In re U.S. for Order Dir. a Prov. Of Elec. Commun.

• Decision Date: 19 February 2008
• Docket Number: Magistrate's No. 07-524M.
• Citation: 534 F.Supp.2d 585
• Parties: In the Matter of the Application of the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO THE GOVERNMENT.
• Court: U.S. District Court — Western District of Pennsylvania

Page 585

534 F.Supp.2d 585

In the Matter of the Application of the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO THE GOVERNMENT.

Magistrate's No. 07-524M.

United States District Court, W.D. Pennsylvania.

February 19, 2008.

Soo C. Song, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.

Before LISA PUPO LENIHAN, SUSAN PARADISE BAXTER, FRANCIS X. CAIAZZA, AMY REYNOLDS HAY and ROBERT C. MITCHELL, United States Magistrate Judges.

OPINION AND MEMORANDUM ORDER

LISA PUPO LENIHAN, United States Magistrate Judge.

I. SUMMATION OF OPINION

The Court writes to express its concerns regarding the Government's ex parte applications for cellular telephone ("cell phone") subscriber information from which it may identify an individual's past or present physical/geographic movements/locations not on a showing of probable cause to believe that the information will provide evidence in an investigation premised on a reasonable suspicion of criminal activity, as under the Fourth Amendment,¹ but rather on an articulable, reasonable belief that such information is "relevant to a ... criminal investigation" under the Stored Wire and Electronic Communications and Transactional Records Access statutes (the "Stored Communications Act" or "SCA") alone or in tandem with the Pen Registry Statute (the "PRS").² The Court also writes to set forth its reasons for concluding that, while it recognizes the important and sometimes critical crime prevention and law enforcement value of tracking suspected criminals,³ the Government's requests for Court Orders mandating a cell phone service provider's covert disclosure of individual subscribers' (and possibly others') physical location information must be accompanied by a showing of probable cause.⁴

The Court emphasizes that the issue is not whether the Government can obtain movement/location information, but only the standard it must meet to obtain a Court Order for such disclosure and the basis of authority. It emphasizes that the Fourth Amendment standard is not a difficult one, requiring only that the Government support its belief of criminal activity and the probable materiality of the information to be obtained.⁵ The Court notes that it is entrusted with the protection of the individual civil liberties, including rights of privacy and rights of free association, so paramount to the maintenance of our democracy. The Court also observes that the location information so broadly sought is extraordinarily personal and potentially sensitive;⁶ and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP's electronic transfer of such information, render these requests particularly vulnerable to abuse.⁷ Finally, the Court concludes, from its exhaustive review of the statutes and cases as to both the rapidly-developing law of electronic communications and the Fourth Amendment, together with its extensive review of the legislative history and scholarly commentary, that Congress and the Supreme Court still concur in the principle underying this Opinion: i.e., that law enforcement's investigative intrusions on our private lives, in the interests, of social order and safety, should not be unduly hindered, but must be balanced by appropriate degrees of accountability and judicial review,⁸ For these reasons, and notwithstanding the legitimate and significant benefits in law enforcement's ability to obtain information efficiently and effectively, this Court best serves and preserves the fundamental principles underpinning our Constitutional democracy by (1) a careful and thorough parsing of the legislation and (2) a cautious and informed balancing of the competing interests.

Thus, absent express statutory authorization for ex parte access to personal movement/location information and/or a precedential/binding interpretative ruling, this Court cannot accede to the Government's request. To the contrary, it must adhere to the canons of statutory construction and read the provisions of the various statutes implicated in a manner that (1) applies the plain language of the legislation and gives effect to each and every provision, (2) is most warranted by the legislative history and other indicia of Congressional intent, and (3) avoids a Constitutional invalidation of portions of the legislation.⁹

Accordingly, this Court holds that the SCA, either alone or in tandem with the PRS pursuant to the CALEA,¹⁰ does not authorize access to an individual's cell-phone-derived "location information", either past or prospective, on a simple showing of articulable relevance to an ongoing investigation (a "reasonable relevance" standard).

II. STATEMENT OF CASE AND STATUTORY PROVISION AT ISSUE

Currently pending is the application of an Assistant United States Attorney requesting "that an Order be issued directing that (1) certain records of [a cell phone service provider] be disclosed to the Government, (2) this matter be sealed, and (3) [the cell phone service provider] and its agents be ordered not to disclose the existence of this application, order, and any disclosures pursuant thereto".

The Government has applied, under the Stored Communications Act (the "SCA"), 18 U.S.C. § 2703, for an Order requiring a cellular service provider to disclose the "transactional records" — including "historical cellular tower data", "cellular tower site information", and "sectors" — maintained with respect to a cellular telephone ("cell phone") number in the name of one individual (the "Subscriber") on the basis of its asserted relevance to an ongoing criminal investigation of another individual (the "Criminal Suspect").¹¹ The Government attests that the Criminal Suspect is a drug trafficker, that it is experiencing difficulty in visually surveilling that person, and that fuller knowledge of the Criminal Suspect's whereabouts is important to its counter-trafficking operations.¹² Owing to continuing technological advances, the information requested would enable the Government to identify where the Subscriber and any other individuals making use of the Subscriber's cell phone, including the Criminal Suspect, have been at any/many given times in the past and where they are likely to be now and/or in the future.

The SCA prohibits an electronic communications provider, including a cellular service provider (a "CSP"), from disclosing various stored, i.e. historic, subscriber telephone account information to the Government, except on appropriate legal authority.¹³ The Government maintains that it may obtain historical cellular tower site location information (hereafter "CSLI") — and thus the location of the cell phone possessor(s) — under provisions of the SCA that authorize disclosure of "a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)" under legal standards that include a Court Order issued upon "specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation." §§ 2703(c)(1)(B) and (d).

This Court finds that (1) the SCA expressly sets movement/location information outside its scope by defining "electronic communications" to exclude "any communication from a tracking device (as defined in § 3117)"; (2) the SCA does not establish an entitlement to information in abrogation of any other legal requirements that would, otherwise apply due to the nature of that information; (3) the CALEA also expressly exempts information from a tracking device and, in legislating what information CSPs must compile/retain for disclosure to law enforcement on "Court Order or other lawful authorization", also retains the Fourth Amendment or other requirements implicated by the nature of the information sought; (4) the relevant legislative history further indicates that Congress did not intend its electronic communications legislation to be read to require disclosure of an individual's location information; to the contrary, in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing disclosure;¹⁴ and (5) as reading the statutes as authorizing ex parte disclosure of movement/location information with no judicial review of the probable cause could violate citizens' reasonable expectations of privacy, such reading would be disfavored. This Court therefore concludes, as more fully set forth below, that it must deny the Government's requests for cellular-telephone-derived location information, historic or prospective, absent a showing of probable cause.

III. TECHNOLOGICAL DEVELOPMENT OVERVIEW

As of December, 2006, there were over 233 million cellular phone subscribers in the United States, almost ten times the number in 1994.¹⁵ Our individual cell phones now come with us everywhere: not only on the streets, but in (a) business, financial, medical and other offices; (b) restaurants, theaters and other venues of leisure activity; (c) churches, synagogues and other places of religious affiliation; and (d) our homes and those of our family members, friends, and personal and professional associates. Indeed, many individuals no long subscribe to local wireline phones, but utilize their cell phone as their residential telephone.¹⁶

Cellular telephone networks divide geographic areas into many coverage areas containing towers through which the cell phones transmit and receive calls. Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called "registration", occurs approximately every seven...