Circumventing Title Three - The Use of Pen Register Surveillance in Law Enforcement

• NCJ Number: 73093
• Journal: Duke Law Journal Volume: 1977 Issue: 3 Dated: (August 1977) Pages: 751-774
• Author(s): R B Parrish
• Date Published: 1977
• Length: 24 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

Federal courts lack the power to authorize or compel private assistance in the installation of the pen register, a mechanical device installed on an individual telephone line at a central telephone facility to record all numbers dialed from that line.

Abstract

Regulations governing the use of the pen register are not provided under Title III of the Omnibus Crime and Safe Street Act of 1968, which was intended to be a comprehensive electronic surveillance statute but covers only devices used for aural acquisition of the contents of communications. Because the pen register is not subject to Title III restrictions, law enforcement agencies and telephone companies are unsure of its proper use. A review of court decisions on pen register use notes that the courts, with only one exception, have granted governmental requests for authorization to use the device, but few of these courts have carefully analyzed the issue. In the one exceptional case, a Federal district court ruled that the use of the pen register by the Federal Government was dependent upon congressional approval and cound not be based on inherent judicial power except where its use was indispensable to the trial. The urgent need of law enforcement authorities to employ electronic surveillance to combat increasingly sophisticated crime is posed against telephone companies' concerns about the imvasion of privacy and vulnerability to criminal or civil liability. Court rulings are discussed that note the dangers of blanket authorizations to compel telephone company assistance in the absence of clearly defined authority or without reference to the specifics of the case. It is concluded that, despite the urgent needs of law enforcement, the stronger priorities of individual rights dictate that the Federal courts be enjoined from authorizing pen register use in the absence of specific congressional authorization. A total of 140 footnotes is included.