OPINION AND MEMORANDUM ORDER
1. SUMMATION OF OPINION
The Court writes to express its concerns regarding the Government’s ex parte applications for cellular telephone (“cell phone”) subscriber information from which it may identify an individual’s past or present physical/geographic movements/locations not on a showing of probable cause to believe that the information will provide evidence in an investigation premised on a reasonable suspicion of criminal activity, as under the Fourth Amendment, 1 but rather on an articulable, reasonable belief that such information is “relevant to a ... criminal investigation” under the Stored Wire and Electronic Communications and Transactional Records Access statutes (the “Stored Communications Act” or “SCA”) alone or in tandem with the Pen Registry Statute (the “PRS”). 2 The Court also *586 writes to set forth its reasons for concluding that, while it recognizes the important and sometimes critical crime prevention and law enforcement value of tracking suspected criminals, 3 the Government’s requests for Court Orders mandating a cell phone service provider’s covert disclosure of individual subscribers’ (and possibly others’) physical location information must be accompanied by a showing of probable cause. 4
The Court emphasizes that the issue is not whether the Government can obtain movement/loeation information, but only the standard it must meet to obtain a Court Order for such disclosure and the basis of authority. It emphasizes that the Fourth Amendment standard is not a difficult one, requiring only that the Government support its belief of criminal activity and the probable materiality of the information to be obtained. 5 The Court notes that it is entrusted with the protection of the individual civil liberties, including rights of privacy and rights of free association, so paramount to the maintenance of our democracy. The Court also observes that the location information so broadly sought is extraordinarily personal and potentially sensitive; 6 and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse. 7 Finally, the Court concludes, from its exhaustive *587 review of the statutes and cases as to both the rapidly-developing law of electronic communications and the Fourth Amendment, together with its extensive rеview of the legislative history and scholarly commentary, that Congress and the Supreme Court still concur in the principle underlying this Opinion: i.e., that law enforcement’s investigative intrusions on our private lives, in the interests of social order and safety, should not be unduly hindered, but must be balanced by appropriate degrees of accountability and judicial review. 8 For these reasons, and notwithstanding the legitimate and significant benefits in law enforcement’s ability to obtain information efficiently and effectively, this Court best serves and preserves the fundamental principles underpinning our Constitutional democracy by (1) a careful and thorough parsing of the legislation and (2) a cautious and informed balancing of the competing interests.
Thus, absent express statutory authorization for ex parte access to personal movement/location information and/or a precedential/binding interpretative ruling, this Court cannot accede to the Government’s request. To the contrary, it must adhere to the canons of statutory construction and read the provisions of the various statutes implicated in a manner that (1) applies the plain language of the legislation and gives effect to each and every provision, (2) is most warranted by the legislative history and other indicia of Congressional intent, and (3) avoids a Constitutional invalidation of portions of the legislation. 9
Accordingly, this Court holds that the SCA, either alone or in tandem with the PRS pursuant to the GALEA, 10 does not authorize access to an individual’s cellphone-derived “location information”, either past or prospective, on a simple showing of articulable relevance to an ongoing investigation (a “reasonable relevance” standard).
II. STATEMENT OF CASE AND STATUTORY PROVISION AT ISSUE
Currently pending is the application of an Assistant United States Attorney re *588 questing “that an Order be issued directing that (1) certain records of [a cell phone service provider] be disclosed to the Government, (2) this matter be sealed, and (3) [the cell phone service provider] and its agents be ordered not to disclose the existence of this application, order, and any disclosures pursuant thereto”.
The Government has applied, under the Stored Communications Act (the “SCA”), 18 U.S.C. § 2703, for an Order requiring a cellular service provider to disclose the “transactional records” — including “historical cellular tower data”, “cellular tower site information”, and “sectors” — maintained with respect to a cellular telephone (“cell phone”) number in the name of one individual (the “Subscriber”) on the basis of its asserted relevance to an ongoing criminal investigation of another individual (the “Criminal Suspect”). 11 The Government attests that the Criminal Suspect is a drug trafficker, that it is experiencing difficulty in visually surveilling that person, and that fuller knowledge of the Criminal Suspect’s whereabouts is important to its counter-trafficking operations. 12 Owing to continuing technological advances, the information requested would enable the Government to identify where the Subscriber and any other individuals making use of the Subscriber’s cell phone, including the Criminal Suspect, have been at any/many given times in the past and where they are likely to be now and/or in the future.
The SCA prohibits an electronic communications provider, including a cellular service provider (a “CSP”), from disclosing various stored, i.e. historic, subscriber telephone account information to the Government, except on appropriate legal authority: 13 The Government maintains that it may obtain historical cellular tower site location information (hereafter “CSLI”)— and thus the location of the cell phone possessor(s) — under provisions of the SCA that authorize disclosure of “a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” under legal standards that include a Court Order issued upon “specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought, are relevant and *589 material to an ongoing criminal investigation.” §§ 2703(c)(1)(B) and (d).
This Court finds that (1) the SCA expressly sets movement/location information outside its scope by defining “electronic communications” to exclude “any communication from a tracking device (as defined in § 3117)”; (2) the SCA does not establish an entitlement to information in abrogation of any other legal requirements that would otherwise apply due to the nature of that information; (3) the CA-LEA also expressly exempts information from a tracking device and, in legislating what information CSPs must compile/retain for disclosure to law enforcement on “Court Order or other lawful authorization”, also retains the Fourth Amеndment or other requirements implicated by the nature of the information sought; (4) the relevant legislative history further indicates that Congress did not intend its electronic communications legislation to be read to require disclosure of an individual’s location information; to the contrary, in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing disclosure; 14 and (5) as reading the statutes as authorizing ex parte disclosure of movementdocation information with no judicial review of the probable cause could violate citizens’ reasonable expectations of privacy, such reading would be disfavored. This Court therefore concludes, .as more fully set forth below, that it must deny the Government’s requests for cellular-telephone-derived location information, historic or prospective, absent a showing of probable cause.
III. TECHNOLOGICAL DEVELOPMENT OVERVIEW
As of December, 2006, there were over 233 million cellular phone subscribers in the United States, -almost ten--times the number in 1994. 15 Our individual cell phones now come with us everywhere: not only on the streets, but in (a) business, financial, medical and other offices; (b) restaurants,- theaters and other venues of leisure activity; (c) churches, synagogues and other places of religious affiliation; and (d) our homes and those of our family members, friends, and personal and professional associates. Indeed, many individuals no long subscribe to local wireline phones, but utilize their cell phone as their residential telephone. 16
Cellular telephone networks divide geographic areas into many coverage areas containing towers through which the cell phones transmit and receive calls. Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the *590 towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called “registration”, occurs approximately every seven seconds. 17
As we change locations, our cell phones automatically switch cell towers. Cellular telephone companies “track the identity of the cell towers serving a phone”. 18 When a call is received, a mobile telephone switching office (“MTSO”) gets the call and locates the user based on the nearest tower; the call is then sent to the phone via that tower. This process works in reverse when the user places a call. See id. In urban areas, where towers have become increasingly concentrated, tracking the location, of just the nearest tower itself can place the phone within approximately 200 feet. This location range can be narrowed by “tracking which 120 degree ‘face’ of the tower is receiving a cell phone’s signal.” Id. The individual’s location is, however, most precisely determinable by triangulating the “TDOA” or “AOA” information of the three nearest cellular towers. 19 Alternatively, the phone can be tracked extremely accurately— within as little as 50 feet — via the built-in global positioning system (“GPS”) capabilities of over 90% of cell phones currently in use. Id. See also Who Knows Where You’ve Been?, 18 Harv. J.L. & Tech, at 308 (noting that, as of 2004, synchronized signal triangulation produced a 3-D location accurate to 65 feet). CSPs store cell tower registration histories and other information. 20
In sum, as a result of the proliferation of cellular tower sites, the uniform/routine inclusion of a GPS device in cell phones, and industry’s implementation of additional technology required to meet Congressional mandates, including that more precise TDOA/AOA and other location information be available to emergency-assistance providers, CSPs now compile and retain extensive personal location *591 information on their subscribers and the cell phones in use.
IV. RELEVANT CONSTITUTIONAL AMENDMENT, STATUTES AND LEGISLATIVE HISTORY
A. Fourth Amendment, U.S. Const. Amend. IV
The Fourth Amendment establishes a fundamental protection of our right to privacy. 21 By requiring that the Government’s investigation of information in which we hold a reasonable expectation of privacy be conditioned on a showing of probable cause to a detached judicial official, our understanding and implementation of the Fourth Amendment seeks to balance degrees of intrusion on our civil liberties against degrees of promotion of legitimate governmental interests.
For the reasons discussed below, this Court believes that citizens continue to hold a reasonable expectation of privacy in the information the Government seeks regarding their physical movements/locations — even now that such information is routinely produced by their cell phones— and that, therefore, the Government’s investigatory search of such information continues to be protected by the Fourth Amendment’s warrant requirement; i.e., the Government must meet a probable cause background standard. 22
B. Wiretap and Electronic Communications Interception and Interception of Oral Communications, 18 U.S.C. § 2510 et seq.
Eighty (80) years ago, Justice Taft, writing for the majority over Justice Brandéis in dissent, concluded that a search or seizure of telephone conversations implicated no Fourth Amendment concerns because there could be no reasonable expectation of privacy in your voice projected over a ■wire outside of a building.
Olmstead v. United States,
In 1967 the Supreme Court delineated the procedural safeguards imposed by the Fourth Amendment on traditional wiretapping.
Expressly because of the particular dangers of abusing electronic surveillance,
the Court required that law enforcement agents had to surmount several requirements
beyond
those of the probable cause warrant needed to search a home.
See Katz v. United States,
Currently, under 18 U.S.C. § 2518, the Government may obtain a wiretap, and listen in on calls to and from a target telephone, only by demonstrating to a District Judge that (a) there is probable cause for belief that an individual has committed/is committing/will commit a specified offense; (b) there is probable cause for belief that particular communications concerning the offense will be obtained; (c) normal investigative procedures have been tried and failed or are reasonably unlikely to succeed or be too dangerous; (d) there is probable cause for belief that the facilities from which, or place where, the communications to be intercepted are/will be used, in connection with commission of the offense, are leased/listed to/commonly used by such person. 23
With this historical background in mind, other legislation implicated by the issue sub judice includes:
C. Fed.R.Crim.P. 41 — Warrant Issuing Upon Probable Cause
Rule 41 of the Federal Rules of Criminal Procedure generally provides that the Government may secure a warrant upon a showing, consistent with the requirements of the Fourth Amendment, that there is probable cause. This is the standard which the Government has long been required to meet in order to obtain Court approval for the installation and use — by law enforcement agents — of a device enabling the Government to record, or “track”, the movement of a person or thing. 24
Rule 41, as amended by the Supreme Court in 2006, expressly provides Court authority to issue a warrant for the installation and use of a tracking device (as defined in 18 U.S.C. § 3117) 25 for a renewable period not to exceed 45 days. The Rule also contains express provisions requiring notice within ten (10) days from the end of the warrant period (although it may be delayed) and the suppression of information wrongfully obtained.
As reflected in the Judicial Conference Advisory Committee’s Notes to the 2006 Amendments, those amendments were in
*593
tended to address the use of tracking devices, “which searches [had been] recognized by statute
[ie.,
§ 3117] and by case law
[i.e., United States v. Karo,
D. Electronic Communications Privacy Act of 1986
The ECPA, enacted in 1986, was a major overhaul of the Omnibus Crime Control and Safe Streets Act of 1968. Two of its subsections are relevant to consideration of the legal standard required for obtaining a Court Order for movement/location information:
1. Pen Register Statute
Historically, a “Pen Register” is a device which records or decodes electronic or other impulses which identify the telephone numbers dialed or otherwise transmitted on the telephone line to which' such device is attached (ie., the numbers of outgoing calls). A trap and trace device captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electric cоmmunication was transmitted (ie., the numbers of incoming calls). These devices have been in long and frequent use and are collectively referred to as a “Pen Register” or “Trap and Trace”.
Although they had been in use for some time, the standard applicable to the Government’s installation of a Trap and Trace was not addressed until 1979, when the Supreme Court concluded that the Fourth Amendment’s probable cause protections need not apply.
See Smith v. Maryland,
Although the statute requires that, absent emergency, the Government must obtain a Court Order prior to installing or using a Trap and Trace, it may do so merely upon certification “that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.” 18 U.S.C. § 3122(b)(2). 28 Such Orders routinely au *594 thorize real-time electronic monitoring of telephone call information for a limited duration, typically sixty (60) days. Id. at § 3123(c).
2. Stored Wire and Electronic Communications and Transactional Records Access
As noted above, the SCA, a 20-year-old criminal-code statute enacted as Title II of the ECPA, prohibits electronic communication service providers from disclosing electronically stored, ie., historic, information to the Government, except as otherwise authorized and with appropriate legal authority. 29 More particularly, under §§ 2703(a) and (b), the disclosure of “content” information expressly requires either a Rule 41 warrant (if it has been in electronic storage with the provider for 180 days or less) or notice to the subscriber/customer together with an administrative subpoena or Court Order (if the content has been in electronic storage with the provider for more than 180 days). In contrast, the disclosure of basic account information 30 requires nothing more than an administrative, grand jury or trial subpoena. § 2703(c)(2).
The statute also provides, in § 2703(c)(1), Records Concerning Electronic Communication Service or Remote Computing Service, that the Government may require the release of “records or other information pеrtaining to a subscriber to or customer of such service (not including the contents of communications) 31 only when the governmental entity”:
(A) obtains a warrant issued [under] the Federal Rules of Criminal Procedure,
(B) obtains a court order [under § 2703(d) ],
(C) obtains subscriber/customer consent to disclosure,
(D) submits a written request for name, address, and place of business, relevant to investigation of telemarketing fraud, or
(E) seeks [basic account information] under § 2703(c)(2).
Section 2703(d), in turn, sets forth the “requirements for court order”, specifying that an order for disclosure of (1) content records held by the communications provider for more than 180 days or held by a remote computing service, and to be released with notice to the subscriber/customer under subsection (b) or (2) “a record or other information pertaining to a subscriber to or customer of such service” under subsection (c), 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.”
Finally, and significantly, the SCA defines “electronic communications” to expressly exclude “any communication from a tracking device (as defined in § 3117)”, ie., “an electronic or mechanical device which permits the tracking of the move *595 ment of a person or object”. Id. at § 2711, Definitions (incorporating 18 U.S.C. § 2510(12)).
E. Mobile Tracking Device Statute, 18 U.S.C. § 3117 (1986)
This statute, also enacted in 1986, simply provides that a Court “empowered to issue a warrant or other order for the installation of a mobile tracking device” may issue an Order authorizing its use outside the Court’s jurisdiction. It broadly defines a “tracking device” as “an electronic or mechanical device which permits the tracking of the movement of a person or object.” § 3117(b). The relevant Senate Report notes that “[t]his [jurisdictional] clarification [did] not effect [sic] current legal standards for the issuance of such an order.” S. Rep. 99-541 at 10 (1986), reprinted in 1986 U.S.C.C.A.N. at pp. 3555, 3588. As noted, supra at Section IV(C), the Government has historically been required to meet the probable cause standard for warrants set forth in Fed.R.Crim.P. 41 for Court authorization prior to installing and utilizing a tracking device.
F. Communications Assistance for Law Enforcement Act of 1994
(1) Statutory Provisions
The Communications Assistance for Law Enforcement Act of 1994 (the “CALEA”), 47 U.S.C. § 1001 et seq., was intended to mandate communications carriers’ acquisition and implementation of technology/equipment capable of providing law enforcement with the “wire and electronic communication” information to which it was entitled under the statutes relating to electronic communication technology. The Act required telecommunications carriers to ensure, within four (4) years from enactment (i.e., by October 25,1998), that they had the ability to provide — subject to “court order or other lawful authorization” — law enforcement agencies with:
access to call-identifying information that is reasonably available to the carrier — (A) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government); and (B) in a manner that allows it to be associated with the communication to which it pertains, except that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in [§ 3127]), such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number).
Id. at 1002(a)(2).
The statute defines “call-identifying information” to include “dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier.” § 1001(2).
The CALEA, as does the SCA, expressly defines out of the “electronic communications” covered by the Act, information from a “tracking device” under § 3117. See § 1001(1) (adopting definitions of 18 U.S.C. § 2510).
(2) Legislative History and Implementation
The express purpose of the CALEA was to require communications service providers to acquire/implement technology to isolate and provide — on appropriate lawful authority — intercepted “content and call-identifying information” to law enforcement. See H.R.Rep. 103-827(1), reprinted in 1994 U.S.C.C.A.N. at pp. 3489, 3489-90. *596 32 Passage and implementation of the CALEA entailed several years of extensive negotiations. The extent to which Government’s investigatory access to movement/location information would be implicated/affected by a requirement that it be identified/retained/provided with appropriate authority was the subject of much testimony and debate. It was clear, however, that Congress was extremely concerned that the background requiremеnts be preserved, and that its legislation not be later asserted to have affected the judicial review protections applicable to this constitutionally-sensitive information.
More particularly, the legislative history of the CALEA indicates that, during his lengthy and repeated testimony before the Senate and House, then-FBI-Director Louis 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. To the contrary, he asserted, the proposed legislation would “ensure[] the maintenance of the status quo”, that it “[did] not enlarge or reduce the government’s authority,” and that it “relate[d] solely to advanced technology, not legal authority or privacy ”. 33
Director Freeh’s testimony included the following:
The term “call setup information” is essentially the dialing information associated with any communication which identifies the origin and destination of a wire or electronic communication obtained through the use of a pen register or trap and trace device pursuant to court order. It does not include any information which might disclose the general location of a mobile facility or service, beyond that associated with the area code or exchange of the facility or service. There is no intent whatsoever, with reference to this term, to acquire anything that could properly be called ‘tracking’ information.
Id. at 23. Director Freeh also stated, in allaying Congressional concerns:
Law enforcement’s ... ability to acquire “call setup information” ... related to dialing type information — information generated by a caller which identifies the origin, duration, and destination of a *597 wire or electronic communication, the telephone number or similar communication address. Such information ... historically, has been acquired through use of pen register or trap and trace devices pursuant tо court order.
Several privacy-based spokespersons have criticized the wording of the definition regarding this long-standing requirement, alleging that the government is seeking a new, pervasive, automated “tracking” capability. Such allegations are completely wrong.
Some cellular carriers do acquire information relating to the general location of a cellular telephone for call distribution analysis purposes. However, this information is not the specific type of information obtained from ‘true’ tracking devices, which can require a warrant or court order when used to track within a private location not open to public view. See United States v. Karo,468 U.S. 705 , 714,104 S.Ct. 3296 ,82 L.Ed.2d 530 (1984). 34 Even when such generalized location information, or any other type of ‘transactional’ information, is obtained from communications service providers, court orders or subpoenas are required and are obtained.
In order to make clear that the acquisition of such information is not being sought through the use of pen register or trap and trace' devices, and is not included within the term ‘call setup information’, we are prepared to add a concluding phrase to this definition to explicitly clarify the point: except that such information (call setup information) shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number’s area code or exchange.
Id. at 29 (emphasis added). 35
Finally, Director Freeh represented, in response to a letter alleging that the Government was seeking to obtain surveillance of individuals through transactional data: This is a false issué for a number of reasons.
First, as is clearly set forth in the ‘purpose’ section of the proposed legislation, the intent of the legislation is to maintain existing technical capabilities and to ‘clarify and define’ the responsibility of common carriers :'.. to provide the assistance required to ensure that government agencies can implement court orders and lawful authorizations to intercept the content of wire and electronic communications and acquire call setup information.... [It has] nothing to do with ‘transactional information’ under our federal electronic surveillance and privacy laws. All telecommunications ‘transactional’ information is already protected by federal law and is exclusively dealt with in [the SCA]. The proposed legislation does not relate to [the SCA].
Id.
at 27 (quoted in
Smith SD Tex.2005 Opinion,
Following passage of the CALEA, and in accordance with Congressional direction, the Telecommunications Industry Association (“TIA”) began the long process of the “development of the specific technological standards” by which industry could comply with its law-enforcement-assistance obligations. This entailed several years of negotiations and consultations amongst industry, law enforcement and consumer
*598
representatives “under the auspices of’ the FCC.
Smith SD Tex.2006 Opinion,
In 1999, the FCC issued a ruling on the TIA’s proposed technical specifications and protocols (which were published as the Interim Standard/Trial Use Standard J-STD-025 or the “J-Standard”).
36
Six aspects of the FCC ruling were challenged and consolidated for judicial review.
See United States Telecom Assoc. v. FCC,
G.Enhanced 911 Rules
As individuals’ use of cellular (rather than land-line) telephones rapidly expanded during the 1990s, it presented increasing difficulties for emergency service providers who had previously determined a caller’s location from the account address of her stationary telephone. Beginning in 1996, and continuing over several years, the FCC issued a series of “Enhanced 911 Emergency Call Systems” rules requiring CSPs to acquire the ability to identify more precisely the locations of cell phones making emergency calls. 37
H.Wireless Communication and Public Safety Act of 1999
In this legislation, amending the Telecommunications Act and authorizing a nationwide “911” emergency service for cell phone users, Congress recognized the importance of an individual’s expectation of privacy in her physical location. See PL 106-81, 113 Stat. 1288 (Oct. 26, 1999) (amending 47 U.S.C. §§ 222, 251). More particularly, in authorizing the specifically-limited disclosure of location information to ensure the provision of emergency services, the Act directs that a customer otherwise not be deemed to have approved use/diselosure of, or access to, her CSLI absent express prior authorization. See 47 U.S.C. § 222(f). 38
*599 V. ANALYSIS
Any contention that the Governmеnt might obtain cell tower site location information (“CSLI”) solely under the auspices of the PRS appears to have been put to bed. 39 In a series of published Orders and Opinions over the past two years, a significant majority of Courts have also rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. 40 In so holding, many of *600 these Courts have repeatedly opined that real-time cell-phone-derived movement/location information is “tracking” information within § 3117. 41 New Courts have, however, addressed in published opinion whether the Government may nonetheless covertly obtain a cell phone subscriber’s (or possessor’s) past, or historic, movemenVlocation information by the authority of the SCA. Some have suggested or credited (all but twice in dicta, and with little substantive discussion), that it may; a few have concluded or suggested that it may not. 42
*601 This Court concurs with those majority opinions holding that real-time CSLI constitutes tracking information and further concludes, after extensive research and careful consideration, that a distinction between real-time (“prospective”) and stored (“historic”) cell-phone-derived movement/location information would be at odds with (a) the plain language and/or natural meaning of the language of § 3117 and § 2703, (b) the rule of statutory construction requiring that effect be given to each and every provision, and (c) unambiguous Congressional intent. It would also render the related provisions of the electronic communications legislation constitutionally suspect, at best. More particularly, this Court has reached the following understanding of the issues:
A. The Government’s Positions are Precluded by Textual Analysis
1. The Stored Wire and Electronic Communications and Transactional Records Access Statutes
The SCA sets forth a prohibition against a CSP’s release to the Government of “records or other information” pertaining to a communications service subscriber, except as otherwise authorized with, e.g., warrant, consent, or court order. See 18 U.S.C. §§ 2702(a)(3), 2703(c), Records Concerning Electronic Communication Service or Remote Computing Service. In its application sub judice, the Government requests a § 2703(d) Order to obtain historic сellular tower site location information (“CSLI”). The Court sees two independently determinative flaws in the Government’s election to predicate its request on the SCA, rather than on a probable cause warrant under Fed.R.Crim.P. 41:
(a) An Electronic Device That Is Able and Used to Provide the Government With Movement/Location Information is a “Tracking Device”, Communications From Which are (i) Expressly Excluded from the Definition of “Electronic Communications” Under the SCA and (ii) Not Pertaining to the Subscriber of an Electronic Communications Service Under the SCA
The scope of the “Stored Wire and Electronic Communications and Transactional Records Access” Act, a subtitle of the “Electronic Communications Privacy Act”, is limited to information pertaining to wire or “electronic communications”, which are expressly defined to exclude communications from a device “which permits the tracking of the movement of a person or object”. On its face, this definition appears to unambiguously place the information sought outside the SCA. 43
*602 As technology now stands (and it will no doubt continue to rapidly evolve), triangulation of CSLI enables a covert observer to know our physical movements/locations within 50 feet; and our cell phones, whenever on, broadcast this information virtually continuously as we go about from place to place. Even without triangulation, our cell phones transmit — and our CSPs record — information of our movements to a few hundred feet. It is, therefore, extremely difficult to see how a cell phone is not now precisely an “electronic ... device which permits the tracking of the movement of a person or object.” § 3117(b). 44
By virtue of cell phone technology, law enforcement may now electronically monitor our movements with as much — indeed, ofttimes more — scope and precision as by its traditional methods of visual surveillance and/or installation of a “beeper”. As other Courts have observed, tracking device and cell phone technologies have converged. That is, our cell phones — when utilized to record our physical movements — operate in the same manner and to the same purpose as earlier radio-wave beepers. 45 This Court concurs, therefore, with the several thorough and thoughtful opinions to have reviewed the statutory language and reached this same conclusion.
With those Courts that have opined (or assumed) that the Government may none *603 theless acquire historic cell-phone-derived movement/location information by a § 2703(d) Order, we must, however, respectfully disagree. The Court finds two possible explanations for this largely-unexplained distinction between prospective and historic CSLI: (i) that stored CSLI is somehow no longer information from a tracking device excluded by § 3117 (or perhaps that, unlike real-time CSLI, it should not be regarded as such because its disclosure is somehow less intrusive or otherwise less entitled to protection); or (ii) that stored CSLI remains outside the Act’s definition of an “electronic communication” but is nonetheless within the scope of § 2703(c) because it is information that pertains to a subscriber of an electronic communication (ie., cell phone) service.
(i) Historic CSLI Properly Remains Information from a Tracking Device, Excluded from the Deñnition of an “Electronic Communication”
The first explanation is tantamount to an assertion that the mere storage of what appears indisputably to be information from a tracking device when garnered, alters its character. No such archival alchemy is possible. The frequent and specific information of our physical movements now transmitted by our cell phones is, necessarily, and remains, information from a device that permits the tracking of movement. The source of information does not change when it is stored. Communication from a “tracking device”, whether released to law enforcement instantaneously or with some interval of delay, is communication from a “tracking device”. 46
Not only would acceptance of a contention that stored, or past, movement/location information is no longer “communication from a tracking device” fail to correspond to normal usage, 47 it would render the SCA’s express exclusion of such information superfluous. More particularly, the SCA’s scope is expressly limited to “stored” communications, ie. only past data, 48 and yet it also defines the stored electronic communications within its scope to exclude communications from a tracking device. An interpretation of “information from a tracking device” as not encompassing such information once stored would effectively read out this express limitation on what may constitute an “electronic communication” for purposes of the Act. 49
*604 (ii) Information Expressly Excluded from the ECPA (including the SCA) as Outside the Scope of the Term “Electronic Communication” Cannot Reasonably Be Re-Included as “Pertaining to” a Subscriber or Her Electronic Communication Service
CSLI, as communication from an electronic device that permits the tracking of an individual’s movements/locations, is information of a nature expressly set aside by definition. To then say that stored information from a tracking device nonetheless comes directly back — as a record pertaining to an electronic communication service — 50 into the scope of the SCA, a statute that carefully exempts tracking-device communications from its definition of “electronic communication”, would abrogate that express limitation. As the principal subject of this legislation was to describe the information encompassed and delineate certain procedures regarding its disclosure to law enforcement, there could be no possible purpose to the “tracking device” exclusion other than to limit the disclosure of stored information derived such devices.
This Court sees, therefore, no way to reconcile the express exclusion of tracking device information with the remainder of the statutory language but to read the provision of § 2703(c) to authorize disclosure of records and other information directly pertaining to a subscriber/customer of an electronic communication service. That is, information that is regarding or derived under a service (e.g., a tracking capability/function) that may be used to facilitate the provision of an electronic communication service (e.g., the transmission of voice/text material), 51 but that is not itself an electronic communication service (as, e.g., by definition), does not “pertain” to the subscriber of an electronic communications service within the meaning of the statute. 52
*605 To put this another way: Although some Courts have opined or suggested (again, almost always in dicta) that the registration, or subsequent storage, of CSLI pertains to a subscriber’s electronic communications service because it is used to facilitate the provision of that service, or because the CSPs compile it, 53 this *606 Court must strongly disagree. To the contrary, and even if a reading of § 2703(c) as re-including CSLI did not raise application-based concerns, 54 it is *607 necessary — -for reasons of statutory and Constitutional interpretation — to read § 2703(c)’s authorization for disclosure of records or information pertaining to a subscriber of an electronic communication service to exclude any movement/location information derived from her cell phone, even if incident thereto. If the excluded tracking information were brought back in, Congress’ exclusion of tracking device communications from the definition of “electronic communication” would be a pointless gesture, with no actual effect. It is apparent to this Court that Congress intended by the exclusion of tracking devices in the statutory definition that the SCA not become a vehicle for diminishing the long-recognized protections against covert disclosure of movement/location information; and it behooves the Court to interpret the SCA in a manner that gives effect to that intent.
For these reasons, this Court concludes that CSLI is communication from an electronic device that permits the tracking of the movement of a person, is therefore expressly placed outside the scope of the electronic communications legislation of the SCA, and is not appropriately brought back into the scope of information which the Government may seek to obtain thereunder by any reasonable reading of § 2703(c). 55
(b) Even if Cell-Phone-Derived Location Information Were Within Its Scope, The SCA Neither Establishes An Entitlement to Move-mentlLocation Information Under a Reasonable Relevance Standard Nor Otherwise Abrogates Otherwise Applicable Standards
Even if the movement/location information now derivable from our cell phones, i.e., CSLI, were interpreted to be something other than information communicated from an electronic device “which permits the tracking of the movement of a person”, and/or even if it were interpreted to be re-included in the scope of the SCA as information pertaining to a subscriber or her use of an electronic communication service, it remains information of a character which has traditionally required a showing of probable cause/warrant under Fed.R.Crim.P. 41. And neither of the provisions on which the Government has relied in asserting еntitlement to such information under a “reasonable relevance” standard suggests any Congressional alteration of that background rule. More particularly:
(i) Section 2703(c) provides that the Government may require that the CSP disclose subscriber information (other than content) “only when”, after which follows a line-item list of alternative standards un *608 der which such subscriber information may be legally obtained, i e.: by warrant; court order under § 2703(d); subscriber consent; or, for telemarketing fraud or basic account information, another, de minimis, standard. Although it specifically links these last two categories of information to compliance with a specific standard, as to the remaining category of unspecified “records and other information” it simply recites those standards potentially applicable to non-content information, including a warrant issued under the Federal Rules of Criminal Procedure. Congress’ recitation of potentially-applicable standards, without more, cannot be read to replace the probable cause warrant requirement otherwise applicable to these tracking device communications with an entitlement to that same information under a reasonable relevance standard.
(ii) Similarly, nothing in the language of § 2703(d) indicates that information requested by the Government is obtainable as a matter of course upon a showing of reasonable relevance to a criminal investigation. To the contrary, § 2703(d) provides that an Order for disclosure shall issue “only if’ the Government shows that the information sought is relevant. It does not provide that such an Order shall issue “if’ or “whenever” such a showing is made. Thus, under the plain language of the SCA, a showing of reasonable relevance is a necessary, but not necessarily sufficient, condition for issuance of an Order. This statutory provision is linguistically and logically equivalent to a directive that an Order shall not issue if the Government does not make the required showing of relevance; the statute is simply silent on what other requirements might apply where the Government shows reasonable relevance. 56
The Government has argued, and some Courts have uncritically assumed, that it is entitled to a § 2703(d) Order whenever it makes the required relevance showing (as if the SCA read “if’ or “if and only if’ rather than “only if’). In addition to being contrary to the plain meаning of the language used in the statute, the Government’s interpretation would dramatically, and probably unconstitutionally, decrease the protections afforded not only to subscribers’ location information, but also to the content of stored communications such as emails and voice mails. More particularly, if issuance of a § 2703(d) Order were mandatory whenever the government made the showing contemplated therein with respect to records or other information under § 2703(c), then the same statutory language would mandate issuance of an Order for disclosure of content (stored more than 180 days) under § 2703(b) upon the same minimal showing. Such a mandatory outcome would render the SCA’s further requirement of prior notice (under § 2703(b)(1)(B)), in those instances in which the Government did not invoke the delay provisions of § 2705, 57 a *609 hollow protection of the subscriber’s privacy interest in the content of stored email and voice mail. 58 The Court concludes, therefore, that the issuance of an Order under § 2708(d) remains circumscribed by otherwise applicable legal requirements according to the nature of the records or information sought. In the case of movement/location information derived from an electronic device, the traditionally-applied legal standard has been a showing of probable cause; and nothing in the text, structure, purpose or legislative history of the SCA dictates a departure from that background standard as to either historic or prospective CSLI. 59
2. The Communications Assistance for Law Enforcement Act of 1994
As noted above, a significant majority of Courts have rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. This Court need not tarry on this widely— and rightly — refuted contention, particularly as the United States Attorney for this District is no longer pursuing this position. See supra n. 4. 60
*610 B. The Government’s Positions are Contrary to Legislative History
The foregoing textual analysis is strongly bolstered by a clear and consistent thread in the legislative history of various electronic communications statutes reflecting Congress’ continuing recognition of a privacy right in cеrtain electronic communications information, including location information, and a corresponding intent to safeguard such information against disclosure under standards that would erode traditional Fourth Amendment protections. 61
As discussed extensively above, 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; to the contrary in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing the disclosure of movement/location information. 62 The ECPA and the CALEA were careful to exempt communications from an electronic device capable of tracking our movements from their definitions of “electronic communications”; the history of the CALEA is replete with expressions of concern that it not be understood to alter the evidentia-ry standards (and testimony allaying those concerns); and the Wireless Communication and Public Safety Act expressly recognized the importance of an individual’s expectation of privacy in her physical location. Accordingly, the legislative history has contributed to and reaffirmed this Court’s understanding of the Congressional intent reflected in the statutory text.
C. The Government’s Positions Would Render the Statutory Schemes Constitutionally Suspect
This Court concludes, as a matter of statutory interpretation, that nothing in the provisions of the electronic communications legislation authorizes it to order a CSP’s covert disclosure of CSLI absent a showing of probable cause under Rule 41. And this interpretation is abundantly confirmed by consideration of the Constitutional principles at issue. For reading the statutes in the manner advocated by the Government would, as to at least a substantial portion of the information at issue, violate Americans’ reasonable expectation of privacy in any cell-phone-derived information/records as to their physical move *611 ments/locations by authorizing ex parte disclosure of that information with no judicial review of the probable cause. It appears to this Court, from its review of current Fourth Amendment case law and Constitutional principles, that this information is entitled to the judicial-review protections afforded by a probable cause warrant and historically applied to movement/location information derived from a tracking device. 63 And its understanding informs the Court’s interpretation of the statute, just as it believes Congressional understanding of the same principles motivated statutory limitations.
Even if the Government’s proffered interpretation did not impermissibly strain both the statutory language and legislative history, the doctrine of Constitutional avoidance counsels the choice of a limiting interpretation that does not require the Courts repeatedly, on an ex parte ad hoc basis, to delineate the precise bounds of Fourth Amendment protection. 64
As discussed earlier, the Fourth Amendment prohibits unreasonable searches and seizures and, accordingly, the Government must generally demonstrate probable cause and obtain a warrant prior thereto. To trigger the Fourth Amendment’s protections, the individual must have a subjective expectation of privacy in the object of the Government’s search, and it must be one which society accepts as objectively reasonable. 65
The Court believes, based on common experience within the community: 66 First, that Americans do not generally know that a record of their whereabouts is being created whenever they travel about with their cell phones, or that such record is likely maintained by their cell phone providers and is potentially subject to review by interested Government officials. 67 And second, that most Americans would be appalled by the notion that the Government could obtain such a record without at least a neutral, judicial determination of probable cause. 68
*612 The Court further finds that the expectation of privacy in movement/location information suggested by these prevalent attitudes is objectively reasonable because historically such information was not observable when someone was within private property and because the newly-emergent technologies create a potential to monitor associational activities in a manner that could have a chilling effect. 69 Finally, the v„ery fact that Congress has taken pains to protect electronically-derived location informatiоn from unwarranted disclosure serves independently to make subjectively-held expectations of privacy objectively reasonable. 70
As discussed above, some Courts have indicated that historic CSLI is routinely obtainable by law enforcement without probable cause and thus have implicitly found no reasonable expectation of privacy therein. In this Court’s view, however, the privacy and associational interests implicated are not meaningfully diminished by a delay in disclosure. 71
The foregoing view of privacy expectations in the context of electronically-derived location information is in keeping with controlling precedent. More particularly, the Supreme Court has effectively recognized, in closely-analogous cases, an individual’s reasonable expectation of privacy in information regarding her location when she is on private premises.
Compare United States v. Knotts,
Taken together, these cases establish that without a warrant based on probable cause the Government may use a tracking device to ascertain an individual’s location on a public highway but not in a private home, ie., the public/private dichotomy is the principle harmonizing Knotts and Karo, so that a warrant is constitutionally required if and only if the location information extends onto private property. 73
But even with this principle as a guide, the Court anticipates that routine allowance of location information up to the threshold of the private domain would necessitate increasingly-difficult line-drawing at the margins. Moreover, even if difficulties in Constitutional line-drawing were surmounted, practical limitations on the abilities of CSPs to filter their CSLI would almost certainly result in over-inclusive disclosures, and thus in transgrеssions of Constitutional boundaries. 74 Accordingly, these considerations counsel adopting a statutory interpretation which, by retaining the probable cause requirement for all CSLI, would avoid repeated Constitutional adjudication and trespass into protected areas. 75
The Government has contended, and some Courts have opined, that there is no *614 reasonable expectation of privacy in CSLI because cell-phone-derived movement/location information is analogous to the dialed telephone numbers found unprotected by the Supreme Court in Smith v. Maryland. 76 As explained by Magistrate Judge Smith, the Sixth Circuit has expressly (and in this Court’s view correctly) rejected this less apt analogy:
The government contends that probable cause should never be required for cell phone tracking because there is no reasonable expectation of privacy in [CSLI], analogizing such information to the telephone numbers found unprotected in Smith v. Maryland,442 U.S. 735 ,99 S.Ct. 2577 ,61 L.Ed.2d 220 (1979). The Sixth Circuit rejected that analogy in United States v. Forest,355 F.3d 942 , 951-52 (6th Cir.2004). Unlike dialed telephone numbers, [CSLI] is not ‘voluntarily conveyed’ by the user to the phone company.... [I]t is transmitted automatically during the registration process, entirely independent of the user’s input, control, or knowledge. Sometimes, as in Forest, [CSLI] is triggered by law enforcement’s dialing of the particular number.355 F.3d at 951 . For these reasons the Sixth Circuit was persuaded that Smith did not extend to [CSLI], but rejected the defendant’s constitutional claim on the narrower ground that the surveillance took place on public highways, where there is no legitimate expectation of privacy. Id. at 951-52 (citing United States v. Knotts,460 U.S. 276 , 281,103 S.Ct. 1081 ,75 L.Ed.2d 55 (1983)).
Smith SD Tex.2005 Opinion,
A panel of the Sixth Circuit more recently further elucidated the bounds of the waiver of expectation doctrine in
Warshak,
As discussed supra, CSLI is not “voluntarily and knowingly” conveyed by cell phone users (certainly not in the way of transactional bank records or dialed telephone numbers); rather, the information is automatically registered by the cell phone. 79 Nor are CSP employees routinely reviewing and/or utilizing CSLI in the ordinary course of the provision of telephone communications services; rather, the information is processed on separate control channels by electronic equipment. 80 Nor does a CPS’s retention of CSLI generally serve any business purpose for the customer or for the provider in serving the customer; rather, such information is retained principally, if not exclusively, in response to Government directive. 81
Finally, the movement/location information at issue here, unlike the records found unprotected in prior Supreme Court eases, is the subject of express Congressional protection. Indeed, Congress has reiterated throughout the legislative history of its electronic communications legislation, and reflected in the provisions of its enactments, its recognition of an individual expectation of privacy in “location information” and desire to protect this privacy *616 right from unwarranted or unreasonable encroachment.
In sum, this Court concurs with the assessment of Magistrate Judge Smith at the conclusion of his Opinion:
Denial of the government’s request ... in this instance should have no dire consequences for law enforcement [as t]his type of surveillance is unquestionably available upon a traditional probable cause showing under Rule 41. On the other hand, permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected.... Absent any sign that Congress has squarely addressed and resolved those concerns in favor of law enforcement, the more prudent course is to avoid an interpretation that risks a constitutional collision.
Smith SD Tex.2005 Opinion,
VI. CONCLUSION
Because this Court conсludes that the Government does not have a statutory entitlement to an electronic communication service provider’s covert disclosure of cellphone-derived movement/location information, the Government’s application(s) for such information, absent a showing of probable cause under Fed.R.Civ.P. 41, must be denied. This Opinion is joined, in the interest of judicial efficiency, by Magistrate Judges Caiazza, Hay, Baxter and Mitchell. 83
ACCORDINGLY, IT IS HEREBY ORDERED THAT
The application of the Assistant United States Attorney be denied, except that the underlying application be sealed as requested by the Government in order not to jeopardize an ongoing criminal investigation.
This Opinion shall not be sealed because it is a matter of first impression in this District and Circuit on issues concerning the statutory and Constitutional regulation of electronic surveillance which do not hinge on the particulars of the underlying investigation.
Notes
. As discussed
infra,
the Fourth Amendment protects us by providing that the “right of people to be secure in their persons, houses ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” U.S. Const. Amend. IV. The test currently employed to determine whether a search is subject to these Constitutional constraints is taken from Justice Harlan’s concurrence in
Katz v. United States,
. The Government’s application for cellular telephone information from which it can derive physical location information on the basis of the SCA and PRS read in tandem is re *586 ferred to as its "hybrid” or "dual authority” theory.
. See, e.g., Who Knows Where You’ve Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 Harv. J. Law & Tech., 307, 310 (Fall, 2004) (hereafter "Who Knows Where You’ve Been? ") (discussing criminal cases in which law enforcement’s access to cell phone location information may have been critical).
. The Court recognizes and appreciates that the U.S. Attorney fоr this District has chosen not to pursue prospective cell tower information without a probable cause affidavit, and accordingly the current application requests only historic cell site location information ("CSLI”); however, the cases considering prospective applications are relevant to this discussion and must be addressed as well. In addition, because this Court concludes that the electronic communications statutes, correctly interpreted, do not distinguish between historic and prospective CSLI, its analysis applies equally to both.
. The Supreme Court describes probable cause as a "practical, common-sense decision” turning on whether, under the "totality of the circumstances”, there is a fair probability that evidence of a crime will be found.
See Illinois
v.
Gates,
. Location information may reveal, for example, an extra-marital liaison or other information regarding sexual orientation/activity; physical or mental health treatment/conditions (including,
e.g.,
drug or alcohol treatment and/or recovery programs/associations); political and religious affiliations; financial difficulties; domestic difficulties and other family matters (such as marital or family counseling, or the physical or mental health of one's children); and many other matters of a potentially sensitive and extremely personal nature. It is likely to reveal precisely the kind of information that an individual wants and reasonably expects to be private.
Cf. State v. Jackson,
. Cf. Susan Friwald, First Principles of Communications Privacy, 2007 Stan. Tech. L.Rev. 3, 11 (2007) (hereafter “First Principles ”) (asserting that electronic communications surveillance implicates Fourth Amendment’s core concerns because it is (a) hidden, thus requiring greater reliance on the Court's protection of the citizen's interests; (b) and (c)intrusive and continuous, thus requiring higher justification; and (d) indiscriminate, i.e., often *587 obtaining more information than is justified, thus requiring judicial oversight regarding minimization).
.
Cf. United States v. United States Dist. Ct.,
.
See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
.The Communications Assistance for Law Enforcement Act of 1994, 47 U.S.C. §§ 1001 et seq.
. The Government asserts that the Subscriber’s cell phone is "being used by” the Criminal Suspect. It provides no specific information connecting these two individuals, or connecting the Criminal Suspect to the cell phone. Because this Order more broadly denies the Government's request absent a showing of probable cause, it does not address the other infirmities that may arise when the Government seeks disclosure of a person’s personal location information on a statement that her cell phone is being used by the target of an investigation.
. The Government may reasonably expect that information as to the Criminal Suspect’s historic whereabouts will provide valuable evidence of the locations of that person’s sources of supply, "stash sites”, and distribution networks.
See, e.g., In the Matter of the Application of the United States of America for an Order Authorizing the Release of Prospective Cell Site Information,
.See
18 U.S.C. §§ 2702(a)(3), 2703;
see also In re the Application of the United States for an Order Authorizing the Installation and Use of a Pen Register Device, a Trap and Trace Device, and for Geographic Location Information,
.See, e.g., In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority,
. See CTIA — The Wireless Association’s . Semi-Annual Wireless Industry Survey (2006), http://files.ctia.org. In 1985, when the CTIA survey was first taken, the. number was 340,000. By 1994 the number of cell phone subscribers had increased to more than 24 million.
. See In the Matter of the CALEA, 17 F.C.C.R. 6896, 6918 (April 11, 2002) (noting that in 1994, when the CALEA was enacted, "basic residential telephone service” was almost entirely wireline, but that households now substitute wireless telephone service).
. These location signals are generally set on one band (often referred to as a "control channel"); the other frequency bands that the phone uses are for sending and receiving voice and data.
See
Kevin McLaughlin,
The Fourth Amendment and Cell Phone Location Tracking: Where Are We?,
29 Hastings Comm. & Ent. L.J. 421, 427 (Spring 2007) (hereafter
“Where Are We?
”);
See also Smith SD Tex. 2005 Opinion,
.
In re Application of United States of American for an Order: (1) Authorizing Installation and Use of Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information, (3) Authorizing Disclosure of Location-Based Services,
. The cell towers measure the strеngth of the ■ phone’s signals — and thus the phone's relative location — through a Time Difference of Arrival ("TDOA”) or Angle of Arrival ("AOA”) method. TDOA compares the amounts of travel time from phone to tower, while AOA measures the angles at which the phone's signals are received. The MTSO sends a signal to the cell phone's control channel when it is time to switch to the frequency of a nearer tower. See id.
. Although historic call-specific registration information was at one time important for CSP billings, e.g., roaming charges, with the advent of truly national networks and comprehensive cell phone "plans”, it has become increasingly irrelevant to service fees, and its retention now appears related largely to cost-considerations (i.e., inexpensive electronic storage of all data, without differentiation) and industry concerns that CSPs not risk under-compliance with complicated and sometimes ambiguous electronic communications regulations.
. The Fourth Amendment's protection of privacy rights also serves the important function of protecting associational rights recognized under the First Amendment.
See Katz v. United States,
.
See
discussion
infra
(noting that law enforcement agents have, until relatively recently, obtained Court authorization to obtain movemenlflocation information by a showing of probable cause (or more), generally under Fed.R.Crim.P. 41 (for installation of a traditional tracking device) but sometimes under Title III (as part of a wiretapping application)). See
also Orenstein EDNY Oct. 2005 Opinion,
. Given the additional requirements beyond ordinary search warrants, this has been referred to as both a "Title III warrant” and/or a "super warrant”. See Orin S. Kerr, Internet Surveillance Law After the USA PATRIOT Act, 97 NW. U.L.Rev. 607, 630 (Winter 2003).
The Courts appear to disagree as to whether the Government may request and receive CSLI when it meets the "probable cause plus” showing.
Compare, e.g., Adelman ED Wis.2006 Opinion,
.
See, e.g., United States v. Karo,
.The Committee was careful to note that it "did not intended by [the 2006] amendment to expand or contract the definition of what might constitute a tracking device.” See Notes to the 2006 Amendment.
.
Cf. In the Matter of the Application of the United States of America,
. The statute as enacted defined a Trap and Trace as a device for capturing "electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached.” As amended by the USA PATRIOT Act of 2001, it now includes “a device or process which records or decodes dialing, routing, addressing, or signaling information." The Federal Communications Commission (the “FCC”) has adopted the position, and the Court of Appeals has held, that the term "signaling information” encompasses CSLI.
See United States Telecom. Assoc. v. FCC,
.The Court’s ministerial role does not include an independent review of whether the application meets the relevance standard;
*594
rather, it is only to review the completeness of the certification submitted.
See Lee ND Ind. 2006 Opinion,
.See 18 U.S.C. § 2702(a)(3) (prohibiting, except as otherwise provided, a CSP from disclosing any “record or other information pertaining to a subscriber to or customer of such service ... to any governmental entity”).
. This information is specified to include subscriber name, address, telephone connection records/records of session times/durations; length and types of services; telephone or other subscriber number; and means/ source of service payment.
. The statute does not further define "records or other information”.
.
See also McGiverin PR 2007 Opinion,
. Joint Hearing on Digital Telephony and Law Enforcement Access to Advanced Telecommunications Technologies and Services: Hearings Before the Subcomm. On Technology and Law of the Senate Judiciary Comm. And the Subcomm. On Civil and Constitutional Rights of the House Judiciary Comm., 103rd Cong., 2d Sess., at 2, 28 (Statement of Dir. Freeh) (hereafter "Digital Telephony Testimony”) (emphasis added); id. at 22 (stating that the CALEA "provide[s] law enforcement no more and no less access to information than it had in the past”).
.
Cf. Facciola DDC 2006 Opinion,
. Cf. id. at 137 (noting that’"[t]he Director's offer and its acceptance by Congress led to the exception codified as 47 U.S.C. § 1002(a)(2)”).
.See In the Matter of the CALEA,
. See 47 C.F.R. § 20.18 (2004) (requiring that licensees "achieve 95 percent penetration of location-capable handsets” among subscribers by end 2005); Laurie Thomas Lee, Can Police Track Your Wireless Calls? Call Location Information and Privacy Law, 21 Cardozo Arts & Ent. L.J. 381, 384-386 & nn. 23-24 (2003) (discussing CSPs’ implementation of “network overlay” technology to attain the required precision).
.
See Smith SD Tex.2005 Opinion,
.
See
CALEA;
In re Application of the United States for an Order Authorizing Pen Register and Trap and Trace Device and Release of Subscriber Information and/or Cell Site Information,
. See generally Where Are We?, 29 Hastings Comm. & Ent. L.J. at 422-24 (summarizing that 11 of the 15 decisions published on cell phone location tracking within prior two years concluded probable cause is required, while four authorized limited prospective information).
Among the decisions denying the Government’s requests for CSLI under a hybrid theory are:
In re the Applications of the United States for Orders Authorizing the Disclosure of Cell Cite Information,
But see In re Application for an Order Authorizing the Extension and Use of a Pen Register Device,
. A District Court’s published consideration of the appropriateness of
ex parte
Court Orders mandating a CSP’s disclosure to the Government of an individual subscriber’s location information on less than a showing of probable cause first appeared in a brief Order by Magistrate Judge Orenstein of the Eastern District of New York in late August, 2005.
See Orenstein EDNY Aug. 2005 Order,
Shortly thereafter, Magistrate Judge Smith of the Southern District of Texas issued a thorough Opinion providing an extensive review of the statutory history and concluding that prospective cell site data constitutes "tracking device information” under the ECPA requiring establishment of probable cause.
See Smith SD Tex.2005 Opinion,
Many other Courts adopted, and sometimes expanded upon, these analyses.
See, e.g., Lee ND Ind.2006 Opinion
at *4 (concluding, in affirming Magistrate Judge’s denial of applications for historic and prospective CSLI, that "converging the [PRS] with the SCA in an attempt to circumvent the exception in the CALEA is contrary to Congress’ intent to protect cell site location information from utilization as a tracking tool absent probable cause under the Fourth Amendment”);
Adelman ED Wis.2006 Opinion
at *5 (concluding that "[i]f the government is granted access to [CSLI], a customer’s cell phone will most certainly permit tracking of his movements from place to place”);
McGiverin PR 2007. Opinion,
.
See, e.g., Callahan ED Wis.2006 Opinion,
Compare Lee ND Ind.2006 Opinion,
.
Cf. Steve Jackson Games, Inc. v. United States Secret Service,
. The Court notes, moreover, as others have pointedly and repeatedly observed, that the sweeping definition of § 3117 does not rely on a particular degree of precision.
See, e.g., Smith SD Tex.2005 Opinion,
Cf. Smith SD Tex.2006,
.
See, e.g., Smith SD Tex.2005 Opinion,
. Some of the language of Magistrate Judge Smith’s 2005 decision suggests that he attached significance to the real-time nature of the CSLI being sought in that case.
See, e.g., Smith SD Tex.2005 Opinion,
. In the normal contemplation of the language, evidence of past movement is precisely "tracking” information. Location is static; movement is change in location. There is, thus, a temporal element inherent in the term "movement”; one can
only
"track” location over time. See
Smith SD Tex.2005 Opinion,
.
See, e.g., McGiverin PR 2007 Opinion,
.
See Cooper Inds., Inc. v. Aviall Servs., Inc.,
Because the SCA carefully sets apart tracking device information from its legislation of stored information, it appears to acknowledge that the passage of time does not alter the constitutionally-sensitive character of such information.
Cf. Alexander Mass.2007 Opinion, rev’d Stearns Mass.2007 Opinion,
.The SCA's coverage of records or other information under § 2703(c) — if not otherwise excluded — turns on whether the information “pertains to” the subscriber of a covered communications service
in her capacity as such.
This interpretation is consistent with the heading of § 2703(c) and Magistrate Judge Smith’s conclusion that, based upon the legislative history, "[t]he records to be disclosed must pertain to the subscriber's
use
of the provider's electronic communication service”.
Smith SD Tex.2005 Opinion,
. See 18 U.S.C. § 2510(15) (defining an electronic communications service as one that "provides to users thereof the ability to send or receive wire or electronic communications”).
. Magistrate Judge McGiverin of the District Court for the District of Puerto Rico has recently taken a similar path to a similar conclusion, to wit: Because CSLI derived from the control channel transmissions of a cell phone permits determination of the phone’s location over time (i.e., tracking of its movement), the acquisition/collection of such information uses the cell phone (or its control channel subsystem) as a tracking device. Thus these (separate/separable) control channel communications do not constitute "electronic communications”, and the systems for transmitting and receiving them do not constitute electronic communications service.
See McGiverin PR 2007 Opinion,
Also similarly, Magistrate Judge Smith has syllogized that
a communication from a tracking device, such as [CSLI], is neither an electronic nor a wire communication under the ECPA, and so it does not fall within the range of covered services provided by an ‘electronic service provider’. And since a subscriber does not use the phone to track his own movements in real time, prospective [CSLI] appears to be unrelated to any customer (as opposed to law enforcement) use of the provider’s services. Thus, painstaking and methodical analysis of the SCA’s technical terms offers no support for treating prospective [CSLI] as a transactional record under § 2703(c)(1).
Smith SD Tex.2005 Opinion,
.
See Smith SD Tex.2005 Opinion, supra
n. 54.
See also Stearns Mass 2007 Opinion,
In reversing Magistrate Judge Alexander's denial of the Government's applications for the release of historic CSLI under the SCA, Judge Stearns did not analyze whethеr a cell phone constitutes a tracking device when used to transmit location information, or whether such information pertains to a service covered under the SCA. Instead, he apparently considered this statutory analysis to be a mere "analogy”, with which he disagreed because:
(1) He concluded that excluding CSLI from the "records and other information” obtainable under 2703(d) would leave nothing subject to that subsection's intermediate standard, as all other non-content information might be obtained under the less stringent requirements for a subpoena under 2703(c)(2).
See
(2) He observed that "nothing in the 18 U.S.C. § 3117(b) definition of a mobile tracking device places a limitation on the ‘records *606 or other information' obtainable pursuant to a section 2703(d) order.” Id. This observation merely begs the question. If § 2703(c) limits disclosure to information pertaining to a service covered under the SCA {e.g., electronic communication), and the Act’s definitions place communications from a tracking device as defined in § 3117 outside the scope of "electronic communications", then the limitation against disclosure of tracking information follows (as set forth above) despite the absence of a reference to § 2703 in the text of § 3117. (Judge Stearns also noted that he was unpersuaded "of the relevance of” § 3117 to the issue, since that statute "governs the ‘installation of tracking devices’.” Id. at 81 n. 11. This overlooks the SCA's express definitional incorporation of § 3117.)
Finally, Judge Stearns held that disclosure of historic CSLI would implicate no Fourth Amendment concerns because:
(1) "historic information that ... reveal[s] where a subject of interest [was] in the past ... will not ... tell the government anything about the subject's [present or future locations].” Id. at 81. To the contrary, where we have been provides a great deal of information not only as to our previous movements/locations but as to our on-going activities and associations, i.e., our current and prospective movements/locations. Indeed, the Government requests it for these reasons. Moreover, the privacy and associational interests implicated are the same. Some degree of delay in the secretive disclosure to law enforcement does not diminish — certainly not meaningfully — the degree of intrusion/infringement on our civil rights.
(2)"even if an order requiring the disclosure of prospective cell site information allowed the government to 'track' a suspect ... into a protected area like a home” no "reasonable Fourth Amendment expectation of privacy [would] be compromised” because "the most [it] might reveal is that [the possessor] might be found in the home” and "[t]here is nothing ... about that disclosure that is any more incriminating or revealing than what could be gleaned from activation of a pen register or from physical surveillance.”
Compare
CALEA (expressly prohibiting disclosure of location information via Trap and Trace);
Karo,
See also Rosenthal SD Tex.2007 Opinion,
. If § 2703(c) were read to require, with appropriate legal authority, the disclosure of communication from a tracking device "pertaining” to a covered service, the inclusion of records of cell-phone-derived movement/location information would remain far from clear. The subscriber, for her part, is expending her monthly funds for the electronic communication of content {e.g., voice or text), not to *607 record her physical/geographic movements. The CSP, for its part, utilizes some portion of the automatically-registered CSLI to complete the subscriber’s calls. Much of that seven-second information, however, becomes irrelevant; and the historic record showing her changes in location over time does not pertain, even indirectly, to her cell phone service. Questions might also remain regarding the extent to which even specific-call-facilitating CSLI is stored information pertaining to the subscriber's cell phone service when retention of that information is now principally — if not exclusively — to ensure the CSP's compliance with legislative mandates.
. The Court emphasizes that the foregoing analysis rejects a distinction between historic and prospective CSLI for purposes of § 2703(c). This Court believes that its analysis is consistent with the fine statutory analy-ses of Magistrate Judge McGiverin, of Magistrate Judge Smith’s pioneering and highly-influential opinion, and of Magistrate Judge Orenstein and others, whose holdings ultimately also did not depend on any such distinction. It observes that Judge Lee has reached the same express conclusion as to the requirement of a probable cause warrant for a CSP’s disclosure to Government of historic or prospective CSLI.
.
See, e.g., Miller-El v. Cockrell,
. The Govеrnment may request delayed notice on showing that prior notice would, e.g., endanger life/physical safety, risk criminal flight, evidence destruction, or witness intimidation.
.
Cf. Warshak v. United States,
.
See Lee ND Ind.2006 Opinion,
.See Orenstein EDNY Aug. 2005 Order,
The Court also notes that the CALEA expressly exempts communications from a tracking device (defined in § 3117) from its definition of “electronic communications” and, in legislating what information CSPs must compile/retain for disclosure to law enforcement on "Cоurt Order or other lawful authorization”, also retains the Fourth Amendment or other requirements implicated by the nature of the information. See analysis of similar aspects of the SCA, supra.
.
Cf. Smith SD Tex.2006 Opinion,
.
See supra
at Section IV.
Cf. Smith SD Tex.2005 Opinion,
. Indeed, some Courts have suggested that in light of the heightened vulnerability of electronic surveillance to abuse for reasons of,
e.g.,
cost and undetectability, together with the heightened concerns following from its breadth and potential over-inclusiveness, CSLI should be afforded additional judicial safeguards, such as those provided under 18 U.S.C. § 2158.
Cf. Orenstein EDNY Oct. 2005 Opinion,
.
See Ashwander v. Tennessee Valley Authority,
.
See Katz,
. The Magistrate's role as arbiter of reasonableness in a search warrant application inherently acknowledges, and is predicated upon, her representation of community sensibilities.
. See Who Knows Where You’ve Been, 18 Harv. J. Law & Tech, at 313 (observing that "few customers are likely to appreciate the specificity of the location information available to service providers and the fact that companies can retain it indefinitely”).
. See Brief of the Federal Defenders of New York as Amicus Curiae in Gorenstein SDNY *612 2005 Opinion (indicating that "most cell users are quite surprised to learn that [CSPs] can create a virtual map" of movements and "are likely to reject the prospect of turning every cell phone into a tracking device"). Cf. Companies Caught in the Middle, 21 U.S.F.L.Rev. at 557 (“[Wjith respect to location information ..., many orders now require disclosure of the location of all of the associates who ... made calls to a target.”).
.
Cf. Karo,
.
Cf. United States v. White,
.Cf. State v. Jackson,
.
See also
.
Cf., e.g., McGiverin PR 2007 Opinion,
. The Court does not believe that these difficulties can be met by reliance on investigative agencies’ self-restraint.
See United States v. United States Dist. Ct.,
.See Karo,
Cf. Smith SD Tex 2005 Opinion,
It also appears that Congress, in expressly excepting tracking device communications and location information from the various provisions of its electronic communications legislation, intended to provide an ample zone of protection for Fourth Amendment rights.
Cf. Clark v. Martinez,
. In concluding that there is no reasonable expectation of privacy in the dialed telephone phone numbers obtained through a Trap and Trace, the Court relied on
United States v. Miller,
. This decision — affirming with "minor modification” the District Court’s entry of a preliminary injunction on grounds of the facial constitutional flaws of a statutory interpretation authorizing seizure of personal emails from service provider based only on Government’s ex parte representations of less than probable cause — was vacated and rehearing en banc on this novel question granted by the Sixth Circuit in October, 2007.
.
See
.
See United States v. Forest,
.
Compare id.
at 949 (noting that CSLI is "simply data sent from a cellular phone tower to the cellular provider’s computers”)
with Miller,
.Azrack E.D.N.Y.2007 Opinion,
The Government cannot, of course, remove an otherwise reasonable expectation of privacy by mandating that it have the ability to intrude.
Cf. Smith,
.
See also Almeida-Sanchez v. United States,
. See Robinson DDC 2005 Order, supra n. 61 (denying, on behalf of Magistrate Judges Robinson, Kay and Facciola, Government’s applications for Orders authorizing the disclosure of CSLI by authority under either § 2703, §§ 3122 and 3123, or both, absent a showing of probable cause).