Triggering a closer review: Direct acquisition of cell site location tracking information and the argument for consistency across statutory regimes

Columbia Journal of Law and Social Problems

Volumn 45, Issue 1, 2011, Pages 139-175

  Curtiss, William ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 83455219301     PISSN: 00101923     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (239)

1. Most published academic articles have been student notes. See Patrick T. Chamberlain, Note, Court Ordered Disclosure of Historical Cell Site Location Information: The Argument for a Probable Cause Standard, 66 WASH. & LEE L. REV. 1745(2009);
2. Kevin McLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: Where Are We?, 29 HASTINGS COMM. & ENT. L. J. 421(2007). Influential legal scholars have commented on the matter mostly through more informal channels such as blogs.
3. See, e.g., Orin Kerr, Fourth Amendment Stunner: Judge Rules That Cell Site Data Protected by Fourth Amendment Warrant Requirement, THE VOLOKH CONSPIRACY (Aug. 31, 2010, 2:46 AM), http://volokh.com/2010/08/31/fourth- amendment-stunner-judge-rules-that-cell-sitedata-protected-by-fourth-amendment- warrant-requirement/;
4. M. Wesley Clark, Cell Phones as Tracking Devices, 41 VAL. U. L. REV. 1413(2007). The media and legal organizations such as the American Civil Liberties Union (ACLU) or Electronic Frontier Foundation (EFF) have been most vocal on the issue.
5. See Anne Barnard, Growing Presence in the Courtroom: Cellphone Data as Witness, N. Y. TIMES, July 6, 2009, at A16;
6. David Kravets, Court OKs Warrantless Cell-Site Tracking, WIRED (Sept. 7, 2010, 6:33 PM), http://www.wired.com/threatlevel/2010/09/cell-site-data;
7. Cell Tracking, ELEC. FRONTIER FOUND., https://www.eff.org/issues/cell- tracking (last visited Sept. 19, 2011) [hereinafter Cell Tracking].
8. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 751 (S. D. Tex. 2005).
9. See ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil Rights and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 77-78 (2010)
10. (hereinafter Subcommittee Hearing] (statement of U. S. Magistrate Judge Stephen Wm. Smith, Southern District of Texas), available at http://judiciary.house.gov/hearmgs/printers/111th/111-109-57082.PDF.
11. In re Application of the United States an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304 (3d Cir. 2010). This case addressed historical cell phone location tracking, however, not real time or prospective tracking.
12. Julian Sanchez, FOIA Docs Show Feds Can Lojack Mobiles Without Telco Help, ARS TECHNICA (Nov. 16, 2008, 10:45 PM), http://arstechnica.com/tech- policy/news/2008/11/foia-docs-show-feds-can-lojack-mobiles-without-telco-help. ars.
13. U. S. DEP'T OF JUSTICE, ELECTRONIC SURVEILLANCE MANUAL 38-40 (2005) [hereinafter SURVEILLANCE MANUAL].
14. See Stored Communications Act (SCA), 18 U. S. C. A. § 2701-2712 (West 2009);
15. Communications Assistance for Law Enforcement Act (CALEA), 47 U. S. C. §§ 1001-1010 (2006).
16. U. S. CONST. amend. IV. The Fourth Amendment concludes with the directive that warrants be "supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
17. 389 U. S. 347, 360-61 (1967) (Harlan, J., concurring).
18. See United States v. Karo, 468 U. S. 705, 715(1984).
19. See 18 U. S. C. § 3117(2006).
20. See also United States v. Maynard, 615 F.3d 544 (D. C. Cir. 2010) (addressing the recent debate regarding the installation of GPS tracking devices on automobiles)
21. cert. granted sub nam. United States v. Jones, 131 S. Ct. 3064(2011).
22. Marshall Brain et al., How Cell Phones Work, HOW STUFF WORKS, http://electronics.howstuffworks.com/cell-phonel.htm (last visited Sept. 19, 2011).
23. * 1-3 (S. D. N. Y. Jan. 13, 2009).
24. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 757 (S. D. Tex. 2005).
25. In re Applications of the United States for Orders Pursuant to Title 18, United States Code, Section 2703 (d), 509 F. Supp. 2d 76, 78 (D. Mass. 2007).
26. Subcommittee Hearing, supra note 3, at 15-16 (statement of Matt Blaze, Associate Professor of computer information science at the University of Pennsylvania).
27. Track Cellphone Without GPS with U-TDOA, DHYRA. COM (Dec. 14, 2010, 8:20 PM), http://www.dhyra.com/2010/12/track-cellphone-without-gps-with-u-tdoa.html.
28. Subcommittee Hearing, supra note 3, at 95-96 (statement of Matt Blaze). See also infra notes 105-107 and accompanying text.
29. TRUEPOSITION, TRUEPOSITION GUIDE TO LOCATION TECHNOLOGIES 5-6 (2009) [hereinafter TRUEPOSITION] (on file with Columbia Journal of Law & Social Problems).
30. The FCC mandates that by 2012, Enhanced 911 must be capable of locating 67% of calls to within 100 meters and 95% to within 300 meters. Janice Partyka, Editor's Reply, How Accurate E911?, GPS WORLD, Nov. 2007, available at http://fmdarticles.com/p/articles/mi-m0BPW/is-11-18/ai-n27458948/?tag= content;coll. If some form of handsetbased technology is used (e.g., GPS), Enhanced 911 must be accurate to within fifty meters for 67% percent of calls and 150 meters for 95% of calls.
31. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 598 (W. D. Pa. 2008)
32. vacated, 620 F.3d 304 (3d Cir. 2010).
33. Albert Gidari, Jr., Companies Caught in the Middle, 41 U. S. F. L. REV. 535, 544(2007);
34. Subcommittee Hearing, supra note 3, at 57 (testimony of Richard Littlehale, Assistant Special Agent in Charge, Technical Services Unit, Term. Bureau of Investigation);
35. Lynne Terry, Washington Police Used Cell Phone Pings to Zero in on Fugitive in Amber Alert, OREGONIAN (Mar. 2, 2011, 5:44 PM), http://www. oregonlive.com/pacific-northwestnews/index.ssf/2011/03/washington-police-used- cell-phone-pings-to-zero-in-on-fugitive-in-amber-alert.html.
36. William Fisher, Gov't Sued over Cell Phone Tracking, INTER PRESS SERVICE (Feb. 22, 2010), http://ipsnews.net/news.asp?idnews=50423;
37. Michael Isikoff, The Snitch in Your Pocket, NEWSWEEK (Feb. 18, 2010, 7:00 PM), http://www.newsweek.com/2010/02/18/thesnitch-in-your-pocket.html ("Jack Killorin, who directs a federal task force in Atlanta combating the drug trade, says cell-phone records have helped his agents crack many cases, such as the brutal slaying of a DeKalb County sheriff: agents got the cell-phone records of key suspects - and then showed that they were all within a one-mile area of the murder at the time it occurred, he said. In the fall of 2008, Killorin says, his agents were able to follow a Mexican drug-cartel truck carrying 2, 200 kilograms of cocaine by watching in real time as the driver's cell phone 'shook hands' with each cell-phone tower it passed on the highway. 'It's a tremendous investigative tool,' says Killorin. And not that unusual: This is pretty workaday stuff for us."").
38. Investigators in the Chae case were able to combine eyewitness testimony of phones used during the burglary-homicide with sufficiently accurate cell phone location records to demonstrate co-defendants' traveled from their home neighborhood to the neighborhood of the victim. Derrick Nunnally, Phone Tracking Crucial in Murder Trial, PHILA. INQUIRER (Jan. 20, 2010), http://articles. philly.com/2010-01-20/news/25210157-1-cell-phones-murder-trial-montgomery- township.
39. Subcommittee Hearing, supra note 3, at 102-03 (testimony of Marc J. Zwillinger).
40. Cell Tracking, supra note 1 (stating the EFF's goal of "stoplping] the government from turning the cellular phone system into a vast network for warrantless physical surveillance and... ensur[ing] that Big Brother stays out of your pocket").
41. The debate over cell site location tracking has centered on the construction of multiple federal statutes and the use of the technology by federal officials. Whether state agents can apply for cell site info without a showing of probable cause depends on the construction of the comparable state statutes. Many state statutory schemes mirror the federal statutes, though. Fourth Amendment limitations to cell phone tracking apply equally to both state and federal agents. See Mitchell v. State, 25 So. 3d 632 (Fla. Dist. Ct. App. 2009);
42. John Curran, ACLU Sues State Over Police Cell Phone Tracking, BRATTLEBORO REFORMER, Mar. 17, 2010.
43. Commentators, judges and lawmakers have frequently complained that the statutes are impossible to reconcile with each other and "woefully outdated." Tony Romm, Citing Cell Phone Tapping, Leahy Calls for Privacy Hearings, THE HILL (Feb. 12, 2010, 4:58 P. M.), http://thehill.com/blogs/ hillicon-valley/technology/80953-citing-cell-phonetapping-case-leahy-calls-for- privacy-hearings.
44. 18 U. S. C. §§ 3121-3127 (2006). The Pen/Trap Statute was subsequently revised in 2001 by the USA PATRIOT Act, which is relevant for the purpose of triggerfish.
45. 442 U. S. 735, 745-46 (1979).
46. U. S. C. § 3123.
47. S. REP. NO. 99-541, at 1-2, 13(1986)
48. reprinted in 1986 U. S. C. C. A. N. 3555, 3555-56, 3568 [hereinafter S. Rep. No. 99-541].
49. 18 U. S. C. § 3127(3).
50. United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995);
51. United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).
52. 47 U. S. C. §§ 1001-1010 (2006).
53. H. R. REP. No. 103-827, at 1(1994)
54. reprinted in 1994 U. S. C. C. A. N. 3489, 3489 [hereinafter H. R. REP. No. 103-827J.
55. 47 U. S. C. § 1002 (a) (2) (A).
56. 18 U. S. C. A. §§ 2701-2712 (West 2009).
57. 47 U. S. C. § 1002 (a) (2) (B).
58. 18 U. S. C. § 2510(12) (C) (2006) (emphasis added).
59. None of these statutes provide for the acquisition of the contents of any communication, which would plainly fall under the purview of the Fourth Amendment and be subject to the heightened legal requirements of a Title III wiretap under 18 U. S. C. A. §§ 2510-2522 (West 2010).
60. 18 U. S. C. A. §§ 3122 (b) (2), 3127(3) (West 2009).
61. 47 U. S. C. § 1002 (a) (2).
62. 18 U. S. C. A. §§ 2701-2712;
63. see also In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. & or Cell Site Info., 396 F. Supp. 2d 294, 315 (E. D. N. Y. 2005) ("The government, placing more weight on CALEA's use of 'solely' than that single word will bear... vigorously contends that an application made under the SCA and the Pen/Trap Statute together accomplishes what separate applications under each statute might not. For ease of reference, I will call this argument the "hybrid theory.").
64. 18 U. S. C. § 3117 (a) (2006).
65. See, e.g., 396 F. Supp. 2d at 316 ("Although the essence of the [government's) hybrid theory is that two statutes together accomplish what neither can alone, the argument more precisely rests on a complex chain of inferences derived from several different legislative enactments-").
66. In re Application of the United States for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 211 (E. D. N. Y. 2008).
67. In some districts, potentially hundreds of these orders are granted each year, with over 90% of those orders remaining sealed. Further, unlike wiretaps, pen registers and orders for stored communications data do not have reporting requirements, meaning many individuals will never be aware they have been monitored through cell site location tracking. In re Sealing & Non-Disclosure of Pen/Trap/2703 (D) Orders, 562 F. Supp. 2d 876, 895 (S. D. Tex. 2008).
68. Subcommittee Hearing, supra note 3, at 81 (testimony of Magistrate Judge Smith). Judges on either side of the debate have expressed frustration with the current statutory scheme and the need for Congressional action.
69. Two Pen Register, 632 F. Supp. 2d at 208 ("Moreover, Congress has not provided the kind of guidance as to the correct manner of combining the Pen Register Statute with the SCA that might be expected if Congress intended such a combination. ");
70. In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448, 461 (S. D. N. Y. 2006) ("[N]either the Pen Register Statute nor CALEA mentions (SCA] at all, and they certainly do not provide any direct authorization for the combination of authority the government proposes. While this is somewhat troubling, it is not fatal to the government's application. ");
71. In re Application of the United States for an Order for Disclosure of Telecomm. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 443 (S. D. N. Y. 2005) ("The idea of combining some mechanism with as yet undetermined features of the Pen Register Statute is certainly an unattractive choice. After all, no guidance is provided as to how this 'combination' is to be achieved.");
72. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 765 (S. D. Tex. 2005) ("Absent any sign that Congress has squarely addressed and resolved those concerns in favor of law enforcement, the far more prudent course is to avoid an interpretation which risks a constitutional collision. ").
73. Ellen Nakashima, Judges Urge Standard Cellphone-Tracking Policy, WASH. POST, Nov. 14, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/ 11/13/AR2008111303129.html ("This whole area should be the subject of some uniform legislation that says let's try and coordinate what's going on here, otherwise it becomes ad hoc. That's not the court's role,' said one U. S. magistrate judge.").
74. See Subcommittee Hearing, supra note 3.
75. Magistrate Judge Stephen Wm. Smith refers to this as "rent-seeking, " if not full on "judge-shopping." Subcommittee Hearing, supra note 3, at 90.
76. 18 U. S. C. § 2510(12) (2006);
77. 18 U. S. C. A. § 2703 (c) (West 2009).
78. * 4 (S. D. N. Y. Jan. 13, 2009);
79. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Service to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 604 (W. D. Pa. 2008)
80. vacated, 620 F.3d 304 (3d Cir. 2010);
81. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register Device, a Trap & Trace Device, and for Geographic Location Info., 497 F. Supp. 2d 301, 309-11 (D. P. R. 2007).
82. See, e.g., In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 445 (S. D. N. Y. 2005).
83. See In re Application of the United States for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 207-08 (E. D. N. Y. 2008).
84. See In re Application of the United States for an Order for Prospective Cell Site Location Info on a Certain Cellular Tel., 460 F. Supp. 2d 448, 461 (S. D. N. Y. 2006);
85. In re Application of the United States for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 205-08 (E. D. N. Y. 2008);
86. 497 F. Supp. 2d at 309.
87. 632 F. Supp. 2d at 207.
88. 18 U. S. C. A. § 2703 (c).
89. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info., 622 F. Supp. 2d 411, 418 (S. D. Tex. 2007);
90. In re Applications of the United States for Orders Pursuant to Title 18, U. S. Code, Section 2703 (d)
91. F. Supp. 2d 76, 79-81 (D. Mass. 2007).
92. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Service to Disclose Records to the Gov't, 620 F.3d 304 (3d Cir. 2010).
93. S. REP. NO. 99-541, supra note 39, at 9. (Describing mobile tracking devices as "one-way radio communication devices that emit a signal on a specific radio frequency. This signal can be received by special tracking equipment, and allows the user to trace the geographical location of the transponder. Such 'homing' devices are used by law enforcement personnel to keep track of the physical whereabouts of the sending unit, which might be placed in an automobile, on a person, or in some other item.").
94. See Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 HASTINGS L. J. 1303(2002). Simmons' "results of the search versus method of the search" argument is not directly related to this kind of statutory analysis, but the general competing perspectives on the Fourth Amendment are as follows: should we view a technology's Fourth Amendment implications through the lens of how the specific technology works, or through what the technology "seizes" in its use? Do we need to concern ourselves with statutory or blueprint specifics, or should we take a more results-driven approach in ascertaining "reasonable expectations of privacy?"
95. 47 U. S. C. § 1002 (a) (2) (B) (2006).
96. H. R. REP. NO. 103-827, supra note 44, at 17.
97. In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., 460 F. Supp. 2d 448, 456-57 (S. D. N. Y. 2006).
98. It is interesting to note that in the entire United States Code, the phrase "solely pursuant" only appears in 47 U. S. C. § 1002 (aX2).
99. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 442 (S. D. N. Y. 2005).
100. 442 U. S. 735, 742(1979).
101. 460 U. S. 276, 281(1983). In Knotts, police followed suspects after they purchased drug ingredients through both visual surveillance and the use of a beeper planted in the purchased chemical containers. Id. at 278-79.
102. 468 U. S. 705, 714-15 (1984). Karo followed similar facts to Knotts, except police in Karo, without a warrant and without being able to visually observe its location, used a planted beeper to ascertain that the target container was inside a private warehouse.
103. *67 (N. D. Ga. April 21, 2008);
104. *17 (E. D. Tenn. May 24, 2007).
105. Silverman v. United States, 365 U. S. 505, 511-12 (1961).
106. Katz v. United States, 389 U. S. 347, 356-57 (1967) ("It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.... [T]his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.").
107. See also United States v. U. S. Dist. Court for E. Dist. of Mich., S. Div., 407 U. S. 297, 317(1972);
108. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 613 & n. 74 ("[R]outine allowance of location information up to the threshold of the private domain would necessitate increasingly-difficult line-drawing at the margins.... The Court does not believe that these difficulties can be met by reliance on investigative agencies' self-restraint.")
109. vacated, 620 F.3d 304 (3d Cir. 2010).
110. Reported decisions denying warrantless acquisition of multi-tower and triangulation cell site data include: 534 F. Supp. 2d 585;
111. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device; (2) Authorizing Release of Subscriber & Other Info.; and (3) Authorizing the Disclosure of Location-Based Servs., No. 07-128, 2007 WL 3342243 (S. D. Tex. Nov. 7, 2007);
112. In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Info., No. 06-MISC-004, 2006 WL 2871743 (E. D. Wis. Oct. 6, 2006);
113. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, (2) Authorizing the Release of Subscriber & Other Info., (3) Authorizing the Disclosure of Location-Based Servs., Nos. l:06-MC-6, l:06-MC-7, 2006 WL 1876847 (N. D. Ind. July 5, 2006);
114. In re Application of the United States for an Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 134 (D. D. C. 2006);
115. In re Application of the United States for an Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 132 (D. D. C. 2005);
116. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register & a Caller Identification Sys. on Tel. Nos. [Sealed] & [Sealed] & the Prod, of Real Time Cell Site Info., 402 F. Supp. 2d 597 (D. Md. 2005);
117. In re Applications of the United States for Orders Authorizing the Disclosure of Cell Cite Info., Nos. 05-403, 05-404, 05-405, 05-406, 05-407, 05-408, 05-409, 05-410, 05-411, 2005 WL 3658531 (D. D. C. Oct. 26, 2005);
118. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747 (S. D. Tex. 2005). Reported decisions denying warrantless acquisition of single tower cell site data during incoming/outgoing calls include: In re Application of United States for an Order Authorizing the Use of a Pen Register with Caller Identification Device Cell Site Location Auth. on a Cellular Tele., 2009 WL 159187 (S. D. N. Y. Jan. 13, 2009);
119. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register Device, a Trap & Trace Device, and for Geographic Location Info., 497 F. Supp. 2d 301 (D. P. R. 2007););
120. In re Application for an Order Authorizing the Installation & Use of a Pen Register & Directing the Disclosure of Telecomms. Records for the Cellular Phone Assigned the No. [Sealed], 439 F. Supp. 2d 456 (D. Md. 2006);
121. In re Application of the United States for an Order Authorizing (1) Installation & Use of a Pen Register & Trap & Trace Device or Process, (2) Access to Customer Records, & (3) Cell Phone Tracking, 441 F. Supp. 2d 816 (S. D. Tex. 2006);
122. In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., No. 06 Crim. Misc. 01, 2006 WL 468300 (S. D. N. Y. Feb. 28, 2006);
123. In re Application of the United States for Orders Authorizing the Installation & Use of Pen Registers & Caller Identification Devices on Tel. Nos. [Sealed] & [Sealed], 416 F. Supp. 2d 390 (D. Md. 2006);
124. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register & or Trap & Trace for Mobile Identification No. (585) 111-1111 & the Disclosure of Subscriber & Activity Info, under 18 U. S. C. § 2703, 415 F. Supp. 2d 211 (W. D. N. Y. 2006);
125. In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Info., 412 F. Supp. 2d 947 (E. D. Wis. 2006);
126. In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. & or Cell Site Info., 396 F. Supp. 2d 294 (E. D. N. Y. 2005).
127. 402 F. Supp. 2d at 604 n. 10
128. (quoting Cell Site Location Auth., 396 F. Supp. 2d at 757-58).
129. Reported decisions granting warrantless acquisition of single tower cell site data during incoming/outgoing calls include: In re Application of the United States Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202 (E. D. N. Y 2008);
130. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info., 622 F. Supp. 2d 411 (S. D. Tex. 2007);
131. In re Applications of the United States for Orders Pursuant to Title 18, U. S. Code, Section 2703 (d), 509 F. Supp. 2d 76 (D. Mass. 2007);
132. In re Application for an Order Authorizing the Extension & Use of a Pen Register Device, No. 07-SW-034, 2007 WL 397129 (E. D. Ca. Feb. 1, 2007);
133. In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., 460 F. Supp. 2d 448 (S. D. N. Y. 2006);
134. In re Application of the United States for an Order (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info., 433 F. Supp. 2d 804 (S. D. Tex. 2006);
135. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device; & (2) Authorizing Release of Subscriber Info and/or Cell Site Info., 411 F. Supp. 2d 678 (W. D. La. 2006);
136. In re United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435 (S. D. N. Y. 2005). No reported decisions have granted warrantless acquisition of multi-tower and triangulation cell site data.
137. 632 F. Supp. 2d at 208 ("Such information, unlike the information revealed by triangulation or by more advanced communications devices like the iPhone, which contain Global Positioning System devices, is not precise enough to enable tracking of a telephone's movements within a home.");
138. F. Supp. 2d at 683 (denying the government access to " (1) any cell site information that might be available when the user's cell phone was turned 'on' but a call was not in progress; (2) information that would allow the Government to triangulate multiple tower locations and thereby pinpoint the location of the user; and (3) GPS information on the location of the user, even if that technology is built into the user's cell phone");
139. see also 405 F. Supp. 2d 444.
140. 442 U. S. 735, 742(1979).
141. 18 U. S. C. § 3117(2006).
142. see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561(2009). However, the vast majority of courts, if not every court, to address the issue of cell site data, has used this KnottslKaro Fourth Amendment framework (including the Third Circuit, the only court of appeals to address the subject). See, e.g.
143. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304, 312-13 (3d Cir. 2010);
144. *5 (S. D. N. Y. Jan. 13, 2009);
145. In re Applications of the United States for Orders Pursuant to Title 18, U. S. Code, Section 2703 (d), 509 F. Supp. 2d 76, 81 (D. Mass. 2007);
146. In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., 460 F. Supp. 2d 448, 462 (S. D. N. Y. 2006);
147. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 752, 756-57 (S. D. Tex. 2005). As such, a complete Fourth Amendment analysis should give credence to both frameworks. For further discussion, see infra Part IV.c.
148. *2 (E. D. N. Y. Feb. 12, 2009)
149. rev'd on other grounds, No. 09-104, 2009 WL 1594003, (E. D. N. Y. Feb. 26, 2009).
150. Tracking individuals as they move between rooms of a public building such as a train station would, of course, not violate the Fourth Amendment. United States v. Knotts, 460 U. S. 276, 281(1983). But the Fourth Amendment, as expounded by the Supreme Court in Katz, does not leave the question of what is permissible or constitutional to the police: "Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause, for the Constitution requires that the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police."
151. Katz v. United States, 389 U. S. 347, 357(1967) (internal citations and quotation marks omitted).
152. *7 (S. D. Tex. Oct. 29, 2010).
153. In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info., 622 F. Supp. 2d 411, 418 (S. D. Tex. 2007);
154. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 444 (S. D. N. Y. 2005).
155. United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).
156. Kyllo v. United States, 533 U. S. 27(2001).
157. United States v. Maynard, 615 F.3d 544 (D. C. Cir. 2010)
158. cert, granted sub nom. United States v. Jones, 131 S. Ct. 3064(2011).
159. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304, 319 (3d Cir. 2010).
160. Id. at 315. The previous district court opinions were: In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info., 622 F. Supp. 2d 411, 418 (S. D. Tex. 2007);
161. In re Application of the United States for Orders Pursuant to Title 18, U. S. Code, Section 2703 (d)
162. F. Supp. 2d 76 (D. Mass. 2007).
163. 620 F.3A at 310-12.
164. See Orin Kerr, Third Circuit Rules That Magistrate Judges Have Discretion to Reject Non-Warrant Court Order Applications and Require Search Warrants to Obtain Historical Cell-Site Records, THE VOLOKH CONSPIRACY (Sept. 8, 2010, 2:23 PM), http://volokh.com/2010/09/08/third-circuit-rules-that-magistrate-judgea- have-discretion-toreject-court-order-application-and-require-search-warrants-to- obtain-historical-cell-8iterecords/.
165. The Third Circuit predominantly based its finding of judicial discretion in the granting of Section 2703 (d) orders in the statutory language of the SCA ("may" v. "shall"). 620 F.3d. at 319. Kerr disagrees with this reading, and also thinks that magistrate judges as a matter of law lack any discretion in whether to issue an order if the government satisfies the legal threshold.
166. Kerr, supra (citing Ex Parte United States, 287 U. S. 241(1932)).
167. Real time cell site location tracking burst onto the legal scene in 2005, with many court opinions, academic articles, and news accounts following in the next few years. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435 (S. D. N. Y. 2005);
168. In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. & or Cell Site Info., 396 F. Supp. 2d 294 (E. D. N. Y. 2005);
169. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747 (S. D. Tex. 2005).
170. Far fewer opinions have focused on historical cell site data, with the first coming in 2007. In re Applications of the United States for Orders Pursuant to Title 18, U. S. Code, Section 2703 (d), 509 F. Supp. 2d 76 (D. Mass. 2007). The first major academic writing about historical cell site tracking came in 2009. Chamberlain, supra note 1, at 1753.
171. Subcommittee Hearing, supra note 2, at 76-77 (testimony of Magistrate Judge Smith).
172. Professor Kerr also argues that the Department of Justice might not even have standing to bring the issue to an appellate court because denials of ex parte applications are not appealable final orders. Kerr, supra note 1 (citing United States v. Savides, 658 F. Supp. 1399, 1404 (N. D. 111. 1987)). Kerr appears to be in the minority, however, and the government's standing has been uncontested so far.
173. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304, 304 (3d Cir. 2010).
174. The etymology of the name "riggerfish" is unclear, but has become the most common name for the device. "Triggerfish" also refers to a group of about 30 species of tropical fish, named for a trigger mechanism in their dorsal fins that allows the fish to lock themselves tightly into protective crevices. Triggerfish, ENCYC. BRTTANNICA, http://www.britannica.com/ EBchecke6ytopic/605191/triggerfish (last visited Sept. 21, 2011).
175. SURVEILLANCE MANUAL, supra note 7, at 40-4l.
176. SURVEILLANCE MANUAL, supra note 7, at Ch. 38-40.
177. U. S. MARSHALS SERV., TECHNICAL OPERATIONS GRP., POLICY DIRECTIVES (2010) [hereinafter USMS DIRECTIVES].
178. SURVEILLANCE MANUAL, supra note 7, at 41-48.
179. The only redacted sections of the electronic surveillance manual were those dealing with triggerfish and counter-surveillance procedures. USMS DIRECTIVES. The Marshals Service released this information in response to the ACLU's Freedom of Information Act request. Letter from William G. Stewart II, Assistant Dir., Freedom of Info/Privacy Act Staff, Exec. Office for U. S. Attorneys, U. S. Dep't of Justice, to Catherine Crump, Staff Attorney, Am. Civil Liberties Union (Aug. 12, 2008), available at http://www.aclu.org/pdfs/ freespeech/cellfoia-release-074130-20080812.pdf.
180. Rachel Myers, With Technology Like This, Who Needs the Law?, DAILY KOS (Nov. 14, 2008, 8:51 AM), http://ww.dauykos.eom/stoiy/2008/ll/14/104215/56/18:L/ 660871.
181. TRUEPOSTION, supra note 25.
182. SURVEILLANCE MANUAL, supra note 7, at 3-16.
183. Accuracy varies depending on whether cell site data acquisition is limited to call information or includes all registration "pings" automatically sent by the phone. See In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 598 (W. D. Pa. 2008)
184. vacated, 620 F.3d 304 (3d Cir. 2010).
185. The content of communications clearly implicates the Fourth Amendment, and law enforcement is sure to disable this feature without a wiretap warrant. 18 U. S. C. A. §§ 2510-2522 (West 2010).
186. 18 U. S. C. § 3122(2006);
187. In re United States for an Order Authorizing the Use of a Cellular Tel. Digital Analyzer, 885 F. Supp. 197, 199 (CD. Cal. 1995).
188. H. R. REP. 107-236, at 60(2001).
189. Id.; SURVEILLANCE MANUAL, supra note 7, at 41-48.
190. SURVEILLANCE MANUAL, supra note 7, at 41-48.
191. Id.; 18 U. S. C. A. § 2703 (West 2009);
192. U. S. C. § 1001(2006).
193. 18 U. S. C. § 3117. Section 3117 discusses the " installation" of a tracking device. Nothing about the use of a triggerfish requires installation, and the government has successfully suggested that the plain language of the statute does not apply to this type of cell phone tracking.
194. SURVEILLANCE MANUAL, supra note 7, at 44-48.
195. 18 U. S. C. § 2518 (lXd) ("Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include... a particular description of facts establishing probable cause....");
196. Katz v. United States, 389 U. S. 347(1967).
197. SURVEILLANCE MANUAL, supra note 7, at 40-41.
198. Courts have worried about officer restraint in the context of cell site data, but as with all discussion of triggerfish, legal commentary has been limited. See In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Service to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 598 (W. D. Pa. 2008)
199. vacated, 620 F.3d 304 (3d Cir. 2010)
200. (citing United States v. U. S. Dist. Court for E. Dist. of Mich., S. Div., 407 U. S. 297, 317(1972)).
201. 18 U. S. C. A. §§ 2511, 2515.
202. United States v. Forest, 355 F.3d 942, 949-50 (6th Cir. 2004), vacated on other grounds sub nom.
203. Garner v. United States, 543 U. S. 1100(2005);
204. United States v. Gbemisola, 225 F.3d 753, 758 (D. C. Cir. 2000). Suppression of evidence is not a statutory remedy for violations of the EPCA, which includes the SCA
205. Pen/Trap Statute and Mobile Tracking Device Statute. Gbemisola, 225 F.3d at 758;
206. see supra Part II. B. And while the SCA and Pen/Trap Statutes provide for explicit criminal and civil penalties, no such penalties exist for the Mobile Tracking Device Statute. 18 U. S. C. A. §§ 2701, 2702, 2712;
207. U. S. C. § 3121;
208. U. S. C. § 3117. This all leads to a perverse set of incentives for police officers. Wiretapping is clearly protected by evidentiary suppression and criminal penalties, and phone numbers and stored phone records carry with them possible criminal and civil penalties if the proper orders are not acquired.
209. See supra note 158 and accompanying text. Tracking devices, however, which presumably require warrants under 18 U. S. C. § 3117(2006), carry no penalty for improper acquisition (neither suppression nor sanction).
210. U. S. C. § 3117. This provides yet another example of how location information occupies a hazy middle ground in the electronic privacy spectrum, illustrating the need for statutory reform to better guide police investigations.
211. Alexander Scolnik, Note, Protections for Electronic Communications: The Stored Communications Act and the Fourth Amendment, 78 FORDHAM L. REV. 349, 355(2009).
212. 442 U. S. 735, 742(1979).
213. 425 U. S. 435, 442-43 (1976).
214. SURVEILLANCE MANUAL, supra note 7, at Ch. 38-40.
215. Orin Kerr, Fourth Amendment Rights in Online Financial Accounts, THE VOLOKH CONSPIRACY (Aug. 17, 2009, 12:21 PM), http://volokh.com/2009/08/17/ fourth-amendmentrights-in-online-financial-accounts/("If the bank sends you your bank statement in the mail, and you open the mail and put the statement on your desk at home, those financial records are just as protected by the Fourth Amendment as everything else in your home. What matters is that the home is protected, not that the records would not have been protected if the government had asked for them from the bank.").
216. SURVEILLANCE MANUAL, supra note 7, at 38-40.
217. United States v. Forest, 355 F.3d 942 (6th Cir. 2004)
218. vacated on other grounds sub nam. Garner v. United States, 543 U. S. 1100(2005).
219. Forest, 355 F.3d at 951.
220. Id. at 951-52. See also In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Service to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 598, 614-15 (W. D. Pa. 2008)
221. vacated, 620 F.3d 304 (3d Cir. 2010).
222. The Justice Department's Electronic Surveillance Manual has a section which differs from the majority view, stating that, like cell site location tracking, only call initiation information can be recorded without a warrant, not the "pings" emitted every few seconds. SURVEILLANCE MANUAL, supra note 7, at 40-41. If this is the case, this "forcing" to register concern would be dampened. But the third party doctrine would still appear not to apply because the cell site data is not being acquired from a third party.
223. 389 U. S. 347(1967).
224. Kyllo v. United States, 533 U. S. 27(2001).
225. Orin Kerr, Cell Phones, Magic Boxes and the Fourth Amendment, THE VOLOKH CONSPIRACY (Nov. 8, 2010, 6:05 PM), http://volokh.rom/2010/ll/08/cell-phones- magicboxes-and-the-fourth-amendment/.
226. Kerr, supra note 182. See also Noam Cohen, It's Tracking Your Every Move and You May Not Even Know, N. Y. TIMES, Mar. 26, 2011, at Al.
227. USMS DIRECTIVES (redacted section on triggerfish); Myers, supra note 141.
228. The specific data acquired by a triggerfish is not "reasonably expected to be accessed by the provider's employees in the ordinary course of its business (i.e., for purposes of the provision of services)." In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Service to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 615 (W. D. Pa. 2008)
229. (citing Warshak v. United States, 490 F.3d 455, 469-76 (6th Cir. 2007)
230. vacated, 620 F.3d 304 (3d Cir. 2010)).
231. Declan McCullagh, ACLU: FBI Used "Dragnet'-Style Warrantless Cell Tracking, CNET NEWS (June 22, 2010, 9:37 AM), http://news.cnet.com/8301-31921-3- 20008444-281.html.
232. See In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304 (3d Cir. 2010).
233. Subcommittee Hearing, supra note 3, at 15-16 (statement of Matt Blaze); SURVEILLANCE MANUAL, supra note 7, at 40-41; Barnard, supra note 1, at A16 (noting that it ia now "possible to pinpoint a user's position with much greater precision, down to a few dozen yards"); Sanchez, supra note 6.
234. Much of the discussion of Kyllo centered on whether the thermal imaging penetrated the wall of the private home, and thus was analogous to the Fourth Amendment violation in Karo. Kyllo v. United States, 533 U. S. 27, 38(2001).
235. A fourth privacy framework, as introduced by United States v. Maynard, is not as persuasive in this context, but could become so as triggerfish use is further increased. See 615 F.3d 544 (D. C. Cir. 2010), cert, granted sub nom.
236. United States v. Jones, 131 S. Ct. 3064(2011). The D. C. Circuit Court held that the continued, month-long tracking of a subject on public streets by GPS compiled such a large quantity of data that it constituted a search. Id. As triggerfish devices still require officers to operate in the field, the extent to which this wide scale accumulation of data is possible is uncertain. But it is an interesting area to watch in the coming years.
237. A Pen/Trap ministerial order is significantly less onerous than the hybrid order allowed for cell site tracking, to say nothing of the probable cause warrant standard. United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995);
238. United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).
239. In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't 620 F.3d 304 (3d Cir. 2010).