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In the


February 16, 2011


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


The United States seeks an order pursuant to 18 U.S.C. § 2703(c)-(d), directing AT&T Wireless to disclose, with respect to all calls and text messages to and from two separate specified mobile telephones during certain periods, all "recorded information identifying the base station towers and sectors that received transmissions from" the two telephones at the start and end, and during the duration, of calls and text transmissions. The government seeks such information with respect to one telephone for a three-day period in mid-2010 and a six-day period commencing less than a month later; with respect to the second telephone, it seeks information for a twelve-day period in late 2010. Sealed Application at 1. 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. In making that showing, the government asserts that although the two telephones have different individual subscribers, both are believed to have been used by a third person in furtherance of the offenses under investigation. Id. ¶ 3. Notwithstanding prior decisions in which I have denied requests for historical cell site information ("historical CSI") pursuant to the Fourth Amendment, I now grant the instant application. Briefly stated, I conclude that the shorter time period of the surveillance at issue here distinguishes the instant application from the ones that I have denied on constitutional grounds.

As I have previously explained elsewhere, as a statutory matter, I interpret the relevant provisions of the Stored Communications Act ("SCA") to permit the relief the government now seeks. In The Matter Of An Application Of The United States Of America For An Order Authorizing The Release Of Historical Cell-Site Information ("Historical CSI I"), --- F. Supp. 2d ----, 2010 WL 3463132, at *2 (E.D.N.Y. Aug. 27, 2010) (citing cases); 18 U.S.C. § 2703(c)-(d). However, as further explained in Historical CSI I, I also conclude that when the government seeks access to historical CSI records for an extended period, it must satisfy the requirements for a warrant under the Fourth Amendment. See Historical CSI I, 2010 WL 3463132, at *3-14; see also In The Matter Of An Application Of The United States Of America For An Order Authorizing The Release Of Historical Cell-Site Information ("Historical CSI II"), 2010 WL 5437209, at *2-3 (E.D.N.Y. Dec. 23, 2010) (citing later decisions in other jurisdictions that bolstered the authority on which I relied in Historical CSI I).*fn1

The instant application requires me to consider the point at which a request for location tracking information is extensive enough to trigger the warrant requirement. In my earlier decision, I relied heavily on the reasoning in United States v. Maynard, 615 F.3d 544, reh'g en banc denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010). The rationale in Maynard, in essence, was that a month's worth of location tracking provides an intimate picture of the subject's life, and one that he does not meaningfully subject to public exposure, in part because sustained physical surveillance over such a period is effectively impossible. See 615

F.3d at 560-64. Because I concluded that there was no material difference between the essentially real-time surveillance accomplished in Maynard by means of a global positioning system ("GPS") device and retrospective location tracking via historical CSI records, I denied the government's request to obtain the latter records pertaining to a 58-day period. Historical CSI I, 2010 WL 3463132, at *6-14.

The Maynard court took pains to distinguish the case before it from the circumstances of United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court decided that the use of a beeper to track a single trip on public roads did not implicate the warrant requirement of the Fourth Amendment. Maynard, 615 F.3d at 556. It did not attempt to define the length of time over which location tracking technology must be sustained to trigger the warrant requirement. I recognize that any such line-drawing is, at least to some extent, arbitrary, and that the need for such arbitrariness arguably undermines the persuasiveness of the rationale of Maynard, and of my prior decisions. I note, however, that there is nothing new in the use of such prescriptive time periods to provide a bright-line rule to serve as useful guides for law enforcement officers seeking to perform their duties without running afoul of their targets' constitutional rights. See, e.g., Maryland v. Shatzer, 130 S. Ct. 1213, 1223 (2010) (selecting 14 days as the point at which the presumption lapses that the waiver of Miranda rights by a suspect in custody who has previously invoked them is involuntary); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (selecting 48 hours as the time within which the police must bring a person arrested without a warrant before a magistrate to establish probable cause for continued detention).

I do not mean to suggest that I can or should define the minimum duration that transforms the kind of discrete surveillance effort at issue in Knotts into the sustained location tracking that triggers the warrant requirement under Maynard. I venture no further than the appellate court that decided Maynard. In that case, the government sustained its GPS-based surveillance for one month; the few reported decisions applying Maynard to the historical CSI context have all involved longer periods.*fn2 And while the period at issue here -- a total of 21 days -- is not necessarily so much shorter than the month at issue in Maynard to compel the conclusion that the same reasoning does not apply, there is a further complicating factor here. The government does not seek location tracking records for a single mobile phone over a continuous period of 21 days; instead, it seeks records for one telephone for a three-day period and a separate six-day period weeks later, and also the records of a different telephone (albeit one allegedly used by the same investigative subject) for a twelve-day period several months later. Even if it would be just as impractical for the government to conduct physical surveillance in lieu of electronic tracking for such shorter periods, I cannot assume that the information gleaned over such shorter periods, separated by breaks of weeks or months, would necessarily be as revealing as the sustained month-long monitoring at issue in Maynard.

Because I conclude that the Fourth Amendment does not bar application of the SCA in the circumstances of this case, I grant the government's application.*fn3 I have executed the appropriate sealed orders to that effect.


Brooklyn, New York

JAMES ORENSTEIN U.S. Magistrate Judge

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