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United States v. Auler

decided: August 12, 1976.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAYMOND AULER, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Western District of Wisconsin, No. 73-CR-67, JAMES E. DOYLE, Judge.

Tom C. Clark, Associate Justice (Retired),*fn* Fairchild, Chief Judge, and Pell, Circuit Judge.

Author: Fairchild

FAIRCHILD, Chief Judge.

In this appeal we are once again asked to consider the scope of the authority of a common carrier to intercept and disclose wire communications, 18 U.S.C. § 2511(2)(a)(i),*fn1 in the context of the prohibition against the unauthorized publication or use of interstate wire communications, 47 U.S.C. § 605.*fn2 The appellant, Raymond Auler, was convicted for violating the Wire Fraud Statute, 18 U.S.C. § 1343,*fn3 and sentenced to six months imprisonment. He argues that several grounds support a reversal: (1) the disclosure of wire communications by General Telephone to the F.B.I. violated 47 U.S.C. § 605; (2) the security agents of General Telephone violated the requirements of the Fourth Amendment; (3) the surveillance conducted by the General Telephone violated the Wisconsin Electronic Surveillance Law; and (4) the indictment failed to state an offense under 18 U.S.C. § 1343. We are, however, unable to find that any of these contentions require a reversal, and therefore, we affirm the decision of the district court.

I

During June, 1973 a security supervisor for the Wisconsin Telephone Company, Bernard G. Schlimgen, attached a 2600 cycle detecting device to the telephone line serving Auler's residence in Milwaukee. Schlimgen believed that there was in use a device known as a "blue box" to fraudulently place toll-free long distance calls. The blue box is used to electronically bypass the telephone company's billing equipment. After engaging a wide area telephone service system (WATS), the blue box emits a 2600 cycle tone which allows the user to remain within the toll system after the WATS line has been disconnected. Subsequently, the user "key pulses" through the blue box a series of multifrequency tones, comparable to those normally generated by a long distance call. The telephone company's billing equipment only records the original toll-free call; consequently, the user is not charged for the call made with the blue box.

The 2600 cycle detector indicated that an out of state call was made by use of the blue box technique. Schlimgen informed Roger Davis, then a Special Agent for the F.B.I., of this suspected violation of the Wire Fraud Statute. Davis obtained a warrant, and accompanied by Schlimgen, searched Auler's residence. They did not find a blue box, but learned from Auler's daughter that Auler had been present earlier, but was moving to Wisconsin Dells.

On June 21, 1973, Schlimgen contacted Gary Mattila, a security agent for the General Telephone Company, the company which provides telephone service for the Wisconsin Dells area, concerning Auler's alleged use of the blue box. Mattila discovered that Auler had two telephone listings at a Wisconsin Dells residence. He further learned from another Wisconsin Telephone Company security agent that Auler was a suspected blue box user. This information was obtained by examining a computer printout list of all the toll-free calls placed in that area. On the basis of these reports, Mattila ordered on July 13, and 17, 1973 the installation of a 2600 cycle detector placed on both of Auler's Wisconsin Dells telephone lines.

After the detection of numerous 2600 cycle tones, Mattila, on July 27, 1973, ordered the attachment of magnetic tape recording devices to Auler's lines to monitor all multifrequency tones and conversations originating from Auler's residence.*fn4 This taping was discontinued on one line on July 29, and on the other on July 30. General Telephone's logs indicate that the magnetic recorders also taped traffic over Auler's lines on August 2 through 3, and August 9 through 13.

On July 30 and 31, Mattila advised F.B.I. Agent Hunter that General Telephone had conducted an investigation regarding Raymond Auler, and that based on this investigation Auler was suspected of using a blue box. Hunter obtained a warrant on August 3 to search Auler's residence. Accompanied by Mattila, Hunter executed the warrant on August 10. Immediately preceding the search Mattila had been in contact with General Telephone agents who were monitoring Auler's lines. These agents informed Mattila that they had detected a 2600 cycle tone and had recorded Auler completing a call. During the search Hunter found and seized a blue box and other equipment. Auler was subsequently tried on stipulated facts and found guilty. Prior to trial Auler had unsuccessfully sought to suppress any evidence that was the product of General Telephone's interception of his telephone lines.

II

The appellant's primary argument asserts that the evidence secured to convict him was obtained in violation of the Communications Act of 1934, 47 U.S.C. § 605. Section 605 prohibits, with certain exceptions, the divulgence or publication of interstate communication received by wire by any person. Auler claims that the attachment of the 2600 cycle detector, the monitoring of his telephone lines by General Telephone Company, and the subsequent disclosure of the information secured through these devices to the F.B.I. were made in violation of section 605. Therefore, the information and the fruits thereof must be suppressed.

We were asked to address the same argument in United States v. Freeman, 524 F.2d 337 (7th Cir. 1975), cert. denied, 424 U.S. 920, 96 S. Ct. 1126, 47 L. Ed. 2d 327, 44 U.S.L.W. 3472 (U.S. 1976). In Freeman we considered the scope of the exception, provided in the first sentence of section 605,*fn5 as amended by the Crime Control Act of 1968,*fn6 in light of the prohibitions against disclosure of wire communications listed in the first paragraph of section 605. We held that section 2511(2)(a)(i)*fn7 "must sensibly be read as an exception of telephone companies from the relevant prohibitions of 47 U.S.C. § 605, and, in a sense, as an authorization." Freeman, supra, at 340. We find nothing in the appellant's argument or other recent cases, e.g., United States v. Clegg, 509 F.2d 605 (5th Cir. 1975) to suggest that our interpretation of these statutory provisions was incorrect. Therefore, we reaffirm our decision that section 2511(2)(a)(i) provides a telephone company with the power to protect its property through limited monitoring of the lines of suspected illegal users and the subsequent immunity*fn8 to disclose necessary information to law enforcement agencies.

This authority of the telephone company to intercept and disclose wire communications is not unlimited. It may only intercept a communication which is "a necessary incident to the rendition of . . . service or . . . [for] the protection of the [company's] rights or property . . . ." 18 U.S.C. § 2511(2)(a)(i). In addition, section 2511(2)(a)(i) prohibits "random monitoring except for mechanical or service quality control checks." Therefore, we think that any surveillance of a suspected blue box user must be restricted to a determination of (1) whether a blue box is being used; (2) the multifrequency tones of the number "dialed" by the blue box; (3) whether the call was completed; (4) the duration of the call; and (5) the identity of the caller. This information can be obtained through a 2600 cycle detector,*fn9 or similar device, and a tape recording of the salutations at the beginning of the conversation. Therefore, section 2511(2)(a)(i) must reasonably be read to permit the telephone company "to divulge, at least, the existence of the illegal calls and the fact that ...


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