Second Circuit Rules that Government Cannot Obtain Real-Time Cell Site Information Without Showing Probable Cause

Upon the Government’s Motion for Reconsideration of the court’s earlier order on the subject, Judge Orenstein of the Eastern District of New York again denied the government permission to obtain real-time cell site information as part of an ongoing criminal investigation without first showing probable cause. Cell site data is information which is used by the service provider to locate and identify the phone for communication purposes. This information is entirely distinct from voice communication transmission, and is broadcast automatically every seven seconds on a separate channel whether or not the user makes or receives a call. Using this information, the government would be able to make a rough estimate of a person’s location or, if it had access to multiple cell sites simultaneously, to fix a person’s location exactly by triangulation. The government sought access to the cell site information through the “Stored Communications Act” (SCA) 18 U.S.C. § 2703, which requires a lower standard for authorization than probable cause: namely a showing of “specific and articulable facts” to demonstrate that the data will be “relevant and material to an ongoing criminal investigation.” Drawing heavily on a recent decision in a similar case in Texas, In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 2005 WL 2656621 (S.D. Tex. Oct. 14, 2005) (“Cell Site”), the court presented three main arguments for why the SCA did not authorize the government’s request in this case.First, the court relied on Cell Site’s analysis of the distinctions between the SCA and other surveillance laws under the Electronic Communications Privacy Act (ECPA). As the court demonstrated, the SCA is different from other titles of the ECPA because it relates to records in storage, is inherently retrospective, makes no provisions for sealing court records, and does not provide for periodic reporting. The Cell Site court argued that Congress would have incorporated these features into the SCA if it had intended its authority to apply to the prospective gathering of information.

Second, the court held that orders granting access under § 2703 only apply to information already in existence. In doing so, the court rejected the government’s argument that the data is stored as it is captured, and thus is part of the record by the time it is turned over to law enforcement. The government’s argument failed because the statute only refers to information that is already in existence at the time of the order, not information that will be stored at some time in the future. Because the SCA already provides a method for the government to obtain cell site data retrospectively (for instance by ordering a service provider to preserve the data, waiting sixty days, and then obtaining an order to retrieve the data from the provider), it is clear that the “instantaneous storage” argument is an attempt to circumvent the statute and gather real-time tracking data. Additionally, the court argued that the government’s theory would apply equally well to voice transmission, a result that would clearly go against legislative intent.

Third, the court held that § 2703 authorizes the government to obtain information from a provider, not to intercept it on its own. There is no indication in the government’s application that it would obtain the requested information from the service providers. Instead, it appears that the government’s pen registers (devices which record the telephone numbers of outgoing calls) will convey the information directly to the government, which is not permitted by the SCA.

After considering the reasons why the SCA does not authorize the collection of real-time cell site information, the court turned to what it calls the government’s “hybrid theory,” which argued that elements of the PATRIOT Act, the Communications Assistance for Law Enforcement Act (CALEA), and the SCA together permit the government to gather prospective cell site information. The court dismissed the argument by showing broadly that none of the individual elements employed by the theory were actually meant by Congress to amend the restrictions in the statutes that the government is trying to circumvent. If Congress had intended for the PATRIOT Act and CALEA to amend the SCA, the court argued, it would have indicated its intention in the statutes rather than leaving it up to a clever prosecutor.

Finally, the court concluded that seeking real-time cell site information is effectively the same as seeking to install a tracking device, and thus requires at least a showing of probable cause under Rule 41 of the Federal Rules of Civil Procedure. The court noted but declined to rule on an argument made by the Electronic Frontier Foundation in an amicus brief that seeking cell site data may require the higher “super-warrant” standard necessary to authorize a wiretap. The court explained its decision by noting that it had been asked to determine whether the government could install a tracking device on a showing of less than probable cause, and that having answered that question in the negative it would be inappropriate for it to determine what level of proof would be sufficient to authorize access to cell site data. The court also declined to rule on whether the real-time monitoring of cell site data intrudes upon a target’s privacy rights, but pointed out that cell site information, which unlike a dialed telephone number is not voluntarily conveyed, has been protected in previous cases such as United States v. Forest, 355 F.3d 942 (6th Cir. 2004).