In re U.S.

• Decision Date: 17 October 2007
• Docket Number: Misc. Case No. H-07-613.
• Citation: 622 F.Supp.2d 411
• Parties: In the Matter of the Application of the UNITED STATES of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, and (2) Authorizing Release of Subscriber and Other Information.
• Court: U.S. District Court — Southern District of Texas

622 F.Supp.2d 411

In the Matter of the Application of the UNITED STATES of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, and (2) Authorizing Release of Subscriber and Other Information.

Misc. Case No. H-07-613.

United States District Court, S.D. Texas, Houston Division.

October 17, 2007.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

The United States of America has filed two ex parte applications for orders authorizing the installation and use of a pen register and trap-and-trace device. The magistrate judge granted the Government's requests in part and denied them in part. Specifically, Magistrate Judge Smith granted the request for a pen register and trap-and trace device but denied access to cell-site information and post-cut-through dialed digits.¹ Magistrate judges and district judges have divided over the Government's ability to obtain such data by way of a pen-register application and order.² The courts and the Government would all benefit from additional case-law development. As one judge has noted, the best way to test the limit of the Government's authority may be through developed records, trial court opinions on suppression motions, and appellate review. See In re Applications of the United States of Am. for Orders Pursuant to Title 18, United States Code, Section 2703(d), 509 F.Supp.2d 76, 81-82 (D.Mass.2007).

Some of the issues discussed in these cases and raised by the Government's applications are addressed below.

I. The Applications

The Government filed two ex parte applications for orders authorizing the installation and use of a pen register and trap-and-trace device with respect to two separate phone numbers (the "Target Devices"). The applications requested orders directing the Target Devices' service providers to disclose to or to provide on demand by Drug Enforcement Administration (the "Investigative Agency") agents both historical information and prospective information. The applications seek: (1) "[f]or the Target Device[s], records or other information pertaining to subscriber(s) or customer(s), including historical cell site information and call detail records (including in two-way radio feature mode)" for sixty days before the date of the order; and (2) "[f]or the Target Device[s], after receipt and storage, records or other information pertaining to subscriber(s) or customer(s), including the means and source of payment for the service and cell site information, provided to the United States on a continuous basis for (a) the origination of a call from the Target Device[s] or the answer of a call to the Target Device[s], (b) the termination of the call and (c) if reasonably available, during the progress of the call ...." (Docket Entry No. 1 at 2-3; Docket Entry No. 2 at 2-3). The applications appear to request real-time or prospective cell-site information, at the beginning and end of calls made or received on the Target Devices, as well as cell-site information for the duration of the calls if reasonably available.

The applications request a variety of other subscriber records and other information relating to certain information captured by the pen registers and trap-and-trace devices on the Target Devices, as well as disclosure of changes in service regarding the Target Devices. The applications also ask the court to authorize the Investigative Agency to install, or cause the provider to install, and to use a pen-register device that would record dialing, routing, addressing, or signaling information (including post-cut-through dialed digits) transmitted from the Target Devices, to record the date and time of the dialings and to record the length of time the phone receiver is "off the hook," for a period of sixty days.

Additionally, the Government requests that the Investigative Agency be permitted to install, or cause the provider to install, and use, a trap-and-trace device on the Target Devices anywhere in the United States. The trap-and-trace device is to capture and record the incoming electronic and other impulses that identify the originating numbers or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication and to record the date, time, and duration of calls created by such incoming impulses, for sixty days. The Government asserts that to the extent that additional digits received are the content of a call as opposed to the number called, this information will not be used for any investigative purpose.

The Government bases these requests on 18 U.S.C. §§ 2703(c), 2703(d), 3122, and 3123 and 47 U.S.C. § 1002. According to the Government, Magistrate Judge Smith signed an order authorizing a pen register and trap-and-trace device, but not for cell-site information or post-cut-through dialed digits. The Government has in effect asked this court for a more expansive order based on the same applications, permitting the Government to collect all the information sought, including cell-site information and post-cut-through dialed digits.

II. Cell-Site Information

The Pen Register Statute states that a court is to issue an order authorizing the installation and use of a pen register or trap-and-trace device if an application filed by an attorney for the Government certifies that "information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1). The Stored Communications Act further requires that the Government provide "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). This court has reviewed the Government's sealed applications and finds that the Government has met its statutory burdens under 18 U.S.C. § 3121 et seq. and § 2703(d). The threshold issue is whether cell-site information may be obtained under the Pen Register Statute and the Stored Communications Act, or whether the Government must make a higher showing of probable cause.

A "pen register" is defined in the statute 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, provided, however, that such information shall not include the contents of any communication ...." 18 U.S.C. § 3127(3). Cell-site data is "signaling information" within the scope of a pen register. See In re: Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 455-56 ("[T]he Court presumes that Congress knew—when it added the term `signaling information' to the definitions of penregisters and trap and trace devices in 2001—that the D.C. Circuit had interpreted that term to include cellsite information in the United States Telecom Association decision a year earlier.").

As noted, the courts have divided over the statutory authority for the information the Government seeks. Courts refusing to issue orders authorizing cell-site information on applications similar to the ones filed in this case have focused on a statement in the Communications Assistance to Law Enforcement Act ("CALEA") restricting access to information about a subscriber's location obtained "solely pursuant" to a pen register order, as well as the absence of explicit standards in the separate statutes the Government invokes to authorize access to cell-site information, 18 U.S.C. §§ 3121-27 (the Pen Register Statute) and 18 U.S.C. § 2703 (the Stored Communications Act). These courts have also expressed concern that the Government might use the information to make a cell phone a "tracking device." These courts cite congressional testimony from the former director of the Federal Bureau of Investigation about certain aspects of the PATRIOT Act that purportedly limited the use of the statutes at issue for cell-phone monitoring applications. These cases find that the applicable standard is probable cause and that the Government has not made this showing, then refuse to issue the authorization.³

Other courts have granted the Government's applications requesting cell-site information.⁴ This court has summarized the position of courts accepting the Government's applications under the Pen Register Statute and the Stored Communications Act, as follows:

Judges accepting these applications have focused on the explicit text of the statutes, which states that cell-site information may not be obtained "solely pursuant" to the Pen Register Statute, [citing] 47 U.S.C. § 1002(a)(2). These courts permit the government to obtain cell-site information after meeting the requirements of both the Pen Register Statute and 18 U.S.C. § 2703(c)(1), which allows the government to obtain customer records from "electronic communication providers." These courts point out that Section 2703 meets the purpose of the Section 1002 exception, to require more than the minimal authorization imposed under the Pen Register Statute, but does not require a probable-cause showing. In many of these cases, moreover, the judges ensured that the orders authorized only limited information, minimizing the concern that a cell phone could be used as a kind of "tracking device."

Id. at 805-06.

In a previous opinion, this court concluded that the analysis used in the opinions issued by the Southern District of New York and the Western District of Louisiana were persuasive and that the relevant facts of those cases were most similar to the facts of the case at hand. S.D. Tex. I, 433 F.Supp.2d at 806. This court specifically noted that in cases in which courts granted the applications, the Government was not seeking: "(1) to activate remotely the subject...