Brown v. Waddell
50 F.3d 285 : 63 USLW 267
In the United States Court of Appeals for the Fourth Circuit
Case Number 93-1729
Before Senior Circuit Judge Butzner, Senior Circuit Judge Phillips, and Senior District Judge Young
Decided on March 30, 1995

Relevancy of the Case: Is using a pager clone during an investigation equivalent to installing a pen register?

Statutes and Provisions Involved

• The Federal Electronic Communications Privacy Act 1986

Relevant Facts of the Case

• In October 1991, the defendant received instructions from his superiors to investigate the plaintiff’s involvement in drug trafficking activities. The defendant was a part of the Major Crimes Unit of the Organised Crime Division in Durham. The plaintiff was working as a telecommunicator in the same department.
• The defendant further received instructions to obtain legal authorisation to use a page clone to monitor the numeric messages received on her pagers. The state court judge granted the defendant’s application to install a pen register for 90 days.
• After that, the defendant obtained two pagers programmed identically to the two in the plaintiff’s possession. He also obtained her twenty most recent pagings, ten for each pager number. This information was available with Caroling Paging in its electronic storage bank.
• This surveillance lasted less than a month. After this, the defendant returned the pagers to Carolina Paging. As a result of this departmental investigation, no charge was brought against the plaintiff.
• In January 1992, she received an apology letter from the Chief of Police stating that the Division failed to meet high standards of professionalism.
• Thereafter, she brought a private action under 18 U.S.C. §  2520, seeking monetary and injunctive relief from the defendant in his individual and official capacities. The City of Durham is also added as a party.
• Before the district court, the defendant pleaded affirmative defences of governmental immunity and statutory good faith, available in Sections 2520(d) and 2707(d), respectively.
• The district court denied the plaintiff’s motion and dismissed the entire case. The court held that the defendant’s use of a pen register after receiving authorisation from a state court judge was appropriate. The plaintiff has thereby filed this appeal.

Prominent Arguments by the Counsels

• The defendant’s counsel advanced a novel argument regarding the overall investigative technique. The paging terminal itself functions as a pen register, and the clone pager is merely an extension of this terminal.

Opinion of the Bench

• Due to ECPA, the authority to intercept electronic communications became subject to the exact requirements applicable to the interception of oral and wire communications.
• As per the definition of pen register in Section 3127, a pager clone does not fit the definition. A pen register is a device that gets attached to a telephone line. A clone pager receives and intercepts electronic impulses transmitted by radio waves.
• A pen register only records the phone numbers for incoming and outgoing calls. However, a clone pager provides access to the message contents as well.
• Therefore, such an investigative procedure cannot be considered under the ambit of a pen register.
• It is appropriate to remand this case to the District Court to hear the matter again. The defendants would have the opportunity to establish their statutory defences.

Final Decision

• The court remanded the case back to the District Court.