A Magistrate Judge of the Western District of Texas issues an opinion summarizing five years of case law to guide applications for cellular site location information (“CSLI”). In re United States for an Order: Authorizing the Use of a Pen Register and Trap and Trace Device, 727 F. Supp. 2d 571 (W.D. Tex. 2010):
As technology has advanced, new investigative tools have become available that federal law does not explicitly address. The Court’s focus in the present application is on cellular site location information (“CSLI”), which is information that resides on computer servers of telecommunications providers which allows law enforcement agencies to locate a cell phone, and its user, in both real time and, by accessing historical data, in the past. A request for CSLI presents a number of legal issues, and a growing number of decisions addressing these many have been handed down by magistrate and district judges in the past few years. The primary issue presented in those cases is the standard the Government’s evidence must meet for it to obtain an order requiring the disclosure of CSLI, and whether that standard is different depending upon the type of information sought (historical v. prospective data), or the means by which the information is to be acquired (single tower, multiple towers, or GPS data).
After meetings in 2005-06 with members of the United States Attorney’s office and representatives of law enforcement agencies, the magistrate judges in the Austin Division of this Court determined that a showing of probable cause would be required to obtain an order for any type of prospective CSLI. Those meetings were informal, and no written order expressing the basis for that conclusion was ever issued. In this opinion, the Court reviews the caselaw that has developed over the past five years on these issues, reviews the position of the Government, revisits the approach the Court has taken to date in these cases, and clarifies the procedures it will require when the Government wishes to obtain CSLI in the future.
. . .
V. TRACKING DEVICE PROCEDURE AND DEMONSTRATING PROBABLE CAUSE
What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of “tracking devices” it is time to stop treating them as something else, at least when the Government seeks to use them to track a person’s movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, “the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked.” FED. R. CRIM. P. 41(f)(2)(C). 19 Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
