle’s radio may either mute with a message displayed or emit a beeping tone if the radio is off, with no option for the customer to prevent these signals. While in recovery mode, other System services are unavailable, and pressing non-emergency buttons yields no response. The Company expressed concern that if an emergency arises while only the FBI is monitoring, no operator would respond to the transmitted emergency tone. In the legal case, upon an FBI request, the district court issued ex parte orders under 18 U.S.C. 2518(4) for the Company to assist in intercepting communications in a vehicle with the System. The Company complied initially but later resisted further orders, prompting the government to file a motion to compel. The court held a hearing, denied the contempt motion, and mandated compliance, finding the Company a "telecommunications carrier" under relevant statutes, that the orders were not overly burdensome, and that the Company’s rights were not violated. Subsequent similar orders were issued, which the Company contested but eventually complied with. After hearings, the Company’s motions were denied, and it has since appealed this denial. Although the orders have expired, the case is deemed to fit the "capable of repetition, yet evading review" exception to mootness. The "capable of repetition, yet evading review" exception to mootness applies when two conditions are met: (1) the challenged action is too brief to be fully litigated before it ends, and (2) there is a reasonable expectation that the same party will face the same action again. In this case, the court orders at issue were only effective for thirty days, and the law prohibits longer durations. Future similar orders are likely, as the government plans to seek monitoring orders for other vehicles equipped with the System. Courts have previously recognized that expired tracing and pen register orders fall under this exception, leading to the conclusion that the case is not moot. 18 U.S.C. § 2518, established under the Omnibus Crime Control and Safe Streets Act of 1968, aims to protect the privacy of wire and oral communications while outlining under what conditions law enforcement may intercept these communications. Title III seeks to balance individual privacy rights with the needs of crime investigation, particularly organized crime. It prohibits unauthorized wiretapping and electronic surveillance, allowing such actions only by authorized law enforcement following a court order based on probable cause. Violators face civil and criminal penalties, and evidence obtained in violation of Title III is largely inadmissible. Since 1970, the statute mandates certain entities to assist law enforcement in these operations when directed by a court order. The key question posed is the conditions under which a company, not classified as a common carrier but capable of assisting in intercepting communications, may be compelled to aid law enforcement. The district court determined that the Company qualifies as a "provider of wire or electronic communication service" under 2518(4) and thus is required to assist the FBI. The case involved court orders compelling the Company to facilitate eavesdropping on in-person conversations occurring within a vehicle equipped with a monitoring system. According to the statute, an "oral communication" is defined as any spoken communication where the speaker has a reasonable expectation of privacy, which applies to the communications in question. Although the FBI employed cellular technology to intercept these communications, they sought to capture the oral exchanges between individuals in the vehicle, not the wire transmissions to the Company. The distinction made by the Company—that Title III does not cover intercepted oral communications transmitted via wire—was rejected, as both wiretapping and bugging fall under Title III's regulations. The Company argued it was not a provider of such services since it did not operate the cellular network; however, the court found that its contractual relationship with the cellular provider did not exempt it from obligations under the wiretapping statute. "Wire communication" is defined as any aural transfer using facilities such as wire or cable for transmitting communications between points, including switching stations operated by providers of these facilities (18 U.S.C. 2510(1)). "Electronic communication service" refers to services allowing users to send or receive wire or electronic communications (18 U.S.C. 2510(14)). Despite being wireless, cellular telephone service qualifies as "wire communication" since it relies on wire and cable connections for call transmission. To assess whether the Company qualifies as a "provider of wire or electronic communication service" under 2518(4), the statute's use of "provide" is examined in three contexts: First, 2510(1) indicates that the "facilities" for wire communication are owned by the cellular phone company, which is the "person" furnishing or operating these facilities. Second, 2510(14) affirms that the System allows users to send or receive wire communications via the cellular network. Third, 2518(4) designates the Company as the "provider" of "wire or electronic communication service," even though it does not directly furnish or operate the cellular facilities involved in the communication transfer. Customers pay the Company for airtime without engaging directly with the cellular telephone company. The relationship resembles that of a long-distance carrier providing local service without owning local infrastructure, where customers view the long-distance carrier as the service provider. Thus, the Company is deemed to provide "wire or electronic communication service" to its customers, even though it relies on the cellular telephone company's infrastructure. The distinction between a "provider of wire or electronic communication service" and a "person" who furnishes or operates communication facilities is established under the wiretapping statute. Section 2511(2)(a)(i) exempts specific individuals, such as officers or agents of service providers, from wiretapping laws when their interception of communications is a necessary business incident. This exemption is limited to those who own and operate their own facilities, whereas Section 2518(4) applies broadly to any service provider like the Company that does not furnish its own facilities, obligating it to assist law enforcement as required. Furthermore, Section 2518(4) mandates assistance not only from service providers but also from "landlords, custodians, or other persons." The government argues that the Company qualifies as an "other person" under this definition. The term "person" is broadly defined to encompass various entities but does not clarify the obligations of those categorized as "other persons." The use of "other person" in Section 2518(4) suggests a more limited scope than "any person" in other sections, indicating that those classified as "other persons" must provide services to the surveillance target. Specifically, an "other person" in this context must be capable of delivering information or technical assistance to law enforcement. The statute consistently associates "other person" with the provision of necessary information, technical assistance, and facilities. Section 2518(4) instructs these entities to furnish all required support for unobtrusive interception of communications, and compensation is provided for such assistance, underscoring the obligation to comply with law enforcement requests. Standard principles of statutory interpretation clarify the meaning of "other person" in the context of surveillance laws. Two canons are particularly significant: "noscitur a sociis," which suggests interpreting ambiguous words based on their surrounding context, and "ejusdem generis," which limits general terms that follow specific terms to those of the same nature. In section 2518(4), individuals and entities share common characteristics: they regularly provide services to the surveillance target and have access to the necessary facilities or technical means to intercept communications. Landlords and custodians are highlighted for their ability to assist law enforcement in placing interception devices due to their control over the premises. The Company contends that the entities listed in 2518(4) have a vested interest in the crime being investigated, which it does not share. However, the interpretation counters this by asserting that communications may simply inform law enforcement about criminal activities without facilitating them. The term "other person" in 2518(4) is interpreted as referring to those who provide services to the surveillance target and can assist in intercepting communications. This interpretation aligns with a previous ruling in Camacho v. Autoridad de Telefonos de Puerto Rico, which determined that "other person" includes entities like connecting carriers. The Company provides services to car owners and is uniquely positioned to facilitate interception of communications within vehicles, as it can directly activate stolen vehicle recovery functions. Therefore, if the statutory conditions are satisfied, the Company is required to assist the FBI by providing the necessary information, facilities, and technical assistance as outlined in 2518(4). The Company argues that even if it is included in the entities listed under 2518(4), the statute does not allow for the issued orders. It cites the Senate Report on the Electronic Communications Privacy Act of 1986, asserting that it implies no order should require a company to perform a wiretap or facilitate law enforcement wiretap activities on its premises. The argument infers that any order necessitating a company’s physical involvement or premises usage is impermissible. However, the court counters this interpretation, emphasizing that legislative history cannot restrict the clear directives of the statute, which allows orders for "information," "facilities," and "technical assistance." The Senate Report acknowledges that traditional telephone wiretaps require minimal carrier assistance, as law enforcement is adept with the technology and requires only access to remote wires. In contrast, the FBI's interception of communications from a vehicle necessitates the Company's facilities and technical support, justifying the order under 2518(4). Despite the Company's classification as a "provider of wire or electronic communication service," the order's impact on its customer service must be evaluated. The court finds that the order does indeed overreach by interfering excessively with the Company's ability to provide services to customers during surveillance. Orders under 2518 must ensure that assistance is rendered "unobtrusively and with a minimum of interference" with existing services. This language, added in 1970, permits some disruption during surveillance but prohibits complete service incapacitation during interception. Thus, a total shutdown of the service during eavesdropping is not consistent with the "minimum of interference" standard. Interpretation of the phrase "a minimum of interference" suggests that Congress did not intend to authorize surveillance that results in a total disruption of communication services for a customer. The Supreme Court recognizes a duty for citizens to assist law enforcement, but this obligation does not extend to scenarios where service disruption occurs. In the current case, FBI surveillance rendered the monitored vehicle's system largely inoperative, with only the emergency signal functioning inadequately. The emergency signal would not reliably reach the Company, as calls were redirected to the FBI, which lacked the capacity to provide emergency assistance. Consequently, the Company was unable to fulfill its service commitments, including emergency responses. The court holds that the FBI's interference exceeded what is considered "a minimum of interference" as required by Title III, specifically under 18 U.S.C. § 2518(4). Although the Company qualifies as an "other person" under this statute, it could not assist the FBI without disabling its system. Therefore, the district court's order for the Company's assistance was erroneous and is reversed. A pen register is defined as a mechanical device that records the numbers dialed on a telephone by monitoring electrical impulses, without capturing oral communications. The Omnibus Crime Control and Safe Streets Act initially did not explicitly allow for assistance in surveillance. In 1970, the Ninth Circuit ruled that telephone companies could not be compelled to assist law enforcement in wire communication interception. Following this decision, the statute was amended to require that orders for intercepting communications direct carriers and other relevant parties to provide necessary technical assistance. Common carriers, which include entities providing public communication services without discrimination, are regulated by the FCC and must comply with such orders. The district court identified the Company as a "telecommunications carrier," but the government did not appeal this classification. The term "intercept" is explained as acquiring the contents of any communication via electronic or mechanical means. A "wire communication" encompasses any aural transfer made through facilities utilizing wire or cable connections, which includes cellular phone communications despite their wireless nature, due to the underlying infrastructure used for connections. The legal document outlines the evolution of the statutory definition of entities that can assist law enforcement under the Electronic Communications Privacy Act. Initially, the statute referred specifically to "communication common carriers," but amendments expanded this to include "providers of wire or electronic communication service," indicating Congressional intent to broaden the scope of covered entities. The document highlights the complexities of the terminology, noting that while "electronic communication service" encompasses both electronic and wire communication, there is no distinct definition for "wire communication service." This ambiguity may render the language redundant or confusing. The excerpt discusses a specific system that transmits electronic signals to facilitate communication between a vehicle and a service center, clarifying that this signal does not constitute the communication intended to be intercepted. The document references various legal precedents to support its points, including distinctions between entities that merely receive communications and those that actively provide communication services. Notably, it emphasizes that the Company in question does provide a communication service, contrasting it with other entities that do not meet this definition, such as an Emergency Telephone System Board that records calls but does not facilitate communication. This distinction is critical to the legal analysis presented in the document. The originating apparatus for wire communication is located within the service recipient's car and is owned by the recipient, indicating that the Company provides a communication service alongside navigational and roadside assistance. Some courts have ruled that municipalities do not qualify as "persons" under the relevant legal definition. Interpretive methods, such as ejusdem generis, may not always be applied rigidly; however, they can help clarify the meaning of "other person" as used in the statute. The Company cannot be held liable for actions taken in compliance with legal requirements outlined in 18 U.S.C. § 2518(4) and § 2511(2)(a)(ii), which grant immunity to those assisting under a court order. The obligation of "a minimum of interference" differs from the "minimization" requirement in § 2518(5), the latter directing law enforcement to limit intrusions into private communications unrelated to the investigation. The purpose of Congress in adding certain statutory language is unclear, as there is no legislative history to clarify this. The dissent's interpretation of "minimum" is countered by the argument that it should not be conflated with numerical limitations. Additionally, the dissent's reliance on the New York Telephone case is criticized, as it was decided under the All Writs Act, not Title III, which has specific guidelines that do not allow for the imposition of additional limitations. Congress incorporated the "undue burden" concept into the "a minimum of interference" requirement, paralleling concerns raised in prior cases like Mountain States, which was decided under the All Writs Act and is not applicable to the current language. The dissent argues that the Company can potentially design its System to allow for surveillance without affecting its other services, but the statute does not mandate such a redesign. Under 18 U.S.C. 2518(4), the district court had the authority to order the Company to assist the FBI in intercepting conversations, having established probable cause for ongoing criminal activity. The dissent disagrees with the majority's conclusion that the order could not be executed with "a minimum of interference," asserting that this conflicts with the statute's plain text. Section 2518(4) requires communication service providers to assist in a manner that minimizes disruption, not to ensure uninterrupted service. The dissent emphasizes that the Company complied with the order in a way that minimized interference, as there was no evidence of actual service disruption during the surveillance, and the majority opinion fails to consider the factual record regarding the implementation of the intercept. The majority's assertion that the emergency call function was "severely hampered" does not substantiate the claim that the service was "completely shut down." The emergency call function remained operational, monitored by the FBI, but no evidence indicates that an emergency call was made during the surveillance. Thus, the majority's conclusion rests on speculation regarding federal agents' responsiveness to potential emergency signals. The majority improperly interprets "a minimum of interference" as an absolute standard instead of a relative one. Dictionary definitions clarify that "minimum" denotes the least amount of interference possible, suggesting that even a complete service shutdown could qualify as minimal interference if no lesser option exists to fulfill the intercept order. The only method for executing the intercept involved activating the car's microphone and transferring its cellular link to the FBI, which could have disrupted service had the subjects attempted to use it. However, the lack of evidence of such attempts undermines the majority's arguments about service disruption. The majority's interpretation effectively expands protections for targets of government surveillance, contradicting the limited scope of restrictions set by Congress under Article III judges in intercept orders. Furthermore, recognizing "a minimum of interference" correctly does not prevent providers from seeking remedies for hardships caused by such orders. The principle of undue burden prohibits intercept orders from imposing severe disruptions on service providers, as established in United States v. New York Tel. Co. The excerpt addresses the limitations on federal courts' authority to impose obligations on third parties, particularly regarding the reasonableness of such obligations. It references the case of United States v. Mountain States Telephone & Telegraph Co., where the Ninth Circuit upheld a district court's order requiring the company to facilitate electronic call tracing, determining that the obligations were reasonable and not unduly burdensome. The district court found insufficient evidence to support the company's claim that compliance would harm its business due to potential eavesdropping concerns. The excerpt emphasizes that to overturn the district court's findings, a claim of "clear error" must be established. It notes that the intercept order was executed with minimal disruption to subscriber services and that the district court's conclusion should resolve the matter in favor of compliance. The dissent argues against the majority's ruling, claiming it misinterprets the relevant statute and disregards factual findings, which undermines a vital investigative tool. Additional notes detail the legislative background of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which governs electronic eavesdropping, and clarify that the district court recognized the government's obligation to compensate the company for reasonable expenses incurred in compliance with the order. The Court in *New York Telephone* upheld a lower court's order requiring a telephone company to assist the FBI with the installation of a pen register, finding it was authorized by the All Writs Act and aligned with congressional intent. The Court noted that the order did not unreasonably burden the company's operations, as it did not disrupt services, although it did not assess the impact on customer service. The district court in the current case similarly determined that compliance with the order did not impose an undue burden on the company's operations. The company's system is described as straightforward, consisting of a cellular phone equipped with a speaker, microphone, GPS transmitter, and a control box. This system is pre-installed in vehicles, and the call center operator's role under the order is limited to activating the microphone and connecting the cellular link to the FBI surveillance team.