W.D. Pa.: Cellphone tracking order requires probable cause

The government sought tracking information on a suspected drug trafficker’s cellphone. It had to be supported by probable cause under Rule 41. 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, 534 F. Supp. 2d 585 (W.D. Pa. February 19, 2008) (collecting cases):

For the reasons discussed below, this Court believes that citizens continue to hold a reasonable expectation of privacy in the information the Government seeks regarding their physical movements/locations–even now that such information is routinely produced by their cell phones–and that, therefore, the Government’s investigatory search of such information continues to be protected by the Fourth Amendment’s warrant requirement; i.e., the Government must meet a probable cause background standard.

. . .

Any contention that the Government might obtain cell tower site location information (“CSLI”) solely under the auspices of the PRS appears to have been put to bed. In a series of published Orders and Opinions over the past two years, a significant majority of Courts have also rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. In so holding, many of these Courts have repeatedly opined that real-time cell-phone-derived movement/location information is “tracking” information within § 3117. Few Courts have, however, addressed in published opinion whether the Government may nonetheless covertly obtain a cell phone subscriber’s (or possessor’s) past, or historic, movement/location information by the authority of the SCA. Some have suggested or credited (all but twice in dicta, and with little substantive discussion), that it may; a few have concluded or suggested that it may not.

This Court concurs with those majority opinions holding that real-time CSLI constitutes tracking information and further concludes, after extensive research and careful consideration, that a distinction between real-time (“prospective”) and stored (“historic”) cell-phone-derived movement/location information would be at odds with (a) the plain language and/or natural meaning of the language of § 3117 and §2703, (b) the rule of statutory construction requiring that effect be given to each and every provision, and (c) unambiguous Congressional intent. It would also render the related provisions of the electronic communications legislation constitutionally suspect, at best.

See also footnote 40:

40. See generally Where Are We?, 29 Hastings Comm. & Ent. L.J. at 422-24 (summarizing that 11 of the 15 decisions published on cell phone location tracking within prior two years concluded probable cause is required, while four authorized limited prospective information).

Among the decisions denying the Government’s requests for CSLI under a hybrid theory are: In re the Applications of the United States for Orders Authorizing the Disclosure of Cell Cite Information, 2005 WL 3658531 (D.D.C. Oct. 26, 2005) (hereafter “Robinson Joint Magistrates’ DDC 2005 Order“); Facciola DDC 2006 Opinion, 407 F.Supp.2d 134; Lee ND Ind. 2006 Opinion, 2006 WL 1876847 (affirming Magistrate Judge’s denial of application); Application of the United States for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers (Sealed) and Production of Real Time Cell Site Information, 402 F.Supp.2d 597 (D.Md. 2005); In re Application of the United States for Orders Authorizing Installation and Use of Pen Registers and Call Identification Devices, 416 F.Supp.2d 390 (D.Md. 2006); In re Application for an Order Authorizing the Installation and Use of a Pen Register and Directing the Disclosure of Telecomm. Records, 439 F.Supp.2d 456 (D.Md. 2006); Orenstein EDNY Aug. 2005 Order, 384 F.Supp.2d 562, on reconsideration, Orenstein EDNY Oct. 2005 Opinion, 396 F.Supp.2d 294; In re Application of the United States for an Order for Prospective Cell Site Location Information, 2006 WL 468300 (S.D.N.Y. Feb. 28, 2006); In re United States Application for an Order Authorizing Installation and Use of a Pen Register, 415 F.Supp.2d 211, 2006 WL 354289 (W.D.N.Y. Feb. 15, 2006) (hereafter “Feldman WDNY 2006 Opinion“); McGiverin PR 2007 Opinion, 497 F. Supp.2d 301; Smith SD Tex 2005 Opinion, 396 F.Supp.2d 747; Smith SD Tex. 2006 Opinion, 441 F.Supp.2d 816, 827-37; Adelman ED Wis. 2006 Opinion, 2006 WL 2871743, *3-4 (affirming Magistrate Judge’s denial of application); In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Information, 412 F.Supp.2d 947, 950 (E.D. Wis. 2006) (hereafter “Callahan ED Wis. 2006 Opinion”).

But see In re Application for an Order Authorizing the Extension and Use of a Pen Register Device, 2007 WL 397129 (E.D. Cal. Feb. 1, 2007) (granting request for limited prospective CSLI); In re Application of United States for an Order, 411 F.Supp.2d 678 (W.D. La. 2006); 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, 405 F.Supp.2d 435 (S.D.N.Y. 2005) (hereafter “Gorenstein SDNY 2005 Opinion“); In re Application of United States for an Order for Prospective Cell Location Information, 460 F.Supp.2d 448 (S.D.N.Y. 2006); In re Application of the United States, 433 F.Supp.2d 804 (S.D. Tex. 2006) (hereafter “Rosenthal SD Tex. 2006 Opinion“); In re Application of the United States for an Order (1) Authorizing Installation of a Pen Register and Trap and Trace Device and (2) Authorizing Release of Subscriber and Other Information, 2007 WL 3036849 (SD Tex. Oct. 17, 2007) (hereafter “Rosenthal SD Tex. 2007 Opinion“) (reversing Magistrate Judge Smith’s denial of application for historic and prospective CSLI).