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In re United States

United States District Court, D. Columbia

October 31, 2013

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF HISTORICAL CELL SITE INFORMATION FOR TELEPHONE NUMBER [REDACTED]

FERDELL HARVEY, Petitioner, Pro se, Washington, DC.

Page 68

MEMORANDUM OPINION AND ORDER

JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court are three written and sworn applications pursuant to 18 U.S.C. § 2703(d)[1] that seek historical cell site location information (" CSLI" ), each for a different telephone number and directed to a different cellphone company. Two of the applications seek 120 days of CSLI, while the third application seeks seven days of CSLI. For the reasons explained below, each application is denied without prejudice due to both internal inconsistencies and a failure to show that the requested

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CSLI is " relevant and material" to the investigations.[2]

I. Background

The government first submitted an application in 1:13-mc-199 on March 5, 2013, seeking 120 days of CSLI related to an investigation of a series of crimes that occurred in December of 2012 and January of 2013. This Court denied that application without prejudice because it was " based on some obviously outdated boilerplate language" and " ignore[d] the decision in United States v. Maynard, 615 F.3d 544, 392 U.S.App.D.C. 291 (D.C. Cir. 2010), aff'd on other grounds, sub nom United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)." Minute Order, 1:13-mc-199 (March 11, 2013). The Minute Order also specified that, if the government renewed its application, it should submit a " detailed memorandum of law explaining why an application for historic cell site date [sic] based on a showing of less than probable cause can be granted in light of the Circuit's decision in Maynard." Id.

On September 17, 2013, the government simultaneously filed three applications: a Renewed Application for Disclosure of Historical Cell Site Information Pursuant to Title 18 U.S.C. Section 2703(d) in 1:13-mc-199 (" 13-199 Application" ), directed to AT& T; an Application for Disclosure of Historical Cell Site Information Pursuant to Title 18 U.S.C. § 2703(d) in 1:13-mc-1005 (" 13-1005 Application" ), directed to T-Mobile; and an Application for Disclosure of Historical Cell Site Information Pursuant to Title 18 U.S.C. § 2703(d) in 1:13-mc-1006 (" 13-1006 Application" ), directed to Sprint.[3] All three were signed by David Kent, an Assistant United States Attorney for the District of Columbia.

It is evident from the filings that the 13-199 Application and the 13-1005 Application are related to the same investigation and that each seeks 120 days of CSLI. The 13-1006 Application is for a separate investigation and seeks seven days of CSLI.[4]

II. Internal Inconsistencies

The Applications must be denied because the government inconsistently describes the scope of the CSLI it seeks.

A. What the Government Purports to Seek

With the exception of additional legal briefing in the 13-199 Application, each contains much identical, boilerplate language. In describing the scope of what is sought by the government, the Applications assert:

The government only seeks information for cell-site data at the time of calls. The government does not seek data of the phone's whereabouts at all times. Cell-site data related to calls is routinely

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retained by AT& T as part of call history information for a period of two years. Further, government's counsel has been informed that call-time cell-site data is the only data retained by the provider in this case. In other words, this Order is not intended to reach all cell-site data for the phone, but only cell-site data for the time of actual calls placed or received by phone.

13-199 Application at 24-25; 13-1005 Application at 4-5; 13-1006 Application at 7-8.[5] Thus, the government's representation to the Court is that it seeks only CSLI that is less than two years old and that is collected only when a call is made or ...


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