430 F.Supp.3d 1264
D. Utah2019Background:
- May 2019 traffic stop led to seizure of a phone and an FBI affidavit alleging federal crimes based on its contents.
- Government sought subscriber data, 7 days of historical CSLI, 30 days of prospective real‑time location data, pen/trap data, and authority to "ping" the target phone.
- Magistrate judge found probable cause, issued a §2703 warrant authorizing subscriber info and seven days of historical location data, and authorized prospective tracking and pinging under separate authority.
- Post‑issuance, the court analyzed the correct statutory vehicle and procedures post‑Carpenter for (a) warrants to electronic communications/remote computing services, (b) prospective (real‑time) location data, (c) historical location/subscriber data, and (d) ping orders.
- Court concluded: warrants ordering providers to produce information are §2703 warrants; prospective location warrants should follow tracking‑warrant procedures; historical/subscriber warrants should follow search‑and‑seizure procedures; ping orders require the All Writs Act and should follow tracking‑style limits.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory vehicle for orders to providers | Gov't: Orders to electronic‑communications/remote‑computing providers are §2703 warrants and courts should treat them as a distinct §2703 warrant | Opposing view: Use existing Rule 41 search or tracking warrant forms or pen/2703 orders; Rule 41 controls | Court: Such orders are §2703 warrants; courts may employ Rule 41 procedures where appropriate but §2703 governs and provides extra‑district authority |
| Procedures for prospective (real‑time) location data | Gov't: Prospective location data from providers should be authorized via §2703 warrants employing tracking‑warrant procedures (service within 10 days; up to 45 days; extensions for good cause) | Carrier/others: Tracking statute problematic ("installation" language); Rule 41/forms poorly fit extra‑district provider requests | Court: 2703 warrants for prospective data should use tracking warrant procedures (10/45/extend; return within 10 days) |
| Procedures for historical location and subscriber data | Gov't: Historical CSLI and subscriber data are properly authorized by §2703 warrants using search‑and‑seizure procedures | Some courts/parties: Treated as tracking or as non‑warrant §2703/pen‑register orders | Court: 2703 warrants for historical CSLI/subscriber info should follow search‑and‑seizure Rule 41 procedures (14‑day execution window; prompt return) |
| Authority to order provider to "ping" a phone | Gov't: Court can order carriers to ping under All Writs Act as necessary to effectuate jurisdiction; ping is less intrusive than a home search | Carrier/others: §2703 and pen‑register statutes do not explicitly authorize affirmative assistance to ping; statutory limits on third‑party obligations | Court: Ping warrants require All Writs Act orders (not §2703); impose tracking‑style limits (serve within 10 days; up to 45 days; return within 10 days) |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (historical CSLI requires a probable‑cause warrant)
- United States v. Jones, 565 U.S. 400 (2012) (installation of GPS tracking device is a search requiring a warrant)
- United States v. New York Telephone Co., 434 U.S. 159 (1977) (All Writs Act permits courts to order third‑party assistance when necessary to effectuate court orders)
- United States v. Ackies, 918 F.3d 190 (1st Cir. 2019) (tracking‑device statute not suited to cell phones because of "installation" text)
- In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129 (E.D.N.Y. 2013) (discussion of competing approaches to prospective CSLI orders)