C. Webb Crockett, Phoenix, Ariz., on brief; George T. Cole, Phoenix, Ariz., for defendant-appellant.

Kenneth L. Fields, Asst. U. S. Atty., Phoenix, Ariz., on brief; Dale Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before DUNIWAY and FARRIS, Circuit Judges, and ORRICK,* District Judge.

ORRICK, District Judge:

This case presents the question whether a district court, acting upon an application of the United States, possesses the power to issue an order compelling a duly licensed public utility, in this case the Mountain States Telephone & Telegraph Company ("Mountain Bell"), to perform an in-progress trace of telephone calls by means of electronic facilities within its exclusive control. Believing the district court has such power, we hold its order valid and affirm.

I.

A.

On April 7, 1978, the United States Attorney in Phoenix, Arizona, made an ex parte application for an order authorizing the installation of a telephone tracing device (commonly known as a "grabber") upon a telephone line then being used by a special agent of the Internal Revenue Service ("IRS"). The application was accompanied by the agent's affidavit, in which he alleged that he had received telephone calls from an individual soliciting wagers for professional sporting events, in violation of 26 U.S.C. §§ 7201, 7203, and 7262. The purpose of the request was to aid the investigation by providing information helpful in discovering the telephone number, name, and address of the calling party. Upon finding probable cause to believe that the calling party was using the telephone system in violation of federal law, and that installation of the tracing device would lead to information helpful in the investigation, a United States magistrate entered an order authorizing the IRS to install the device, and directing Mountain Bell to provide "all information, facilities * * * and technical assistance necessary to accomplish the installation unobtrusively." The order also required that Mountain Bell be compensated for whatever services were provided.

Concerned about the breadth of the order and the possibility of interference with regular telephone service, Mountain Bell submitted to the United States Attorney a proposed order curtailing the tracing operation in several ways. The proposal limited the hours during which the trace could operate, exempted the telephone company from manual tracing or from providing standby company personnel, limited the trace to electronic facilities only, required the consent of the party called, and restricted the times at which agents could request information developed in the operation. Two weeks later, on April 21, the district court, at the request of the United States Attorney, modified the April 7 order to bring it into substantial compliance with the proposal by Mountain Bell. As modified, the April 7 order directed appellant to perform an in-progress trace of wire communications over telephone facilities, but restricted the operation to the use of Electronic Switching System ("ESS") facilities, during limited hours, and required the consent of the party called.

On May 26, 1978, again by an ex parte application, the United States requested a second order authorizing the in-progress trace of a wire communication over telephone facilities. This application was supported by the affidavit of the same IRS agent who, with the aid of the earlier order, had ascertained the name, address and telephone numbers of the suspected bookmaker, who operated a sporting goods store in Phoenix. The purpose of the second request, according to the affidavit, was to enable authorities to trace incoming calls received by the suspect. Upon finding probable cause to believe that the suspect was violating the law, that operation of an in-progress trace would yield evidence helpful to the investigation, and that reasonable efforts had failed to secure the information by other means, the district judge granted the government's request.

Acting pursuant to Rule 41 of the Federal Rules of Criminal Procedure,1 and the All Writs Act, 28 U.S.C. § 1651(a),2 the district court ordered installation of a tracing operation. This Order (which is the subject matter of this appeal and is herein called "the Order"), the full text of which is set forth at the margin,3 was directed to both the IRS and Mountain Bell and ordered the latter to comply as follows:

"Install and operate an electronic or mechanical device designed to trace and record the telephone number of a dialing party or parties when said party or parties call telephone numbers 247-1972, 247-1973, and 247-1975.

Continue the operation of such in-progress tracing operation for a period not to exceed twenty (20) days from the date of this Order.

All information gathered by reason of this Order be turned over to Special Agents of the Internal Revenue Service * * *."

In addition, apparently cognizant of the objections expressed by appellant in connection with the April 7 Order, the court placed strict limitations upon the operation, providing that:

"the in-progress tracing operation be limited to telephone company facilities employing 'ESS' switching facilities bearing a reasonable relationship to the probable originating point of telephone calls to be made to Earl L. Zimner, doing business as Earl's Sporting Goods, Inc., telephone numbers 247-1972, 247-1973, and 247-1975; provided further that the in-progress tracing operation does not require or involve any manual trace by telephone company personnel or otherwise necesitate (sic ) that telephone company personnel stand by to actively monitor or maintain the in-progress tracing operation; and that the in-progress tracing operation can be accomplished unobtrusively and with a minimum of interference to the telephone service and not unduly interfere with the telephone company operations, facilities or personnel nor be unduly burdensome * * *."

Finally, the district court required that appellant be compensated and/or reimbursed for all expenses incurred in complying with the Order.

Shortly after the Order was entered, Mountain Bell moved to vacate, arguing that: (1) the Order was unduly burdensome and would disrupt normal telephone service; (2) the district court lacked authority to compel Mountain Bell to participate in a criminal investigation; and (3) the activities required by the Order could subject Mountain Bell to civil liability. Appellant did not complain that the ex parte nature of the prior proceeding offended due process nor did it argue that the Order constituted a taking without compensation. During a June 5 evidentiary hearing, it came to light that the tracing operation ordered by the court was identical to operations routinely undertaken by the company without court order in a variety of circumstances. Appellant's Area Security Supervisor testified that tracing operations of this kind were undertaken in response to obscene or annoying calls, or following telephone threats. This information had been communicated to the government prior to its application for in-progress traces.

Testimony was also elicited concerning the impact of the Order upon Mountain Bell's provision of normal telephone services. For the first time, appellant complained that use of ESS facilities for such purposes threatened maintenance operations, by periodically tying up a teletype machine otherwise used to perform maintenance functions. Appellant's technical expert also testified that although traces alone posed no danger of creating a communication shutdown, their impact, combined with other problems, could bring about such a result. No evidence was presented which demonstrated that actual problems had arisen as a result of the tracing operation.

The court denied appellant's motion to vacate. This ruling, together with the Order, provide the basis for the present appeal, over which this court has jurisdiction pursuant to 28 U.S.C. § 1291. Appellant here challenges the Order on three grounds, namely, that (1) the court lacked power to enter the Order; (2) the ex parte nature of the Order constituted a violation of due process; and (3) because the Order did not provide adequate compensation for the services required to be rendered, it involved a "taking * * * without just compensation" in derogation of the Fifth Amendment.

B.

A great deal is made by appellant of the differences between the ESS trace ordered here and the pen register device at issue in United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977) (hereinafter cited as "New York Telephone "). Accordingly, it is necessary to describe these techniques in some detail. The pen register, from a legal point of view, is substantially similar to an ESS trace but differs from it somewhat from a practical point of view.

Both the pen register and the ESS trace are designed to record, through the monitoring of electrical impulses created by the turning of the telephone dial, actual telephone numbers to or from which calls are placed. Neither system is intended to monitor or record the contents of oral telephone communications, nor does either establish whether or not a given call has actually been completed. Rather, each device simply produces a listing of telephone numbers: the pen register records the telephone numbers to which all outgoing calls are made from the monitored telephone, while an ESS trace records the numbers from which incoming calls to the subject telephone have been made.

The pen register is a device attached to a given telephone line which records all numbers dialed on that line. The device is installed by connecting it with the line at a point where the line makes an "appearance" in the terminal near the telephone number under investigation. An appearance is the point at which the specific pair of wires serving the monitored telephone emerge from the sealed cable. If an appearance is not made at a terminal convenient for surveillance by law enforcement officers, the officers can request and obtain, pursuant to tariff, a leased line, that is to say, an unused telephone line which makes an "appearance" in the same terminal as the monitored line. The leased line is cross-connected to the subject line, and monitored at a more remote site, where the pen register is connected. As a general rule, the actual connection, installation and operation of the pen register can be and are performed by law enforcement officers. The telephone company simply identifies the pair of wires providing service to the subject telephone line and then provides a leased line.

The ESS facilities used here consist of fully automated, electronic switching equipment which routes telephone calls through central switching offices. Such equipment is the most advanced in use by Mountain Bell. It was employed in the present case to trace and identify the telephone numbers from which calls were made to the suspect numbers. This is accomplished by programming a control computer to "trap" incoming calls to the designated telephone number. Computers that route the incoming calls from the exchange in which they originate from the dialing telephone must also be programmed. In this case twelve computers were programmed, including those in the Phoenix metropolitan area. When a call is made to the number, ESS identifies it as a call requiring unusual handling, and the call is momentarily halted while the computer searches its memory to find the appropriate program to process the call. Once the computer recognizes the call trace program, it establishes the calling number, if possible, records this information in its memory for a later print-out on a teletypewriter, and completes the call to the receiving telephone number. This process takes two and one half as much machine time as it takes to process a normal call. This delay in the lines and in the teletype machines which print out the numbers could obscure potential maintenance problems which otherwise could be avoided.

As the above discussion suggests, there is from the standpoint of the present controversy but a single relevant difference between these devices. In the case of the pen register, the device may be physically operated by law enforcement officers after limited assistance from the telephone company (i. e., provision of information as to the location of the appearance, identification of the relevant wires, and provision of a leased line). Tracing through ESS facilities, on the other hand, because it is entirely automated, must be activated by the programing of a computer by a technician of the telephone company.

II.

It is important to recognize at the outset the relative narrowness of the issues presented on appeal. No telephone subscriber is here complaining that it is a violation of his rights to trace calls being received by his telephone or being sent from his telephone to that of another subscriber. The telephone company does not assert that the order violates any rights belonging to it under the Fourth Amendment to the Constitution.4 It does not assert that the use of tracing devices violates the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, which prohibits electronic surveillance by persons other than duly authorized law enforcement officers. It is not claiming that there was prohibited surveillance here, because no conversation was overheard by anyone.

The principal question presented on this appeal is whether or not the district court had the power to compel Mountain Bell to perform the tracing operation requested by the United States.5 We think this matter was decided in the affirmative by the Supreme Court in New York Telephone. That case established that Rule 41 of the Federal Rules of Criminal Procedure, supplemented by the auxiliary power contained in the All Writs Act, 28 U.S.C. § 1651, authorizes a federal district court, in appropriate cases, to order a telephone company to participate in electronic surveillance carried out upon the request and under the supervision of federal law enforcement officers. The judicial gloss placed upon Rule 41 by the Court is certainly sufficient to embrace the action ordered here.

In New York Telephone, the government applied for an order authorizing agents of the Federal Bureau of Investigation ("FBI") to install and operate pen registers with respect to two telephone lines, and directing the New York Telephone Company to furnish the FBI "all information, facilities, and technical assistance" necessary to employ the pen registers unobtrusively. The application was supported by an affidavit stating that certain individuals were conducting an illegal gambling enterprise from a Manhattan address and that, on the basis of the facts set forth in the affidavit, there was probable cause to believe that telephones were being used in furtherance of illegal activity. The district court, finding cause, granted the application. Its order authorized the FBI to operate pen registers with respect to the two telephones and directed the telephone company to provide the necessary assistance. The court concluded that both the All Writs Act and its inherent powers provided the authority to direct the company to assist in the installation of the pen registers.

On these facts, the Supreme Court held that Rule 41 authorized the use of the pen register. New York Telephone, supra, 434 U.S. at 168-70, 98 S. Ct. at 370-71. Despite the fact that, by its express terms, the rule does not appear to permit the "seizure" of "intangibles" such as electronic dial impulses (see Rule 41(b)), the Court found it a sufficient basis for the action of the district court:

"This authorization is broad enough to encompass a 'search' designed to ascertain the use being made of a telephone which is suspected of being employed as a means of facilitating a criminal venture and the 'seizure' of evidence which the 'search' of the telephone produces." Id. at 169, 98 S.Ct. at 370.

In so doing, the Court relied upon Katz v. United States, 389 U.S. 347, 83 S. Ct. 507, 19 L. Ed. 2d 576 (1967), which held, inter alia, that Rule 41 is not limited to tangible items but is "sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause." Id., at 169, 98 S.Ct. at 371.6

Turning next to the question of the district court's power to command the participation of third parties such as the New York Telephone Company Justice White concluded:

"(T)he power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress." New York Telephone, supra, 434 U.S. at 172, 98 S. Ct. at 372 (footnote omitted).

Relying upon the All Writs Act, authorizing courts to issue all writs necessary or appropriate in aid of their respective jurisdictions,7 the Court made the commonsense observation that, without the participation of the telephone company, "there is no conceivable way in which the surveillance authorized * * * could have been successfully accomplished." Id. at 175, 98 S.Ct. at 373-374.

The principles announced in New York Telephone compel the same result here. The Order was issued upon application of the United States, supported by an affidavit sufficient to establish probable cause. It authorized the installation of devices which, as discussed above, were virtually identical in terms of their intrusive effect to the pen register utilized in New York Telephone. Precisely in the manner approved there, the district court, relying upon Rule 41, ordered the cooperation and participation of the telephone company, whose assistance was critical to carry out the Order. Moreover, the prerequisites outlined by the Supreme Court as necessary to invoke the provisions of the All Writs Act were clearly present here. To a greater extent than in New York Telephone, the refusal by Mountain Bell to cooperate would have completely frustrated any attempt to accomplish the tracing operation. Nor was appellant any more distant from the criminal activity, or more interested in avoiding compliance. In this regard, Justice White's comments are fully apt: