In re an Application of the U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel.

• Decision Date: 03 August 2011
• Docket Number: Case No. 10–2188–SKG.
• Citation: 849 F.Supp.2d 526
• Parties: In the Matter of an APPLICATION OF the UNITED STATES of America FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE.
• Court: U.S. District Court — District of Maryland

849 F.Supp.2d 526

In the Matter of an APPLICATION OF the UNITED STATES of America FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE.

Case No. 10–2188–SKG.

United States District Court, D. Maryland.

Aug. 3, 2011.

Gregory Welsh, Office of the United States Attorney, Baltimore, MD, for Plaintiff.

James Wyda, Martin G. Bahl, Office of the Federal Public Defender, Baltimore, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN K. GAUVEY, United States Magistrate Judge.

The issue before the Court is the government's authority to prospectively acquire precise location information derived from cellular and Global Positioning System (“GPS”) technology (collectively “location data”) to aid in the apprehension of the subject of an arrest warrant. The government has reported no attempts of the subject to flee and the requested location data does not otherwise constitute evidence of any crime. The government argues its entitlement to prospective location data under these circumstances pursuant to the Fourth Amendment, Rule 41 of the Federal Rules of Criminal Procedure, the Stored Communications Act, the All Writs Act, and the inherent authority of the court. In so doing, the government asks to use location data in a new way—not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts. Accordingly, the Court DENIES the underlying warrant applications, but sets forth its guidance on the showing necessary for law enforcement access to prospective location data to aid in the execution of an arrest warrant.

I. BACKGROUND

A. Procedural History

On June 3, 2010, pursuant to Federal Rule of Criminal Procedure 41 (“Rule 41”) and the Stored Communications Act, 18 U.S.C. § 2703(c)(1)(A), the United States (“government”) applied for “authoriz[ation] ... to ascertain the physical location of the [subject] cellular phone ..., including but not limited to E911 Phase II data (or other precise location information) ... for a period of thirty (30) days.” (ECF No. 1, ¶ 2). The government also asked for “records reflecting the tower and antenna face (“cell site”) used by the target phone at start and end of any call” where precise location information was not available. ( Id. at n. 1). The government asked that the Court order the wireless service provider to send a signal to defendant's cell phone (“ping”) that would direct the phone to compute its current GPS coordinates and communicate that data back to the provider, which would in turn forward the coordinates immediately to government agents. ( Id. at ¶ 16). The government based its request on “probable cause to believe that the Requested Information w[ould] lead to evidence regarding certain activities described above.” ( Id. at ¶ 12). The government has asked that the particulars of the application not be disclosed, but has stipulated that defendant's location was not evidence of a crime. The government also stated that the “requested information [was] necessary to determine the location of [the subject] so that law enforcement officers may execute the arrest warrant [on him].” ( Id.). The Court denied the government's application.

On June 4, 2010, the government submitted another application seeking identical information as its first application, but further stated that the subject cell phone was pre-equipped with a GPS enabled chip and that the subject's wireless service provider maintains a “Precision Locate Service” ¹ capable of approximating the location of any telephone so equipped. (ECF No. 2, ¶ 2). The government explained that, in order to use the Precision Locate Service, the cellular service provider “sends a signal to a telephone directing it to immediately transmit its current GPS reading, then processes the reading to compute the telephone's current GPS Coordinates.” ( Id.). The government elaborated that the Precision Locate Service can be used “without disclosing to a telephone's user the existence of either the Carrier's signal requesting the telephone to send a current GPS reading or that telephone's response.” ( Id.). The government asked for an order directing the wireless service provider “on oral request ... at any times specified by the agents [to] use its Precision Locate Service ... to acquire the GPS Coordinates.” (ECF No. 2, 7).

Although the government in its first application invoked Rule 41 and the Stored Communications Act, the government's second application cited as authority the All Writs Act, 28 U.S.C. § 1651(a). ( Id. at ¶ 4). Specifically, the government noted:

The Court has authority pursuant to the All Writs Act, 28 U.S.C. § 1651, to order disclosure of GPS Coordinates on a showing of probable cause to believe that a federal fugitive is using a specified wireless telephone. Under 28 U.S.C. § 1651(a), such disclosure is of appropriate aid to the Court's extant jurisdiction over an open arrest warrant because it assists agents to find the fugitive so that the warrant can be executed and he can be brought before the Court.

( Id.) (emphasis added). In support of its application, the government stated that:

On [XXXX], Special Agent [XXXX] of [XXX] called [defendant] on cellular telephone number [XXXXXX–XXXX], which he answered and indicated he was on the “west coast.” She asked if he was in [XXXX] and he said, “Yes.” [Defendant]had previously given this cellular telephone number to SA [XXXX] as a means to contact him.

( Id.). The government referred to defendant as a “federal fugitive” and “the subject fugitive,” but alleged no facts to support defendant's fugitive status. ( Id.). There was no indication that defendant was aware of the charge or arrest warrant, and the government did not so allege. (ECF No. 15, 17–18). Other than the government's applications under review here, there were no reported efforts on the part of law enforcement to apprehend and arrest the defendant. See (ECF No. 6, 1). The Court again denied the government's application.

Notwithstanding the Court's denial of location data, the government arrested the defendant a few days thereafter. ( Id.). While the government is correct that apprehension of defendant moots its applications, the issues presented will certainly arise again, most likely in urgent situations that do not allow an opportunity for deliberate consideration. Because of the importance of these largely-unexplored issues, the Court writes this opinion. Although the government's applications have been sealed, this opinion will not be sealed as it concerns matters of constitutional and statutory interpretation which do not hinge on the particulars of the underlying investigation and charge. The issues explored herein involve the balance between privacy rights and law enforcement interests, and the role of judicial oversight. These particular issues present a matter of first impression in the Fourth Circuit, as well as many others.²

B. Technological Background

At the outset, a basic review of GPS and cellular location technology is essential to understanding the nature of the government's request—highly-precise, real-time GPS and cell-site location information, on demand at any time during a 30–day period and the privacy interests it implicates. Given that the Court did not take evidence on the relevant technology, this background discussion relies primarily on uncontroverted government and industry publications.³ Moreover, there is no dispute as to two key technical points, namely the minimum precision of the location data requested (within 300 meters or less) (ECF No. 15, 22) and the fact that the GPS data requested is not collected as part of the routine provision of cellular telephone service ( Id. at 26–31).

The government's request for “E911 Phase II data” is a reference to location information that meets accuracy requirements mandated by the Federal Communication Commission's Enhanced 9–1–1 (“E–911”) regulations, which require cellular service providers to upgrade their systems to identify more precisely the longitude and latitude of mobile units making emergency 911 calls. E–911 Phase II regulations mandate that cellular telephone carriers have the ability to provide, within six minutes of a valid request from a public safety answering point, the latitude and longitude of a cellular telephone caller to within 50 to 300 meters depending on the type of technology used. See47 C.F.R. 20.18(h) (2011) (establishing accuracy and reliability standards of 100 meters for 67 percent of calls and 300 meters for 95 percent of calls for network-based (non-GPS) technologies, and 50 meters for 67 percent of calls and 150 meters for 95 percent of calls for handset-based (GPS) technologies). The government at the hearing conceded that, due to the requirements of the E–911 regulations, its request would necessarily locate the subject cellular telephone within 300 meters. (ECF No. 15, 22). As set forth below, however, current GPS technology would almost certainly enable law enforcement to locate the subject cellular telephone with a significantly greater degree of accuracy—possibly within ten meters or less.

The Global Positioning System or “GPS” is a space-based radionavigation utility owned and operated by the...