Officer David Waddell was asked by his superiors at the Durham, NC Police Department to investigate whether Jamie B. Brown, a telecommunicator for the department, was engaged in drug trafficking activities. The department's suspicions had been based on authorized wiretaps of Brown's home phones. Waddell was informed that Brown had two pagers in addition to her home phones and used these to communicate with drug traffickers.

 Waddell obtained a state court order to use "clone pagers" to monitor the numbers that Brown received on her numeric display pagers. The state court based its order on the comparable functions of the "clones" to pen registers which record the numbers that are called or received by a specific phone line. Waddell got the "clones" from the company that provided Brown's pagers and used them to monitor all numbers and messages that were sent to Brown's pagers for over a month. After a month had passed, Waddell returned the pagers to the company and no charges were ever filed against Brown.

 Under the Electronic Communications Privacy Act, a private cause of action is established for those whose electronic communications are intercepted illegally. Brown sued Waddell and the City of Durham, NC for violations of the Act. The ECPA specifically exempts "trap and trace" devices and "pen registers" that are used upon proper authorization from its prohibitions. Pen registers and the "clone pagers" performed nearly identical functions by providing the numbers of those that called Brown.

Are the pagers considered a pen register for the purpose of the ECPA? How do you rule?

 Jody Newsome
Wake Forest University

Answer

Compare Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995).

The Court of Appeals held that a clone pager was not the same as a pen register for the purposes of the ECPA.  Therefore, the use of this device was an unauthorized interception of electronic communications.  The purpose of the ECPA is to extend to electronic communications the same protections against unauthorized interceptions that were already provided to oral and wire based communications.