United States District Court, S.D. New York
IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. § § 2703(c) AND 2703(d) DIRECTING AT& T, SPRINT/NEXTEL, T-MOBILE, METRO PCS AND VERIZON WIRELESS TO DISCLOSE CELL TOWER LOG INFORMATION
JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE.
The United States of America (the " Government" ) seeks an order pursuant to the Stored Communications Act (" SCA" ) requiring various cellular telephone service providers to disclose historical cell site data from cell towers located near a specified New York City address for a particular four-and-one-half hour time period. I asked that the Government provide me with a memorandum supporting its position that the requested information was obtainable, and further invited the New York Civil Liberties Union and American Civil Liberties Union (collectively, the " ACLU" ) to submit their views on the question as amici curiae.
The Government explains that there are two ways to obtain historical cell site data. In the typical case, the Government requests information connected to a particular cell phone number and (if the application is granted) retrieves " a list of all calls to and from the telephone number, along with the locations and sectors (or 'faces') of the cell towers through which each call originated and terminated," thus providing information helpful in determining the " approximate locations of cellular telephones during the sending and receipt of calls." (Letter of Jason A. Masimore dated May 7, 2014 (" Masimore 5/7/14 Letter" ) at 1-2).
This application, on the other hand, centers not on a particular cell phone number, but on the cell towers in the area of an identified location. The information sought " consists of a list for a particular cell tower from the specified date and time period of the subscribers' cellular telephone numbers connecting to that tower, along with the times of the calls and the digits dialed or the call numbers of the telephones calling into the subscribers' cellular telephones connecting through the tower," information that can help establish " that the listed cellular telephones were somewhere in the vicinity of that particular cell tower during that time period." (Masimore 5/7/14 Letter at 2). The information gathered here -- specifically, the telephone numbers that connected to the cell towers during the pertinent time period -- will be compared to similar information gathered from other locations relevant to the investigation to determine numbers that were used at multiple locations, as well as numbers that match those that law enforcement has learned are associated with certain persons under investigation for the series of crimes at issue.
A. Authorization under the Stored Communications Act
The SCA permits the Government to obtain an order requiring " a provider of
electronic communication service . . . to disclose a record or other information pertaining to a subscriber or customer of such service (not including the contents of communications)" when the Government offers " specific and articulable facts showing that there are reasonable grounds to believe that the . . . records . . . sought are relevant and material to an ongoing criminal investigation." 18 U.S.C. § § 2703(c)(1), (d).
The ACLU argues that a cell tower dump is not authorized under the statute because " Congress phrased the disclosure provision of § 2703(c) in the singular: 'a subscriber or customer of such service.'" (Letter of Nathan Freed Wessler, et al. dated May 20, 2014 (" Wessler 5/20/14 Letter" ), at 7). Although this argument has some intuitive appeal, it is easily refuted: " [i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] words importing the singular include and apply to several persons, parties, or things." 1 U.S.C. § 1. The ACLU argues that the " use of the singular article . . . is part of Congress's comprehensive scheme to strictly limit permissible government intrusions into the privacy of cell phone users." (Wessler 5/20/14 Letter at 8). However, this generalized " context" is insufficient to overrule " the default rule of statutory construction that words importing the singular include the plural meaning." Carrow v. Merit Systems Protection Board, 564 F.3d 1359, 1366 (Fed. Cir. 2009) (examining legislative history for indication that statutory term " an Executive agency" was intended to preclude plural meaning).
The ACLU further contends that even if the SCA as a whole does not prohibit cell tower dumps, they can never be obtained under § 2703(d): the Government " cannot possibly meet th[e] [statute's] standard because it seeks vast quantities of irrelevant and immaterial -- yet extraordinarily sensitive -- information about hundreds or thousands of wholly innocent parties." (Wessler 5/20/14 Letter at 8). Noting that courts have described § 2703(d)'s standard as akin to " reasonable suspicion," In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 616 (5th Cir. 2013) (Dennis, J. dissenting) (hereinafter In re Fifth Circuit Application) (denominating the standard " reasonable suspicion" ); In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 287 (4th Cir. 2013) (" This is essentially a reasonable suspicion standard." ), the ACLU cites cases regarding so-called Terry stops to support its argument that " the 'reasonable ...