In re Applications of the U.S. for Orders

• Citation: 509 F.Supp.2d 64
• Decision Date: 27 July 2007
• Docket Number: No. MJ07-265-JLA [(XXX) XXX-BBBB].,No. MJ07-264-JLA [(XXX) XXX-AAAA].,No. MJ07-266-JLA [(XXX) XXX-CCCC].,MJ07-264-JLA [(XXX) XXX-AAAA].,MJ07-265-JLA [(XXX) XXX-BBBB].,MJ07-266-JLA [(XXX) XXX-CCCC].
• Parties: In re APPLICATIONS OF THE UNITED STATES of America FOR ORDERS PURSUANT TO TITLE 18, UNITED STATES CODE, SECTION 2703(d) TO DISCLOSE SUBSCRIBER INFORMATION AND HISTORICAL CELL SITE INFORMATION FOR MOBILE IDENTIFICATION NUMBERS: (XXX) XXX-AAAA, (XXX) XXX-BBBB, and (XXX) XXX-CCCC.
• Court: U.S. District Court — District of Massachusetts

509 F.Supp.2d 64

In re APPLICATIONS OF THE UNITED STATES of America FOR ORDERS PURSUANT TO TITLE 18, UNITED STATES CODE, SECTION 2703(d) TO DISCLOSE SUBSCRIBER INFORMATION AND HISTORICAL CELL SITE INFORMATION FOR MOBILE IDENTIFICATION NUMBERS: (XXX) XXX-AAAA, (XXX) XXX-BBBB, and (XXX) XXX-CCCC.

No. MJ07-264-JLA [(XXX) XXX-AAAA].

No. MJ07-265-JLA [(XXX) XXX-BBBB].

No. MJ07-266-JLA [(XXX) XXX-CCCC].

United States District Court, D. Massachusetts.

July 27, 2007.

COPYRIGHT MATERIAL OMITTED

Robert E. Richardson, United States Attorney's Office, Boston, MA, for Plaintiff.

MEMORANDUM & ORDER

ALEXANDER, United States Magistrate Judge.

INTRODUCTION

This Court has before it the Government's application for three orders compelling a telecommunication service provider to disclose to federal law enforcement agents historical cell site information. The Government attempts to obtain such orders by satisfying the "specific and articulable facts" standard embodied in 18 U.S.C. § 2703(d). This Court, however, questions the applicability of the "specific and articulable facts" standard to historical cell site information. As more fully detailed below, after careful consideration of the pertinent statutes, the objectives underlying the different demonstrative standards, and the practical application of the orders the Government seeks, this Court finds that for it to issue an order compelling a telecommunication service provider to disclose historical cell site information to federal law enforcement agents, the Government must establish probable cause, as consistent with the requirements of Rule 41 of the Federal Rules of Criminal Procedure.¹

DISCUSSION

The Court's research into this rapidly evolving topic reveals, albeit a relatively small number of cases, a myriad of opinions considering a number of interrelated topics.² To be clear, the issue presented here is only this: In order for the Government to obtain authorization from this Court to receive historical cell site information³ a from a telecommunication service provider, must the Government satisfy the lesser "specific and articulable facts" standard, or the more exacting probable cause standard as contemplated by Fed. R.Crim.P. 41? While this Court's views with regard to the disclosure of prospective cell site information, the propriety of the Government's "hybrid" approach, and other interrelated issues is perspicuous, they are not central to this decision and are left to another day for more detailed discussion and analysis. See, e.g., In Matter of Application of the United States of America for an Order Auhtorizing the Installation and Use of a Pen Register Device, a Trap and Trace Device, and for Geographic Location Information, 497 F.Supp.2d. 301, 303 (D.P.R.2007) (McGiverin, M.J.) (listing a multitude of decisions where numerous courts have addressed these issues).

Statutes

This Court's analysis begins, as it must, with the statute under which the Government makes its application for the disclosure of historical cell site information. Specifically, the Government makes its application pursuant to 18 U.S.C. § 2703(d). As previously analyzed by a number of our sister districts, however, the interplay of sections 2703, 18 U.S.C. § 3121-27, and 42 U.S.C. §§ 1001-1002 are essential to a comprehensive treatment of the issue.⁴

Pen/Trap Statute-18 U.S.C. §§ 3121-3127

The Pen/Trap Statute is found at Title III of the ECPA. There, Congress defined a "Pen Register" as a "device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted ..." 18 U.S.C. § 3127(3). 18 U.S.C. 3127(4) defines a "Trap and Trace device" as "a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication ..." In practice, pen registers are installed on telephones or attached to telephone lines are designed to record telephone numbers dialed into and out of the subject telephone. In re Application of United States for an Order, etc., 616 F.2d 1122, 1127 (9th Cir. 1980) (Orrick, J.).

The pen register and trap and trace device, as investigative tools, are favored by law enforcement because of the ease with which permission to install them can be obtained from an appropriate judicial officer. In Re Application of the United States for an Order (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device; and (2) Authorizing Release of Subscriber Information and/or Cell Site Information, 411 F.Supp.2d 678, 679 (W.D.La.2006) (Hornsby, J.) (Under 18 U.S.C. § 3122(b), the Government must show merely that "the information sought is relevant and material to an ongoing investigation"). Simply put, to obtain permission to install a pen register and/or trap and trace device, the Government need not accumulate facts sufficient to establish probable cause for a warrant. See Smith v. Maryland, 442 U.S, 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (holding that a person has no reasonable expectation of privacy in the telephone numbers he dials). A court will, generally, issue the ex parte order permitting the installation of a pen register and/or trap and trace device so long as the Government Attorney certifies that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1).

There are limits, however, to the Government's use of a pen register and/or trap and trace device. For example, pen registers do not have sound capabilities and thus are incapable of acquiring the contents of communications. United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). Also, neither a pen register nor trap and trace device may be used in a manner so as to constitute a "tracking device" as defined in 18 U.S.C. § 3117(b), without first making a showing of probable cause consistent with Fed.R.Crim.P. 41.

SCA-18 U.S.C. §§ 2701-2712

The SCA is found at Title II of the ECPA. Part of the SCA's purpose, as clearly gleaned from the title of section 2703, is to dictate the means by which access may be granted to stored wire and electronic communications and transactional records. See S.Rep. No. 541, at 35-36 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3589-90. More specifically, section 2703 addresses the disclosure of both the contents of wire and electronic communications as well as records of wire and electronic communications. Briefly, sections 2703(a) and (b) address contents, whose disclosure requires probable cause. Where the Government seeks access to "records concerning electronic communication service or remote computing service" under sections 2703(c) and (d), absent consent or an emergency, it must establish "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." 18 U.S.C. § 2703(d).

CALEA — 47 U.S.C. §§ 1001-1002

Through its, enactment of CALEA, Congress intended the statute to provide a means of enhancing law enforcement's abilities to intercept communications involving advanced technologies. H.R.Rep. No. 103-827(I), at 9 (October 4, 1994), as reprinted in 1994 U.S.C.C.A.N. 3489, 3489 (103rd Congress). Congress recognized that the rapidly expanding evolution of technology threatened to eviscerate the applicability of current statutes designed to not only protect the privacy rights of individuals, but also to aid law enforcement's investigative responsibilities. Id. In striking this balance between the expected privacy rights of individuals and the necessity for potent law enforcement, Congress placed some specific limitations within the statute that serve both purposes. See 47 U.S.C. § 1002(a)(4) (Providing Government agents with unimpeded access to authorized communications, but in a manner such that the security and privacy of communications not authorized to be intercepted is not violated.).

In the current debate, there is no CALEA provision of greater significance than that found at 47 U.S.C. § 1002(a)(2)(B). Read with the preceding provisions of the section for clarity, the statute provides as follows:

[A] telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of ... expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access call-identifying information that is reasonably available to the carrier ... in a manner that allows it to be associated with the communication to which it pertains, except that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of Title 18), such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number)

47 U.S.C. § 1002(a) (internal subsection headings omitted) (emphasis added).

CALEA, thus, specifically forbids providers from disclosing "any information that may disclose the physical location of the subscriber" when the Government proceeds "solely pursuant to the authority for pen registers and trap and trace devices." It is from the word "solely" where, the Government has previously argued, the aptly named "hybrid" theory derives.

Historical Records

Breaking down the Government's application into its most rudimentary form, the Court is left with a seemingly simple question: What is the Government looking for? The answer appears...