In re Application of the U.S. for an Order (1), M 05-1093(JO).

• Decision Date: 24 October 2005
• Docket Number: No. M 05-1093(JO).,M 05-1093(JO).
• Citation: 396 F.Supp.2d 294
• Parties: In the Matter of an APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE and (2) Authorizing Release of Subscriber Information and/or Cell Site Information.
• Court: U.S. District Court — Eastern District of New York

396 F.Supp.2d 294

In the Matter of an APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE and (2) Authorizing Release of Subscriber Information and/or Cell Site Information.

No. M 05-1093(JO).

United States District Court, E.D. New York.

October 24, 2005.

Burton T. Ryan, Jr., United States Attorneys Office, Central Islip, NY, for United States of America.

MEMORANDUM AND ORDER

ORENSTEIN, United States Magistrate Judge.

The United States seeks reconsideration of my earlier order in this matter, reported at In Matter of Application of the U.S. for an Order (1) Authorizing the Use of a Pen Register and Trap and Trace Device, 384 F.Supp.2d 562 (E.D.N.Y.2005) (the "August Order"), denying its application for the "disclosure of the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and, if reasonably available, during the progress of a call, for the Subject Telephone." Renewed Sealed Application ("Application") at 1-2. Such applications are normally considered ex parte, but in light of the novelty of the issue and the absence at the time the August Order was written of any published case law, I have also allowed amicus curiae the Electronic Frontier Foundation ("EFF") to submit a letter-brief in opposition to the instant motion. Having considered all of the arguments as well as the intervening decision in In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 2005 WL 2656621, 396 F.Supp.2d 747 (S.D.Tex.2005) ("Cell Site"), I conclude that at least some of the government's objections to the August Order's reasoning are well taken, and therefore grant the motion to reconsider. On reconsideration, as explained below, I conclude that existing law does not permit the government to obtain the requested information on a prospective, real-time basis without a showing of probable cause. I therefore again deny the government's application.

I. Background

On a motion for reconsideration, I would normally start the discussion of background facts and procedural history with a disclaimer assuming the reader's familiarity with the challenged order. Not so here: having gotten at least one thing dead wrong in the August Order, see n. 4, infra, I will optimistically assume the reader's ignorance rather than continue to advertise my own. I therefore proceed essentially from scratch.

A. The Initial Application And Proposed Orders

On August 23, 2005, the government simultaneously filed three documents, all of which remain under seal: an application for certain relief, a proposed order authorizing law enforcement agents to take certain investigative steps with the compelled assistance of the relevant provider of telecommunications services (the Sealed Order of Authorization, or "Authorization Order"), and a complementary separate order directed to the provider itself (the Sealed Order to Service Provider, or "Provider Order"). Because portions of each document are relevant to the discussion below, I reproduce those portions here.

1. The Application

The government's application explicitly sought three forms of relief, and cited the specific statutory authority on which it relied for each:

1. Pursuant to 18 U.S.C. §§ 3122 and 3123, [an order] authorizing the continued installation and use of a pen register and the use of a trap and trace device for a period of sixty days ... on the [Subject Telephone;]¹

2. Pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), [an order] directing continued disclosure of subscriber information for all published, non-published, or unlisted numbers dialed or otherwise transmitted to and from the Subject Telephone, upon oral or written demand by [the relevant law enforcement officers]; and

3. Pursuant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d), [an order] directing continued disclosure of the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and, if reasonably available, during the progress of the call, for the Subject Telephone.

Application at 1-2.

In support of the application to continue using the pen/trap devices,² the prosecutor made the requisite certifications under the Pen/Trap Statute, see 18 U.S.C. § 3122(b), and in fact went beyond the requirement of a bare-bones certification "that the information likely to be obtained is relevant to an ongoing criminal investigation," id. § 3122(b)(2), by explaining the basis for that certification. Application at 3-4. The prosecutor next went on to recite the basis for the remaining requests under the SCA by providing "specific and articulable facts showing that there are reasonable grounds to believe that the subscriber information pertaining to telephone numbers identified through the pen register and trap and trace device on the Subject Telephone and cell site information regarding the Subject Telephone will be relevant and material to an ongoing criminal investigation[.]" Id. at 5; see id. at 5-7 (reciting facts).

The Application then went on to make several requests for relief that added detail to the earlier requests to use pen/trap devices and secure subscriber information. For reasons that will become clear, the structure of those requests is pertinent, and I summarize them here. First, in a multi-part paragraph generally purporting to rely on provisions of the SCA, the government requested that the court issue an order authorizing (a) the continued installation and use of a pen register, (b) the continued installation and use of a trap and trace device, and (c) an additional request not pertinent to the instant matter made "pursuant to 18 U.S.C. § 3123(b)(1)(C)." Application at 7-8. Nothing in the paragraph referred to cell site authority.

The remaining requests all sought orders compelling assistance from telecommunications service providers. Specifically, the government sought orders directing the relevant providers (a) to notify government agents of service changes for the Subject Telephone; (b) "[p]ursuant to 18 U.S.C. § 3123(a)(1) and § 3123(b)(2)," to furnish appropriate assistance to the installation and use of the pen/trap devices; (c) to "furnish the results of the pen register and trap and trace installations to [government agents] as soon as practicable, and on a continuing basis ... for the duration of the order[;]" and (d) "not to disclose the existence of this order or the pen register and cell site location authorization" or other associated information to any person absent a court order. Application at 9-11. Thus, although the Application did request "disclosure" of prospective cell site information in its general request for relief at the beginning of the document, it did not request an order directing any service provider to furnish such information in the detailed prayer for relief at the end of the document, and did not in any manner specify who was supposed to make the requested "disclosure." Nevertheless, as discussed below, the proposed Authorization and Provider Orders did include language requiring such assistance.

2. The Authorization Order

The proposed Authorization Order included both findings and several specific orders. The proposed findings closely tracked the three requests for relief at the beginning of the Application:

Pursuant to 18 U.S.C. § 3123, Applicant has certified that the information likely to be obtained by such use [of pen/trap devices] is relevant to an ongoing criminal investigation....

Pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), Applicant has offered specific and articulable facts showing that there are reasonable grounds to believe that subscriber information for [numbers gleaned from the pen/trap devices] is relevant and material to an ongoing criminal investigation ...

Pursuant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d), Applicant has further established that there are specific and articulable facts showing that there are reasonable grounds to believe that cell site information is relevant and material to an ongoing criminal investigation....

Authorization Order at 1-2; cf. Application at 1-2.

On the basis of those findings, the Authorization Order proposed nine specific orders. The first two authorized law enforcement agents, "pursuant to 18 U.S.C. § 3123," to continue the installation and use of pen/trap devices, including for purposes of recording or decoding "dialing, routing, addressing or signaling information." The third required relevant service providers, "pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d)," to provide subscriber information about the numbers obtained from the use of the pen/trap devices. The fourth — the denial of which is at issue in this litigation — required, "pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), that the wireless carriers shall provide" cell site information. Authorization Order at 2-4.

The fifth specific order provided that "this authorization for the continued installation and use of a pen register and trap and trace device" applies to the Subject Telephone even after any changes in the number assigned to the same instrument, under certain conditions — but it did not provide for such continued authorization as to cell site information. The sixth specific order complemented the fifth by requiring service providers to notify the government agents about relevant service changes to the Subject Telephone. Authorization Order at 4-5.

The seventh and eighth specific orders imposed obligations on the service providers relating only to the pen/trap devices and made no mention of cell site information: the former required service providers to furnish agents with all information and assistance necessary to accomplish the devices' installation and use, and the latter required providers to furnish the results of the devices' use to...