United States for an Order Authorizing the Roving Interception of Oral Communications v. United States

Opinion by Judge BERZON. Dissent by Judge TALLMAN.

OPINION

Giving new meaning to the automotive advertising slogans “The Ultimate Driving Machine” 1 and “We’ve Got You Covered,” 2 some luxury cars are now equipped with telecommunication devices that provide a set of innovative services to car owners. These on-board systems assist drivers in activities from the mundane — such as navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant — to the more vital — such as responding to emergencies or obtaining road-side assistance. Such systems operate via a combination of GPS (global positioning system, using satellite technology) and cellular technology. The appellant (“the Company”) runs one such service (“the System”).

One feature of the System allows the Company to open a cellular connection to a vehicle and listen to oral communications within the car. This feature is part of a stolen vehicle recovery mode that provides assistance to car owners and law enforce *1134 ment authorities in locating and retrieving stolen cars. The same technology that permits the interception of the conversations of thieves absconding with the car also permits eavesdropping on…

dissenting:

I respectfully dissent. I agree that 18 U.S.C. § 2518 (4) 1 applies to the Company as a “provider” or “other person” and therefore the district court had the authority to order it to assist the FBI in intercepting conspiratorial conversations held in the car and transmitted electronically via the Company’s System. See Maj. Op. at 1189-43. I disagree, however, with the majority’s conclusion that the order cannot *1147 be carried out in conformance with § 2518(4). The FBI established to the district court’s satisfaction the existence of probable cause to believe that individuals engaged in a continuing criminal enterprise were using the car as a venue for planning illegal activities. Pursuant to § 2518(4), the district court found the necessity for this type of intercept and authorized federal agents to surreptitiously monitor the individuals’ conversations.

The majority opinion nonetheless invalidates the district court’s order, despite express statutory language commanding the Company to assist the government in such eavesdropping. The court reaches this result by erroneously concluding that the district court’s order cannot be carried out “with ‘a minimum of…