IN RE: APPLICATION OF THE UNITED STATES OF AMERICA FOR HISTORICAL CELL SITE DATA
No. 11-20884
July 30, 2013
EDITH BROWN CLEMENT, Circuit Judge
UNITED STATES OF AMERICA, Appellant. Appeal from the United States District Court for the Southern District of Texas.
EDITH BROWN CLEMENT, Circuit Judge:
We are called on to decide whether court orders authorized by the Stored Communications Act to compel cell phone service providers to produce the historical cell site information of their subscribers are per se unconstitutional. We hold that they are not.
I. FACTUAL AND PROCEDURAL BACKGROUND
In early October 2010, the United States filed three applications under
For each application, the magistrate judge granted the request for subscriber information but denied the request for the historical cell site data, despite finding that the Government‘s showing met the “specific and articulable facts” standard set by the SCA for granting an order to compel the cell site data. Shortly thereafter, the magistrate judge invited the Government to submit a brief justifying the cell site data applications. Four days after the Government submitted its brief, the magistrate judge issued a written opinion taking judicial notice of a host of facts about cell phone technology, primarily derived from the testimony of a computer science professor at a congressional hearing, but also including information from published studies and reports and service provider privacy policies. He concluded his opinion by declaring that, based on these facts viewed in light of Supreme Court precedent, “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment.” Id. at 846.
The Government filed objections with the district court to the magistrate judge‘s ruling on the constitutionality of the SCA and his judicial notice of facts. Although there was no party adverse to the Government‘s ex parte application, the ACLU and Electronic Frontier Foundation (“EFF“), among others, participated as amici curiae. As part of its submissions, the Government provided the court with additional evidence in the form of an affidavit from one of the service providers detailing its cell site records. After the parties submitted their briefs, the district judge issued a single-page order. He concluded:
When the government requests records from cellular services, data disclosing the location of the telephone at the time
of particular calls may be acquired only by a warrant issued on probable cause. The records would show the date, time called, number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act is below that required by the Constitution.
The Government appealed once again, and the ACLU and EFF,2 along with Professor Orin Kerr and others, requested and were granted leave to participate as amici.
II. STANDARD OF REVIEW
This court reviews constitutional challenges to federal statutes de novo. United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998). It reviews a district court‘s findings of fact for clear error. United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004). “A finding of fact is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed.‘” In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir. 1983) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The court reviews use of judicial notice under Federal Rule of Evidence 201 for abuse of discretion. Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998). Although the Federal Rules of Evidence may not apply to applications for
III. DISCUSSION
The Government raises two issues on appeal. First, it challenges the district court‘s adoption of the magistrate judge‘s conclusion that the SCA unconstitutionally lowers the standard the Government must meet to compel disclosure of historical cell site information below that required by the Fourth Amendment. Second, it claims that the magistrate judge‘s judicial notice of certain facts, to the extent they were adopted by the district court, was improper. To these merits issues presented by the Government, amicus Professor Orin Kerr adds two threshold issues: whether this case is ripe and whether
A. Jurisdiction
1. Ripeness
Professor Kerr claims that this controversy is not ripe. He asserts that the issue of whether a court order complies with the Fourth Amendment must be addressed after officers execute the order, not before. According to Professor Kerr, exclusively ex post review of such orders is “essential because Fourth Amendment law is extremely fact-specific.” Although we agree that this approach is preferable in most cases, see Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc) (“The Fourth Amendment is designed to account for an unpredictable and limitless range of factual circumstances, and accordingly it generally should be applied after those circumstances unfold, not before.” (emphasis added)), we also agree that, as he says, here we are presented with the unusual circumstance of “an abstract question of [Fourth Amendment] law with no connection to a genuine factual record.” Because the district court concluded that
This issue satisfies our test for ripeness. Such cases are ripe when they meet two criteria. “First, they are fit for judicial decision because they raise pure questions of law. Second, [the plaintiff] would suffer hardship if review were delayed.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 287-88 (5th Cir. 2012). Here, the Government applied for three
The cases cited by Professor Kerr do not alter this conclusion. He points out that in Warshak, the Sixth Circuit, sitting en banc, discussed how expectations of privacy, particularly in the context of “ever-evolving technologies,” typically turn on concrete, case-by-case determinations of a “limitless range of factual circumstances.” 532 F.3d at 527-28. However, we are only asked to decide whether every instance of one particular factual circumstance -
Moreover, Warshak involved a plaintiff who sought an injunction against the United States to prevent it from obtaining and executing any
[T]he following train of events would necessarily have to occur: First, a train must be involved in a collision at a Louisiana railroad crossing . . . Second, even assuming that such a collision occurs, . . . a law enforcement officer must have “reasonable grounds to believe the person to have been operating or in physical control of the locomotive engine while under the influence” of alcohol or other illegal controlled substances. . . . Third, “reasonable grounds to believe” would have to be interpreted to mean
something other than “probable cause.” . . . Finally, a Louisiana officer would have to order such testing without actually having “probable cause.”
Id. at 858; see also Chandler v. Miller, 520 U.S. 305, 309-10, 318-22 (1997) (invalidating a state law mandating drug testing for political candidates without requiring the candidates to wait until after they were tested to challenge the law). Unlike the plaintiffs in Warshak and Foster, the Government‘s claims are not speculative. It has already been denied the use of
2. Appellate jurisdiction
Professor Kerr does not believe that the order denying the Government‘s application is a final order over which this court has appellate jurisdiction under
current criminal case, and that denying or granting the order finally disposes of the proceeding.5
B. Fourth Amendment challenge
The district court held that the SCA violates the Fourth Amendment because the Act allows the United States to obtain a court order compelling a cell phone company to disclose historical cell site records
The SCA regulates disclosure of stored electronic communications by service providers. With regard to compelled disclosure of non-content records or other subscriber information, the Act requires the Government to, as relevant here, secure either a warrant or a court order for the records.
[M]ay 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.
1. Discretion
The ACLU contends that we can avoid the constitutional issue by holding that the magistrate judge had discretion under the SCA to require the Government to seek a warrant rather than a
This construction of the SCA, however, ignores the intervening “shall” in the provision. “The word ‘shall’ is ordinarily ‘the language of command.‘” Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (quoting Anderson v. Yungkau, 329 U.S. 482, 485 (1947)); see Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“The Panel‘s instruction comes in terms of the mandatory ‘shall,’ which normally creates an obligation impervious to judicial discretion.“). Including this “shall” in our interpretation of the SCA, as we should, see Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir. 2006) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.‘” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 21 (2001)))), we reach a different conclusion from that of the Third Circuit.
Reading the provision as a whole, we conclude that the “may be issued” language is permissive - it grants a court the authority to issue the order - and the “shall issue” term directs the court to issue the order if all the necessary conditions in the statute are met. These conditions include both the requirements specified by
Government seeks an order (1) to “require a provider of electronic communication service or remote computing service” (2) “to disclose a [non-content] record or other information pertaining to a subscriber to or customer of such service” when the Government (3) meets the “specific and articulable facts” standard. If these three conditions are met, the court does not have the discretion to refuse to grant the order.8 See In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 148 (E.D. Va. 2011) (“The fact that ‘only if’ creates a necessary but not sufficient condition . . . does not automatically create a gap in the statute that should be filled with judicial
Even if the text of the statute supported the ACLU‘s argument that magistrate judges have discretion to require the Government to secure a warrant for cell site information, such discretion would be beside the point here. The district court did not simply decide that the Government must secure a warrant in this case. It held, adopting the magistrate judge‘s conclusion, that
“[w]hen the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. . . . The standard under the Stored Communications Act is below that required by the Constitution.” See also Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a
2. The constitutional question
The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals - location information - and proceeds to analyze the
The ACLU contends that individuals have a reasonable expectation of privacy in their location information when they are tracked in a space, like the home, that is traditionally protected or when they are tracked for a longer period
of time and in greater detail than society would expect.9 The ACLU relies on the concurrences in United States v. Jones, 132 S. Ct. 945 (2012), which concluded that prolonged GPS monitoring of a vehicle could constitute a search, id. at 964 (Alito, J., concurring in the judgment) (joined by Justices Ginsburg, Breyer, and Kagan); see id. at 955 (Sotomayor, J., concurring) (expressly agreeing with Justice Alito‘s concurrence on this point).10
Moreover, the Government argues that cell site information is less precise than GPS location information. It contends that these data are not sufficiently accurate to reveal when someone is in a private location such as a home. But the ACLU points out that the reason that the Government seeks such information is to locate or track a suspect in a criminal investigation. The data must be precise enough to be useful to the Government, which would suggest that, at least in some cases, it can narrow someone‘s location to a fairly small area. See
phone carriers to have, by 2012, the ability to locate phones within 100 meters of 67% of calls and 300 meters for 95% of calls for network based calls, and to be able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of calls for hand-set based calls). And the Supreme Court held in United States v. Karo that without a warrant the Government cannot determine by means of a beeper whether a particular article (in that case a cannister of ether) is in an individual‘s home at a particular time. 468 U.S. 705, 719 (1984). In response, the Government argues that a pen register can similarly locate someone to his home. If a person makes a call from his home landline, he must be located in his home at the landline‘s receiver. Yet the Court in Smith v. Maryland nevertheless sanctioned the warrantless use of pen registers, installed by the phone company at the request of police, to record the numbers dialed from particular landlines. 442 U.S. 735, 745-46 (1979).
This argument highlights the difference between the Government‘s and the ACLU‘s approaches to this issue. Both Karo and Smith involved the Government‘s acquisition of information about the interior of a home: that a particular canister was located in the home or that a person was calling particular numbers from a phone in the home. But in Karo (as in Jones), the Government was the one collecting and recording that information. And this is the distinction on which the Government‘s affirmative argument turns. The Government recognizes that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351; see also id. at 350-51 (“[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion . . . . But the protection of a person‘s general right to privacy - his right to be let alone by other people - is, like the protection of his
property and of his very life, left largely to the law of the individual States.” (emphasis added)).
This question of who is recording an individual‘s information initially is key because:
[T]he individual must occasionally transact business with other people. When he does so, he leaves behind, as evidence of his activity, the records and recollections of others. He cannot expect that these activities are his private affair. To the extent an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043 (D.C. Cir. 1978). Moreover, “[t]he fortuity of whether or not the [third party] in fact elects to make a quasi-permanent record” of information conveyed to it “does not . . . make any constitutional difference.” Smith, 442 U.S. at 745.
The third party can store data disclosed to it at its discretion. And once an individual exposes his information to a third party, it can be used for any purpose, as “[i]t is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.” SEC v. Jerry T. O‘Brien, Inc., 467 U.S. 735, 743 (1984) (emphasis added).11
The Government does concede that the subpoenaed third party must have possession of - the right to control - the records before officials can require it to turn them over. The Government, therefore, distinguishes cases where a landlord or hotel manager merely has the right to enter the apartment or room of another. The Government acknowledges that “the government may not subpoena the landlord to produce the tenant‘s personal papers from her apartment.” However, it contrasts these situations from the one presented in United States v. Miller, 425 U.S. 435 (1976). In Miller, the Court rejected a bank depositor‘s Fourth
papers. . . . [R]espondent can assert neither ownership nor possession. Instead, these are the business records of the bank[]. . . . [They] pertain to transactions to which the bank was itself a party.” (citation and internal quotation marks omitted)).
This qualification that the right to possession hinges on whether the third party created the record to memorialize its business transaction with the target, rather than simply recording its observation of a transaction between two independent parties, recently gained context and support from a case decided by the Sixth Circuit. In that case, United States v. Warshak, the court of appeals held that the “government may not compel a commercial [internet service provider] to turn over the contents of a subscriber‘s emails without first obtaining a warrant based on probable cause.” 631 F.3d 266, 288 (6th Cir. 2010). The court reasoned that the emails were communications between two subscribers, not communications between the service provider and a subscriber that would qualify as business records. The provider was merely the “intermediary.” Id. at 286.
Defining business records as records of transactions to which the record-keeper is a party also fits well with the historical and statutory distinction between communications content and addressing information. See United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) (“In a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot engage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties.“) (collecting cases); see, e.g.,
appropriately and efficiently are not. See Smith, 442 U.S. at 741 (finding significant that pen registers, unlike the listening device employed in Katz, “do not acquire the contents of communications” and do not require a warrant); Forrester, 512 F.3d at 511 (“The government‘s surveillance of e-mail addresses also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. . . . E-mail, like physical mail, has an outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient.“).
Under this framework, cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service
Moreover, these are the providers’ own records of transactions to which it is a party. The caller is not conveying location information to anyone other than his service provider. He is sending information so that the provider can perform the service for which he pays it: to connect his call. And the historical cell site information reveals his location information for addressing purposes, not the
contents of his calls.12 The provider uses this data to properly route his call, while the person he is calling does not receive this information.
The ACLU points out that this conveyance of location information to the service provider nevertheless must be voluntary in order for the cell phone owner to relinquish his privacy interest in the data. The ACLU asserts that here it is not. According to the ACLU, “[w]hen a cell phone user makes or receives a call, there is no indication to the user that making or receiving that call will . . . locate the caller.” A user cannot voluntarily convey something which he does not know he has.
The Government disputes the assertion that cell phone users do not voluntarily convey location information. It contends that the users know that they convey information about their location to their service providers when they make a call and that they voluntarily continue to make such calls. We agree. In Smith, the Supreme Court recognized that:
All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making
permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.
442 U.S. at 742. Furthermore, it observed that “[m]ost phone books tell subscribers, on a page entitled ‘Consumer Information,’ that the company ‘can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.‘” Id. at 742-43.
A cell service subscriber, like a telephone user, understands that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call. See United States v. Madison, No. 11-60285-CR, 2012 WL 3095357, at *8 (S.D. Fla. July 30, 2012) (unpublished) (“[C]ell-phone users have knowledge that when they place or receive calls, they, through their cell phones, are transmitting signals to the nearest cell tower, and, thus, to their communications service providers.“). Cell phone users recognize that, if their phone cannot pick up a signal (or “has no bars“), they are out of
to bill in these different ways, communications companies must maintain the requisite data, including cell-tower information.“). Finally, they make clear that providers will turn over these records to government officials if served with a court order. Cell phone users, therefore, understand that their service providers record their location information when they use their phones at least to the same extent that the landline users in Smith understood that the phone company recorded the numbers they dialed.
Their use of their phones, moreover, is entirely voluntary. See United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) (“There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.“). The Government does not require a member of the public to own or carry a phone. As the days of monopoly phone companies are past, the Government does not require him to obtain his cell phone service from a particular service provider that keeps historical cell site records for its subscribers, either. And it does not require him to make a call, let alone to make a call at a specific location.
Nevertheless, the ACLU argues that, while an individual‘s use of his phone may be voluntary, he does not voluntarily convey his cell site information because he does not directly convey it to his service provider. The only information he directly conveys is the number he dials. See In re Application of the United States, 620 F.3d at 317 (“[W]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed.“). This crabbed understanding of voluntary conveyance would lead to absurd results. For example, if a user programmed a contact‘s telephone number into his phone‘s speed dial memory, he would only need to dial the speed dial reference number to make the call. Would that mean that the Government would be unable to obtain the contact‘s actual telephone number from his service provider? Clearly not. The contact‘s
Finally, the ACLU argues that advances in technology have changed society‘s reasonable expectations of privacy in information exposed to third parties. See Jones, 132 S. Ct. 963-64 (Alito, J., concurring in the judgment) (“In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. . . . Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.“); see also id. at 957 (Sotomayor, J., concurring). We agree that technological changes can alter societal expectations of privacy. See id. at 962 (Alito, J., concurring) (“Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.“). At the same time, “[l]aw enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system.” Skinner, 690 F.3d at 778 (citing United States v. Knotts, 460 U.S. 276, 284 (1983)). Therefore, “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).
Congress has crafted such a legislative solution in the SCA. The statute conforms to existing Supreme Court Fourth Amendment precedent. This precedent, as it now
We understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags, Greenwood, 486 U.S. at 40-41, or the view of their property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451 (1989), to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.
Recognizing that technology is changing rapidly, we decide only the narrow issue before us.
IV. CONCLUSION
Cell site data are business records and should be analyzed under that line of Supreme Court precedent. Because the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the proper framework, the SCA‘s authorization of
DENNIS, Circuit Judge, dissenting:
In my view, this appeal should be decided by adhering to the Supreme Court‘s constitutional question avoidance doctrine and construing the applicable ambiguous provisions of the Stored Communications Act to require that the government must obtain a warrant in order to secure an order requiring an electronic communications provider to disclose data potentially protected by the Fourth Amendment, such
This appeal properly turns on construction of a statute, rather than on interpretation of the Fourth Amendment. Provisions of the 1986 Stored Communications Act codified at
The majority adopts the government‘s interpretation of the statute, creating a circuit split with the only other Court of Appeals that has considered the interpretive question. See 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, 315-17 (3d Cir. 2010). By doing so, the majority is forced to confront the serious and debatable constitutional question of whether cellular customers have a legitimate Fourth Amendment privacy interest in the “cell site location information” generated when we use our phones. The substantial difficulty of this question is reflected in the Supreme Court‘s conscientious avoidance of similar questions regarding the Fourth Amendment implications of modern telecommunications technologies. See United States v. Jones, 132 S. Ct. 945, 953-54 (2012); City of Ontario v. Quon, 130 S. Ct. 2619, 2629-30 (2010). The majority adopts the government‘s position on this issue as well, holding that cellular customers do not have a Fourth Amendment privacy interest in historical cell site location information. On this point too, the majority splits from the Third Circuit, the only other Court of Appeals to have considered the issue. See 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 at 317-18. This divergence of authority illustrates the difficulty and uncertainty of the constitutional issue.
Respectfully, I believe that the majority‘s approach contravenes Supreme Court precedent applying the canon of constitutional avoidance, “[‘]a cardinal principle’ of
Here, such an “alternative interpretation” is not only “fairly possible,” see St. Cyr, 533 U.S. at 299-300, but indeed better accords with the statute‘s text, structure, and purpose than the interpretation advanced by the government and adopted by the majority. Section 2703(c) may be fairly construed to provide for “warrant procedures” to be followed when the government seeks customer records that may be protected under the Fourth Amendment, including historical cell site location information. See
Based on this analysis, I would hold that the government must obtain a warrant pursuant to
I
The Stored Communications Act was enacted as Title II of the Electronic Communications Privacy Act of 1986, P.L. 99-508 (1986). The legislation‘s purpose was “to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” S. Rep. No. 99-541, at 1 (1986). Section 2703 “details the procedures the government may employ to obtain stored information from a third-party provider, depending upon whether the government is seeking the contents of a stored communication, or non-content information.” In re Application of U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 296 (4th Cir. 2013) (Wilson, J., concurring) (citing
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 or customer of such service (not including the contents of the communications) only when the governmental entity —
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; [or] (B) obtains a court order for such disclosure under subsection (d) . . . .
A court order for disclosure under subsection (b) or (c) 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.
The government and the majority maintain that these provisions unambiguously mean that a magistrate must issue a
Contrary to the government‘s argument, however, the statute is ambiguous as to when the “warrant procedures” described in subsection 2703(c)(1)(A) are to be followed. Thus, we must apply the avoidance canon, a “rule[] for resolving textual ambiguity,” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 140 (2005), “counseling that ambiguous statutory language be construed to avoid serious constitutional doubts,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).
II
“The appropriate starting point when interpreting any statute is its plain meaning.” United States v. Molina-Gazca, 571 F.3d 470, 472 (5th Cir. 2009). “In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” Id. (quoting K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.‘” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). “Interpretation of a word or phrase depends upon reading
First, the plain language of subsection 2703(d) states that an order ”may be issued by any court that is a court of competent jurisdiction.”
The plain language of subsection 2703(d) also prohibits a court from issuing the statutory order if the government‘s application does not make out the statutory reasonable suspicion standard. The statute provides that an order “shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought[] are relevant and material to an ongoing criminal investigation.”
The Supreme Court has specifically contrasted the meanings of “whenever” and “only if,” explaining that the latter “states a necessary, but not a sufficient, condition.” California v. Hodari D., 499 U.S. 621, 627-28 (1991). The Court reiterated this point in construing a statutory formulation similar to that here. In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Court analyzed the language of
Section 2253(c)(2) . . . provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of
§ 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements, and one such additional requirement has been approved by this Court.
Miller-El, 537 U.S. at 349 (second and third alterations in original). Other courts have applied this same understanding of “only if.” See Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469, 475 (6th Cir. 1998) (explaining that under
[T]he “phrase ‘only if’ describe[s] a necessary condition, not a sufficient condition[.]’ . . . [W]hile a ‘necessary condition describes a prerequisite[,] a ‘sufficient condition is a guarantee[.]’ . . . [For] example[,] . . . while “a team may win the World Series only if it makes the playoffs . . . a team‘s meeting the necessary condition of making the playoffs does not guarantee that the team will win the World Series.” In contrast, “winning the division is a sufficient condition for making the playoffs because a team that wins the division is ensured a spot in the playoffs . . . [and thus] a team makes the playoffs if it wins its division.”
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 at 317 (some alterations in original) (citations omitted) (quoting Township of Tinicum v. U.S. Dep‘t of Transp., 582 F.3d 482, 489-90 (3d Cir. 2009)).
Following the government, the majority argues that this reading violates the superfluity canon by “ignor[ing]” the word “shall,” Maj. Op. 10, in
The government‘s argument would have some force if Congress had actually omitted the word “only” from the phrase “shall issue only if,” as the government apparently believes Congress intended. See 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 at 317 (“The difficulty with the Government‘s argument is that the statute does contain the word ‘only’ and neither we nor the Government is free to rewrite it.“). Indeed, the warrant provision of the Federal Rules of Criminal Procedure — specifically adverted to in
court of record — must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.”
16; see also Carver, 558 F.3d at 876 n.12 (noting the critical semantic “distinction between ‘if’ and ‘only if‘“).
Accordingly, it cannot be said that the only plausible construction of the statute is that a magistrate must issue a
III
The government‘s interpretation raises the question of whether
As the Eleventh Circuit recently observed, the Supreme Court has “underscore[d] its disinclination to establish broad precedents as to privacy rights vis-a-vis electronic devices and emerging technologies” because of “the difficulty in determining what privacy expectations are reasonable.” Rehberg v. Paulk, 611 F.3d 828, 845 (11th Cir. 2010) (citing City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010)). In Quon, the Supreme Court cautioned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” 130 S. Ct. at 2629. The Court avoided setting forth “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment.” Id. at 2630. Instead, the Court held it “preferable to dispose of th[e] case on narrower grounds.” Id. The Court achieved this narrower disposition by “assum[ing] several propositions arguendo,” including that a municipal police officer “ha[s] a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City.” Id. Particularly relevant here, the Court explained:
In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. [Katz, 389 U.S. at 360-61 (Harlan, J., concurring).] It is not so clear that courts at present are on so sure a ground. . . . Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.
Similarly, every member of the Court acknowledged last year that law enforcement‘s access to the location information generated by cell phones raises serious constitutional questions. United States v. Jones, 132 S. Ct. 945 (2012). In Jones, the Court unanimously held that attaching a global positioning system (“GPS“) tracking device to a car and monitoring the car‘s movements without a valid warrant violated the Fourth Amendment, but divided in its reasoning. Notably, a majority eschewed engaging with the “particularly vexing problems” of applying a privacy analysis, id. at 953, and instead held that a search had occurred because of the trespass inherent in “physically occup[ying] private property
Justice Sotomayor cast the critical fifth vote in support of the majority opinion. However, her concurrence expressed serious doubt about extending the third party records doctrine applied in Smith v. Maryland, 442 U.S. 735 (1979)6 — and relied upon by today‘s majority — to location information generated by modern devices such as “GPS-enabled smartphones.” Jones, 132 S. Ct. at 955-57 (Sotomayor, J., concurring). Justice Sotomayor explained:
[In future cases] considering the existence of a reasonable societal expectation of privacy in the sum of one‘s public movements[,] . . . it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited
purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Id. at 957 (citations omitted); see also id. at 956 n.* (“Owners of GPS-equipped . . . smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.“). Significantly, Justice Sotomayor explained that she “join[ed] the majority‘s opinion” “because the Government‘s physical intrusion on Jones’ Jeep” made “[r]esolution of these difficult questions . . . unnecessary.” Id. at 957 (emphasis added). Justice Alito, writing for four justices, expressed similar concerns. See id. at 963 (Alito, J., concurring in the judgment) (“Recent years have seen the emergence of many new devices that permit the monitoring of a person‘s movements. . . . Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users . . . . The availability and use of these and other new devices will continue to shape the average person‘s
Quon and Jones thus suggest that warrantless compulsion of cell site location records raises serious Fourth Amendment questions. The cautious approach taken by the Supreme Court makes clear that lower courts venture onto uncertain terrain in applying a reasonable expectation of privacy analysis to this law enforcement practice. Justice Sotomayor‘s decisive concurrence in Jones warns us not to “assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” See id. at 957 (Sotomayor, J., concurring). “Although dicta, we do take such pronouncements from the Supreme Court seriously.” Croft v. Perry, 624 F.3d 157, 164 (5th Cir. 2010). The divergent conclusions reached by the Third Circuit and today‘s majority starkly illustrate this uncertainty.7
In light of the difficulty of the constitutional question, “there is no reason for rushing forward to resolve [it] here.” See Jones, 132 S. Ct. at 954. Rather, as in Jones and Quon, “[p]rudence counsels caution before . . . establish[ing] far-reaching premises that define the existence, and extent, of privacy expectations.” See Quon, 130 S. Ct. at 2629.
IV
Because there is substantial doubt as to whether cell phone users have a reasonable expectation of privacy in cell site location information, it is not merely “preferable to dispose of this case on narrower grounds,” see id., but “incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress,” United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994). “This cardinal principle has its roots in Chief Justice Marshall‘s opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), and has for so long been applied by th[e] [Supreme] Court that it is beyond debate.” Edward J. DeBartolo Corp., 485 U.S. at 575.
Rather than acknowledge this obligation, however the majority adopts the government‘s textually strained, constitutionally loaded construction after a cursory analysis; and boldly proceeds to pronounce upon the constitutional issue. The majority states that “we cannot avoid the [constitutional] question” because the district court below “held that all
assertion is contrary to the Supreme Court‘s instruction that whatever the basis for a decision below, “we must independently inquire whether there is another interpretation, not raising . . . serious constitutional concerns, that may be fairly ascribed to [the statute].” Edward J. DeBartolo Corp., 485 U.S. at 577 (emphasis added); accord, e.g., St. Cyr, 533 U.S. at 299-300 (“[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is
As required by these precedents, I have endeavored to “ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided.” See Sec. Indus. Bank, 459 U.S. at 78. I conclude that such a construction is not only fairly possible, but better accords with the text, structure, and purpose of the statute than the government‘s interpretation.
V
A better interpretation is to read subsections
For the reasons stated above, this alternative construction is not inconsistent with the ambiguous language of
By contrast, the government‘s reading renders subsection
would never need to get a warrant under
This construction also accords with the larger structure of
hierarchy, a law enforcement agency conducting a telemarketing fraud investigation may obtain “the name, address and place of business of a subscriber who is engaged in telemarketing” using only “a formal written request” to the service provider.
Like the statutory language and structure, the legislative history suggests that Congress drafted
“dramatic changes in new . . . telecommunications technologies” such as “cellular . . . telephones.” See id. at *1-2. The Committee Report stated:
When the Framers of the Constitution acted to guard against the arbitrary use of Government power to maintain surveillance over citizens, there were limited methods of intrusion into the ‘houses, papers, and effects’ protected by the [F]ourth [A]mendment. During the intervening 200 years, development of new methods of communication and devices for surveillance has expanded dramatically the opportunity for such intrusions. . . .
[T]he law must advance with the technology to ensure the continued vitality of the fourth amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances. Congress must act to protect the privacy of our citizens. If we do not, we will promote the gradual erosion of this precious right.
Id. at *1-2, 5 (1986). Congress was also mindful that “[i]n th[e] rapidly developing area of communications [such as] cellular non-wire telephone connections . . . , distinctions such as [whether there does or does not exist a reasonable expectation of privacy] are not always clear or obvious.” Id. at *4 (final alteration in original).11
As Congress is well aware, “the Constitution invests the Judiciary, not the Legislature, with the final power to construe the law.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 325 (1992). In drafting the Stored Communications Act, Congress certainly knew that a statute permitting law enforcement to access information about a suspect without a warrant or consent could be subject to constitutional challenge and potential invalidation. See Marshall v. Barlow‘s, Inc., 436 U.S. 307 (1978) (holding statute unconstitutional insofar as it purported to authorize search without warrant or warrant equivalent); Berger v. New York, 388 U.S. 41 (1967) (holding facially unconstitutional statute
authorizing issuance of orders for electronic eavesdropping without probable cause). The drafters of the Stored Communications Act were consciously engaged in an ongoing conversation between Congress and the Court regarding privacy protections. See, e.g., S. Rep. No. 99-541, at 2 (1986) (citing Berger, 388 U.S. 41).12
“It is presumable that Congress legislates with knowledge of our basic rules of statutory construction,” McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496 (1991), and the constitutional avoidance canon has long been recognized as “[‘]a cardinal principle’ of statutory interpretation,” Zadvydas, 533 U.S. at 689
agent.“); Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment) (“[W]here uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.“).
In observing that the government‘s interpretation raises serious constitutional doubts and construing
Having concluded that the statute is best construed as directing that warrant procedures be followed when the government seeks non-content records that may be protected by the Fourth Amendment, I would further hold that historical cell site location records constitute one example of this potentially protected information. Thus, I would hold that the government must obtain a warrant pursuant to
The precise nature of the cell site location records sought in the present case is a matter of some dispute. In general, however, historical cell site location information appears to consist of, at minimum, a cellular service provider‘s records of which “cell sites” — i.e., “cell towers” or “base stations” mounted with antennae — a particular customer‘s cell phone has accessed over a particular period. The briefs submitted by the government and various amici provide different accounts of the precision of the information that such records contain. The magistrate judge below premised his Fourth Amendment analysis upon a series of “findings . . . based on expert testimony . . . given at a [June 2010] House Judiciary Subcommittee hearing . . . [intended] to educate Congress on the current state of location technology in the telecommunications industry.” In
re Application of U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 830 (S.D. Tex. 2010) (Smith, M.J.). In particular, the magistrate judge looked to the testimony of Matt Blaze, “Associate Professor of Computer and Information Science, University of Pennsylvania.” Id. at 830 n.13; see also id. at 831-33 nn. 7-28. A subsequent committee report summarized Professor Blaze‘s testimony at the June 2010 hearing as follows:
Professor Blaze educat[ed] the Subcommittee on location technologies — specifically how different technologies interface with cell phones and locate their positions with varying degrees of specificity and precision in various types of environments, both indoors and out. Professor Blaze explained how, even if a network only records cell tower data (as opposed to GPS), the precision of that data will vary widely for any given customer over the course of a day and, for a typical user over time, some of that data will likely have locational precision similar to that of GPS. Indeed, in urban areas where providers are using microcell technology, the level of precision for cell tower location data can include individual floors and rooms within buildings.
H.R. Rep. No. 111-712, at 90 (2011).
The government disputes several of these assertions. As the majority acknowledges,
to whether or when network-based cell site location records will provide law enforcement with information regarding a suspect‘s location and movements that are equivalent to phone-based GPS location records.15 Even were it possible to ascertain the nature of the records generated and stored by the various cellular service providers, such a determination is unnecessary here.
Although government access to cell site location information was not specifically envisioned or considered by Congress when it enacted the Stored Communications Act, presently these records appear to be the most personally revealing information that may be said to fall within
Accordingly, I would hold that subsection
VII
The Third Circuit recently analyzed
order whenever the government‘s application satisfies the statutory reasonable suspicion standard. See 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 at 314-17. However, the Third Circuit would give effect to subsection
Moreover, ex parte application proceedings conducted in the absence of concrete investigative facts provide a poor vehicle for the development of Fourth Amendment doctrine. The Quon Court cautioned against using “the facts in [a single] case . . . to establish far-reaching” privacy principles. 130 S. Ct. at 2629. It seems to me even less prudent to set forth such principles in the context of an ex parte
VIII
In sum, I conclude that the text of the Stored Communications Act is ambiguous as to when the government is to follow warrant procedures to compel
disclosure of non-content customer call records. To resolve this ambiguity, I would apply the Supreme Court‘s constitutional avoidance jurisprudence. I would recognize that non-consensual, warrantless compulsion of customer cell site location records raises serious and debatable constitutional questions. In order to avoid these difficult questions, as we must if fairly possible, I would construe the statutory framework as implicitly directing that
Notes
Like IP addresses, certain phone numbers may strongly indicate the underlying contents of the communication; for example, the government would know that a person who dialed the phone number of a chemicals company or a gun shop was likely seeking information about chemicals or firearms. Further, when an individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery results or phone sex lines, the phone number may even show that the caller had access to specific content information. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.
Id. These observations are equally applicable to historical cell site data.
See also Bartnicki v. Vopper, 532 U.S. 514, 522-23 (2001) (“In Berger, we held that New York‘s broadly written statute authorizing the police to conduct wiretaps violated the Fourth Amendment. Largely in response to that decision, and to our holding in Katz v. United States, 389 U.S. 347 (1967), that the attachment of a listening and recording device to the outside of a telephone booth constituted a search, ‘Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise.[‘]“).