D.N.M. sets protocol for ping warrant applications

Ping warrant applications now have to follow a protocol in D.N.M. In re Search Warrant Application for Location Info., 2024 U.S. Dist. LEXIS 190215 (D.N.M. Oct. 18, 2024):

In considering the United States’ ping warrant application, the Court first addresses whether the SCA on its own authorizes the collection of prospective location information on a rolling basis. Second, the Court addresses whether the SCA can combine with the Pen/Trap Statute to provide such authority. Third, the Court addresses whether the cell phone being tracked should be considered a tracking device. This last question matters to law enforcement because jurisdictional provisions contained in the Tracking Device Statute (“TDS”), 18 U.S.C. § 3117, are narrower than jurisdictional provisions in the SCA, 18 U.S.C. § 2711, and because Rule 41 contains specific procedural requirements that apply to tracking devices that the United States argues do not apply to ping warrants.

For the reasons below, the Court denies the United States’ ping warrant application. It finds that 1) the SCA does not, on its own, permit the government to obtain prospective location information, but that 2) the SCA in combination with the Pen/Trap Statute does permit such prospective information. This combination 3) renders the cell phone a tracking device subject to the TDS and procedural requirements for tracking devices under Rule 41. Having so concluded, the Court also sets forth procedures the United States must follow when submitting future warrants to the undersigned that seek extended rolling real-time disclosure of location information emitted from a suspect’s cell phone.

Update:

techdirt: Federal Court Finally Sets Some Limits On Cell Phone Ping Warrants by Tim Cushing