S.D.Tex. “constrained” to grant cell phone dump of records from seven providers to pinpoint one user captured on a video using his cell phone before committing a crime

Cell phone dump of records from seven providers to pinpoint one user captured on a video using his cell phone before committing a crime is granted. In re Cell Tower Records Under 18 U.S.C. § 2703(d), 2015 U.S. Dist. LEXIS 28208 (S.D.Tex. March 9, 2015):

On 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.

This court 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.

Background

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.

Analysis

Few 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 (S.D. Tex. 2013); In the Matter of the Search of Cellular Telephone Towers, 945 F. Supp. 2d 769 (S.D. Tex. 2013); In re Application for an Order Pursuant to 18 U.S.C. § 2703(d), 930 F. Supp. 2d 698 (S.D. Tex. 2012). The gist of these decisions is that (1) as a constitutional matter, the records sought are protected by the Fourth Amendment, and therefore a warrant based on probable cause is required to access them; and (2) as a statutory matter, the Stored Communications Act does not authorize this type of request.

More 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, No. M-50, 2014 U.S. Dist. LEXIS 76155, 2014 WL 4388397 (S.D.N.Y. May 30, 2014) (Magistrate Judge James Francis IV). As explained below, I am constrained by binding Fifth Circuit authority to agree with Judge Francis on the Fourth 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.

See Courthouse News Service: Careful Ruling on Access to Cell Tower Data by Cameron Langford