In re the United States
724 F.3d 600
| 5th Cir. | 2013Background
- Gvt filed three §2703(d) applications in Oct 2010 seeking 60 days of historical cell site data plus subscriber info for three phones.
- Data requested targeted tower/sector for both active calls and idle periods; same scope across all three applications.
- Magistrate denied the cell site data despite meeting the “specific and articulable facts” standard; district court adopted the denial, deeming the SCA unconstitutional on those facts.
- Gvt submitted provider affidavit and amici briefs; district court held that compelled disclosure without probable cause violated the Fourth Amendment.
- On appeal, the Government, joined by amici, challenges the district court’s constitutional ruling and seeks reversal; questions include ripeness and appellate jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2703(d) orders for historical cell site data are per se unconstitutional | ACLU argues the data reveal location and privacy interests | Government argues data are business records and fall under non-content records | Not per se unconstitutional |
| Whether §2703(d) order issuance is mandatory when specific and articulable facts are shown | ACLU contends magistrate has discretion to require warrants | Government contends magistrate must grant if conditions are met | Statute requires issuing the order if conditions are met; not discretionary |
| Whether the case is ripe and whether the court has appellate jurisdiction | Kerr argues lack of ripeness and §1291 jurisdiction | Government argues ripe and §1291 review is proper | Case is ripe; appellate jurisdiction under §1291 appropriate |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (U.S. 1979) (pen register does not require a warrant; voluntary disclosure of numbers)
- United States v. Jones, 565 U.S. 400 (U.S. 2012) (question of privacy in location data; narrow/variable expectations of privacy)
- Warshak v. United States, 631 F.3d 266 (6th Cir. 2010) (extent of government access to emails/location data; privacy concerns in evolving tech)
- In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010) ( Third Circuit on §2703(d) thresholds and warrant procedures)
- Miller v. United States, 425 U.S. 435 (U.S. 1976) (bank records as business records; distinction between contents vs. non-content)
- Smith v. United States, 442 U.S. 735 (U.S. 1979) (pen registers; outside addresses vs. contents; third-party records doctrine)