724 F.3d 600 (5th Cir. 2013), 11-20884, In re Application of United States for Historical Cell Site Data

Docket Nº:11-20884
Citation:724 F.3d 600
Opinion Judge:EDITH BROWN CLEMENT, Circuit Judge:
Attorney:For UNITED STATES OF AMERICA, Appellant: Nathan Paul Judish, U.S. Department of Justice, Washington, DC; James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX. For ELECTRONIC FRONTIER FOUNDATION, Amicus Curiae: Matthew Zimmerman, Esq., Hanni Me...
Judge Panel:Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. DENNIS, Circuit Judge, dissenting. DENNIS, Circuit Judge, dissenting:
Case Date:July 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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724 F.3d 600 (5th Cir. 2013)


No. 11-20884

United States Court of Appeals, Fifth Circuit

July 30, 2013

Page 601

Appeal from the United States District Court for the Southern District of Texas.

For UNITED STATES OF AMERICA, Appellant: Nathan Paul Judish, U.S. Department of Justice, Washington, DC; James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For ELECTRONIC FRONTIER FOUNDATION, Amicus Curiae: Matthew Zimmerman, Esq., Hanni Meena Fakhoury, Esq., Attorney, Electronic Frontier Foundation, San Francisco, CA.

For AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Amicus Curiae: Catherine Newby Crump, American Civil Liberties Union Foundation of New York, New York, NY.

For AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS, Amicus Curiae: Rebecca L. Robertson, Attorney, Houston, TX.

SUSAN ALLISON FREIWALD, Amicus Curiae, Pro se, San Francisco, CA.

For ELECTRONIC PRIVACY INFORMATION CENTER, Amicus Curiae: Marc Rotenberg, Washington, DC.

For ORIN SAMUEL KERR, Amicus Curiae: Orin Samuel Kerr, Washington, DC.

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. DENNIS, Circuit Judge, dissenting.


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We are called on to decide whether court orders authorized by the Stored Communications Act to compel cell phone service providers to produce the historical cell site information of their subscribers are per se unconstitutional. We hold that they are not.


In early October 2010, the United States filed three applications under § 2703(d) of the Stored Communications Act (" SCA" ), 18 U.S.C. § § 2701-2712, seeking evidence relevant to three separate criminal investigations. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for that phone. The Government requested the same cell site data in each application: " the antenna tower and sector to which the cell phone sends its signal." It requested this information for both the times when the phone sent a signal to a tower to obtain service for a call and the period when the phone was in an idle state.1 In re Application of the United States for Historical Cell Site Data, 747 F.Supp.2d 827, 829 (S.D. Tex. 2010).

For each application, the magistrate judge granted the request for subscriber information but denied the request for the historical cell site data, despite finding that the Government's showing met the " specific and articulable facts" standard set by the SCA for granting an order to compel the cell site data. Shortly thereafter, the magistrate judge invited the Government to submit a brief justifying the cell site data applications. Four days after the Government submitted its brief, the magistrate judge issued a written opinion taking judicial notice of a host of facts about cell phone technology, primarily derived from the testimony of a computer science professor at a congressional hearing, but also including information from published studies and reports and service provider privacy policies. He concluded his opinion by declaring that, based on these facts viewed in light of Supreme Court precedent, " [c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment." Id. at 846.

The Government filed objections with the district court to the magistrate judge's ruling on the constitutionality of the SCA and his judicial notice of facts. Although there was no party adverse to the Government's ex parte application, the ACLU and Electronic Frontier Foundation (" EFF" ), among others, participated as amici curiae. As part of its submissions, the Government provided the court with additional evidence in the form of an affidavit from one of the service providers detailing its cell site records. After the parties submitted their briefs, the district judge issued a single-page order. He concluded:

When the government requests records from cellular services, data disclosing the location of the telephone at the time

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of particular calls may be acquired only by a warrant issued on probable cause. The records would show the date, time called, number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act is below that required by the Constitution.

The Government appealed once again, and the ACLU and EFF,2 along with Professor Orin Kerr and others, requested and were granted leave to participate as amici.


This court reviews constitutional challenges to federal statutes de novo. United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998). It reviews a district court's findings of fact for clear error. United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004). " A finding of fact is clearly erroneous 'when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed.'" In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.1983) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The court reviews use of judicial notice under Federal Rule of Evidence 201 for abuse of discretion. Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998). Although the Federal Rules of Evidence may not apply to applications for § 2703(d) orders, Rule 201 " embodies 'the traditional view' of judicial notice . . . 'consistent with' the common law," Wright, Miller & Cooper, 21b Fed. Prac. & Proc. Evid. § 5102 (2d ed.), so the court will apply the same standard to common law judicial notice.


The Government raises two issues on appeal. First, it challenges the district court's adoption of the magistrate judge's conclusion that the SCA unconstitutionally lowers the standard the Government must meet to compel disclosure of historical cell site information below that required by the Fourth Amendment. Second, it claims that the magistrate judge's judicial notice of certain facts, to the extent they were adopted by the district court, was improper. To these merits issues presented by the Government, amicus Professor Orin Kerr adds two threshold issues: whether this case is ripe and whether 28 U.S.C. § 1291 gives the court appellate jurisdiction over it.

A. Jurisdiction

1. Ripeness

Professor Kerr claims that this controversy is not ripe. He asserts that the issue of whether a court order complies with the Fourth Amendment must be addressed after officers execute the order, not before. According to Professor Kerr, exclusively ex post review of such orders is " essential because Fourth Amendment law is extremely fact-specific." Although we agree that this approach is preferable in most cases, see Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc) (" The Fourth Amendment is designed to account for an unpredictable and limitless range of factual circumstances, and accordingly it generally should be applied after those circumstances unfold, not before." (emphasis added)), we also agree that, as he says, here we are presented with the unusual circumstance of " an abstract question of [Fourth Amendment] law with no connection to a genuine factual record." Because the district court concluded that

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the § 2703(d) order provision was categorically unconstitutional with respect to an entire class of records -- historical cell site information -- that is covered under the plain text of § 2703(c), our review of its decision addresses only whether the fact that the Government's request was for such records is, by itself, sufficient to make its applications for § 2703(d) orders unconstitutional.3

This issue satisfies our test for ripeness. Such cases are ripe when they meet two criteria. " First, they are fit for judicial decision because they raise pure questions of law. Second, [the plaintiff] would suffer hardship if review were delayed." Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 287-88 (5th Cir. 2012). Here, the Government applied for three § 2703(d) orders, and the magistrate judge denied its applications on the basis that the SCA's authorization of such orders for cell site information violates the Constitution. The district court adopted the magistrate judge's decision to deny the applications on constitutional grounds. The Government's claim that this denial is improper and deprives it of a legitimate investigatory tool is a question of law, amenable to judicial resolution. Moreover, this is the only time that the Government can challenge the denial of its order. It cannot wait until after it executes the order, because there is no order to execute. The dispute is ripe for review.

The cases cited by Professor Kerr do not alter this conclusion. He points out that in Warshak, the Sixth Circuit, sitting en banc, discussed how expectations of privacy, particularly in the context of " ever-evolving technologies," typically turn on concrete, case-by-case determinations of a " limitless range of factual circumstances." 532 F.3d at 527-28. However, we are only asked to decide whether every instance of one particular factual circumstance -- § 2703(d) orders for historical cell site information -- is unconstitutional. If we conclude that such orders are not categorically unconstitutional, specific orders within that category certainly may be...

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