In re U.S. for an Order Authorizing Use of Two Pen, Misc. No. 08-308.

• Decision Date: 26 November 2008
• Docket Number: Misc. No. 08-308.
• Citation: 632 F.Supp.2d 202
• Court: U.S. District Court — Eastern District of New York
• Parties: In the Matter of an Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE USE OF TWO PEN REGISTER AND TRAP AND TRACE DEVICES.

632 F.Supp.2d 202

In the Matter of an Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE USE OF TWO PEN REGISTER AND TRAP AND TRACE DEVICES.

Misc. No. 08-308.

United States District Court, E.D. New York.

November 26, 2008.

Shreve Ariail, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

This matter comes before the court as an appeal of Magistrate Judge James Orenstein's June 11, 2008 Amended Orders, in which Judge Orenstein authorized the issuance of two pen registers under the Pen Register and Trap and Trace Statute, 18 U.S.C. §§ 3121 et seq. ("Pen Register Statute"). In the Government's view, Judge Orenstein's denial of its request for post-cut-through dialed digits¹ along with other "significant caveats" in the Amended Orders effectively denied its application. (See Government's Appeal to the District Court, dated June 23, 2008 ("Gov.Br.") at 7, 9.)² In addition to its appeal of Judge Orenstein's decision, the Government has made a supplemental application directly to this court requesting prospective cell-site information which it did not request in its initial application before Judge Orenstein. (Government's Aug. 19, 2008 letter to the court, exhibit A.)

As a result of several submissions made to this court by the Government, the legal issues presented by Judge Orenstein's "effective" denial of the Government's application are now moot. Therefore, the only significant legal issues presented here concern the Government's supplemental application for prospective cell-site information. Because of the complexity and significance of these legal issues, the court invited the Electronic Frontier Foundation ("EFF") to submit a memorandum of law as amicus curiae.

I. Judge Orenstein's Amended Orders

On June 11, 2008, the Government applied to Judge Orenstein for authorization to install and use a pen register and trap and trace device on two wireless telephones (the "SUBJECT WIRELESS TELEPHONES"). (Gov. Br. at 5.) The Government requested, inter alia, an Order authorizing the recording of post-cut-through dialed digits ("PCTDD") via pen register. PCTDD are digits dialed from a telephone after a call is connected or "cut through." In the Matter of Applications, 515 F.Supp.2d 325, 328 (E.D.N.Y.2007) ("Azrack Opinion"). Because PCTDD sometimes transmit information such as bank account numbers and Social Security numbers which constitutes "contents of communications," and because the Pen Register Statute defines a pen register as "a device or process which records or decodes dialing ... or signaling information ... provided, however, that such information shall not include the contents of any communication," 18 U.S.C. § 3127(3) (emphasis added), Judge Orenstein denied the Government's request for authorization to record PCTDD. The Government subsequently appealed Judge Orenstein's denial of its request to this court, asking this court to authorize it to record PCTDD.

On September 23, 2008, in response to the court's request for clarification of the specifics of its request for pen register data, the Government informed the court that the law enforcement agency involved in the investigation of the SUBJECT WIRELESS TELEPHONES will configure its computers so as to immediately delete all PCTDD received from the provider. (Government's September 23, 2008 letter to the court.) Therefore, as the pen registers sought by the Government in this application will not "record" or "decode" content within the meaning of the Pen Register Statute, the legal question presented by the Government in its appeal is moot.³ As the Government is entitled to the information it now seeks, the court directs the Magistrate Judge to issue, if still necessary, an order authorizing the installation of the pen registers on the SUBJECT WIRELESS TELEPHONES that is consistent with the representations in the Government's letter of September 23, 2008.

II. The Government's Request for Prospective Cell-Site Information

On August 19, 2008, after it appealed Judge Orenstein's Amended Orders, the Government made a supplemental application to this court for prospective cell-site information.⁴ (Government's August 19, 2008 letter to the court, ex. A.) In its application, the Government seeks prospective cell-site information pursuant to the so-called "hybrid theory," under which the Government argues that it is authorized to receive cell-site information pursuant to the combined authority of the Pen Register Statute and the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq. Many district and magistrate judges around the country have considered this theory. Courts are divided, with a majority denying the Government's requests. See In the matter of the Application, 534 F.Supp.2d 585, 599-600 (W.D.Pa.2008) ("Lenihan Opinion") (collecting cases), aff'd, 2008 WL 4191511 (W.D.Pa. Sep.10, 2008). This court joins the minority of courts in concluding that the Government may obtain, without a showing of probable cause, the cell-site information it requests pursuant to the combined authority of the Pen Register Statute and the SCA.

A. The Hybrid Theory

When a cellular telephone is on, regardless of whether it is making or receiving a voice or data call, it "periodically transmits a unique identification number to register its presence and location in the network." In re Application, 460 F.Supp.2d 448, 450 (S.D.N.Y.2006) ("Kaplan Opinion"). This signal, as well as the signals associated with calls made by that phone, is received by every antenna tower within range of the phone. Id. The general location of the phone can then be determined based upon the location of the antenna tower receiving these signals, sometimes "with a fair degree of precision" if they are received by two or more antenna towers simultaneously. Id. at 451.⁵ Cellular telephone service providers record the identity and location of the antenna towers receiving signals from each phone, regardless of whether those phones are making voice or data calls, in order to determine whether roaming charges apply and in order to track call volume by location. Id. For obvious reasons, such information, known as cell-site information, is also useful to the Government as an investigatory tool. Id. at 451-52.

Under the hybrid theory, the Government contends that the Pen Register Statute, which provides it with the authority to install and use a pen register, defined as "a device or process which records or decodes ... signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted," see 18 U.S.C. 3127(3), also allows it to receive cell-site information. See In re Application, 405 F.Supp.2d 435, 438-39 (S.D.N.Y.2005) ("Gorenstein Opinion"). The Government concedes, however, that it may not obtain cell-site information under the authority of the Pen Register Statute alone because of an exception contained in the Communication Assistance for Law Enforcement Act ("CALEA") of 1994, which requires telecommunications carriers to ensure that their equipment is capable of providing law enforcement agencies with information to which they may be entitled under statutes relating to electronic surveillance. Id. at 440. In relevant part,

a telecommunications carrier shall ensure that its equipment, facilities, or services ... 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 ... 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)(2) (emphasis added).⁶

As the argument goes, Congress's use of the word "solely" in this exception means that, while the Government may not obtain cell-site information under the authority of the Pen Register Statute alone, it may obtain cell-site information pursuant to the Pen Register Statute and some other, albeit unnamed, statute. See Gorenstein Opinion, 405 F.Supp.2d at 440-42. More specifically, some courts have suggested that Section 1002's use of "solely" was predicated on a desire not to preclude the Government from seeking cell-site information, but rather on a desire to impose "an authorization requirement different from that minimally necessary for use of pen registers and trap and trace devices." See, e.g. id. at 443 (quoting United States Telecom Ass'n v. F.C.C., 227 F.3d 450, 463 (D.C.Cir.2000)) (approving the FCC's interpretation of the statutory language in this manner). The Government argues that Section 2703 of the SCA is an appropriate mechanism to "combine" with the Pen Register Statute to allow the Government to obtain cell-site information.

Sections 2703(c)(1) and 2703(d) of the SCA provide that a "governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)," provided the governmental entity "offers 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."⁷ An electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C, § 2510(15). The phrase "electronic communication" means "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in...