In re U.S. Authorizing the Use of a Pen Register, M 05-1093(JO).

• Decision Date: 25 August 2005
• Docket Number: No. M 05-1093(JO).,M 05-1093(JO).
• Citation: 384 F.Supp.2d 562
• 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

384 F.Supp.2d 562

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.

August 25, 2005.

Burton T. Ryan, Jr., United States Attorney's Office, Central Islip, NY, for Plaintiff.

MEMORANDUM AND ORDER

ORENSTEIN, United States Magistrate Judge.

In furtherance of a continuing criminal investigation, the government seeks, among other things, 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." Sealed Application ("Application") at 1-2. It seeks to obtain such information by means of two proposed orders, one authorizing the agents to obtain it and another ordering the relevant telecommunications entity to provide it. The latter proposed order makes clear that the carrier would provide such information by means of "a pen register (with cell site location authority)...." [Proposed] Sealed Order To Service Provider at 1. After expressing doubt about whether I am authorized to grant the such relief, I offered the government the opportunity to submit authority supporting its request. The government declined but reserved its right to do so in the future, either in seeking review of any denial of relief in the instant matter or in connection with other applications. For the reasons set forth below, I now deny the portion of the application seeking cell site location information. I have already executed the remaining portions of the proposed orders, which remain under seal, granting the government's remaining requests for relief including the installation and use of a pen register and trap and trace device, and related relief, pursuant to 18 U.S.C. §§ 2703, 3122, and 3123.

In its application, the government purports to rely on subsections (c)(1)(B), (c)(2), and (d) of 18 U.S.C. § 2703 as the source of a court's authority to issue the requested relief. Of those provisions, the only one that appears arguably to permit the disclosure of cell site location information is the language permitting the disclosure of "the contents of a wire or electronic communication" upon an offer of "specific and articulable facts showing that there are reasonable grounds to believe that [such information is] relevant and material to an ongoing criminal investigation." Id. § 2703(d). As I am satisfied that the government's application fulfills the latter requirement, the remaining question is whether the requested information can properly be considered "the contents of [an] electronic communication."

Pursuant to 18 U.S.C. §§ 2711(1) and 2510(12), the answer to the latter question appears to be "yes" unless the Subject Telephone is a "tracking device" as defined in 18 U.S.C. § 3117. See id. § 2510(12)(C). A "tracking device" is in turn defined as "an electronic or mechanical device which permits the tracking of movement of a person or object." Id. § 3117(b). Based on the government's application, it appears that the latter definition precisely describes the attribute of the Subject Telephone (or such other instrument as actually would produce the requested information) that renders the disclosure of cell site location information relevant and material to the ongoing investigation. As the Application recites,

the general geographic location of the Subject Telephone derived from cell site information used by the Subject Telephone can be used to corroborate the observations of surveillance agents. More specifically, surveillance agents can compare observations of the user of the Subject Telephone with cell site information in order to verify the identification and location of the user of the Subject Telephone.

Application ¶ 10.

In other words, the requested information is useful in the same way that physical surveillance of the telephone user is useful: it reveals that person's location at a given time. The fact that the requested order would authorize the disclosure of cell site location information, "if reasonably available, during the progress of a call," [Proposed] Sealed Order Of Authorization at 4, further suggests that the authorization, if granted, would effectively allow the installation of a tracking device without the showing of probable cause normally required for a warrant.

The foregoing leads me to believe that I cannot grant the government the relief it seeks on the basis of the precise authority it cites, namely, 18 U.S.C. § 2703. In fairness, however, I must also consider whether the relief is available simply by virtue of the government's otherwise proper application for authorization to use a pen register and trap and trace device. For the reasons explained below, I conclude it is not. More precisely, I conclude that the information the government seeks is information that a pen register or trap and trace device does, by definition, provide, but it is not information that the government may lawfully obtain absent a showing of probable cause.

As part of the USA PATRIOT Act, Pub.L. 107-56 § 216(c)(1) (Oct. 26, 2001), Congress amended the definition of "pen register" to read, in pertinent part, as follows: "a device or process which records or decodes dialing, routing, addressing, and signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted...." 18 U.S.C. § 3127(3). It likewise altered the definition of "trap and trace device" to "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 is transmitted...." Id. § 3127(4). The information the government seeks — "the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls)" — thus appears to be information that can only be obtained in the form of "routing, addressing, and signaling information" as those terms are used in Section 3127.

The government, however, does not rely...