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In re Application of United States

United States District Court, District of Columbia

March 8, 2018




         In 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 granted.

         I. BACKGROUND

         The 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 issue.

         A. Procedural History

         On July 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, 7.[1] A 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.[2]

         The 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.

         B. Background Concerning Royal Caribbean

         RCCL, 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.

         Each 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.

         When a 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.[3]HCCL used the Target IP Address for internet connectivity between the ship and HCCL's shoreside network in the United Kingdom. Id.

         By 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 Int'l, policy (last visited Mar. 7, 2018); Afterwards, Royal Caribbean Int'l, me=top10faqs&snav=2&faqld=310 (last visited Mar. 7, 2018).[4] 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 Int'l, (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.


         Under 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).

         Pursuant 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 [redactedj@gmail.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 ...

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