IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO THE GOVERNMENT
No. 08-4227
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 7, 2010
PRECEDENTIAL. Argued February 12, 2010. Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Appellant
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No.
Before: SLOVITER, ROTH, and TASHIMA,* Circuit Judges
Mary Beth Buchanan
Robert L. Eberhardt
Office of the United States Attorney
Pittsburgh, PA 15219
Mark Eckenwiler (Argued)
United States Department of Justice
Office of Enforcement Operations
Washington, DC 20530
Attorneys for Appellant
Lisa B. Freeland
Office of Federal Public Defender
Pittsburgh, PA 15222
Jennifer Granick
Kevin S. Bankston (Argued)
Matthew Zimmerman
Electronic Frontier Foundation
San Francisco, CA 94110
Jim Dempsey
Harley Geiger
Center for Democracy and Technology
Washington, DC 20006
Witold J. Walczak
American Civil Liberties Union of Pennsylvania
Pittsburgh, PA 15213
Catherine Crump
American Civil Liberties Union Foundation
New York, NY 10004
Susan A. Freiwald (Argued)
University of San Francisco School of Law
San Francisco, CA 94117
Attorneys for Amici Appellees
SLOVITER, Circuit Judge.
The United States (“Government“) applied for a court order pursuant to a provision of the Stored Communications Act,
We have de novo review. See DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007). This appeal gives us our first opportunity to review whether a court can deny a Government application under
The growth of electronic communications has stimulated Congress to enact statutes that provide both access to information heretofore unavailable for law enforcement purposes and, at the same time, protect users of such communication services from intrusion that Congress deems unwarranted. The Stored Communications Act (“SCA“), was enacted in 1986 as Title II of the Electronic Communications Privacy Act of 1986 (“ECPA“),
The SCA is directed to disclosure of communication information by providers of electronic communications (“providers“). Section 2703(a) covers the circumstances in which a governmental entity may require providers to disclose the contents of wire or electronic communications in electronic storage; section 2703(b) covers the circumstances in which a governmental entity may require providers to disclose the contents of wire or electronic communications held by a remote computing service. See
Section 2703(c)(1) of the SCA provides:
(c) Records concerning electronic communication service or remote computing service.--(1) 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 to or customer of such service (not including the contents of 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;
(B) obtains a court order for such disclosure under subsection (d) of this section;
(C) has the consent of the subscriber or customer to such disclosure;
(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or
(E) seeks information under paragraph (2).
Id. The formal separation of these options in
A third option covered by the statute provides for the governmental entity to use “an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena . . . .”
(d) Requirements for court order.--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. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
As the Government notes in its reply brief, there is no dispute that historical CSLI is a “record or other information pertaining to a subscriber . . . or customer,” and therefore falls within the scope of
The Government‘s application, which is heavily redacted in the Appendix, seeks
historical cellular tower data i.e. transactional records (including, without limitation, call initiation and termination to include sectors when available, call handoffs, call durations, registrations and connection records), to include cellular tower site information, maintained with respect to the cellular telephone number [of a subscriber or subscribers whose names are redacted].
App. at 64. The Government does not foreclose the possibility that in a future case it will argue that the SCA may be read to authorize disclosure of additional material.
The MJ concluded, “as a matter of statutory interpretation, that nothing in the provisions of the electronic communications legislation authorizes it [i.e., the MJ] to order a [provider‘s] covert disclosure of CSLI absent a showing of probable cause under Rule 41.” MJOp., 534 F. Supp. 2d at 610. Rule 41(d) of the Federal Rules of Criminal Procedure, referred to by the MJ, provides:
(d) Obtaining a Warrant.
(1) In General. After receiving an affidavit or other information, a magistrate judge--or if authorized by Rule 41(b), a judge of a state 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.
The Government argues that
We begin with the MJ‘s opinion. We note, preliminarily, that the MJ‘s opinion was joined by the other magistrate judges in that district. This is unique in the author‘s experience of more than three decades on this court and demonstrates the impressive level of support Magistrate Judge Lenihan‘s opinion has among her colleagues who, after all, routinely issue warrants authorizing searches and production of documents.
One of the principal bases for the MJ‘s conclusion that the Government must show probable cause for a
The Government vigorously objects to treating CSLI from cell phone calls as information from a tracking device.6 It explains that cellular calls are wire communications, that tracking devices are excluded from the definition of electronic communications but not from the definition of wire communications, and that, in any event, it hasn‘t sought records from a tracking device in this case.
In response, the Government notes that the historical CSLI that it sought in this case does not provide information about the location of the caller closer than several hundred feet. However, much more precise location information is available when global positioning system (“GPS“) technology is installed in a cell phone. A GPS is a widely used device installed in automobiles to provide drivers with information about their whereabouts. The Government argues that it did not seek GPS information in this case.
Nonetheless, the Government does not argue that it cannot or will not request information from a GPS device through a
We take no position whether a request for GPS data is appropriate under a
The Government counters that Agent Shute acknowledged that historical cell site information provides only a rough indication of a user‘s location at the time a call was made or received. The Government correctly notes that Agent Shute did not state that the cell-site information “is reliable evidence” that the suspect was at home, as EFF asserts. EFF Br. at 15. Agent Shute only stated that it is “highly possible” that the user was at home or in the vicinity.
This dispute may seem to be a digression, but it is not irrelevant. The MJ proceeded from the premise that CSLI can track a cell phone user to his or her location, leading the MJ to conclude that CSLI could encroach upon what the MJ believed were citizens’ reasonable expectations of privacy regarding their physical movements and locations. The MJ regarded location information as “extraordinarily personal and potentially sensitive.” MJOp., 534 F. Supp. 2d at 586. We see no need to decide that issue in this case without a factual record on which to ground the analysis. Instead, we merely consider whether there was any basis for the MJ‘s underlying premises.
For that purpose, we refer to two opinions of the Supreme Court, both involving criminal cases not directly applicable here, but which shed some light on the parameters of privacy expectations. In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that the warrantless installation of an electronic tracking beeper/radio transmitter inside a drum of chemicals sold to illegal drug manufacturers, and used to follow their movements on public highways, implicated no Fourth Amendment concerns, as the drug manufacturers had no reasonable expectation of privacy while they and their vehicles were in plain view on public highways. The following year, in United States v. Karo, 468 U.S. 705 (1984), the Court held that where a beeper placed inside a chemical drum was then used to ascertain the drum‘s presence within a residence, the search was unreasonable absent a warrant supported by probable cause. More specifically, the Court stated that the “case . . . present[ed] the question whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence.” Karo, 468 U.S. at 714. The Karo Court distinguished Knotts:
[M]onitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant. The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts’ cabin . . . . here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified.
We cannot reject the hypothesis that CSLI may, under certain circumstances, be used to approximate the past location of a person. If it can be used to allow the inference of present, or even future, location, in this respect CSLI may resemble a tracking device which provides information as to the actual whereabouts of the subject. The Knotts/Karo opinions make clear that the privacy interests at issue are confined to the interior of the home. There is no evidence in this record that historical CSLI, even when focused on cell phones that are equipped with GPS, extends to that realm. We therefore cannot accept the MJ‘s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production.
In sum, we hold that CSLI from cell phone calls is obtainable under a
III.
On different occasions in the MJ‘s opinion, the MJ referred to her understanding that the “relevant legislative history indicates that Congress did not intend its electronic communications legislation to be read to require, on its authority, disclosure of an individual‘s location information . . . .” MJOp., 534 F. Supp. 2d at 610. We also have reviewed the legislative history of the SCA and find no support for this conclusion.
The legislative history of the ECPA begins in 1985 with the introduction by Representative Kastenmeier of H.R. 3378. See 131 Cong. Rec. 24,397 (1985) (statement of Rep. Robert W. Kastenmeier). At the hearings on H.R. 3378, Senator Leahy explained that “the bill provides that law enforcement agencies must obtain a court order based on a reasonable suspicion standard before . . . being permitted access to records of an electronic communication system which concern specific communications.” Electronic Communications Privacy Act: Hearings on H.R. 3378 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 99th Cong. 7 (1985) (statement of Sen. Patrick Leahy). H.R. 3378 was not enacted.
Eight years later, in 1994, Congress amended the statute to keep pace with technological changes through CALEA, which altered the standard in
The legislative history strongly supports the conclusion that the present standard in
imposes an intermediate standard to protect on-line transactional records. It is a standard higher than a subpoena, but not a probable-cause warrant. The intent of raising the standard for access to transactional data is to guard against “fishing expeditions” by law enforcement. Under the intermediate standard, the court must find, based on law enforcement‘s showing of facts, that there are specific and articulable grounds to believe that the records are relevant and material to an ongoing criminal investigation.
Id. at 31; see also H.R. Rep. No. 103-827, pt. 1, at 31 (1994) (noting same), reprinted in 1994 U.S.C.C.A.N. 3489, 3511. We are aware of no conflicting legislative history on the matter, and we will accept the intermediate standard as applicable to all attempts to obtain transaction records under
Freeh addressed Congress’ concern that with advances in cell phone technology, law enforcement could obtain-by CSLI-information of an individual‘s physical movement previously obtainable only through visual surveillance or the covert installation of a radio-wave transmitter. During the course of his testimony, Director Freeh reassured Congress that law enforcement was not attempting to obtain via the 1994 enactments, or to otherwise alter the standards applicable to, movement/location information.
Id. at 596.
Director Freeh‘s testimony, referred to by the MJ, does not provide support for the MJ‘s conclusion that a warrant is required to obtain CSLI. Director Freeh‘s testimony regarding allegations of “tracking” persons focused on the Government‘s ability to obtain information through a pen register or trap and trace device, which is governed by a different, and lower, standard than that applicable to a
IV.
Because we conclude that the SCA does not contain any language that requires the Government to show probable cause as a predicate for a court order under
We begin with the text. Section
The EFF argues that the statutory language that an order can be issued “only if” the showing of articulable facts is made indicates that such a showing is necessary, but not automatically sufficient. EFF Br. at 4. If issuance of the order were not discretionary, the EFF asserts, the word “only” would be superfluous. Id. at 5. The EFF compares the use of the words “only if” with the clearly mandatory language of the pen register statute,
We addressed the effect of the statutory language “only . . . if” in the Anti-Head Tax Act, which provides that a “State or political subdivision of a State may levy or collect a tax on or related to a flight of a commercial aircraft or an activity or service on the aircraft only if the aircraft takes off or lands in the State or political subdivision as part of the flight.”
This is a powerful argument to which the Government does not persuasively respond. Under the EFF‘s reading of the statutory language,
The Government‘s only retort to the argument that it would never need to get a warrant under
In response to the EFF‘s statutory argument, the Government argues that the “shall issue” language is the language of mandate. It also asserts that without the word “only“, the sentence would read that an order “may be issued by [a] court . . . and shall issue if the government” makes the correct showing. Appellant‘s Reply Br. at 12. 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.
The Government argues that when the statutory scheme is read as a whole, it supports a finding that a magistrate judge does not have “arbitrary” discretion to require a warrant. We agree that a magistrate judge does not have arbitrary discretion. Indeed, no judge in the federal courts has arbitrary discretion to issue an order. Orders of a magistrate judge must be supported by reasons that are consistent with the standard applicable under the statute at issue. Nonetheless, we are concerned with the breadth of the Government‘s interpretation of the statute that could give the Government the virtually unreviewable authority to demand a
Because the MJ declined to issue a
The Government argues that no CSLI can implicate constitutional protections because the subscriber has shared its information with a third party, i.e., the communications provider. For support, the Government cites United States v. Miller, 425 U.S. 435 (1976), in which the Supreme Court found that an individual‘s bank records were not protected by the Constitution because “all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party,” id. at 441 (internal quotation and citation omitted), and “[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” id. at 442.
The Government also cites Smith v. Maryland, 442 U.S. 735 (1979), in which the Supreme Court held that citizens have no reasonable expectation of privacy in dialed phone numbers because “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” id. at 744, and a phone call “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business,” id. at 744. The Court reasoned that individuals “assume[] the risk that the company w[ill] reveal to police the numbers . . . dialed . . . [and the] switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber.” Id.
A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, “[w]hen a cell phone user makes a call, the only information that is voluntarily and
The EFF has called to our attention an FCC order requiring cell 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. EFF Br. at 12 n.5 (citing
Although CSLI differs from information received from a beeper, which the Supreme Court held in Karo required a warrant before disclosure of information from a private home, the remarks of the Supreme Court in Karo are useful to contemplate, particularly in connection with the Government‘s extreme position. The Supreme Court stated:
We cannot accept the Government‘s contention that it should be completely free from the constraints of the Fourth Amendment to determine by means of an electronic device, without a warrant and without probable cause or reasonable suspicion, whether a particular article-or a person, for that matter-is in an individual‘s home at a particular time. Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy
interests in the home to escape entirely some sort of Fourth Amendment oversight.
The Government is also not free from the warrant requirement merely because it is investigating criminal activity. A similar argument was rejected in Karo where the Court stated:
We also reject the Government‘s contention that it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity. Warrantless searches are presumptively unreasonable, though the Court has recognized a few limited exceptions to this general rule. See, e.g., United States v. Ross, 456 U.S. 798 (1982) (automobiles); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent); Warden v. Hayden, 387 U.S. 294 (1967) (exigent circumstances). The Government‘s contention that warrantless beeper searches should be deemed reasonable is based upon its deprecation of the benefits and exaggeration of the difficulties associated with procurement of a warrant. The Government argues that the traditional justifications for the warrant requirement are inapplicable in beeper cases, but to a large extent that argument is based upon the contention, rejected above, that the beeper constitutes only a minuscule intrusion on protected privacy interests. The primary reason for the warrant requirement is to interpose a “neutral and detached magistrate” between the citizen and “the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10 (1948).
Similar reasoning lay behind the MJ‘s refusal to grant a
Because the statute as presently written gives the MJ the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly because Congress also included the option of a
We again note that although the Government argues that it need not offer more than “specific and articulable facts showing that there are reasonable grounds to believe that the . . . information sought . . . [is] relevant and material to an ongoing criminal investigation,”
V.
For the reasons set forth, we will vacate the MJ‘s order denying the Government‘s application, and remand for further proceedings consistent with this opinion.
TASHIMA, Circuit Judge, concurring:
I concur in the result and in most of the reasoning of the majority opinion. I write separately, however, because I find the majority‘s interpretation of the discretion granted to a magistrate judge by
The majority begins its analysis of
In sum, we hold that CSLI from cell phone calls is obtainable under a
§ 2703(d) order and that such an order does not require the traditional probable cause determination. Instead, the standard is governed by the text of§ 2703(d) , i.e., “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the record or other information sought, are relevant.”
Granting a court unlimited discretion to deny an application for a court order, even after the government has met statutory requirements, is contrary to the spirit of the statute. Cf. Huddleston v. United States, 485 U.S. 681, 688 (1988) (noting, in interpreting
As the majority notes, “a magistrate judge does not have arbitrary discretion. Indeed, no judge in the federal courts has arbitrary discretion to issue an order.” Maj. Op. at 24. I respectfully suggest, however, that the majority‘s interpretation of the statute, because it provides no standards for the approval or disapproval of an application for an order under
I would cabin the magistrate‘s discretion by holding that the magistrate may refuse to issue the
With this caveat as to the magistrate‘s duty and the scope of her discretion on remand, I concur in the majority opinion and in the judgment.11
Notes
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service. . . .
S. Rep. No. 99-541, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3564.These are one-way radio communication devices that emit a signal on a specific radio frequency. This signal can be received by special tracking equipment, and allows the user to trace the geographical location of the transponder. Such “homing” devices are used by law enforcement personnel to keep track of the physical whereabouts of the sending unit, which might be placed in an automobile, on a person, or in some other item.
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds . . . .”