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.

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