In Re US for an Order Aut. Dis. of Prosp. Cell
DECISION AND ORDER
On Dеcember 23, 2005, the government filed with this court, under seal, an application for an order authorizing the disclosure of prospective cell site information exclusively pursuant to
a. Originating and terminating cellular tower and sector information for all calls to and from this cellular telephone (i.e., cell site activations);
b. Map of cellular tower locations/addresses, sectors and orientations; and
c. The physical address/location of all cellular towers in the applicable markets.
In support of its application, the government presents, inter alia, that “[a]gents from DCI [the Wisconsin Department of Justice, Division of Criminal Investigation, Narcotics Bureau] believe that by obtaining cell-site information for [the subject’s] cellular telephone, it may be able to determine [the subject’s] source for cocaine.” (App. at 8.) Thus, the government “requests that the Court issue an order authorizing the use of the pen register device which has been authorized in [previous applications] to also record and disclose signaling information, including cell site information, from the target telephone for incoming and outgoing calls for a period of sixty (60) days from the date of this order.” (App. at 4.) What makes this particular application a bit problematic is the prospective nature of the information being sought. In other words, the information being sought is not “historical information.” Whether the government has the statutory right 1 to seek such information has been the subject of a number of recent decisions.
At least three courts have decided that there is no statutory authority to support the government’s request.
See In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority,
More recently, however, in
In re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace,
In light of the somewhat unsettled status of the case law, I ordered the government to file a brief in support of its application. In accordance with that order, the government filed -a brief setting forth its position regarding the statutory authority supporting its application. I have now considered the government’s argument and the case law dealing with the issue. For the following reasons, the government’s application will be denied.
By way of background, cellular telephone networks function by dividing; a geographic area into many coverage areas, or “cells.” Each cell contains a tower through which an individual portable cell phone transmits and receives calls. As the cell phone and its user move from place to place, the cell phone automatically
The government’s application seeks the above-listed information (“prospective cell site information”) for a cell phone assigned a specific mobile identification number for a period 60 days from the date of the order. The government seeks the order pursuant to the combined authority of Title
[t]he prospective disclosure of cell-site information falls squarely within the Pen/Trap Statute because cell-site information is “dialing, routing, addressing, or signaling information,” and the provisions of that statute mandate a pen/trap order for such disclosure. See18 U.S.C. §§ 3121(a) , 3127(3), and 3127(4). However, because Congress has forbidden a cellphone company from disclosing cell-site information “solely pursuant” to a pen/trap order, see47 U.S.C. § 1002(a)(2)(B) , the Pen/Trap Statute by itself is insufficient authority for such disclosure. The necessary authority for the disclosure of cell-site information called for by the Pen/Trap Statute is provided bySection 2703 of the SCA. In particular, cell-site information falls within the scope of the SCA because it constitutes “record[s] or other information pertaining to a subscriber to or customer of [an electronic communication] service (not including the contents of communications).” See18 U.S.C. § 2703(c)(1) . As a result, its disclosure may be obtained pursuant to an “articulable facts” order issued under18 U.S.C. § 2703(d) . Accordingly, the Pen/Trap Statute, together with the SCA, provide authority for the disclosure, on a prospective basis, оf cell-site information.
(Gov’t’s Mem. at 7-8.)
In sum, it is the government’s position that a pen register/trap and trace device may be issued upon a government attorney’s affirmation “that the information likely to be obtained is relevant to an ongoing criminal investigation.”
As stated previously, the field of judicial decision on the question before this court is not entirely unplowed. At least four courts have spoken to the issue of whether the combined authority of
By contrast, the information being sought by the government in the instant case is more akin to that which was being sought in SDNY. Specifically, in SDNY the government indicated that it sought cell site information “concerning the physical location of the antenna tоwers associated with the beginning and termination of calls to and from a particular cellphone.” SDNY, at 436. Such is the case here as well. Indeed, in its memorandum the government asserts that
[i]n the instant case and in the application before Judge Gorenstein in the Southern District of New York, the U.S. Attorney’s Office is seeking data which comports with the so-called “J-Standard,” that is, cell-site information concerning the physical location of the antenna towers associated with the beginning and termination of calls to and from a particular cellphone. See United States Telecom Ass’n v. FCC,227 F.3d at 455 .... [T]he cell-site information sought by this Office, at best, shows the cell quadrant a cellphone was in.
(Gov’t’s Mem. at 19-20.)
Be that as it may, the legal question before this court, at its heart, is the same legal question that was presented to the other four courts: does the combined application of
My analysis in this case begins with a review of the statutes that the issue presented has called into play. The first is the Pen/Trap Statute,
Title
any device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
In turn,
(1) the identity of the attorney for the Government or the State law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and
(2) a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
The second statute is the Stored Communications Act (“SCA”),
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 bеlieve that ... the records or other information sought, are relevant and material to an ongoing criminal investigation.
Finally, there is the Communications Assistance for Law Enforcement Act of 1994 (“CALEA”),
(a) Capability requirements ... [A] telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of -
(2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access 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 insection 3127 of title 18, United States Code), 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)[.]
The first question to be resolved is whether cell site information constitutes “dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.”
In SDNY, the court concluded that cell site information was indeed “signaling information.” In reaching that conclusion the court stated,
The term “signaling information” was added by the USA PATRIOT Act in 2001. See Pub.L. No. 107-56, § 216(c)(2), 115 Stat. 272, 290 (2001). Prior to the enactment of the USA PATRIOT [A]ct, the District of Columbia Circuit had held in connection with its interpretation of a related statute,47 U.S.C. § 1001(2) , that because a cell phone sends “signals” to cellphone towers in order to operate, the term “signaling information” includes information on the location of cell site towers used by a cellular telephone. See United States Telecom. Ass’n v. FCC,227 F.3d 450 , 458, 463-64 (D.C.Cir.2000). While one cell site decision notes an absence of legislative history indicating that Congress intended cell site data to be included in this term when it enacted the USA PATRIOT Act, see Texas Decision,396 F.Supp.2d at 761 , the language enacted is not so limited. Indeed, the legislative history reflects that the language regarding “signaling information” would apply “across the board to all communications media.” H.R.Rep. No. 107-236(1), 107th Cong., 1st Sess., available at2001 WL 1205861 , at *53 (Oct. 11, 2001). Accordingly, we will interpret this provision in accordance with its most obvious meaning and the one that naturally would have been available to Congress, through the United States Telecom case, when the statutory language was enacted in 2001. See Lorillard v. Pons,434 U.S. 575 , 581,98 S.Ct. 866 ,55 L.Ed.2d 40 (1978) (“Where ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”).
SDNY,
at 438-39. Having independently reviewed the above-referenced sections of the House Report on the PATRIOT Act as well as the D.C. Circuit’s decision in
United States Telecom.,
I find the reasoning in
SDNY
to be persuasive and therefore agree that cell site data, i.e., information on the location of cell site towers used by a cellular telephone, is included in the term “signaling information” for purposes of the Pen/Trap Statute. Such being the case, cell site information would be obtainable via the Pen/Trap Statute, unlеss obtaining such information pursuant to that statute was otherwise prohibited. This then takes me back to
The term “call-identifying information” means 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.
However, and to reiterate,
with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined insection 3127 of title 18, United States Code), ... call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the lоcation may be determined from the telephone number)[.]
According to the government and according to the court in the
SDNY
case, that additional, or supplemental, authority is the SCA, specifically,
As the court in the
SDNY
case observed, the exception clause in
The use of the word “solely” is significant. “Solely” means “without another” or “to the exclusion of all else.” See Merriam-Webster’s Collegiate Dictionary (10th ed.2000), at 1114. If we are told that an act is not done “solely” pursuant to some authority, it can only mean that the act is done pursuant to that authority “with [ ] another” authority. Id. As a result, the use of the word “solely” insection 1002 necessarily implies that “another” mechanism may be combined — albeit in some unspecified way — with the Pen Register Statute to authorize disclosure of cell site information.
SDNY,
at 442. The
SDNY
court then proceeded to consider, analyze and reject two propositions: (1) that cell site data can be obtained without any rebanee on the Pen/ Trap Statute and (2) that cell site data is not obtainable at all.
See id.
at 442-43. The court concluded that Congress intend
In sum,section 2703 is the most obvious candidate to be used in combination with the Pen Register Statute to authorize the ongoing collection of cell site information because it covers cell sitе information generally.Section 2703 ’s absence of procedural provisions that typically attach to the transmission of ongoing information is explained by the fact that the pen register is the proper “device” to obtain cell-site information. Thus, the Pen Register Statute’s procedural provisions that are tied to such a device are appropriately combined with an application undersection 2703 to obtain such information.
Id. at 449. It is at this point that I respectfully depart company with my colleague in the Southern District of New York.
Because the exception found in
The term “call setup information” is essentially the dialing information associated with any communication which identifies the origin and destination of a wire or еlectronic 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.
(Statement of Louis J. Freeh, Director, FBI, Before the Senate Judiciary Sub-comm. on Tech, and the Law and the Subcomm. on Civil and Constitutional Rights, March 18,1994, Federal Document Clearing House, at *23
available at
Furthermore, in that portion of his testimony addressing the subject “Allegations of ‘Tracking’ Persons,” Director Freeh attempted to allay Congress’s concerns and stated as follows:
Law enforcement’s requirements set forth in the proposed legislation include an ability to acquire “call setup information.” This information relates to dialing type information— information generated by a caller which identifies the origin, duration, and destination of a wire or electronic communication, the telephone number or similar communication address. Such information is critical to law enforcement and, historically, has been aсquired through use of pen register or trap and trace devices pursuant to 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). 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 device, 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.
(Statement of Louis J. Freeh, at *29.)
Of course, the actual language that found its way into the statute was somewhat different than that proposed by Director Freeh. Instead of making clear that “call setup information” was not to 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,” the statute provides that “with regard tо information acquired solely pursuant to the authority for pen registers and trap and trace devices, ... 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)[.]”
Most recently, in
In re Matter of the Application of the United States of America for an Order Authorizing the Release of Prospective Cell Site Information,
[Whatever] the actual existence of the technology in 1994, I cannot find any contemporaneous understanding by either Director Freeh or the Congress that the government had the capability that it now has to ascertain the location of a person using a cell phone, let alone that Congress intended to permit the government to use the Pen Register statute to avail itself of that technology, provided it combined its use of that statute with some other means. While the government would counter, relying on Judge Gorenstein’s opinion, that the word “solely” in47 U.S.C. § 1002(a)(2) suggests that this is true because it only precludes use of the Pen Register statute itself, I would have to answer that this conclusion, besides being historically inaccuratе, reaches an utterly counter-intuitive conclusion. It is inconceivable to me that the Congress that precluded the use of the Pen Register statute to secure in 1994 “transactional data” or what Freeh called “call [set]up information” nevertheless intended to permit the government to use that same statute, whether by itself or combined with some other means, to secure the infinitely more intrusive information about the location of a cell phone every minute of every day that the cell phone was on. I cannot predicate such a counter-intuitive conclusion on the single word “solely.”
DC, at 11. I agree with Judge Facciola’s cоmments. To be sure, that which the government is seeking in the instant application is not “information about the location of a cell phone every minute of every day that the cell phone was on.” Id. Instead, the government is only seeking the location(s) of the cell towers being used by the cell phone at the commencement and termination of calls. But, even such less precise location information was included in the “tracking information” about which Congress was concerned and to which Director Freeh’s mollifying remarks were directed. To reiterate, Director Freeh testified, inter alia, that “[s]ome 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.” Nevertheless, in an effort to assuage Congress’s concerns, Director Freeh went on to state that
[i]n order to make clear that the acquisition of such information is not being sought through the use of pen register or trap and trace device, and is not included within the term “call setup information,” we arе 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.
(Statement of Louis J. Freeh, at *29.)
Moreover, there is yet a further reason why I find the government’s “hybrid” authority argument to be unpersuasive. Again, during the course of his testimony before Congress, Director Freeh stated the following in response to a letter directed to him “falsely” alleging that the government was “seeking to ‘dictate to industry’ a new capability to acquire ‘minute-by-minute surveillance of individuals’ through transactional data”:
This is a false issue 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 responsibilities 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 under Chapters 119 and 206 of Title 18 and Chapter 36 of Title 50.11.[”] These chapters havе 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 Chapter 121 of Title 18 of the UnitedStates Code (“Stored Wire and Electronic Communications and Transactional Records Access”) The proposed legislation does not relate to Chapter 121 of Title 18.
(Statement of Louis J. Freeh, at *27-28) (emphasis added).
Simply stated, in his remarks, Director Freeh assured Congress that the legislation about which he was testifying and urging Congress to pass had nothing to do with, and did not relate to, the SCA, to wit,
The bottom line is that the array of statutes invoked by the issues in this case, i.e., the Pen/Trap Statute, the SCA, and CALEA present much more a legislative collage than a legislative mosaic. If Congress intended to allow prospective cell site information to be obtained by means of the combined authority of the SCA and the Pen/Trap Statute, such intent is not at all aрparent from the statutes themselves. Indeed, for the reasons set forth above, the legislative history of CALEA would suggest Congress’s intent to be otherwise.
Accordingly, and for all of the foregoing reasons, the government’s application will be denied. That having been said, the issue presented by the instant application will undoubtedly raise its head again (at a minimum, when I am no longer on criminal duty and one of the other magistrate judges in this district is). I therefore encourage the government to expeditiously seek review of this order with the duty district judge.
NOW THEREFORE IT IS ORDERED that the government’s application for an order authorizing the disclosure of prospective cell site informatiоn exclusively pursuant to the combined authority of
Your attention is directed to
Notes
. The government's application is predicated only on the combined authority of
. The government’s argument has been referred to as the “hybrid” authority argument.
See Southern Texas,