The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
The government once again seeks an order that would require a cell phone company to provide it with "the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls) and, if reasonably available, during the progress of a call, on a real time basis." Proposed Order at ¶ 2.*fn1 It claims entitlement to the order on the ground that there is "reasonable cause to believe that the requested prospective cell site information is relevant and material to a criminal investigation." Application at 10-11.
There are three standards that might pertain to the government's application: (1) the government may secure a pen register upon the certification that the information sought to be captured by the device is relevant to a criminal investigation (18 U.S. C. § 3122(a)(2)*fn2 ); (2) the government may secure the "contents of wire or electronic communications in a remote computing device" (18 U.S.C. § 2703(b)) or "records concerning electronic communication or remote computing service" (18 U.S.C. § 2703(c)) by (inter alia) securing a court order upon a showing of specific and articulable facts that the information sought is relevant to and material to an ongoing criminal investigation (18 U.S.C. § 2703(d)); and (3) the government may secure a warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure upon a showing, consistent with the requirements of the Fourth Amendment, that there is probable cause to believe that what is to be seized is (inter alia) evidence of a crime.
As I indicated in my prior opinion, the government's approach melds several of these standards. It states that, while it persists in its view that the government may secure cell site information pursuant to a combination of the Pen Register statute, 18 U.S.C. § 3123, and the Stored Communications Act, 18 U.S.C. § 2703(c), "out of an abundance of caution, pursuant to the Texas Op. and the New York Op. sets forth facts demonstrating probable cause to believe that the requested prospective cell site information is relevant and material to an ongoing criminal investigation." Application at 9-10. In addition, in what the government calls "a further act of caution" (id. at 11), it submits an affidavit prepared by the investigation agent. In that affidavit the agent specifies the information that led him to believe that a person, who we can call "John Doe," is distributing drugs, that he traveled to a certain state to meet with his supply source, and that he used the cell phones at issue to conduct his drug business. The agent therefore concludes that his learning of what he calls "cellular site locations" will provide "evidence of the traveling to the source of supply, locations of stash sites, and distribution of illegal narcotics." Affidavit of Investigating Agent at ¶ 16.
The government's approach puts us back to where we started. The order the government asks me to sign contains my finding that the certification by the Assistant that the information sought to be obtained by the pen register and the affidavit of the agent "support probable cause to believe that the information sought is relevant" to that investigation and is evidence of "ongoing criminal activity." If one accepts, as I do, that, as three magistrate judges have held,*fn3 the information the government seeks can only be secured by a warrant issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure, the standard that pertains to the issuance is, as the Fourth Amendment requires, probable cause to believe that the information sought is itself evidence of a crime, not that the information is relevant to an investigation.
The government counters that surveillance of its subject can be expected to produce admissible evidence because the government's knowledge of where he is every moment of the day can be used, as it has been used in reported cases, as evidence that, for example, might rebut an alibi or deny the defendant the ability to say that he was or was not at a certain place. That is certainly true. But, that the information sought might be evidence does not modify the standard guiding whether it can be secured by the means chosen. The government's invocation of an ersatz standard ("probable cause to show relevance to an ongoing investigation") and meeting it cannot overcome my objection to the order it proposes.
The government acknowledges that two opinions*fn4 of magistrate judges "have suggested that the government must demonstrate probable cause [to believe that that the information sought is evidence of a crime] to obtain disclosure of prospective cell site information." Application at 9. It also points to a more recent opinion*fn5 that suggests that the "reasonable cause standard is the correct one to be met in an application for prospective cell site information." Application at 9.
It must first be noted that the author of the opinion upon which the government relies said nothing about any "reasonable cause" standard. He granted the application upon the certification by the government pursuant to the Pen Register statute that the information was "relevant and material to an ongoing investigation." New York II, 2005 WL 3471754 at *3. Furthermore, the author of that opinion, Judge Gorenstein, could not have been more careful in distinguishing the situation before him from the situations in the three other cases. He indicated that the government was seeking "cell-site information concerning the physical location of the antenna towers associated with the beginning and termination of calls to and from a particular cellphone." Id. at *2. That information permitted the government to "obtain a list of each call made by the subject cell phone, along with a date, start time and end time." Id. Judge Gorenstein then explained the difference between the application made to him and the applications made in the three other cases, decided by magistrate judges:
The Court is aware of three cases that have considered the availability of cell site data: In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747 (S.D.Tex.2005)("Texas Decision") In the Matter of an Application of the United States for an Order (1) Authorizing the Use of a Pen Register and a Trap and Trace Device and (2) Authorizing Release of Subscriber Information and/or Cell Site Information, 396 F.Supp.2d 294 (E.D.N.Y.2005) ("EDNY Decision); and In re Application of the United States for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers (Sealed) and Production of Real Time Cell Site Information, 2005 WL 3160860 (D.Md. Nov.29, 2005) ("Maryland Decision"). These cases appear to involve requests for cell site information that go beyond both what has been sought in this case and what has actually been received by the Government pursuant to any cell site application in this District. First, the cell site information provided in this District is tied only to telephone calls actually made or received by the telephone user. Thus, no data is provided as to the location of the cell phone when no call is in progress. Second, at any given moment, data is provided only as to a single cell tower with which the cell phone is communicating. Thus, no data is provided that could be "triangulated" to permit the precise location of the cell phone user. Third, the data is not obtained by the Government directly but is instead transmitted from the provider digitally to a computer maintained by the Government. That is, the provider transmits to the Government the cell site data that is stored in the provider's system. The Government then uses a software program to translate that data into a usable spreadsheet. 2005 WL 3471754 at *2. Thus, the government misunderstands Judge Gorenstein's holding and then mistakenly claims that it applies to its application in this case even though its application is different from the one Judge Gorenstein approved.*fn6
The government also argues that, if the three opinions by magistrate judges denying similar applications are correct, there would be no mechanism by which to "get cell site data whatsoever, which directly contradicts the full intent of Congress expressed in the legislative history and the plain language of 47 U.S.C. § 1002." Application at 9.
The government's reliance on 47 U.S.C. § 1002 is curious because that provision prohibits the use of pen registers and trap and trace devices to disclose the location of the person using the phone. That provision requires telecommunication carriers to have the ability to provide "call setup information" to law enforcement agencies. Specifically, 47 U.S.C. § 1002 "requires telecommunications carriers to insure that their equipment is capable of providing a law enforcement agency with information to which it may be entitled under statutes relating to electronic surveillance." New York II, 2005 WL 3471754 at *4. The provision's legislative history indicates that then FBI Director Louis Freech spoke to what he thought was the illegitimate concern that legislation requiring telecommunications carriers to provide what the Director called "call setup information" would permit the tracking of persons. In the subdivision of his statement that he subtitled "Allegations of Tracking Persons," the Director stated:
Allegations of "Tracking" Persons
Law enforcement's requirements set forth in the proposed legislation include an ability to acquire "call setup information." This information relates to dialing type information -- information generated by a caller which identifies the origin, duration, and destination of a wire or electronic communication, the telephone number or similar communication address. Such information is critical to law enforcement and, ...