In re U.S., Magistrate No. H-06-356M.

• Decision Date: 19 July 2006
• Docket Number: Magistrate No. H-06-356M.
• Citation: 441 F.Supp.2d 816
• Parties: In the Matter of the Application of the UNITED STATES of America for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process, (2) Access to Customer Records, and (3) Cell Phone Tracking.
• Court: U.S. District Court — Southern District of Texas

441 F.Supp.2d 816

In the Matter of the Application of the UNITED STATES of America for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process, (2) Access to Customer Records, and (3) Cell Phone Tracking.

Magistrate No. H-06-356M.

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

July 19, 2006.

Robert J. Stabe, U.S. Attorneys Office, Houston, TX, for United States of America.

OPINION

SMITH, United States Magistrate Judge.

This opinion addresses two significant issues concerning law enforcement access to certain dialing and signaling information in the hands of telephone companies under the Electronic Communications Privacy Act ("ECPA"). The first is whether the Government may obtain "post-cut-through dialed digits" containing communication contents under the authority of the Pen/ Trap Statute.¹ The second is whether limited cell site information may be obtained prospectively under the dual or hybrid authority of the Pen/Trap Statute and the Stored Communications Act ("SCA").²

These questions arise from a recent governmental application for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking. The court initially granted this order in part, denying access to the dialed digits as well as the limited cell site authority. In response to the Government's informal request, the court agreed to reconsider the dialed digits ruling and invited full briefing by the Government as well as interested parties. The Electronic Frontier Foundation and Center for Democracy and Technology have filed an amicus brief on that issue. Although additional briefing has not been solicited on the cell site issue, that ruling will be reconsidered in light of a recent decision by a district judge in this district.

I. Post-Cut-Through Dialed Digits

This issue is a matter of first impression in this circuit and elsewhere.³ Before addressing the merits it is helpful to survey the legal and technical background.

A. Background

"Post-cut-through dialed digits" are any numbers dialed from a telephone after the call is initially setup or "cut-through." Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party. Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like. In the latter case, the digits represent communications content; in the former, they are non-content call processing numbers. U.S. Telecom, 227 F.3d at 462.

Because of this dual capacity, post-cut-through dialed digits occupy a doubtful position under federal electronic surveillance laws, which are founded upon the fundamental (indeed, constitutional) distinction between communications content and non-content. It is well-established that the content of telephone communications is protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 353-54, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In order to gain authorization to intercept content, the Government must obtain a special wiretap warrant that satisfies not only the usual probable cause standard but also additional threshold requirements set out in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (commonly referred to as the "Wiretap Act").⁴

By contrast, there is no Fourth Amendment protection for telephone numbers dialed to connect a call. Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In 1986, Congress enacted the ECPA to regulate the process under which law enforcement could install pen registers, which capture phone numbers of outgoing calls, and trap and trace devices, which capture phone numbers of incoming calls. Although a court order was required, the threshold for obtaining the order was very low: a Government attorney need only certify that "the information likely to be obtained is relevant to an ongoing criminal investigation." 18 U.S.C. § 3122(b)(2). Because pen register technology at that time was unable to obtain contents,⁵ the question of law enforcement access to dialed numbers straddling the line between content and non-content was simply not contemplated when the ECPA was enacted.

Telecommunications technology did not stand still, of course, and within a few years law enforcement became very concerned that criminal investigations were being hindered by the technical inability of telecommunications carriers to provide authorized electronic surveillance. In response to these concerns, Congress enacted the Communications Assistance for Law Enforcement Act of 1994 (CALEA).⁶ Under this law, telecommunication companies were directed to build into their networks the technical capability to assist law enforcement with authorized interception of communications and "call-identifying information." See 47 U.S.C. § 1002.⁷ Congress intended CALEA to preserve the status quo, and therefore the new statute did not modify the legal standards for electronic surveillance via wiretap or pen/ trap devices.⁸

One of the new technological wrinkles discussed during congressional deliberations on CALEA was the capacity of pen registers to capture content information in the form of post-cut-through dialed digits. This is reflected in the following exchange between Senator Leahy and FBI Director Freeh:

Sen. Leahy: You say this would not expand law enforcement's authority to collect data on people, and yet if you're going to the new technologies, where you can dial up everything from a video movie to do your banking on it, you are going to have access to a lot more data, just because that's what's being used for doing it.

Mr. Freeh: I don't want that access, and I'm willing to concede that. What I want with respect to pen registers is the dialing information, telephone numbers which are being called, which I have now under pen register authority. As to the banking accounts and what movie somebody is ordering in Blockbuster, I don't want it, don't need it, and I'm willing to have technological blocks with respect to that information, which I can get with subpoenas or other process. I don't want that in terms of my access, and that's not the transactional data that I need.⁹

Accordingly, CALEA was amended to address the post-cut-through dialed digits issue, by inserting the following limitation into the Pen/Trap Statute's provision authorizing pen registers:

(c) Limitation.—A government agency authorized to install and use a pen register under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.

Pub.L. No. 103-414, § 207, 108 Stat. 4279, 4292 (1994) (codified at 18 U.S.C. § 3121(c)).

Subsequent to CALEA's passage, attention turned to the development of specific technological standards through which telecommunications carriers would comply with their obligation to assist law enforcement by providing "call-identifying information.¹⁰ Development of such standards was left to the telecommunications industry, in consultation with law enforcement agencies and consumers, under the auspices of the Federal Communications Commission. 47 U.S.C. § 1006. In 1999, the FCC issued a ruling on the proposed technical standards (referred to as the "Standard"), finding among other things that the J-Standard must include the capability for "post-cut-through dialed digit extraction."¹¹ This capability required carriers to use tone-detection equipment to generate a list of all digits dialed after a call has been connected, including numbers dialed after connecting to a long distance carrier (such as 1-800-CALL-ATT), or to an automated telephone service, such as bank account or credit card numbers.

Several entities challenged the FCC decision and the petitions for review were consolidated in United States Telecom Assoc. v. Federal Communications Comm'n, 227 F.3d 450 (D.C.Cir.2000). Petitioners contended that the CALEA obligation to produce "call-identifying information" should be limited to telephone numbers only, and that the FCC exceeded its authority by including the broader dialed digit extraction capability in the J-Standard. Applying the usual Chevron deference standard of review,¹² the D.C. Circuit first determined that CALEA was ambiguous with respect to its definition of call-identifying information. The court rejected the contention that the definition should be read in parity with ECPA definitions of "pen register" and "trap and trace device," which are limited to phone numbers: "CLEA neither cross-references nor incorporates ECPA's definitions of pen registers and trap and trace devices. Moreover, the fact that CALEA's definition of `call-identifying information' differs from the ECPA's description of the information obtainable by pen registers and trap and trace devices reinforces the statute's inherent ambiguity." Id. at 459.

Next, the court determined that the FCC's ruling as to dialed digit extraction reflected a lack of reasoned decision-making. In particular, the FCC failed to explain how the dialed digit extraction capability would meet the statutory requirements of a "cost-effective" method that would "protect the privacy and security of communications not authorized to be intercepted." Id. at 461-62 (citing 47 U.S.C. § 1006(b)(1) & (2)). The Government had argued that the FCC's ruling adequately protected privacy because a law enforcement agency is entitled to receive all post-cut-through digits with a pen register order, subject to CALEA's "reasonably available technology" caveat (18 U.S.C. § 3121(c)). The court effectively side-stepped this argument, observing that "[n]o court has yet considered that contention, however, and it may be...