The Third Circuit today held that the government need not always show probable cause for a tracking order of a cell phone, but because cell phones provide detailed location, the USMJ can require the government to show probable cause for that information. The case is remanded to the USMJ for further fact finding. This was based on an ex parte application of the government, and EFF participated in the case as amicus, and their brief was important to the decision. In the Matter of the Application Of the United States of America For an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 08-4227 (3d Cir. September 7, 2010):
The Government vigorously objects to treating CSLI from cell phone calls as information from a tracking device. It explains that cellular calls are wire communications, that tracking devices are excluded from the definition of electronic communications but not from the definition of wire communications, and that, in any event, it hasn’t sought records from a tracking device in this case. Section 2510(1) defines “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) ….” 18 U.S.C. § 2510(1). The CSLI requested by the Government consists of records of information collected by cell towers when a subscriber makes a cellular phone call. That historical record is derived from a “wire communication” and does not itself comprise a separate “electronic communication.” Thus, even if the record of a cell phone call does indicate generally where a cell phone was used when a call was made, so that the resulting CSLI was information from a tracking device, that is irrelevant here because the CSLI derives from a “wire communication” and not an “electronic communication.” See id. § 2703(c) (providing that the Government may require “a provider of electronic communication service” to disclose records); id. § 2510(15) (defining “electronic communication service” to include providers of “wire or electronic communications”) (emphasis added).
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We cannot reject the hypothesis that CSLI may, under certain circumstances, be used to approximate the past location of a person. If it can be used to allow the inference of present, or even future, location, in this respect CSLI may resemble a tracking device which provides information as to the actual whereabouts of the subject. The Knotts/Karo opinions make clear that the privacy interests at issue are confined to the interior of the home. There is no evidence in this record that historical CSLI, even when focused on cell phones that are equipped with GPS, extends to that realm. We therefore cannot accept the MJ’s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production.
In sum, we hold that CSLI from cell phone calls is obtainable under a § 2703(d) order and that such an order does not require the traditional probable cause determination. Instead, the standard is governed by the text of § 2703(d), i.e., “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.” 18 U.S.C. § 2703(d). The MJ erred in allowing her impressions of the general expectation of privacy of citizens to transform that standard into anything else. We also conclude that this standard is a lesser one than probable cause, a conclusion that, as discussed below, is supported by the legislative history.
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A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, “[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” EFF Br. at 21.
The EFF has called to our attention an FCC order requiring cell phone carriers to have, by 2012, the ability to locate phones within 100 meters of 67% of calls and 300 meters for 95% of calls for “network based” calls, and to be able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of calls for “hand-set” based calls. EFF Br. at 12 n.5 (citing 47 C.F.R. § 20.18(h)(1)(2008)). The record does not demonstrate whether this can be accomplished with present technology, and we cannot predict the capabilities of future technology. See Kyllo v. United States, 533 U.S. 27, 36 (2001) (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”); see also id. (“the novel proposition that inference insulates a search is blatantly contrary to [Karo], where the police ‘inferred’ from the activation of a beeper that a certain can of ether was in the home.”).
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Similar reasoning lay behind the MJ’s refusal to grant a § 2703(d) order. In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.
Because the statute as presently written gives the MJ the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly because Congress also included the option of a § 2703(d) order. However, should the MJ conclude that a warrant is required rather than a § 2703(d) order, on remand it is imperative that the MJ make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.
We again note that although the Government argues that it need not offer more than “specific and articulable facts showing that there are reasonable grounds to believe that the … information sought … [is] relevant and material to an ongoing criminal investigation,” 18 U.S.C. § 2703(d), the MJ never analyzed whether the Government made such a showing. We leave that issue for the MJ on remand.
