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IN RE APPLICATION OF THE UNITED STATES OF AMERICA

December 20, 2005.

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.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

OPINION AND ORDER

On October 19, 2005, the Court granted an ex parte application from the Government seeking an order requiring a provider of cellular telephone service to produce, inter alia, information pertaining to the location of cell site towers receiving a signal from a particular cellular telephone for a period of 60 days. The Court's Order expired on December 18, 2005. Because at least three other district courts have concluded that the Government lacks statutory authority for applications relating to certain types of cell site data, the Court is setting forth the reasons it granted the application in this case. Subsequent to the issuance of the Order, the Court sought additional information and briefing from the Government regarding the application. In addition, the Court asked the Federal Defenders of New York, Inc. to appear as amicus curiae. The Court has greatly benefited from the briefing provided by both sides. I. BACKGROUND

  Cellular telephones communicate by means of signals to cellular telephone towers, which are operated by the various commercial carriers that provide cellular telephone service. As a cell phone user moves from place to place, the cell phone automatically switches to the tower that provides the best reception. In this case, the Government's application sought information on a prospective basis regarding cell towers being signaled by a specifically identified cellular telephone. The application, which remains under seal, furnishes detailed information indicating that the user of the target cellular telephone is engaged in ongoing criminal activity involving the illegal sale of contraband and that a warrant for the arrest of this person is outstanding. An order was previously granted by another Magistrate Judge in this District for cell site information with respect to the same target telephone.

  The relevant portions of the application seek, for a period of 60 days, "cell site activations" for the telephone. The application also seeks a directive that the provider of the service furnish a map showing cellular tower "locations/addresses, sectors and orientations" as well as "the physical address/location of all cellular towers in the specified market." In a portion of the application not relevant to the instant opinion, the application seeks numbers dialed, incoming numbers, call durations, and other information relating to the subscriber of the target cellular telephone. The application contains additional provisions requiring that the provider furnish certain assistance to the federal law enforcement agents necessary to comply with the requested court order.

  While the application uses the term "cell-site activations," the Government has specified that it seeks "cell-site information concerning the physical location of the antenna towers associated with the beginning and termination of calls to and from a particular cellphone." See Letter to the Court from Thomas A.G. Brown, dated November 22, 2005 ("Gov't Letter"), at 10. This phrasing corresponds roughly to the information that in fact has been obtained by the Government in this District in the past with respect to cell site information. Under prior orders issued in this District, the Government has been able to obtain a list of each call made by the subject cell phone, along with a date, start time and end time. With respect to the beginning or end of the call (and possibly sometimes in between), there is a listing of a three-digit number assigned to a cellphone tower or base station. At least one cellular provider will give, in addition to the number of the tower, a digit ("1," "2" or "3") indicating a 120 degree "face" of the tower towards which the cell phone is signaling.

  In suburban or rural areas, towers can be many miles apart. The Court has examined a map of cellular towers of a provider in lower Manhattan, which is one of the areas more densely populated by towers. In this area, the towers may be anywhere from several hundred feet to as many as 2000 feet or more apart.

  The Court is aware of three cases that have considered the availability of cell site data: In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D. Tex. 2005) ("Texas Decision"); In the Matter of an Application of the United States for an Order (1) Authorizing the Use of a Pen Register and a Trap and Trace Device and (2) Authorizing Release of Subscriber Information and/or Cell Site Information, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) ("EDNY Decision); and In re 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, 2005 WL 3160860 (D. Md. Nov. 29, 2005) ("Maryland Decision"). These cases appear to involve requests for cell site information that go beyond both what has been sought in this case and what has actually been received by the Government pursuant to any cell site application in this District. First, the cell site information provided in this District is tied only to telephone calls actually made or received by the telephone user. Thus, no data is provided as to the location of the cell phone when no call is in progress. Second, at any given moment, data is provided only as to a single cell tower with which the cell phone is communicating. Thus, no data is provided that could be "triangulated" to permit the precise location of the cell phone user. Third, the data is not obtained by the Government directly but is instead transmitted from the provider digitally to a computer maintained by the Government. That is, the provider transmits to the Government the cell site data that is stored in the provider's system. The Government then uses a software program to translate that data into a usable spreadsheet.

  II. DISCUSSION

  The Government's application cites to two enactments: the statutes governing the installation of pen registers and trap and trace devices, 18 U.S.C. §§ 3121-27 ("the Pen Register Statute"), and a provision of the Stored Wire and Electronic Communications and Transactional Records Access Act codified at 18 U.S.C. § 2703. We begin our discussion with the text of these statutes inasmuch as "[e]very exercise in statutory construction must begin with the words of the text." Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (citations omitted). In general, if the statutory language is not ambiguous, the statute is construed according to the plain meaning of the words. See, e.g., Greenery Rehab. Group, Inc. v. Hammon, 150 F.3d 226, 231 (2d Cir. 1998) (citing Rubin v. United States, 449 U.S. 424, 430 (1981)). We look to the legislative history and other tools of statutory construction only if the statutory terms are ambiguous. Id. (citing Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993)).

  A. Pen Register Statute

  The Pen Register Statute is the statute used to obtain information on an ongoing or prospective basis regarding outgoing calls from a particular telephone (captured by a "pen register") and incoming calls (captured by a "trap and trace" device). These devices are more fully defined in 18 U.S.C. § 3127(3), (4).*fn1 A "pen register" is defined as a device that provides not merely the telephone number of a telephone call dialed from the subject telephone — the most common use of the term "pen register" — but also "signaling information" transmitted by the subject telephone itself or the "facility from which a wire or electronic communication is transmitted," 18 U.S.C. § 3127(3). The term "signaling information" was added by the USA PATRIOT Act in 2001. See Pub.L. No. 107-56, § 216(c)(2), 115 Stat. 272, 290 (2001). Prior to the enactment of the USA PATRIOT act, the District of Columbia Circuit had held in connection with its interpretation of a related statute, 47 U.S.C. § 1001(2), that because a cell phone sends "signals" to cellphone towers in order to operate, the term "signaling information" includes information on the location of cell site towers used by a cellular telephone. See United States Telecom. Ass'n v. FCC, 227 F.3d 450, 458, 463-64 (D.C. Cir. 2000).*fn2 While one cell site decision notes an absence of legislative history indicating that Congress intended cell site data to be included in this term when it enacted the USA PATRIOT Act, see Texas Decision, 396 F. Supp. 2d at 761, the language enacted is not so limited. Indeed, the legislative history reflects that the language regarding "signaling information" would apply "across the board to all communications media." H.R. Rep. No. 107-236(I), 107th Cong., 1st Sess., available at 2001 WL 1205861, at *53 (Oct. 11, 2001). Accordingly, we will interpret this provision in accordance with its most obvious meaning and the one that naturally would have been available to Congress, through the United States Telecom case, when the statutory language was enacted in 2001. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) ("Where . . . Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.").

  In addition, construing the pen register definition as covering the capture of cell site data is the only way to make sense of a separate statute: 47 U.S.C. § 1002. As described in the next section, that statute specifically assumes that cell site data is available under the Pen Register Statute.

  Notably, the showing required to install a pen register is a low one: the Government need only identify the law enforcement agency conducting the investigation and certify that the information likely to be obtained is "relevant to an ongoing criminal investigation" being conducted by the agency. 18 U.S.C. § 3122(b)(1), (2). Orders requiring the installation of a pen register may not exceed 60 days, though they may be extended for additional 60-day periods if the required showing is made. 18 U.S.C. § 3123(c). In certain emergency situations, a pen register may be installed even in the absence of a court order. 18 U.S.C. § 3125. The Pen Register Statute explicitly excludes from its definition "the contents of any communication" — an exclusion not relevant to the instant application as there is no effort to obtain the contents of any telephone calls. See 18 U.S.C. § 3127(3).

  The Government has certified that the cell site information it seeks here is "relevant and material to an ongoing investigation." Thus, the Pen Register Statute would by itself provide authority for the order being sought by the Government were it not for a provision codified elsewhere in the United States Code. That provision occurs in an "exception" clause within 47 U.S.C. § 1002, which is entitled "Assistance capability requirements."

  B. 47 U.S.C. § 1002

  Section 1002 was enacted as part of the Communications Assistance for Law Enforcement Act of 1994. It requires telecommunications carriers to ensure that their equipment is capable of providing a law enforcement agency with information to which it may be entitled under statutes relating to electronic surveillance. Section 1002 provides, in pertinent part, as follows: a telecommunications carrier shall ensure that its equipment, facilities, or services ...


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