This post examines a recent opinion from a U.S. Magistrate Judge who sits in the U.S. District Court for the Southern District of Texas: In re Application for Cell Tower Records, 2015 WL 1022018
(2015). He begins by explaining how the
case arose:
Earlier this year in Houston, a private
security video recorded an unknown individual approaching a commercial business
location on foot, holding a wireless device to his ear. A minute later he
lowered the device from his ear, pausing to look at it before putting it in his
pocket. He then entered the business, committed a crime, and fled the scene
minutes later. The relevant portion of the video-recorded sequence is about 6
minutes long.
The Government seeks historical
cell-tower log information from the towers in the vicinity of the business
while the crime was in progress. These records may include the telephone call
numbers and unique identifiers for any wireless device communicating via that
tower; the source and destination telephone numbers for those communications;
the date, time and duration of each communication; the tower sector handling
the radio signal; and the type of communication (such as phone call or text
message). The Government also seeks subscriber account information for the
telephone numbers revealed by the cell tower log. The request does not seek
precise location data, nor does it seek to track the movements of a particular
cell phone over time.
In re Application for
Cell Tower Records, supra.
The judge also noted that
[o]n February 10, 2015 the Government
filed this application under section 2703(d) of the Stored Communications Act
seeking somewhat unusual authority -- an order compelling seven different cell
phone service providers to release historical cell tower data for specific
towers providing service to a crime scene within Houston city limits at the
hour of the crime.
What is unusual is that, unlike most
requests for account records under the SCA, the targeted account is not
specified; neither the phone number nor the identity of the phone's subscriber
or customer are currently known to law enforcement. By obtaining the records of
all wireless devices using a nearby tower at the time of the crime, the
Government hopes to identify the particular device used by the suspect and any
confederates, and ultimately to enable their capture and arrest.
In re Application for
Cell Tower Records, supra.
The judge then explained that he
granted the application, but modified
the requested time window from one hour to ten minutes. Because there is
contrary authority in this district as to the propriety of such orders
(sometimes called `cell tower dumps’) under the SCA, the court issues this
opinion to explain its rationale.
In re Application for
Cell Tower Records, supra.
He then began his analysis of the issue in the case by
pointing out that
[f]ew published opinions treat the
subject of cell tower dumps. Three such opinions were issued by my colleague in
Corpus Christi, Magistrate Judge Brian Owsley. In re Application for an
Order Pursuant to 18 U.S.C. § 2703(D), 964 F.Supp. 2d 674 (U.S.
District Court for the Southern District of Texas 2013); In the Matter
of the Search of Cellular Telephone Towers, 945 F.Supp.2d 769 (U.S.
District Court for the Southern District of Texas 2013); In re
Application for an Order Pursuant to 18 U.S.C. § 2703(D), 930 F.Supp. 2d 698
(U.S. District Court for the Southern District of Texas 2012).
The gist of these decisions is that (1)
as a constitutional matter, the records sought are protected by the 4th Amendment, and therefore a warrant based on probable cause is required to
access them; and (2) as a statutory matter, the Stored Communications Act (`SCA’)
does not authorize this type of request.
In re Application for
Cell Tower Records, supra.
He also noted, though, that
[m]ore recently, a magistrate judge in
New York reached the opposite conclusion on both the constitutional and
statutory issues. In the Matter of Application For an Order to Disclose
Cell Tower Log Information, 2014 WL 4388397 (U.S. District Court for the Southern District of New York May 30, 2014) (Magistrate Judge James Francis IV).
As explained below, I am constrained by
binding 5th Circuit authority to agree with Judge Francis on the 4th Amendment
question. As for the matter of statutory interpretation, I concur with Judge
Francis's analysis and conclude that the SCA authorizes the compelled
disclosure of cell tower log data.
In re Application for
Cell Tower Records, supra.
The Magistrate Judge begins with the issues involved in
“cell tower logs and the 4th Amendment”. In re
Application for Cell Tower Records, supra. He explains that the
tower dump opinions by Judge Owsley
were issued before the 5th Circuit decided In re Application of the
United States for Historical Cell Site Data, 724 F.3d 600 (U.S. Court of Appeals for the 5th Circuit 2013). In a 2–1 opinion, that 5th Circuit panel
held that orders for historical cell site records under the SCA did not `categorically’
violate the 4th Amendment.
The panel majority reasoned that cell
site records were ordinary business records of the provider in which the
customer had no reasonable expectation of privacy -- notwithstanding
a 1999 federal statute declaring that call location records belonged to
the customer as `customer proprietary network information,’
and could not be used, disclosed or accessed `without the express prior
authorization of the customer.’
In re Application for
Cell Tower Records, supra (emphasis
in the original). As Wikipedia explains, appeals in the U.S. Courts of Appeals
are “almost always heard by a `panel’ of three judges who are randomly selected
from the judges” in that circuit.
He goes on to point out that the
panel majority emphasized that its
decision was a narrow one, and among other things expressly declined to address
`orders requesting data from all phones that use a tower during a particular
interval.’ In re Application of the United States for Historical Cell Site
Data, supra. Even so, the 5th
Circuit's reasoning leaves no doubt that the cell tower logs requested here
would likewise be categorized as ordinary business records entitled to no
constitutional protection. Unlike call location records, no federal statute
confers upon the customer any proprietary rights in her cell phone number or
account information.
Having disregarded the customer's
statutorily-conferred proprietary rights in location records held by the
provider, there is no reason to believe the 5th Circuit would rule differently
for records such as these, which are not the property of the customer. If the
customer has no reasonable expectation of privacy in call location records, it
follows a fortiori that he has no reasonable expectation of privacy
in his phone number or account records.
The net effect is that the 4th
Amendment ground for Judge Owsley's rulings on cell tower dumps has been cut
away, at least for the time being, in this circuit. We now turn to the
statutory ground for these rulings.
In re Application for
Cell Tower Records, supra.
The “statutory ground” at issue was the Stored
Communications Act, as noted above. In re
Application for Cell Tower Records, supra. The judge begins that analysis by noting that
the Stored Communications Act
does not use the term `cell tower
dump.’ However, the tower logs sought here will yield types of records
expressly listed in that statute, including `telephone or instrument number or
other subscriber number or identity’ and `local and long distance telephone
connection records, or records of session times and durations.’ 18 U.S. Code §
2703(c)(2). That said, it is true that this application differs from the
typical § 2703(d) application in a significant respect—the manner in which
the sought-after records are targeted or `selected.’
In the usual § 2703(d) application,
the Government requests account records associated with a particular phone
number, or the name of a particular subscriber or customer, or both. This
typically results in the production of a set of records pertaining to a single
account. Here, by contrast, the `selector’ is the cell tower in contact with
all mobile devices at a given time, which might retrieve several thousand phone
numbers in a metropolitan area like Houston. The question arises whether
or not the SCA contemplates a single order compelling access to records from
multiple accounts.
In re Application for
Cell Tower Records, supra.
He also pointed out that in a
letter brief to Judge Francis, the ACLU
argued in the negative, pointing out that the SCA is consistently phrased in
the singular, and repeatedly refers to records pertaining to `a subscriber to
or customer of such service.’
However, this argument is effectively
refuted by the Dictionary Act, which instructs courts that `[i]n determining
the meaning of any Act of Congress, unless the context indicates otherwise,
words importing the singular include and apply to several persons, parties or
things; [and] words importing the plural include the singular. . . .’ 1 U.S.Code § 1. Thus the default rule of interpretation is to include both singular
and plural, absent a contrary indication in the statute.
In re Application for
Cell Tower Records, supra.
The judge went on to find, however, that
[n]othing in the context of the SCA
suggests an intent to rule out the plural. One passage in the SCA does mention
`unusually voluminous’ requests:
`A court issuing an order pursuant to
this section, on a motion made promptly by the service provider, may quash or
modify such order, if the information or records requested are unusually
voluminous in nature or compliance with such order otherwise would
cause an undue burden on such provider.’
18 U.S. Code § 2703(d) (emphasis
added). But this passage does not limit a records request to a single account
or phone number. To the contrary, the reference to `unusually voluminous’ requests
implies that a merely `voluminous’ request, perhaps encompassing multiple
accounts, is within the contemplation of the law.
In re Application for
Cell Tower Records, supra.
He also pointed out that
the court's power to quash a voluminous
request is triggered by `a motion made promptly by the service provider,’
suggesting that the initial judgment about what is too voluminous is the
provider's call, not the court's. To be sure, the court has inherent power to
limit the scope of the tower dump based on 4th Amendment privacy concerns, but
again, the Fifth Circuit has found no reasonable expectation of privacy in cell
site records.
A court could also limit the temporal
scope of the tower dump based on the Government's threshold showing of the
`specific and articulable facts’ required by § 2703(d). For that very
reason, I have reduced the relevant time window here from one hour to ten
minutes. These considerations do not defeat or undermine the Government's
position that at least some volume of multiple account records is accessible
under a single § 2703(d) order.
Accordingly, I concur with Judge
Francis that the SCA authorizes law enforcement access to cell tower logs and
associated account information.
In re Application for
Cell Tower Records, supra.
The judge also went on to include a caveat in order
to avoid possible misunderstanding.
This holding has no application to a related though very different
investigative technique using a device known as a cell site simulator,
sometimes referred to as a `StingRay.’ Like a cell tower dump, the StingRay
device may be used to discover telephone and other identification numbers of
wireless devices in a given location.
However, there are several critical
differences: (1) the device is deployed by law enforcement, not the provider;
(2) the information obtained is transmitted in real time directly to law
enforcement, not retrospectively via the provider's records; and (3) the device
allows continuous real time tracking of the wireless devices in contact with
it.
In re Application for
Cell Tower Records, supra.
And he pointed out that there
is little reported case law considering
the governing statutory authority for law enforcement's use of a StingRay
device. In the only reported case from this district, Judge Owsley denied
the government's application to authorize such a device under the Pen/Trap
Statute. In re Application for an Order Authorizing the Installation
and Use of a Pen Register and Trap and Trace Device, 890 F.Supp.2d 747
(U.S. District Court for the Southern District of Texas 2012). Law enforcement
had intended to use the device to identify the telephone number of a cell phone
used by a suspected drug dealer.
But as Judge Owsley persuasively
observed, the Pen/Trap Statute requires that a pen/trap order must specify in
advance `the number or other identifier’ of the targeted phone, in contrast to
other information which need be specified only `if known.’ In re
Application for an Order Authorizing the Installation and Use of a Pen Register
and Trap and Trace Device, supra. In other words, Congress did not
contemplate that a pen/trap order could be used to discover the phone number of
the target phone.
Another case suggests that a mobile
tracking device warrant under Rule 41 of the Federal Rules of Criminal Procedure is the proper procedure for a cell site simulator, at least when
the device is used to track the location of a target device. See U.S.
v. Rigmaiden, 844 F.Supp.2d 982 (U.S. District Court for the District of Arizona 2012). The defendant, a fugitive charged with identity theft, was
located by a cell site simulator that `mimicked a Verizon Wireless cell tower
and sent signals to, and received signals from, the aircard’ connected to his
laptop computer. U.S. v. Rigmaiden, supra. The government had obtained
a Rule 41 mobile tracking device warrant for the cell site
simulator, and conceded for purposes of [his] motion to suppress that `the
aircard tracking operation was a 4th Amendment search and seizure.’ U.S. v.
Rigmaiden, supra.
He wen ton to explain that neither of these cases analyzed
whether the SCA could
authorize the use of a cell site
simulator, and for good reason. The SCA is a record production regime,
authorizing one-time access to account records in the hands of the provider, as
opposed to the continuous real-time monitoring that a StingRay entails. See,
generally, In re Order Authorizing Prospective and Continuous Release of
Cell Site Location Records, 31 F.Supp.3d 889 (U.S. District Court for
the Southern District of Texas 2014) (`Congress never intended the Stored
Communications Act to govern ongoing surveillance’).
Thus, even though the StingRay and the
tower dump may both ultimately yield the same information -- the number or
identifier of the cell phone used by a criminal suspect -- the manner of
acquiring that information is very different, and entails a very different
legal analysis. For all these reasons, the fact that a cell tower dump may be
authorized by the SCA does not imply that a cell site simulator is likewise
authorized under the SCA.
In re Application for
Cell Tower Records, supra. He therefore granted the govrnment’s
application. In re Application for Cell
Tower Records, supra.
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