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In re Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information

August 27, 2010

IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION.


The opinion of the court was delivered by: James Orenstein, Magistrate Judge.

MEMORANDUM AND ORDER

The United States seeks an order pursuant to 18 U.S.C. § 2703(c)-(d) (the "Stored Communications Act" or "SCA"), directing Sprint Nextel to disclose, with respect to all calls and text messages to and from a certain mobile telephone over a period of 58 days, all "recorded information identifying the base station towers and sectors that received transmissions from" that telephone. Docket Entry ("DE") 1 at 1.*fn1 The government has proffered "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." Id. ¶ 2. The government also takes the position that the proffered facts establish "probable cause" sufficient to permit the issuance of a warrant for historical cell-site information pursuant to Federal Rule of Criminal Procedure 41, id. at 2 n.1, but it nevertheless has expressly declined to seek such relief, preferring instead to rely exclusively on the SCA. For the reasons set forth below, I deny the government's application on the ground that the Fourth Amendment requires the government to obtain a warrant, based on a showing of probable cause on oath or affirmation, in order to secure the information it seeks.

I. Background

A. The Instant Application

On August 16, 2010, the government submitted an ex parte application for historical CSI for the period from May 1 through June 27, 2010, for a telephone issued by service provider Sprint Nextel to a subscriber named Edwin Espinosa ("Espinosa"), but actually used by the target of a continuing criminal investigation named Tyshawn Augustus ("Augustus"). Application at 1 & ¶¶ 3-4. The application relied exclusively on the SCA as authority for the requested relief, and purported to do no more than proffer "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." Application ¶ 2 (citing 18 U.S.C. § 2703(d)). After I expressed concern to the applicant that recent case law, as discussed below, might instead require a showing of probable cause to satisfy the Fourth Amendment, the government submitted a revised application that differed from its predecessor only by including the following disclaimer: "Although not required, the government submits that the facts set forth herein provide ... probable cause." DE 1 (revised Application) ¶ 2 n.1.*fn2

The government's assertion did not alleviate my concern. Even assuming that the facts proffered in the revised Application sufficed to establish probable cause, those facts could not simply be proffered but would instead have to be established by means of an affidavit or affirmation. See U.S. Const. Amend. IV ("no Warrants shall issue, but upon probable cause, supported by Oath or affirmation"). I so informed the applicant and invited him to cure that defect. After consulting with his colleagues in the United States Attorney's Office, the applicant informed me that the government preferred to rely exclusively on the authority of the SCA. I therefore requested the government to submit a letter brief in support of its position that, notwithstanding recent case law, its request for relief is consistent with the Fourth Amendment. The government did so on August 19, 2010. DE 4 (the "Letter").*fn3

B. The Changing Legal Landscape

I have previously granted requests similar to the one I now deny. Notwithstanding my view that the relevant statutes require an application for prospective CSI to establish probable cause, see 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 Info. And/or Cell Site Info., 396 F. Supp. 2d 294 (E.D.N.Y. 2005) ("CSI: Central Islip II");*fn4 but see, e.g., CSI: Brooklyn, 632 F. Supp. 2d 202 (E.D.N.Y. 2008); CSI: New York, 405 F. Supp. 2d 435 (S.D.N.Y. 2005); I have previously concluded -- and continue to believe -- that as a statutory matter the SCA permits a court to issue the order the government now seeks without a showing of probable cause. See CSI: Central Islip II, 396 F. Supp. 2d at 397 n.10 (citing CSI: Houston (2005), 396 F. Supp. 2d 747, 759 n.16 (S.D. Tex. 2005)); see also United States v. Benford, 2010 WL 12666507 (N.D. Ind. Mar. 26, 2010); CSI: Boston, 509 F. Supp. 2d 76 (D. Mass. 2007) (reversing 509 F. Supp. 2d 64 (D. Mass. 2007) (decision of magistrate judge)); United States v. Suarez-Blanca, 2008 WL 4200156 (N.D. Ga. Apr. 21, 2008); but see CSI: Pittsburgh, 534 F. Supp. 2d 585 (W.D. Pa. 2008), aff'd on motion for reconsideration by district judge, 2008 WL 4191511 (W.D. Pa. Sept. 10, 2008) (appeal pending); CSI: Austin, 2010 WL 3021950 (W.D. Tex. July 29, 2010); CSI: Fort Wayne, 2006 WL 1876847 (N.D. Ill. July 5, 2006).*fn5

Statutory authority, of course, is not sufficient if such authority purports to allow, without a showing of probable cause, a search or seizure that must be considered unreasonable under the Fourth Amendment.*fn6 I have not previously balked at issuing orders to disclose historical CSI on a showing of "specific and articulable facts" pursuant to the SCA in large part because, until now, the federal appellate courts to have addressed the issue have uniformly interpreted United States v. Knotts, 460 U.S. 276 (1983), to hold that location tracking outside the home is analogous to physical surveillance and therefore does not require a warrant. See United States v. Marquez, 605 F.3d 604 (8th Cir. 2010); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), reh'g en banc denied, --- F.3d ----, 2010 WL 3169573 (9th Cir. Aug. 12, 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).

That uniformity no longer exists. The United States Court of Appeals for the District of Columbia Circuit recently reversed the conviction of a defendant on the ground that evidence obtained in violation of his rights under the Fourth Amendment had improperly, and prejudicially, been admitted at trial. The investigating agents obtained such evidence by surreptitiously, and without a valid warrant, installing on the defendant's vehicle a global-positioning-system ("GPS") device that allowed them to track the location of that vehicle continuously for a month. See United States v. Maynard,--- F.3d ----, 2010 WL 3063788, at *7-*18 (D.C. Cir. Aug. 6, 2010). In reaching its decision, the court explained in detail why it was not foreclosed by the result or the reasoning in Knotts -- to the contrary, the court explained how the Knotts opinion had refrained from holding that prolonged warrantless location tracking was consistent with the Fourth Amendment. See id. at *8-*9; see also Pineda-Moreno, 2010 WL 3169573, at *4 (Kozinski, C.J., dissenting) (similarly distinguishing Knotts).

The decision in Maynard is just one of several rulings in recent years reflecting a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private. See Maynard, 2010 WL 3063788, at *13 & n.*, *15 (noting that pattern of movements over prolonged period, including to places such as church or doctor's office, reveals "intimate portrait" of subject's life and that cost and effort to deploy and continue using GPS surveillance is insignificant, and concluding that "the advent of GPS technology has occasioned a heretofore unknown type of intrusion into an ordinarily and hitherto private enclave"); Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007) (holding that an individual's reasonable expectation of privacy in the content of email communications is not vitiated by an understanding that the third-party service provider will maintain independent access to them, noting that electronic communication "is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past"), vacated en banc on other grounds, 532 F.3d 521 (6th Cir. 2008); CSI: Pittsburgh, 534 F. Supp. 2d at 610-16 (concluding that interpreting the SCA to allow disclosure of historical CSI without a showing of probable cause renders the statute constitutionally suspect); see also Pineda-Moreno, 2010 WL 3169573, at *7 (Kozinski, C.J., dissenting) ("There is something creepy and un-American about such clandestine and underhanded [continuous surveillance].... Some day, soon, we may wake up and find we're living in Oceania.").

As a result of such decisions, I believe that magistrate judges presented with ex parte requests for authority to deploy various forms of warrantless location-tracking must carefully re-examine the constitutionality of such investigative techniques, and that it is no longer enough to dismiss the need for such analysis by relying on cases such as Knotts or, as discussed below, Smith v. Maryland, 442 U.S. 735 (1979) (holding that telephone users have no expectation of privacy in dialed telephone numbers because they voluntarily expose such information to the service provider).*fn7 For the reasons discussed below, I now conclude that the Fourth Amendment prohibits as an unreasonable search and seizure the order the government now seeks in the absence of a showing of "probable cause, supported by Oath or affirmation[.]" U.S. Const. Amend. IV.

II. Discussion

A. Maynard: The "Intimate Picture" Rationale

The Maynard court, in holding that warrantless GPS tracking over the course of a month constituted a search, acknowledged that the federal appellate courts in three sister circuits had reached a contrary conclusion under the Supreme Court's decision in Knotts. Id. at *9 (citing Marquez, 605 F.3d 604; Pineda-Moreno, 591 F.3d 1212, reh'g en banc denied --- F.3d ----, 2010 WL 3169573; Garcia, 474 F.3d 994). In Knotts, the police had used a "beeper" (a form of transmitter) to track a vehicle's progress as it moved from one place to a destination approximately 100 miles away. Knotts, 460 U.S. at 277. The Supreme Court held that there had been no search because the subject, driving on public roads, "voluntarily conveyed to anyone who wanted to look" his progress and route, so he could not reasonably expect privacy in "the fact of his final destination." Id. at 281-82.

While the appellate courts in Marquez, Pineda-Moreno, and Garcia all held that Knotts compelled the finding that prolonged GPS surveillance was not a search, the Maynard court disagreed. It persuasively explained that the Court in Knotts "explicitly distinguished between the limited information discovered by use of [a] beeper -- movements during a discrete journey -- and more comprehensive or sustained monitoring of the sort at issue in [Maynard]." 2010 WL 3063788, at *8 (citing Knotts, 460 U.S. at 283-85). As the Maynard court demonstrated, the other cases involving GPS tracking had all rested on the mistaken understanding that Knotts reserved judgment only as to "whether 'wholesale' or 'mass' electronic surveillance of many individuals requires a warrant," and that, to the contrary, "the Court actually reserved the issue of prolonged surveillance." Id. (emphasis added). In particular, the Knotts Court rejected the respondent's concern that its decision would necessarily lead to the possibility of "twenty-four hour surveillance of any citizen of this country ... without judicial knowledge or supervision[.]" 460 U.S. at 283 (internal quotation marks omitted). To the contrary, the Court wrote that "if such dragnet type law enforcement practices ... should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable." Id. at 284.

Having established that Knotts did not compel it to reject the defendant's Fourth Amendment claim, the Maynard court proceeded to analyze whether the defendant had an expectation of privacy in the pattern of his movements over time that society recognizes as reasonable. 2010 WL 3063788, at *10 (citing Kyllo v. United States, 533 U.S. 27 (2001) (citing test from Katz v. United States, 389 U.S. 347 (1967)). The court noted that the Supreme Court's application of Katz precluded there being any reasonable expectation of privacy in information that was knowingly exposed to the public, but it explained that "[i]n considering whether something is 'exposed' to the public as that term was used in Katz we ask not what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do." Id. Applying that principle, the court wrote,

[W]e hold that the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

Id. at *12.

The court also addressed whether the defendant had constructively exposed the pattern of his movements over the month by having conducted each individual movement in public view. Id. at *12-*14. The court found that prolonged surveillance reveals information that differs in kind, not just in degree, from the results of any short-term surveillance. For example, while a single visit to a particular location might not reveal much, a pattern of visits would reveal if a person "is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts." Id. at *13. Indeed, the court noted that the government had made the pattern of the defendant's movements, as opposed to any one movement, central to its case, reinforcing the distinctive quality of such a collection of data. Id. at *13 n.*. The court found that "[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous." Id. at *14 (internal quotation marks omitted). Thus, the court found no constructive exposure of the pattern of movements.

Reasoning that prolonged GPS monitoring of a person's car travels reveals a picture of his life so intimate that he expects no one except perhaps his spouse to have it, the court held that the defendant's expectation of privacy in such information was reasonable. Id. at *14; see also id. at *15 (collecting, as indicative albeit non-conclusive evidence of societal understandings, statutes from eight states that impose penalties for use of electronic tracking devices and expressly exclude evidence produced by such devices unless obtained by police pursuant to warrant).

I find the opinion in Maynard persuasive, both with respect to its demonstration that Knotts is not dispositive on the issue of prolonged location tracking, and with respect to its analysis of the privacy interest at stake when the government uses technological means to accomplish the kind of prolonged, continuous, and detailed surveillance that would otherwise be impossible.*fn8 I therefore proceed to ...


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