620 F.3d 304 (3rd Cir. 2010), 08-4227, In re Application of United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to Government

Docket Nº:08-4227.
Citation:620 F.3d 304
Opinion Judge:SLOVITER, Circuit Judge.
Party Name: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. United States of America, Appellant.
Attorney:Mary Beth Buchanan, Robert L. Eberhardt, Office of the United States Attorney, Pittsburgh, PA, Mark Eckenwiler (Argued), United States Department of Justice, Office of Enforcement Operations, Washington, DC, for Appellant. Lisa B. Freeland, Office of Federal Public Defender, Witold J. Walczak, Am...
Judge Panel:Before: SLOVITER, ROTH, and TASHIMA,[*] Circuit Judges. TASHIMA, Circuit Judge, concurring:
Case Date:September 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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620 F.3d 304 (3rd Cir. 2010)

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.

United States of America, Appellant.

No. 08-4227.

United States Court of Appeals, Third Circuit.

September 7, 2010

Argued Feb. 12, 2010.

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Mary Beth Buchanan, Robert L. Eberhardt, Office of the United States Attorney, Pittsburgh, PA, Mark Eckenwiler (Argued), United States Department of Justice, Office of Enforcement Operations, Washington, DC, for Appellant.

Lisa B. Freeland, Office of Federal Public Defender, Witold J. Walczak, American Civil Liberties Union of Pennsylvania, Pittsburgh, PA, Jennifer Granick, Kevin S. Bankston (Argued), Matthew Zimmerman, Electronic Frontier Foundation, Susan A. Freiwald (Argued), University of San Francisco School of Law, San Francisco, CA, Jim Dempsey, Harley Geiger, Center for Democracy and Technology, Washington, DC, Catherine Crump, American Civil Liberties Union Foundation, New York, NY, for Amici Appellees.

Before: SLOVITER, ROTH, and TASHIMA,[*] Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

The United States (" Government" ) applied for a court order pursuant to a provision of the Stored Communications Act, 18 U.S.C. § 2703(d), to compel an unnamed cell phone provider to produce a customer's " historical cellular tower data," also known as cell site location information or " CSLI." App. at 64. The Magistrate Judge (" MJ" ) denied the application. See In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F.Supp.2d 585, 616 (W.D.Pa.2008) (hereafter " MJOp. " ). In doing so, the MJ wrote an extensive opinion that rejected the Government's analysis of the statutory language, the legislative history, and the Government's rationale for its request. On the Government's appeal to the District Court, the Court recognized " the important and complex matters presented in this case," but affirmed in a two page order without analysis. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, No. 07-524M, 2008 WL 4191511, at *1 (W.D.Pa. Sept.10, 2008). The Government appeals.

We have de novo review. See DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir.2007). This appeal gives us our first opportunity to review whether a court can deny a Government application under 18 U.S.C. § 2703(d) after the Government has satisfied its burden of proof under that

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provision, a task that to our knowledge has not been performed by any other court of appeals.1

I.

The growth of electronic communications has stimulated Congress to enact statutes that provide both access to information heretofore unavailable for law enforcement purposes and, at the same time, protect users of such communication services from intrusion that Congress deems unwarranted. The Stored Communications Act (" SCA" ), was enacted in 1986 as Title II of the Electronic Communications Privacy Act of 1986 (" ECPA" ), Pub.L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended at 18 U.S.C. §§ 2701-2711 (2010)), which amended the Omnibus Crime Control and Safe Streets Act of 1968 (the " Wiretap Act" ), Pub.L. No. 90-351, 82 Stat. 197 (1968).2 In 1994, Congress enacted the Communications Assistance for Law Enforcement Act (" CALEA" ), Pub.L. No. 103-414, 108 Stat. 4279, 4292 (1994) (codified in relevant part at 18 U.S.C. § 2703 (2010)), in part to amend the SCA.

The SCA is directed to disclosure of communication information by providers of electronic communications (" providers" ). Section 2703(a) covers the circumstances in which a governmental entity may require providers to disclose the contents of wire or electronic communications in electronic storage; section 2703(b) covers the circumstances in which a governmental entity may require providers to disclose the contents of wire or electronic communications held by a remote computing service. See 18 U.S.C. § 2703(a)-(b). Neither of those sections is at issue here. The Government does not here seek disclosure of the contents of wire or electronic communications. Instead, the Government seeks what is referred to in the statute as " a record or other information pertaining to a subscriber to or customer of such service," a term that expressly excludes the contents of communications. Id. 2703(c)(1).

Section 2703(c)(1) of the SCA provides:

(c) Records concerning electronic communication service or remote computing service.


(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;

(B) obtains a court order for such disclosure under subsection (d) of this section;

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(C) has the consent of the subscriber or customer to such disclosure;

(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or

(E) seeks information under paragraph (2).

Id. The formal separation of these options in § 2703(c)(1) evinces Congressional intent to separate the requirements for their application. Each option in § 2703(c)(1) is an independently authorized procedure. The only options relevant to the matter before us are § 2703(c)(1)(A) for obtaining a warrant and § 2703(c)(1)(B) for obtaining a court order under § 2703(d).

A third option covered by the statute provides for the governmental entity to use " an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena...." Id. § 2703(c)(2). The subpoena option covers more limited information-such as a customer's name, address, and certain technical information 3-as distinguished from that referred to in § 2703(c)(1) which broadly covers " a record or other information pertaining to a subscriber or customer." The Government may seek such information under any of these three options ex parte, and no notice is required to a subscriber or customer. See id. § 2703(c)(3).

In submitting its request to the MJ in this case, the Government did not obtain either a warrant under § 2703(c)(1)(A), or a subpoena under § 2703(c)(2), nor did it secure the consent of the subscriber under § 2703(c)(1)(C). Instead it sought a court order as authorized by § 2703(c)(1)(B). The requirements for a court order are set forth in § 2703(d) as follows:

(d) Requirements for court order.-A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Id. § 2703(d) (emphasis added).

As the Government notes in its reply brief, there is no dispute that historical

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CSLI is a " record or other information pertaining to a subscriber ... or customer," and therefore falls within the scope of § 2703(c)(1). Instead, the dispute in this case concerns the standard for a § 2703(d) order. The Government states that the records at issue, which are kept by providers in the regular course of their business, include CSLI, i.e., the location of the antenna tower and, where applicable, which of the tower's " faces" carried a given call at its beginning and end and, inter alia, the time and date of a call.

The Government's application, which is heavily redacted in the Appendix, seeks

historical cellular tower data i.e. transactional records (including, without limitation, call initiation and termination to include sectors when available, call handoffs, call durations, registrations and connection records), to include cellular tower site information, maintained with respect to the cellular telephone number [of a subscriber or subscribers whose names are redacted].

App. at 64. The Government does not foreclose the possibility that in a future case it will argue that the SCA may be read to authorize disclosure of additional material.

II.

The MJ concluded, " as a matter of statutory interpretation, that nothing in the provisions of the electronic communications legislation authorizes it [i.e., the MJ] to order a [provider's] covert disclosure of CSLI absent a showing of probable cause under Rule 41." MJOp., 534 F.Supp.2d at 610.Rule 41(d) of the Federal Rules of Criminal Procedure, referred to by the MJ, provides:

(d) Obtaining a Warrant.

(1) In General. After receiving an affidavit or other information, a magistrate judge-or if authorized by Rule...

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