Monday, April 27, 2015

Cell Tower Dumps, the 4th Amendment and the Stored Communications Act

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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