In re United States
40 F. Supp. 3d 89
D.D.C.2014Background
- Government filed a renewed 18 U.S.C. § 2703(d) application seeking 25 days of historical cell site location information (CSLI) from AT&T in a robbery investigation; application remains under seal.
- Court previously denied an earlier § 2703(d) application and identified unresolved statutory and Fourth Amendment questions about CSLI access.
- Government’s proposed order sought detailed CSLI data: cell-site activation, sector/side info, control-channel listings, and engineering maps of tower locations and orientations.
- The parties and existing caselaw are sharply divided on whether CSLI falls within § 2703(d) records or is excluded as a “tracking device” and on whether the Fourth Amendment requires a warrant.
- Because these legal disputes turn on technical facts (how CSLI is generated, its precision, frequency, what providers store and disclose), the Court ordered development of a factual record and appointed the Electronic Frontier Foundation (EFF) as amicus to assist fact-finding and briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSLI is a § 2703(d) “record” or excluded as a tracking device | CSLI is derived from wireless communications and thus falls within § 2703(d) authority | CSLI is functionally a tracking-device datum and not a § 2703(d) record, so warrant required | Court declined to decide; ordered factual record first to resolve how CSLI is generated and what is disclosed |
| Whether Fourth Amendment requires a warrant for CSLI | Government: § 2703(d) order suffices for historical CSLI in short-term monitoring contexts | EFF/others: CSLI can be highly revealing; warrant/probable cause required, especially for detailed or long-term tracking | Court declined to rule; ordered fact-finding on CSLI precision, frequency, and subscriber expectations before Fourth Amendment briefing |
| What factual evidence is necessary to resolve statutory and constitutional questions | Government seeks to rely on provider responses and existing precedents | Court requires sworn technical statements from provider, possible expert testimony, and EFF input | Court ordered government and EFF to propose topics, obtain sworn AT&T explanations, and proceed to evidentiary development |
| Procedural handling of sensitive materials | Government sought secrecy for investigative integrity | Court will keep underlying applications sealed but unseal public docket and require public filing of briefing and technical reports | EFF appointed amicus; parties to confer and appear for a conference call; schedule set for further proceedings |
Key Cases Cited
- United States v. Miller, 425 U.S. 435 (bench ruling on third-party records and no reasonable expectation of privacy in bank records)
- Smith v. Maryland, 442 U.S. 735 (third-party pen-register dialed-number information and expectation of privacy)
- United States v. Karo, 468 U.S. 705 (monitoring device and Fourth Amendment search analysis)
- United States v. Jones, 565 U.S. 400 (2012) (GPS tracking: installation of device was a search; plurality and concurring analyses on long-term monitoring)
- In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010) (CSLI derived from communications; warrant question depends on duration/precision)
- In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (upholding disclosure under § 2703(d) and narrower view of Fourth Amendment protection)