The Ninth Circuit ruled that the FBI could not require a provider of a telecommunications device to allow the FBI use the service to listen in on customers in their cars if the surveillance disrupted the service too much. Some luxury cars are equipped with on-board communication systems that assist drivers in a variety of activities. The appellant (“the Company”) runs this type of service (“the System), which uses a combination of satellite and cellular technology. One aspect of the System allows the Company to listen to oral communications inside the vehicle by opening a cellular connection to the car. The Company intended this feature for use when the owner reports the car stolen and the Company places the System in “theft mode.” The FBI obtained a series of district court orders requiring the Company to allow the FBI to use the System to surreptitiously intercept conversations taking place inside cars equipped with the System, based on 18 U.S.C. §2518(4). Although the wiretap orders at issue had expired, the Court ruled that the case was not moot because the case fit the “capable of repetition, yet evading review” exception to the mootness doctrine.
The statute, 18 U.S.C. §2518, requires certain entities and individuals to assist law enforcement in wiretapping and eavesdropping when directed by a court order to do so. The Court found that the communications in this case were “oral communications” within the meaning of the statute, even though they were intercepted through wire communications. Here the FBI intercepted in-person voice communications, not communications that went through a medium other than natural sound waves. If the FBI taps into a telephone wire, it intercepts a “wire communication,” since the communication itself occurs though something other than natural sound waves. In this case, the communication the FBI intercepted only occurred though natural sound waves, so the conversation inside the car qualified as an “oral communication.”
Next, the Court held that the Company was “a provider of wire or electronic communication service, landlord, custodian, or other person” required to render assistance to law enforcement under the statute for two separate reasons. The company was a provider of cellular services, and the company was an “other person” required to assist under than statute. The Court rejected the Company’s argument that it was not “a provider” because it did not operate the cellular service used in the System. While the Company did not operate the cellular system, it “provided” the service to its customers. The Court also held that the Company was an “other person” within the meaning of the statute. An “other person” is someone who regularly provides services to the target of the surveillance and “can provide information, technical assistance, or facilities to law enforcement,” and the Company met those requirements. Furthermore, a court could require the Company to provide assistance in intercepting these communications, because the statute requires a covered company’s hands-on assistance if the FBI would not be able to get the information without it.
However, the Court agreed with the Company that the scope of the order was overbroad. The statute requires “a minimum of interference” with the services provided to the person whose communications are intercepted. The Court held that the order did not meet the this standard, because FBI’s use of the service resulted in a complete disruption of the service. The statute allows some interference and the Court did not define precisely how much interference is allowed, but rendering the service unusable while an interception was in progress was clearly too much interference. FBI surveillance disrupted all services, including the emergency call services, so the Company could not insure the emergency response it promised its customers. As a result, the court ruled that the district court could not require the Company to assist the FBI in using the System to intercept communications.