In re U.S. for an Order Aut. Dis. of Prosp. Cell, 06 MISC.004.

• Decision Date: 17 January 2006
• Docket Number: No. 06 MISC.004.,06 MISC.004.
• Citation: 412 F.Supp.2d 947
• Parties: In the Matter of the Application of the United States of America for an Order Authorizing the Disclosure of Prospective Cell Site Information
• Court: U.S. District Court — Eastern District of Wisconsin

412 F.Supp.2d 947

In the Matter of the Application of the United States of America for an Order Authorizing the Disclosure of Prospective Cell Site Information

No. 06 MISC.004.

United States District Court, E.D. Wisconsin.

January 17, 2006.

Erica N. O'Neil, United States Department of Justice (ED-WI), Office of the United States Attorney, Milwaukee, WI, for Government.

DECISION AND ORDER

CALLAHAN, United States Magistrate Judge.

On December 23, 2005, the government filed with this court, under seal, an application for an order authorizing the disclosure of prospective cell site information exclusively pursuant to 18 U.S.C. §§ 2703 and 3122. Specifically, the government seeks an order requiring Cingular Wireless, and any other providers of electronic communication service whose assistance is needed to comply with the order, to disclose to agents of the Wisconsin Department of Justice, Division of Criminal Investigation, certain information for a particular cellular telephone for a period of sixty days (60) from the date the order is signed. The information being sought is the following:

a. Originating and terminating cellular tower and sector information for all calls to and from this cellular telephone (i.e., cell site activations);

b. Map of cellular tower locations/addresses, sectors and orientations; and c. The physical address/location of all cellular towers in the applicable markets.

In support of its application, the government presents, inter alia, that "[a]gents from DCI [the Wisconsin Department of Justice, Division of Criminal Investigation, Narcotics Bureau] believe that by obtaining cell-site information for [the subject's] cellular telephone, it may be able to determine [the subject's] source for cocaine." (App. at 3.) Thus, the government "requests that the Court issue an order authorizing the use of the pen register device which has been authorized in [previous applications] to also record and disclose signaling information, including cell site information, from the target telephone for incoming and outgoing calls for a period of sixty (60) days from the date of this order." (App. at 4.) What makes this particular application a bit problematic is the prospective nature of the information being sought. In other words, the information being sought is not "historical information." Whether the government has the statutory right¹ to seek such information has been the subject of a number of recent decisions.

At least three courts have decided that there is no statutory authority to support the government's request. See In re Application for Pen Register and Trap/Trace Device with. Cell Site Location Authority, 396 F.Supp.2d 747 (S.D.Tex.2005) (the "Southern Texas Case" or "Southern Texas"); 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, 396 F.Supp.2d 294 (E.D.N.Y.2005) (the "EDNY Case" or "EDNY"); and In re Application of the United States for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers (Sealed) and the Production of Real Time Cell Site Information, 402 F.Supp.2d 597 (D.Md.2005) (the "Maryland Case" or "Maryland").

More recently, however, in In re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 405 F.Supp.2d 435 (S.D.N.Y.2005) (the "SDNY Case" or "SDNY"), the court granted the government's application for cell site information for a period of sixty days going forward from the date of the order.

In light of the somewhat unsettled status of the case law, I ordered the government to file a brief in support of its application. In accordance with that order, the government filed a brief setting forth its position regarding the statutory authority supporting its application. I have now considered the government's argument and the case law dealing with the issue. For the following reasons, the government's application will be denied.

By way of background, cellular telephone networks function by dividing a geographic area into many coverage areas, or "cells." Each cell contains a tower through which an individual portable cell phone transmits and receives calls. As the cell phone and its user move from place to place, the cell phone automatically switches to the cell tower that provides the best reception. For this process to function correctly, the cell phone must transmit a signal to a nearby cell tower to register its presence within the cell network. Cellular telephone companies typically keep track of this information. This information can include the identity of the cell tower currently serving the cell phone and the portion of the tower facing it, in order to provide service to the cell phone. Cellular telephone companies also have the technical means to collect and store this information.

The government's application seeks the above-listed information ("prospective cell site information") for a cell phone assigned a specific mobile identification number for a period 60 days from the date of the order. The government seeks the order pursuant to the combined authority of Title 18, United States Code, Sections 3121, et seq. (the pen register and trap and trace statute, or "Pen/Trap Statute"), and Title 18, United States Code, Sections 2701, et seq. (the Stored Communications Act, or "SCA"). The government argues that

[t]he prospective disclosure of cell-site information falls squarely within the Pen/Trap Statute because cell-site information is "dialing, routing, addressing, or signaling information," and the provisions of that statute mandate a pen/trap order for such disclosure. See 18 U.S.C. §§ 3121(a), 3127(3), and 3127(4). However, because Congress has forbidden a cellphone company from disclosing cell-site information "solely pursuant" to a pen/trap order, see 47 U.S.C. § 1002(a)(2)(B), the Pen/Trap Statute by itself is insufficient authority for such disclosure. The necessary authority for the disclosure of cell-site information called for by the Pen/Trap Statute is provided by Section 2703 of the SCA. In particular, cell-site information falls within the scope of the SCA because it constitutes "record[s] or other information pertaining to a subscriber to or customer of [an electronic communication] service (not including the contents of communications)." See 18 U.S.C. § 2703(c)(1). As a result, its disclosure may be obtained pursuant to an "articulable facts" order issued under 18 U.S.C. § 2703(d). Accordingly, the Pen/Trap Statute, together with the SCA, provide authority for the disclosure, on a prospective basis, of cell-site information.

(Gov't's Mem. at 7-8.)

In sum, it is the government's position that a pen register/trap and trace device may be issued upon a government attorney's affirmation "that the information likely to be obtained is relevant to an ongoing criminal investigation." 18 U.S.C. § 3122(b)(2). In turn, disclosure of cell site information requires a further demonstration by a government attorney of "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). Because its application satisfies the combined requirements of sections 3122 and 2703(d), the government maintains that the order calling for the disclosure of prospective cell site information should be granted.²

As stated previously, the field of judicial decision on the question before this court is not entirely unplowed. At least four courts have spoken to the issue of whether the combined authority of §§ 3122 and 2703(d) provides a statutory basis to support the issuance of an order similar to that which the government seeks from this court. I say "similar" to that which the government seeks from this court because the information sought in the instant case is less extensive than the information sought by the government in both Southern Texas and EDNY. More specifically, in Southern Texas the government sought not only the information being sought here, but also sought information "regarding the strength, angle, and timing of the caller's signal measured at two or more cell sites." 396 F.Supp.2d at 749. In EDNY, the government was also seeking cell site information during the progress of a call. Furthermore, the court in EDNY determined that the government was also seeking to "obtain cell site information directly from its own devices and processes, rather than via disclosure from the telecommunications providers." 396 F.Supp.2d at 314.

By contrast, the information being sought by the government in the instant case is more akin to that which was being sought in SDNY. Specifically, in SDNY the government indicated that it sought cell site information "concerning the physical location of the antenna towers associated with the beginning and termination of calls to and from a particular cellphone." SDNY, at 436. Such is the case here as well. Indeed, in its memorandum the government asserts that

[i]n the instant case and in the application before Judge Gorenstein in the Southern District of New York, the U.S. Attorney's Office is seeking data which comports with the so-called "J-Standard," that is, cell-site information concerning the physical location of the antenna towers associated with the beginning and termination of calls to and from a particular cellphone. See United States Telecom Ass'n v. FCC, 227 F.3d at 455.... [T]he cell-site information sought by this Office, at best, shows the cell quadrant a cellphone was in.

(Gov't's Mem. at 19-20.)

Be that as it may, the legal question before this court, at its heart, is the...