In re United States of America for an Order Authorizing the Release of Historical Cell-Site Info.

• Decision Date: 22 August 2011
• Docket Number: No. 10–MC–897 (NGG).,10–MC–897 (NGG).
• Parties: In the Matter of an Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL–SITE INFORMATION.
• Court: U.S. District Court — Eastern District of New York

809 F.Supp.2d 113

In the Matter of an Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL–SITE INFORMATION.

No. 10–MC–897 (NGG).

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

Aug. 22, 2011.

Scott B. Klugman, United States Attorneys Office, Eastern District Of New York, Brooklyn, NY.

David Carey Woll, United States Attorneys Office, Brooklyn, NY.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

This matter comes before the court as an application for two orders directing Verizon Wireless, a cell-phone service provider, to disclose recorded information of cell-site-location records for one of its customers pursuant to 18 U.S.C. § 2703(c)(1), (d) (the “Stored Communications Act” or “SCA”). ( See Gov't Letter Appl. (Docket Entry # 5).) An identical application was denied on constitutional grounds by Magistrate Judge James Orenstein on December 23, 2010, 2010 WL 5437209. (Mag. Order (Docket Entry # 2).) The Government chose to “resubmit the Application” to this court as miscellaneous judge “following its denial by Judge Orenstein.” (Gov't Letter Appl. at 2.) In this capacity, the court considers this application de novo and denies it for the reasons set forth below.

I. BACKGROUND

On December 22, 2010, in a sealed application, the Government sought an order pursuant to the SCA. (Sealed Appl. (Docket Entry # 1).) The proposed sealed order directs Verizon Wireless to “disclose recorded information identifying the base station towers and sectors that received transmissions” (“cell-site-locations” or “cell-site-location records”) from the target cell phone at the “beginning and the end of calls or text message transmissions ... for the period from September 1, 2010 until” the day the court issued the proposed order. ( Id.) Thus, the proposed order seeks cell-site-location records for a period of at least 113 days. ( See Mag. Order (Docket Entry # 2) at 1.) The Government represented that the phone at issue was registered to and used by an individual who was the target of a criminal investigation. (Sealed Appl. at 1, 5.)

On December 23, 2010, Judge Orenstein denied the Government's application “without prejudice to the government's right to seek similar relief by means of an application for a search warrant pursuant to Federal Rule of Criminal Procedure 41 on the basis of a showing of probable cause.” (Mag. Order at 1.) Judge Orenstein concluded that, while the SCA permits the relief sought, “granting the government's application would violate the Fourth Amendment.” ( Id.) Judge Orenstein's decision in this case incorporated his reasoning in In the Matter of an Application of United States for an Order Authorizing the Release of Historical Cell–Site Information, 736 F.Supp.2d 578 (E.D.N.Y.2010). (Mag. Order at 7.)

Following this denial, the Government resubmitted its application for an order to this court on January 11, 2011. (Gov't Letter Appl.) While the court has previously approved similar applications, see In the Matter of an Application of the United States for an Order Authorizing the Use of Two Pen Register and Trap and Trace Devices ( “In re E.D.N.Y.”), 632 F.Supp.2d 202 (E.D.N.Y.2008), the court considers anew the constitutionality of ordering this application in light of recent developments in Fourth Amendment jurisprudence.

II. INTRODUCTION

The vast majority of Americans own cell phones. Many Americans have abandoned land line phones entirely, and use cell phones for all telephonic communications. Typically people carry these phones at all times: at work, in the car, during travel, and at home. For many Americans, there is no time in the day when they are more than a few feet away from their cell phones.

Cell phones work by communicating with cell-sites operated by cell-phone service providers. Each cell-site operates at a certain location and covers a certain range of distance. The number of cell-sites that must be placed within a particular area, and thus the distance between cell-sites, is determined by several factors, including population density.

If a user's cell phone has communicated with a particular cell-site, this strongly suggests that the user has physically been within the particular cell-site's geographical range. By technical and practical necessity, cell-phone service providers keep historical records of which cell-sites each of their users' cell phones have communicated.

The implication of these facts is that cellular service providers have records of the geographic location of almost every American at almost every time of day and night. And under current statutes and law enforcement practices, these records can be obtained without a search warrant and its requisite showing of probable cause.

What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable-cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.

Despite the SCA, this court considers whether the Fourth Amendment to the United States Constitution requires a warrant and a showing of probable cause before the Government may obtain the cell-site-location records requested here.

III. LEGAL STANDARDA. Stored Communications Act

The SCA permits the Government to obtain an order seeking the cell-site-location records requested here. 18 U.S.C. §§ 2703(c)(1), (d); see also In re E.D.N.Y., 632 F.Supp.2d at 202. The relevant statutory provision states, “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) only when the governmental entity ... obtains a court order for such disclosure under subsection (d) of this section.” 18 U.S.C. § 2703(c)(1)(B). Such an order “may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers 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 showing is lower than the probable cause standard required for a search warrant. See United States v. Maynard, 615 F.3d 544, 566 (D.C.Cir.2010) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Thus, this court must consider whether granting the requested order on this lower-than-probable-cause standard is consistent with the Fourth Amendment. B. Fourth Amendment

The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “A search conducted without a warrant is ‘per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” Maynard, 615 F.3d at 566 (quoting Katz, 389 U.S. at 357, 88 S.Ct. 507). Thus, if obtaining the records sought by the Government here constitutes a search as defined by the Fourth Amendment, it is presumed that the Government must, at a minimum, obtain a warrant on a showing of probable cause.

Whether Government action constitutes a search depends upon whether “the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Supreme Court in Katz v. United States set forth a two part standard for when a Fourth Amendment search has occurred: (1) the individual has “manifested a subjective expectation of privacy” in the thing searched; and (2) “society is willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The first element addresses whether the individual's conduct has “exhibited an actual (subjective) expectation of privacy ... [which is demonstrated by] whether ... the individual has shown that he seeks to preserve something as private.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (internal citations and quotation marks omitted). The second element looks to whether the “individual's expectation, viewed objectively, is justifiable under the circumstance.” Id. (internal citations and punctuation omitted).

The Katz test applies to all searches, including searches pertaining to the home, which are at the core of the Fourth Amendment. See Kyllo, 533 U.S. at 31–33, 121 S.Ct. 2038 (citing Smith, 442 U.S. at 743–44, 99 S.Ct. 2577 (applying the Katz factors to hold that it is not a search for the government to track phone numbers dialed, even if they are dialed from a private home); California v. Ciraolo, 476 U.S. 207, 211–15, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (applying Katz factors and holding that, generally, aerial surveillance of private homes and surrounding areas is not a search)).

C. Constitutionality of Electronic Surveillance of Location

Electronic surveillance of an individual's location as he travels in public has traditionally not been construed as a Fourth Amendment search, although electronic surveillance of his location within his home has been. See Knotts, 460 U.S. at 280–85, 103 S.Ct. 1081; United States v. Karo, 468 U.S. 705, 713–18, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Reading United States v. Knotts broadly, courts have concluded...