## Facts

- Raymond Auler allegedly used a “blue box” device to place long-distance calls without being billed by bypassing telephone-company billing controls through 2600-cycle and multifrequency tones.
- A Wisconsin Telephone Company security supervisor attached a 2600-cycle detecting device to the line serving Auler’s residence after suspecting blue-box use.
- The detection indicated an out-of-state call using the blue-box technique; the company notified the FBI of a suspected wire-fraud violation.
- A General Telephone security supervisor separately investigated and advised the FBI that Auler was suspected of using a blue box based on the company’s investigation.
- Telephone-company surveillance generated information (including monitoring/recording related to the line’s signaling and usage) that was disclosed to the FBI.
- Using information obtained from the telephone companies, FBI agents secured a search warrant, searched Auler’s residence, and recovered blue-box equipment and related materials.
- Auler was convicted in federal district court of wire fraud under 18 U.S.C. § 1343 and sentenced to six months’ imprisonment.

## Issues

1. Whether the telephone companies’ interception and disclosure of communications-related information to the FBI violated 47 U.S.C. § 605.
2. Whether the companies’ surveillance constituted a Fourth Amendment search or seizure requiring suppression in a federal prosecution.
3. Whether alleged violations of Wisconsin electronic surveillance law required exclusion of the evidence in federal court.
4. Whether the indictment failed to state an offense under 18 U.S.C. § 1343.

## Decision

- The Seventh Circuit affirmed the conviction.
- The court held that the carrier interceptions and disclosures were authorized by 18 U.S.C. § 2511(2)(a)(i) as actions taken in the normal course of business to protect the carrier’s rights or property, and therefore did not violate 47 U.S.C. § 605.
- The court held the Fourth Amendment was not violated because the surveillance was initiated and conducted by private carrier employees for the carriers’ own anti-fraud purposes, not as government agents.
- The court held that state-law limits, even if more restrictive, did not control admissibility in this federal prosecution governed by the federal statutory scheme.
- The court held the indictment adequately alleged a scheme to defraud (theft of long-distance service) and the use of interstate wires, satisfying § 1343.

## Legal Principles

- Under 18 U.S.C. § 2511(2)(a)(i), a communications common carrier may intercept and disclose communications when done in the normal course of its business and as necessary to protect the carrier’s rights or property, including preventing theft of service and billing fraud.
- Carrier disclosures to law enforcement made pursuant to this statutory authorization do not violate the general prohibition on unauthorized publication or use of communications in 47 U.S.C. § 605.
- The Fourth Amendment generally does not apply to surveillance conducted by private parties acting for their own purposes; later cooperation with law enforcement does not alone convert private action into governmental action.
- In a federal prosecution, admissibility questions concerning interception and disclosure are governed by the applicable federal statutory framework rather than more restrictive state surveillance rules.
- A wire-fraud indictment is sufficient when it alleges a scheme to defraud and the use of interstate wire communications in furtherance of that scheme.

## Conclusion

The Seventh Circuit upheld Auler’s wire-fraud conviction, concluding that the telephone companies’ anti-fraud monitoring and disclosure to federal agents fell within the statutory carrier exception in § 2511(2)(a)(i), did not trigger Fourth Amendment suppression, was not excluded by state surveillance law, and was supported by an indictment that properly alleged wire fraud.


United States v. Auler, 539 F.2d 642 (7th Cir. 1976)