Requests for Information Under the Electronic 

Communications Privacy Act 

The Federal Bureau of Investigation may issue a national security letter to request, and a provider may 

disclose, only the four types of information—name, address, length of service, and local and long 

distance toll billing records—listed in 18 U.S.C. § 2709(b)(1). 

The term “local and long distance toll billing records” in section 2709(b)(1) extends to records that 

could be used to assess a charge for outgoing or incoming calls, whether or not the records are used 

for that purpose, and whether they are linked to a particular account or kept in aggregate form. 

Before issuance of a national security letter, a provider may not tell the FBI whether that provider 

serves a particular customer or telephone number, unless the FBI is asking only whether the number 

is assigned, or belongs, to that provider. 

November 5, 2008 

MEMORANDUM OPINION FOR THE GENERAL COUNSEL 

FEDERAL BUREAU OF INVESTIGATION

You have asked whether, under the Electronic Communications Privacy Act of 

1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1860 (“ECPA”) (codified as 

amended at 18 U.S.C. § 2709 (2006)), the Federal Bureau of Investigation (“FBI”) 

may obtain certain types of information from communications providers. See 

Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney 

General, Office of Legal Counsel, from Valerie Caproni, General Counsel, Federal 

Bureau of Investigation, Re: Electronic Communications Privacy Act (Aug. 28, 

2007) (“FBI Memorandum”). Section 2709(b)(1) of ECPA enables the FBI to 

“request the name, address, length of service, and local and long distance toll 

billing records” of a subscriber, if that information may be “relevant to an 

authorized investigation to protect against international terrorism or clandestine 

intelligence activities, provided that such an investigation of a United States 

person is not conducted solely on the basis of activities protected by the first 

amendment to the Constitution of the United States.” The provider “shall comply” 

with such a request. 18 U.S.C. § 2709(a). In most other circumstances, ECPA 

prohibits the disclosure of a “record or other information pertaining to a subscriber 

to or customer of” a communications service. 18 U.S.C. § 2702(a)(3) (2006). 

In response to your specific questions, we conclude: (i) the FBI may issue a 

national security letter (“NSL”) to request, and a provider may disclose, only the 

four types of information—name, address, length of service, and local and long 

distance toll billing records—listed in section 2709(b)(1); (ii) the term “local and 

long distance toll billing records” in section 2709(b)(1) extends to records that 

could be used to assess a charge for outgoing or incoming calls, whether or not the 

records are used for that purpose, and whether they are linked to a particular 

account or kept in aggregate form; and (iii) before issuance of an NSL, a provider 

may not tell the FBI whether that provider serves a particular customer or 

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telephone number, unless the FBI is asking only whether the number is assigned, 

or belongs, to that provider.1

I. 

Under 18 U.S.C. § 2709(a), a wire or electronic communications service provider 

shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional 

records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. 

Section 2709(b)(1), in turn, enables the Director or his designee to 

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his 

designee) certifies in writing to the wire or electronic communication 

service provider to which the request is made that the name, address, 

length of service, and toll billing records sought are relevant to an 

authorized investigation to protect against international terrorism or 

clandestine intelligence activities, provided that such an investigation 

of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the 

United States. 

You have asked whether the four types of information listed in subsection (b)(1)—

the subscriber’s name, address, length of service, and local and long distance toll 

billing records—are exhaustive or merely illustrative of the information that the 

FBI may request and a provider may turn over. We conclude that the list in section 

2709(b)(1) is exhaustive.2

 

A. 

We begin with the text of the statute. Limtiaco v. Camacho, 549 U.S. 483, 488

(2007). Section 2709(b) authorizes the FBI to request from a provider “the name, 

address, length of service, and local and long distance toll billing records of a 

person or entity.” By its express terms, subsection (a), which specifies the 

1 We solicited and received the views of the National Security Division and the Criminal Division 

on these questions. 2 Although the same issue could arise under section 2709(b)(2), we refer to section 2709(b)(1) for 

convenience, because your question about “toll billing records,” to which we turn below, relates only to 

section 2709(b)(1).

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information that the provider is to disclose, reaches no further than the information 

that the FBI may request under subsection (b): subsection (a) requires a provider to 

comply with a request for “subscriber information and toll billing records information” made by the FBI “under subsection (b).” 18 U.S.C. § 2709(a) (emphasis 

added). Subsection (b) specifies the items for which the FBI may ask, and there is 

no indication that the list of items is illustrative. Cf. Burgess v. United States, 553 

U.S. 124, 131 n.3 (2008) (examples where the word “includes” may enlarge the 

meaning of a definition beyond the terms in the list). The list—the name, address, 

length of service, and local and long distance toll billing records of a person or 

entity, see id. § 2709(b)(1)—thus sets the limits of what the FBI may request 

under section 2709, as well as what the provider may disclose under that provision. The text of subsection (b) forecloses an interpretation that would add other 

types of information to the excepted categories. See Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 513 (2002) (applying the canon of expressio unius est exclusio 

alterius). 3

 

ECPA’s structure reinforces this conclusion. Section 2709 is an exception to 

the background rule of privacy established by 18 U.S.C. § 2702(a), which

generally bars a provider from giving the Government a record or other information pertaining to a subscriber or customer. Here, the exceptions listed in 

section 2709(b)(1) specify some types of information—a subscriber’s name, 

address, length of service, and billing records—and not others. Other exceptions to 

the rule of privacy appear in section 2702(b), dealing with voluntary disclosures, 

and in section 2703, dealing with disclosures in response to subpoenas or warrants. 

We would not infer additional exceptions. See 2A Norman J. Singer, Statutes and 

Statutory Construction § 47.11, at 250–51 (6th ed. 2000) (“Where there is an 

express exception, it comprises the only limitation on the operation of the statute 

and no other exceptions will be implied. . . . [W]here a general provision in a 

3 Subsection (a) also refers to “electronic communication transactional records” requested under 

subsection (b). In its current form, however, subsection (b) does not include this term. As originally 

enacted, subsection (b) did not specify the items of information that the FBI could request, but simply 

provided the means by which the FBI could ask for “any such information and records” as were 

described in subsection (a). Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986). When Congress in 

1993 added to subsection (b) the specification of “name, address, length of service, and toll billing 

records,” it did not include “electronic communication transactional records” in that list. Pub. L. No. 

103-142, 107 Stat. 1491 (1993). Nevertheless, the reference to “electronic communication transactional 

records” in subsection (a), along with the absence of the phrase in subsection (b), does not undermine 

the conclusion that the categories of information listed in subsection (b) are exclusive. As the 

committee report on the original enactment explained, the language about “electronic communication 

transactional records” gives the FBI “the necessary authority [to issue NSLs] with regard to subscriber 

information and toll billing information with respect to electronic communication services other than 

ordinary telephone service.” S. Rep. No. 99-541, at 44 (1986) (emphasis added). While clarifying that 

NSLs can extend to other types of services, therefore, the language reaches only those categories of 

information parallel to subscriber information and toll billing records for ordinary telephone service.

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statute has certain limited exceptions, all doubts should be resolved in favor of the 

general provision rather than the exceptions.”).4

 

The FBI Memorandum suggests that, under basic principles of interpretation, 

the general term “subscriber information” should be construed in light of specific 

examples in the statute. FBI Memorandum at 3–4. According to the FBI Memorandum, the term “subscriber information” in subsection (a) should encompass all 

information similar to the types specified in subsection (b), so that a provider 

could turn over, for example, a subscriber’s date of birth or social security number. 

Under the widely employed canon of statutory construction known as “ejusdem 

generis,” “where general words follow specific words in a statutory enumeration, 

the general words are construed to embrace only objects similar in nature to those 

objects enumerated by the preceding specific words.” Circuit City Stores v. 

Adams, 532 U.S. 105, 114–15 (2001) (internal quotation marks and citation 

omitted); see also Vanderbrook v. Unitrin Preferred Ins. Co., 495 F.3d 191, 219 

(5th Cir. 2007) (noting that the ejusdem generis canon “is used to interpret general 

terms (e.g., ‘and the like’) following a list of specific terms”). The canon thus 

allows a list of specific terms to define and limit an otherwise ambiguous term 

within the same list. See, e.g., 2A Norman J. Singer, Statutes and Statutory 

Construction § 47.17, at 188 (5th ed. 1992). The FBI Memorandum, however, 

would rely on this canon to draw the reverse inference, by expanding the meaning 

of a general term (“subscriber information”) that appears outside the list of terms 

in section 2709(b) and in a separate subsection of the statute. Even if the text of 

section 2709(a) were unclear, the canon of ejusdem generis would offer little 

support for the argument that subsection (a) should be interpreted more broadly 

than subsection (b). In any event, because the text of subsection (a) shows that a 

provider is to supply only information requested under subsection (b), the canon of 

ejusdem generis does not apply. See, e.g., Tourdot v. Rockford Health Plans, Inc., 

439 F.3d 351, 354 (7th Cir. 2006) (noting that the canon of ejusdem generis 

applies only where a statutory term is ambiguous, that it may not be used “both to 

create and to resolve [a statutory] ambiguity,” and that it “may not be used to 

defeat the obvious purpose or plain meaning of the text”). 

B. 

The FBI Memorandum also relies upon the legislative history of ECPA’s 1993 

amendments to argue that, using NSLs, the FBI may seek and providers may 

4 The conclusions in this memorandum apply only to disclosures under section 2709. We do not 

address other statutory provisions under which law enforcement officers may get information 

pertaining to electronic communications. See, e.g., 18 U.S.C. § 2702(b)(8), (c)(4) (authorizing disclosure of communications and customer records to governmental entities if the provider reasonably 

“believes that an emergency” involving “danger of death or serious physical injury to any person” 

justifies disclosure of the information); id. § 2703(a) (authorizing disclosure to a governmental entity of 

“the contents of a wire or electronic communication” pursuant to a warrant).

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disclose—as “subscriber information”—“any information kept by the communications service provider for its own business purposes that identifies the subscriber,” 

not just the types of information listed in section 2709(b). FBI Memorandum at 5. 

In our view, the language of the provision is straightforward, and “[g]iven [a] 

straightforward statutory command, there is no reason to resort to legislative 

history.” United States v. Gonzales, 520 U.S. 1, 6 (1997). In any event, we believe 

that the legislative history accords with our conclusion. 

In a passage that the FBI Memorandum cites, the House Judiciary Committee 

Report for the 1993 amendments stated that “[t]he Committee intends . . . that the 

authority to obtain subscriber information . . . under section 2709 does not require 

communications service providers to create records which they do not maintain in 

the ordinary course of business.” H.R. Rep. No. 103-46, at 3 (1993), reprinted in 

1993 U.S.C.C.A.N. 1913, 1915. While the legislative history of ECPA therefore 

suggests that the statute does not require a provider to “create” new records, it 

does not follow that the statute would authorize the FBI to seek, or the provider to 

disclose, any records simply because the provider has already created them in the 

ordinary course of business. The universe of records subject to an NSL is still 

restricted to the types listed in the statute.5

 

Indeed, the 1993 amendments clarified and underscored the limitations on the 

scope of “subscriber information.” As the House Judiciary Committee Report 

explained, “[i]nstead of ‘subscriber information,’ the amendment here uses more 

specific terms: ‘name, address, length of service.’” H.R. Rep. No. 103-46, at 3, 

reprinted in 1993 U.S.C.C.A.N. at 1915 (emphasis added). More generally, the 

Report set the context of the amendments by declaring that “the national security 

letter is an extraordinary device” and that “[n]ew applications [for its use] are 

disfavored.” Id. at 3, reprinted in 1993 U.S.C.C.A.N. at 1914–15. Where Congress 

enlarged the FBI’s authority in the 1993 amendments, it placed careful limits on 

the new authority. It rejected one FBI proposal as “too broad” and substituted a 

narrower provision. See id. at 2, reprinted in 1993 U.S.C.C.A.N. at 1914. The 

Report, therefore, reinforces our construction of the text. 

II. 

Next, you have asked whether, under section 2709, the term “local and long 

distance toll billing records” includes records of incoming and outgoing calls upon 

which a charge could be assessed, whether or not a provider actually assesses a 

charge, and whether or not a provider maintains such records as aggregate data (as 

opposed to subscriber-specific data). We believe that the term includes records of 

individual calls identifying the telephone numbers called from a particular 

5 We do not address whether the FBI must purge its files of any additional information given to it 

by communications providers. 

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telephone number or attributed to a particular account, if maintained in the normal 

course of a provider’s business, whether or not the provider charges for each such 

call. In our view, moreover, section 2709 encompasses call records stored in 

aggregate form, even if they are not organized by customer accounts, provided 

that, as explained below, an NSL for such information is not unreasonably 

burdensome.

A.

Section 2709(a) requires a provider, in response to an NSL, to supply “subscriber information and toll billing records information.” As we explained in part 

I, section 2709(b) specifies the “subscriber information and toll billing records 

information” that an NSL may demand and a provider may supply. This information consists of “the name, address, length of service, and local and long 

distance toll billing records of a person or entity.” In addition to “subscriber 

information,” therefore, an NSL may demand, and a provider must turn over, “toll 

billing records information,” consisting of “local and long distance toll billing 

records.” 

The “billing records” to which section 2709 refers could denote either records 

that are actually used for billing or records that could be used for that purpose. In 

the abstract, either meaning could be a natural use of language. For example, the 

phrase “running shoes” could mean either shoes actually used for running or those 

of a type making them suitable for that purpose, even if the owner only walks. We 

believe that the phrase “local and long distance toll billing records” covers 

records—including the caller’s number, the number dialed, and the duration of the 

call—that are suitable for billing, whether or not the provider imposes a per call 

“toll.” 

As originally enacted, section 2709(b) provided that the FBI could use NSLs to 

seek “toll billing records.” See 100 Stat. at 1867. In 1996, Congress amended the 

provision to read “local and long distance toll billing records.” See Intelligence 

Authorization Act for Fiscal Year 1997, Pub. L. No. 104-293, § 601, 110 Stat. 

3461, 3469 (1996). The amendments clarified that billing records for local service, 

as specified in section 2709(b)(1), could be a type of “toll billing records information” that section 2709(a) directs a provider to turn over in response to an NSL. 

The reference in section 2709(b)(1) to billing records for “local” service, as a type 

of “toll billing records information” within section 2709(a), makes sense only if it 

encompasses records that are not actually used for billing customers, but are of a 

type that could be put to that use, because “local” service has traditionally been 

understood to be service for which the provider does not impose a per call “toll.” 

The terms “local” and “long distance toll” are well established terms in the 

communications industry. See, e.g., N.C. Utils. Comm’n v. FCC, 552 F.2d 1036, 

1045 (4th Cir. 1977) (distinguishing local service from “‘toll,’ or long distance, 

service” and suggesting both are “term[s] of art”). Traditionally, local service has 

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been identified and defined by the absence of per call charges, or “tolls.” See 

Newton’s Telecom Dictionary 488 (20th ed. 2004) (defining “local call” as one 

that “may or may not cost money. In many parts of the United States, the phone 

company bills its local service as a ‘flat’ monthly fee.”). By contrast, long distance 

service has been defined by the use of per call “toll” charges. See id. at 839 

(defining “toll call” as “[a] long distance call”); see also Webster’s Third New 

International Dictionary 2405 (1993) (defining “toll” as “a charge for a longdistance telephone call”).

Congress has distinguished between “local” and “long distance toll” calls on 

this basis for as long as the federal government has regulated the telecommunications industry. In section 3 of the Communications Act of 1934, for example, 

Congress defined the term “telephone toll service” as “telephone service between 

stations in different exchange areas for which there is made a separate charge not 

included in contracts with subscribers for exchange service.” Act of June 19, 1934, 

ch. 652, § 3, 48 Stat. 1064, 1066 (codified at 47 U.S.C. § 153(s) (1934)) (emphasis 

added). Congress separately defined “telephone exchange service,” otherwise 

known as “local” service, as “service within a telephone exchange, or . . . within 

the same exchange area . . . and which is covered by the exchange service charge.” 

Id. § 3, 48 Stat. at 1066 (codified at 47 U.S.C. § 153(r) (1934)) (emphasis added). 

As the Federal Communications Commission explained in its rule implementing 

the AT&T consent decree, the definitions in the Communications Act “rel[y] 

primarily upon the non-toll or toll nature of a call to determine whether the call is 

a [local] or [long-distance] call.” See Memorandum Opinion, Order and Authorization, FCC 83-566, 96 F.C.C.2d 18, ¶ 17 n.24 (Dec. 23, 1983); see also OfficeMax, Inc. v. United States, 428 F.3d 583, 596 (6th Cir. 2005) (explaining that 

before the divestiture of AT&T, all long distance calls were subject to tolls, which 

varied according to the duration of the call and the distance between the callers); 

Howard A. Shelanski, Adjusting Regulation to Competition: Toward a New Model 

for U.S. Telecommunications Policy, 24 Yale J. on Reg. 55, 59–60 (2007) (noting 

that before divestiture of its local assets, “AT&T charged flat monthly fees for 

local service, [but] it charged by the minute for long-distance service, and the 

[Federal Communications Commission] allowed AT&T to set long-distance rates 

well above cost for the purpose—at first implicit and later expressly stated—of 

providing profits AT&T could use to cross-subsidize local rates in support of 

universal service policies”). 

Even the tax code draws the distinction between “local” and “toll” calls. For 

example, the Excise Tax Reduction Act of 1965, Pub. L. No. 89-44, 79 Stat. 136, 

145 (1965) (“ETRA”), amended the Internal Revenue Code to impose a three 

percent excise tax on, among other things, “local telephone service.” See 26 

U.S.C. §§ 4251(b)(1)(A), 4252(a) (2006). Excluded from the definition of the term 

“local telephone service” was any “toll telephone service,” as defined in section 

4252(b). See, e.g., Reese Bros., Inc. v. United States, 447 F.3d 229, 233 (3d Cir. 

2006); W. Elec. Co. v. United States, 564 F.2d 53, 55 (Ct. Cl. 1977). “Toll tele151
Opinions of the Office of Legal Counsel in Volume 32 

phone service” means, in relevant part, a “telephonic quality communication for 

which . . . there is a toll charge which varies in amount with the distance and 

elapsed transmission time of each individual communication.” 26 U.S.C. 

§ 4252(b)(1)(A).

6

 

In view of this background, when Congress inserted the words “local and long 

distance” before “toll billing records” in section 2709(b)(1), it was not limiting 

ECPA to those local calls for which a provider imposes a per call “toll.” We 

presume that Congress understood the well-established distinction between “local” 

and “long distance toll” calls and knew that “local” service was frequently defined 

by the absence of a per call charge. See Standard Oil Co. v. United States, 221 

U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time 

a well-known meaning at common law or in the law of this country they are 

presumed to have been used in that sense.”) (emphasis added); Felix Frankfurter, 

Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947) 

(“[I]f a word is obviously transplanted from another legal source, whether the 

common law or other legislation, it brings the old soil with it.”). Therefore, the 

reference to “billing records” for “local” service in section 2709(b)(1), as a type of 

“toll billing records information” that section 2709(a) requires a provider to turn 

over, is best read to cover records that could be used for per call billing, not only 

those that actually are used for that purpose. 

When Congress enacted the 1996 amendments, it was well known that providers of telephone service might keep records of local calls from or attributable to 

particular numbers, even if they did not assess per call charges. Providers had long 

used pen registers, for example, to record all telephone numbers dialed from 

particular telephones, whether the calls were local or long distance. See, e.g., 

Smith v. Maryland, 442 U.S. 735, 749 (1979) (Marshall, J., dissenting) (emphasizing that the Court’s conclusion hinges on the fact “that pen registers are regularly 

used for recording local calls”); Hodge v. Mountain States Tel. & Tel. Co., 555 

F.2d 254, 266 (9th Cir. 1977) (Hufstedler, J., concurring) (emphasizing that pen 

registers collect records of local calls); In the Matter of Grand Jury Subpoenas to 

Southwestern Bell Mobile Systems, Inc., 894 F. Supp. 355, 358 (W.D. Mo. 1995) 

(“Southwestern Bell”) (holding the term “toll billing records” means “‘billing 

records and telephone toll records (including the record of long distance numbers 

6 Congress acknowledged that telephone companies might choose not to impose per call charges for 

some “toll telephone service.” For example, ETRA defined “toll telephone service” as, among other 

things, “a [non-local] service which entitles the subscriber, upon payment of a periodic charge 

(determined as a flat amount or upon the basis of total elapsed transmission time), to the privilege of an 

unlimited number of telephonic communications.” 79 Stat. at 146 (emphasis added). See also Reese 

Bros., 447 F.3d at 233–34 (noting that before 1984, AT&T offered a type of “long-distance service[]” 

known as “Wide Area Telephone Service,” the bills for which “were based on a flat rate for unlimited 

calls”). As explained below, ECPA’s use of the term “long distance toll billing records” encompasses 

records of long distance calls, even if a telephone company uses “flat rate” (as opposed to per call) 

billing for long distance service.

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and message unit detailing information)’”) (quoting H.R. Rep. No. 99-647, at 69 

(1986)); People v. Guerra, 478 N.E.2d 1319, 1321 (N.Y. 1985) (noting pen 

registers “provide a list of all numbers dialed, both local and long distance or toll 

calls,” and that such information is included in phone companies’ billing records).7

The reference to “toll billing records” covers this type of information. 

The single occurrence of the words “billing records” in section 2709 applies to 

both “local” and “long distance toll” services. Because in the case of local service 

the phrase “billing records” covers records that could be used for billing, we 

would accord it the same meaning when the phrase applies to long distance 

service. Consequently, even if a provider does not impose per call charges for long 

distance service, we believe that the provider’s records, if suitable for billing, are 

subject to disclosure under an NSL. 8

 

The interpretation that “billing records” extends to records usable for billing, 

even if not actually used for that purpose, is supported by the limited judicial 

authority on the point and by the legislative history of the 1996 amendments. 

Before 1996, 18 U.S.C. § 2703 authorized law enforcement officials to subpoena a 

7 See also United States v. N.Y. Tel. Co., 434 U.S. 159, 174–75 (1977) (noting that phone companies use pen registers “for the purposes of checking billing operations,” among other things); United 

States v. Clegg, 509 F.2d 605, 608 & n.2 (5th Cir. 1975) (describing the “TTS 176” device, which 

“monitors the line to which it is attached and produces a paper tape record of the time and date of all 

outgoing telephone calls, local and long distance, complete and incomplete,” and which phone 

companies use “to show both that its billing procedures were bypassed and that completed calls were 

made”); United States v. Fithian, 452 F.2d 505, 506 (9th Cir. 1971) (noting that a phone company’s 

“business records necessarily must contain” the “records of calls from [a subscriber’s] residence”); cf. 

Reporters Comm. for Freedom of Press v. AT&T Co., 593 F.2d 1030, 1046 n.49 (D.C. Cir. 1978) 

(noting that “a telephone subscriber has no Fourth Amendment interest in local call records obtained by 

means of a pen register installed without his knowledge”). 8 The use of per call charges may be less prevalent today than in 1996, when Congress amended 

ECPA. Cellular phone customers typically do not incur per call charges for either local or long distance 

service, and cellular phone use has multiplied since 1996. See Statistical Abstract of the United States 

at 720 (U.S. Census Bureau, 2007) (noting that there were fewer than 34 million cellular phone 

subscribers in the United States in 1995, whereas there were almost 208 million in 2005 (the most 

recent year for which statistics are available)). Partly in response to the pricing strategies employed by 

cellular phone companies, other telecommunications providers have shifted to “flat rate billing.” See, 

e.g., Kathleen Q. Abernathy, Preserving Universal Service in the Age of IP, 3 J. Telecomm. & High 

Tech. L. 409, 412 (2005) (describing “the increasing prevalence of bundled service plans” as an 

“important trend” in the telecommunications industry). As then-FCC Commissioner Abernathy 

explained, “For years, wireless carriers have offered buckets of any-distance minutes at flat rates, and 

now wireline carriers are offering packages that include local and long distance for a single price. In 

addition, many carriers offer business customers bundles that include local and long distance voice 

services, Internet access, and customer premises equipment.” Id. (footnote omitted). The provision of 

telephone service over Internet connections—as opposed to traditional wireline or wireless technologies—has further contributed to the decline in per call billing. See id.; see also Steven C. Judge, VoIP: 

A Proposal for a Regulatory Scheme, 12 Syracuse Sci. & Tech. L. Rep. 77 (2005) (“[I]nstead of paying 

a per minute charge for long distance calls, many [voice over internet protocol, or “VoIP”] providers 

provide a flat rate that includes both local- and long-distance calling.”). However providers may charge 

for such services, we conclude that ECPA covers any call record in a provider’s custody or possession 

that is suitable for billing. 

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subscriber’s “telephone toll billing records” during the course of an official 

investigation. Similarly, 18 U.S.C. § 2709 enabled the Director of the FBI to use 

an NSL to obtain a subscriber’s “toll billing records” during the course of an 

authorized foreign counterintelligence investigation. The United States District 

Court for the Western District of Missouri held that the term “telephone toll billing 

records,” under section 2703, included 

any record (except a record pertaining to the content of a conversation) maintained by an electronic communication service provider 

identifying the telephone numbers called from a particular telephone 

number or attributed to a particular account for which a communication service provider might charge a service fee. ‘Telephone toll billing records’ covers all records maintained of individual calls made 

from a particular telephone number or attributed to it that are or 

could be the subject of a particularized charge depending on the billing plan offered by the provider and accepted by the customer. In 

other words, a telephone toll billing record is broad enough to cover 

all records of calls from or attributed to a particular number, regardless of whether, in fact, a separate charge is assessed for each 

call. 

Southwestern Bell, 894 F. Supp. at 359 (emphasis added). The court relied upon 

ECPA’s legislative history, which indicates that “‘toll billing records consist of 

information maintained by a wire or electronic communication service provider 

identifying the telephone numbers called from a particular phone or attributable to 

a particular account for which a communication service provider might charge a 

service fee.’” Id. at 358 (quoting 1993 U.S.C.C.A.N. at 1915). Accordingly, the 

court held that, even when a cellular phone subscriber had a monthly plan under 

which he did not pay a “toll” for any particular call, the record of every call he 

made, local or long distance, fell within the meaning of “telephone toll billing 

records” under section 2703. 

In 1996, Congress amended section 2703, as well as section 2709, to ratify the 

decision in Southwestern Bell. See Intelligence Authorization Act for Fiscal Year 

1997, Pub. L. No. 104-293, § 601, 110 Stat. 3461, 3469 (1996). The 1996 

amendments inserted the words “local and long distance” before the words “toll 

billing records” in both section 2703 and section 2709. Id. The Senate Report 

explained that the amendments “make clear . . . that the phrase [‘toll billing 

records’] applies to both local and long distance telephone toll billing records” in 

accordance with the decision in Southwestern Bell. S. Rep. No. 104-258, at 22 

(1996), reprinted in 1996 U.S.C.C.A.N. 3945, 3967. The committee quoted the 

court’s holding that a provider must disclose “‘records that contain information 

which was used or could be used to charge for telephone calls or services.’” Id. 

(emphasis added). 

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We therefore conclude that the term “local and long distance toll billing records” extends to records of individual calls identifying the telephone numbers 

called from a particular telephone number or attributed to a particular account, 

whether or not the provider charges individually for each such call. 9

 

B. 

Telecommunications providers generally maintain call data in one of two 

forms: call records linked to particular accounts (such as records of a given 

customer’s calls and associated charges), and aggregate records (such as records of 

all calls routed through a particular call center on a particular day). See, e.g., 

Ameritech Corp. v. McCann, 403 F.3d 908, 910 (7th Cir. 2005). The aggregate 

records are generally stored on “searchable media” that a carrier could cull to 

extract records of calls to or from a particular number. See id. The records culled 

in this way could be used to bill for the service to a particular number, although 

they are not typically used for this purpose. 

Because section 2709 covers records of calls for which a carrier could impose 

charges—even if the carrier does not actually do so—it does not matter whether 

the provider maintains those records in the form of billing statements that reflect 

actual per call charges on customers’ accounts. Under 18 U.S.C. § 2709(b)(1), an 

NSL may request “the name, address, length of service, and local and long 

distance toll billing records of a person or entity,” and the records of a subscriber’s 

calls are “records of [that] person or entity,” even if the calls of a particular 

subscriber are dispersed among the aggregate records of all calls going through a 

call center. Responding to the NSL, a provider must turn over any “local and long 

distance toll billing records” in its “custody or possession.” 18 U.S.C. § 2709(a). 

Even if a provider maintains its call data in aggregate form, the billing records are 

in the provider’s “custody or possession” and fall within section 2709. To comply 

with the NSL, therefore, the provider would have to extract the subscriber data 

from the aggregate records. 

This conclusion is consistent with the Seventh Circuit’s decision in McCann, 

which interpreted 18 U.S.C. § 2706 (2000). Under section 2706, governmental 

entities, state or federal, must compensate providers for complying with certain 

requests or demands for information other than NSLs, except when a request seeks 

“records or other information maintained by a communications common carrier 

9 Whether the statute should be read to cover “local . . . billing records” or “local . . . toll billing 

records” would not affect our analysis. See S. Rep. No. 104-258, at 22, reprinted in 1996 U.S.C.C.A.N. 

3945, 3967 (“This amendment is a clarification of the meaning of the phrase ‘telephone toll billing 

records’ as used in [sections] 2703 and 2709.”). In either case, the phrase is a more detailed formulation 

of “toll billing records” in section 2709(a). A provider can disclose information if it is a “toll” record of 

an incoming or outgoing call, as explained above. If the information is not such a “toll” record, the 

provider can disclose it only if it is “subscriber information”—the “name, address, and length of 

service” of the subscriber. See 18 U.S.C. § 2709(a), (b)(1).

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that relate to telephone toll records” and that request does not present an undue 

burden. In McCann, the court held that certain aggregate call data did not constitute such “records or other information” within the exception, because the provider 

did not “maintain” the data as sought there. 403 F.3d at 912 (characterizing the 

process of culling data as the “creat[ion]” of reports). The Department has 

questioned whether McCann was correctly decided. See U.S. Dep’t of Justice Ad 

Hoc Technology Working Group, 18 U.S.C. § 2706 (ECPA) Cost Reimbursement 

Guidance at 5 (May 25, 2005) (arguing that “there is a reasonably strong argument 

that Ameritech Corp. v. McCann’s interpretation of section 2706 is flawed”). Even 

if correct, McCann’s interpretation of section 2706 would not reach NSLs, which 

are issued under section 2709. The Seventh Circuit’s decision turned exclusively 

on the meaning of “maintain” in section 2706(c)—a term that does not appear in 

section 2709, compare id. § 2709(a) (referring to “records in [a carrier’s] custody 

or possession”)—and the court did not address the meaning of “telephone toll 

records,” let alone the meaning of “local and long distance toll billing records.” 

As the FBI Memorandum notes, some providers have argued that culling records of individual calls from aggregate call data amounts to the “creation” of a 

new record, in contravention of Southwestern Bell, as well as the House report 

upon which that decision relied. See FBI Memorandum at 9. The Southwestern 

Bell court emphasized, however, that a carrier may be asked to turn over all call 

records in the carrier’s custody, even if a particular customer does not choose a per 

call billing plan. 894 F. Supp. at 359. To be sure, the FBI may not be able to force 

a communications provider to alter its business practices and, for example, create 

and maintain records of per call usage. See id. at 358–59 (quoting and relying 

upon H. Rep. No. 103-46, 1993 U.S.C.C.A.N. 1913, 1915, which provides that 

“the authority to obtain subscriber information and toll billing records under 

§ 2709 does not require communication service providers to create records which 

they do not maintain in the ordinary course of business”). But to the extent that a 

communications provider, in the ordinary course of business, collects information 

regarding the calls made to or from a particular account and could use that 

information for billing a customer, such information—however it is stored—falls 

within section 2709.

At the same time, the FBI may not use section 2709 to demand that a telecommunications provider cull data if the search would be unduly costly or burdensome. An NSL is, in effect, an administrative subpoena: it is an agency order 

requiring the production of specified information, issued as part of an investigation. We would read section 2709 in light of the principle that, as the Supreme 

Court has held, the Fourth Amendment “in no way leaves a [firm] defenseless 

against an unreasonably burdensome administrative subpoena requiring the 

production of documents.” Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984). 

An administrative subpoena must be “‘sufficiently limited in scope, relevant in 

purpose, and specific in directive so that compliance will not be unreasonably 

burdensome.’” Id. (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)). In 

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other contexts, ECPA deals with a possible undue burden by requiring the 

government to compensate the provider for the costs of the search. See 18 U.S.C. 

§ 2706. Particularly because ECPA allows no such payment for complying with an 

NSL, we would construe section 2709 as not enabling the FBI to force a provider 

to cull data when it would be unduly costly or burdensome for the provider to do 

so. A provider would not have to comply with an unduly burdensome NSL. 

Therefore, any call record that a communications provider keeps in the regular 

course of business and could use for billing a subscriber falls within the scope of 

section 2709. As in the case of administrative subpoenas, however, an NSL may 

not be unreasonably burdensome. 10 

III. 

Finally, you have asked whether a provider, in answer to an oral request before 

service of an NSL, may tell the FBI whether a particular account exists. This 

information would be confined to whether a provider serves a particular subscriber 

or a particular phone number. We believe that ECPA ordinarily bars providers 

from complying with such requests. 

Section 2702(a)(3) states that “a provider of . . . electronic communication 

service to the public shall not knowingly divulge a record or other information 

pertaining to a subscriber to or customer of such service . . . to any governmental 

entity.” 18 U.S.C. § 2702(a)(3). That a subscriber receives services from a 

particular provider is “information pertaining to” the subscriber. Indeed, section

2709 lists the subscriber’s name among the types of “subscriber information” that 

an NSL can request. Therefore, when the FBI identifies a subscriber by name, 

section 2702(a)(3) forbids a provider from divulging the existence of that person’s 

or entity’s subscription with the provider. 

Although the question is far closer, we do not believe that this conclusion 

changes if the FBI identifies a phone number, rather than a customer’s name, 

where the FBI is asking whether the number has been given to a subscriber. The 

phrase “record or other information pertaining to a subscriber” is broad. The 

ordinary meaning of “pertaining,” in this phrase, would reach information that 

“relate[s] to” or “concern[s]” the subscriber, Black’s Law Dictionary 1165 (7th ed. 

1999), or has “some connection with or relation to” him, Webster’s Third New 

International Dictionary 1688 (1993). The fact of a provider’s service to a given 

number constitutes “information pertaining to a subscriber,” because it indicates 

that the provider serves “a subscriber” (or, in some cases, each of several subscribers) with that phone number. The information is associated with a particular 

subscriber, even if that subscriber’s name is unknown. 

10 We express no view on what would constitute an unreasonably burdensome request. 

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We do not believe that, for this analysis, it matters whether the information 

sought by the FBI has already been made public, unless the subscriber has given a 

consent broad enough to cover a response to the FBI’s request. An example of 

such consent would be the subscriber’s having a listed number. See 18 U.S.C. 

§ 2702(c)(2). Without such consent, section 2702(a)(3), by its terms, bars a 

provider from supplying otherwise protected information, even if it has become 

public. Nor would it matter whether such information falls outside the category of 

“customer proprietary network information” under the Communications Act, so 

that its disclosure would not be unlawful under that statute. See 47 U.S.C. § 222(h) 

(2000). ECPA may forbid disclosure of particular information, even if the 

Communications Act does not.11 

Nevertheless, if the FBI asks only whether a number is among those assigned, 

or belonging, to the provider and not whether the provider has given it to a 

subscriber, we do not believe that the inquiry seeks “information pertaining to a 

subscriber.” A provider’s confirmation that a number is assigned, or belongs, to it 

would not reveal whether the number is being used by a subscriber. 

DANIEL L. KOFFSKY 

Deputy Assistant Attorney General

Office of Legal Counsel

11 A provider that does not serve a given individual or phone number would not appear to be 

revealing “information pertaining to a subscriber” by answering the FBI’s request in the negative. 

Nevertheless, once a provider has given this negative answer in one instance, a response of “no 

comment” in a later instance could have the effect of disclosing “information pertaining to a 

subscriber.” By entertaining the question at all, the provider would risk disclosing protected information.

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