United States District Court, District of Columbia
IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. § 2703D
A. HOWELL CHIEF JUDGE
October 2017, the government sought an order, pursuant to 18
U.S.C. § 2703(d) of the Stored Communications Act
("SCA"), 18 U.S.C. §§2701 et
seq., to compel Royal Caribbean Cruises, Ltd.
("RCCL") "an internet service provider based
in Miami, Florida, to disclose subscriber and transactional
records in relation to" money transfers executed via the
internet at specific times on three consecutive days using a
specific Internet Protocol ("IP") address. Amended
Application of the U.S. for Order Pursuant to 18 U.S.C.
§ 2703(d) ("Amend. App.") at 1, 7, ECF No. 1.
A Magistrate Judge denied the application on the ground that
the government had failed to show that RCCL is either a
"provider of electronic communication service"
("ECS") or a "provider of remote computing
service" ("RCS") subject to a disclosure order
under § 2703(d). See Mag. J.'s Order
Denying Amend. App. ("Mag. J. Order") at 2-3, ECF
No. 2. Pending before the Court is the government's
objection to the Magistrate Judge's denial. See
Gov't's Obj. Mag. J. Order ("Gov't's
Obj."), ECF No. 3. Following a hearing and supplemental
submissions from RCCL and the government, the Court
concludes, as RCCL concedes, that for purposes of the
government's application, objection, and proposed §
2703(d) order, RCCL is an ECS provider under the SCA. Thus,
the government's objection is sustained, the Magistrate
Judge's order is reversed, and the application is
procedural history of this matter is summarized briefly
below, followed by a description of RCCL's electronic
communication service as relevant to the application at
25, 2017, the government filed an application, in
Miscellaneous No. 17-1756, for a § 2703(d) order to
compel RCCL to disclose subscriber and transactional records
related to money transfers made, using a particular IP
address ("Target IP Address"), XXXXX. See Amend. App. at 2-3,
Magistrate Judge stayed the government's application on
July 31, 2017, pending supplementation of the application
with additional information, including, as relevant here, any
authority supporting the government's assertion that RCCL
is a provider of ECS or RCS within § 2703's meaning.
Id. at 3. The government withdrew the application on
August 22, 2017, and, nearly two months later, filed an
amended application in the captioned Miscellaneous docket
that addressed the Magistrate Judge's inquiry.
Id. Over a month later, on November 29, 2017, the
Magistrate Judge denied the amended application on the ground
that the government's argument, if accepted, would
subject to § 2703(d) "every entity which now offers
free WiFi, " a conclusion the Magistrate Judge could not
square "with the intent of Congress in enacting the
[SCA]." Mag. J. Order at 2-3.
government promptly objected. See Gov't's
Obj. Following a hearing held the next day, the government
submitted additional information in response to this
Court's inquiries, including that "RCCL is not
prepared to take, and does not take, a position on the legal
issue- whether they constitute an 'electronic
communications service' or 'remote computing
service' for purposes of this request"-but that
"[i]f requested by the Court, RCCL will research and
brief whether or not it has a position on the issue."
Gov't's Notice of Filing In Resp. to Court's
Order, at 2, ECF No. 4. Following a second hearing, RCCL was
afforded the opportunity to address "(1) the
configuration of its on-board internet systems and (2)
whether RCCL is a provider of 'electronic communications
services' or 'remote computing services' for
purposes of the government's Objection." Minute
Order, dated Jan. 12, 2018. RCCL made its submission on March
1, 2018. RCCL's Resp., ECF No. 10.
Background Concerning Royal Caribbean
an American cruise company based in Miami, Florida, Amend.
App. at 1, controls several Liberia-based entities that own
cruise ships operating under the Royal Caribbean
International, Celebrity Cruises, and Azamara Club Cruises
brands, Decl. of Terry Griffith, Director, Incident Mgmt.,
RCCL ("RCCL Decl.") ¶ 3, ECF No. 11. To
connect cruise ships to the internet, RCCL contracts with an
Internet Service Provider ("ISP"), which owns and
operates an antenna on each cruise ship "used for
satellite connectivity to and from the ISP's shoreside
network-the infrastructure owned and managed by the ISP that
allows the ISP's customers to access the Internet."
Id. ¶ 4. To enable the flow of internet
communications between cruise ships and the internet, the ISP
assigns each cruise ship's antenna a temporarily
exclusive IP address from among the public IP addresses that
have been allocated to that ISP by the appropriate regional
internet registry. Id. ¶ 5. All communications
between the cruise ship and the internet transmitted through
the antenna use that public IP address. Id.
RCCL cruise ship also has an internal communication network
("Ship Network") to which onboard devices, such as
personal mobile devices and laptops, may connect and through
which such devices may access the internet through the
ISP's antenna. Id. ¶ 6. Each Ship Network
is typically subdivided into four Internal Networks that can
be used to connect to the internet and a fifth Internal
Network that generally does not connect to the internet.
Id. The four internet-connected Internal Networks
typically are (1) an encrypted network for RCCL
employees' business use, (2) an encrypted network for
vendors, known as "VendorNet, " (3) an unencrypted
network for guests and for crew members' personal use,
and (4) an encrypted Unlicensed Mobile Access network for
cellular telephone communications over the internet.
Id. RCCL passengers, vendors, and crew members can
connect wireless-enabled devices they have brought onboard
with them to the applicable internal network. Id.
RCCL typically contracts with a company that provides
hardware and software to enable passengers to connect to the
internet using Wi-Fi access points that are part of the Ship
Network. Id. ¶ 7.
wireless-enabled device connects to one of the four
internet-connected Internal Networks, a Dynamic Host
Configuration Protocol ("DHCP") server for that
network automatically assigns that device a non-routable
"private" IP address, which is unknown outside the
Ship Network. Id. ¶ 8. RCCL has contracted with
a company called Xcontrol to provide and operate the DHCP
server that automatically assigns private IP addresses on the
Internal Network that passengers and crew use for personal
use on RCCL ships operating under the Celebrity Cruises
brand. Id. Each private IP address transmits
communications only between a user's device and the Ship
Network, not directly between the user's device and the
internet. Id. Only the Ship Network-using the public
IP address associated with the antenna-transmits
communications through the antenna to the internet.
Id. During all relevant periods, the Target IP
Address was the public IP address assigned to the antenna
installed on board the RCCL ship at issue. Id.
¶ 11. That IP address was assigned to the ship's
antenna by an ISP called Harris CapRock Communications
("HCCL"), with which RCCL had contracted to provide
internet satellite connectivity to the ship.
Id.HCCL used the Target IP Address for
internet connectivity between the ship and HCCL's
shoreside network in the United Kingdom. Id.
connecting to RCCL's passenger-accessible Internal
Network, RCCL's passengers can "stream music and
movies, upload pictures, video chat with family and friends
using FaceTime or Skype, check [their] email, look [at] stock
prices, surf the web and stay connected with work."
How Fast Is Royal Caribbean's VOOM Wi-Fi Internet
Connection On Board?, Royal Caribbean Int'l,
(last visited Mar. 7, 2018). RCCL provides passengers with
two options to access the internet. See What Internet
Options Are Available On Board Royal Caribbean Cruise
Ships?, Royal Caribbean Int'l,
(last visited Mar. 7, 2018). Passengers may access RCCL's
wireless internet service with a WiFi-capable device or visit
one of several internet cafes located throughout the ship.
Id. To access the internet wirelessly, a passenger
must (1) "[c]onnect to 'royal-wifi' on [a]
device" and (2) "[o]pen [an] internet browser and
register for the package of [one's] choice."
Is WiFi Available For All My Devices On A Royal
Caribbean Cruise Ship?, ROYAL CARIBBEAN INT'L,
(last visited Mar. 7, 2018). RCCL charges passengers to
access the internet, either wirelessly or through an internet
cafe, with prices varying by number of devices used and
internet service package purchased. Id.; see also What Is
VOOMAn[d] How Much Does It Cost?, ROYAL Caribbean
policy (last visited Mar. 7, 2018); Afterwards,
Royal Caribbean Int'l,
me=top10faqs&snav=2&faqld=310 (last visited Mar. 7,
2018). Indeed, RCCL advises passengers to
purchase internet access "precruise to enjoy the biggest
discount from onboard prices." How Can I Purchase
VOOMInternet Before My Cruise?, Royal Caribbean
(last visited Mar. 7, 2018). Prior to gaining wireless
internet access, passengers are required to agree to a
detailed set of terms and conditions. See RCCL's
Resp., Ex. A., RCCL Wi-Fi Access Terms and Conditions, ECF
No. 10-3; RCCL Decl. ¶ 9.
STANDARD OF REVIEW
28 U.S.C. § 636(b)(3), "[a] magistrate judge may be
assigned such additional duties as are not inconsistent with
the Constitution and laws of the United States." As this
matter was not "designate[d]" to a magistrate judge
by a district court judge within the meaning of §
636(b)(1)(A) or (B), the order denying the government's
application is an exercise of the Magistrate Judge's
"additional duties, " pursuant to § 636(b)(3),
in conjunction with this Court's Local Criminal Rule
57.17(a), under which magistrate judges are granted the
"duty" and the "power" to "[i]ssue
search warrants, " as well as to "[i]ssue subpoenas
... or other orders necessary to obtain the presence of
parties or witnesses or evidence needed for court
proceedings." LCrR 57.17(a)(3), (10).
to Local Criminal Rule 59.3, a "magistrate judge's
warrant or order for which review is requested" "in
a criminal matter not assigned to a district judge, as
authorized by LCrR 57.17(a) and 28 U.S.C. § 636(b)(3). .
. may be accepted, modified, set aside, or recommitted to the
magistrate judge with instructions, after de novo review by
the Chief Judge." LCrR 59.3(a) & (b); see also
In re Search of Information Associated with
[email@example.comThat Is Stored at Premises
Controlled by Google, Inc. ("Google"), No.
16-mj-757, 2017 WL 3445634, at *5 (D.D.C. July 31, 2017)
(noting that "because this case arises out of the
Magistrate Judge's 'additional duties'
jurisdiction pursuant to § 636(b)(3), the Magistrate
Judge's order is subject to de novo review by
the district court."); In re U.S. for an Order
Pursuant to 18 U.S.C. § 2705(b)
("Airbnb"), No. 17-mc-2490, 2018 WL 692923, at
*3 (D.D.C. Jan. 30, 2018) ("Magistrate ...