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In re Application of United States

United States District Court, D. Columbia.

April 11, 2014

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]

For UNITED STATES OF AMERICA, Interested Party: Steven B. Wasserman, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Violent Crime & Narcotics Trafficking Section, Washington, DC.

Page 90

MEMORANDUM OPINION AND ORDER

JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is a Renewed Application pursuant to 18 U.S.C. § 2703(d) that seeks historic cell site location information (" CSLI" ). See Renewed Application for Disclosure of Historical Cell Site Information Pursuant to Title 18 U.S.C. Section 2703(d) [#2] (under seal). After careful consideration and a review of the relevant case law, this Court is convinced that the request for CSLI raises serious statutory and constitutional questions. As a result, this Court can only determine whether this application should be granted in its current form--and without a showing of probable cause--if it takes evidence on the underlying technology and receives briefing from both the government and court-appointed amicus curiae. For the reasons stated below, the Court has requested that the Electronic Frontier Foundation (" EFF" ) serve as amicus curiae and that it and the government provide the Court with evidence and substantive briefing on this matter.

I. Background

This Court rejected the government's original application for the reasons stated in 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], 1:13-MC-199, 1:13-MC-1005, 1:13-MC-1006, 20 F.Supp.3d 67, 2013 WL 7856601, at *5-6 (D.D.C. Oct. 31, 2013) (Facciola, M.J.). See Order [#3].[1] The Renewed Application seeks CSLI for a period of twenty-five days,[2] and the underlying investigation involves an investigation of one specific robbery that occurred at a specific--and known--date and time. See [#2]. It is directed to AT& T. Id.

The government's proposed order requests, with respect to CSLI, that AT& T disclose " [c]ell site activation, including side and/or sector information for incoming, outgoing, and 'direct connect,' calls." [#2] at 9. It also asks for " [a] listing of all control channels and their corresponding cell-sites and sides if available" and

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" [a]n engineering map, showing all cell-site tower locations, sectors, and orientations." Id. at 10.

In the Court's view, these are all of the necessary facts that inform the relevant statutory and constitutional issues described below. Thus, the Renewed Application will remain under seal during the pendency of this matter to protect the integrity of the underlying investigation.

II. The Legal Issues Require That the Court Take Evidence

This Court has reviewed approximately eighty-seven opinions that are publicly available on Westlaw and that substantively address the legal issues surrounding CSLI. As commentators have pointed out, these decisions are impossible to reconcile. See, e.g., Stephanie Pell and Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 142 (2012). There are two main arguments raised in these opinions that suggest that a § 2703(d) order cannot compel the production of CSLI and that a search and seizure warrant is instead required. Each raises serious factual questions about how the underlying technology actually functions.

First, there is a statutory argument that the tracking device exception in 18 U.S.C. § 2510(12), which incorporates the definition of a tracking device from 18 U.S.C. § 3117(b), means that CSLI is not a " record" held by an electronic communication service and thus outside the scope of a § 2703(d) order. This is the holding by, among others, Judge Colleen McMahon [3] and Magistrate Judge Lisa Lenihan [4] (and her colleagues) that is rejected by, among others, Judge Lewis Kaplan [5] and the Third Circuit, which reversed Judge Lenihan.[6] In the Third Circuit's view, CSLI is " derived from a 'wire communication' and does not itself comprise a separate 'electronic communication,'" thus making the § 3117(b) tracking device exception inapplicable. Third Circuit Opinion, 620 F.3d at 310. Then-Chief Judge Royce Lamberth reached a similar conclusion,[7] although he noted that " this logic would not apply to text messages, which do not involve any 'aural transfer.'" Judge Lamberth Opinion, *13, n.4.

This split raises fundamental factual questions, such as whether--with current cellular telephone technology--the signal that creates ...


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