In Re: Appl of USA for Hist Cell Site

Case: 11-20884 Document: 00512325280 Page: 1 Date Filed: 07/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2013
No. 11-20884 Lyle W. Cayce
Clerk
IN RE: APPLICATION OF THE UNITED STATES OF AMERICA FOR
HISTORICAL CELL SITE DATA
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UNITED STATES OF AMERICA,
Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
We are called on to decide whether court orders authorized by the Stored
Communications Act to compel cell phone service providers to produce the
historical cell site information of their subscribers are per se unconstitutional.
We hold that they are not.
I. FACTUAL AND PROCEDURAL BACKGROUND
In early October 2010, the United States filed three applications under
§ 2703(d) of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712,
seeking evidence relevant to three separate criminal investigations. Each
application requested a court order to compel the cell phone service provider for
a particular cell phone to produce sixty days of historical cell site data and other
subscriber information for that phone. The Government requested the same cell
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site data in each application: “the antenna tower and sector to which the cell
phone sends its signal.” It requested this information for both the times when
the phone sent a signal to a tower to obtain service for a call and the period when
the phone was in an idle state.1 In re Application of the United States for
Historical Cell Site Data, 747 F. Supp. 2d 827, 829 (S.D. Tex. 2010).
For each application, the magistrate judge granted the request for
subscriber information but denied the request for the historical cell site data,
despite finding that the Government’s showing met the “specific and articulable
facts” standard set by the SCA for granting an order to compel the cell site data.
Shortly thereafter, the magistrate judge invited the Government to submit a
brief justifying the cell site data applications. Four days after the Government
submitted its brief, the magistrate judge issued a written opinion taking judicial
notice of a host of facts about cell phone technology, primarily derived from the
testimony of a computer science professor at a congressional hearing, but also
including information from published studies and reports and service provider
privacy policies. He concluded his opinion by declaring that, based on these facts
viewed in light of Supreme Court precedent, “[c]ompelled warrantless disclosure
of cell site data violates the Fourth Amendment.” Id. at 846.
The Government filed objections with the district court to the magistrate
judge’s ruling on the constitutionality of the SCA and his judicial notice of facts.
Although there was no party adverse to the Government’s ex parte application,
the ACLU and Electronic Frontier Foundation (“EFF”), among others,
participated as amici curiae. As part of its submissions, the Government
provided the court with additional evidence in the form of an affidavit from one
1
According to the Government, it now believes that cell phone service providers do not
create cell site records when a phone is in an idle state, and it is willing to exclude such
information from the scope of its applications.
2
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of the service providers detailing its cell site records. After the parties submitted
their briefs, the district judge issued a single-page order. He concluded:
When the government requests records from cellular
services, data disclosing the location of the telephone at
the time of particular calls may be acquired only by a
warrant issued on probable cause. The records would
show the date, time called, number, and location of the
telephone when the call was made. These data are
constitutionally protected from this intrusion. The
standard under the Stored Communications Act is
below that required by the Constitution.
The Government appealed once again, and the ACLU and EFF,2 along with
Professor Orin Kerr and others, requested and were granted leave to participate
as amici.
II. STANDARD OF REVIEW
This court reviews constitutional challenges to federal statutes de novo.
United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998). It reviews a district
court’s findings of fact for clear error. United States v. Keith, 375 F.3d 346, 348
(5th Cir. 2004). “A finding of fact is clearly erroneous ‘when although there is
evidence to support it, the reviewing court on the entire evidence is left with a
firm and definite conviction that a mistake has been committed.’” In re
Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.1983) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The court reviews
use of judicial notice under Federal Rule of Evidence 201 for abuse of discretion.
Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998). Although the
Federal Rules of Evidence may not apply to applications for § 2703(d) orders,
Rule 201 “embodies ‘the traditional view’ of judicial notice . . . ‘consistent with’
the common law,” WRIGHT, MILLER & COOPER, 21B FED. PRAC. & PROC. EVID.
2
These two amici, which filed jointly, are referred to as “the ACLU” for simplicity.
3
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§ 5102 (2d ed.), so the court will apply the same standard to common law judicial
notice.
III. DISCUSSION
The Government raises two issues on appeal. First, it challenges the
district court’s adoption of the magistrate judge’s conclusion that the SCA
unconstitutionally lowers the standard the Government must meet to compel
disclosure of historical cell site information below that required by the Fourth
Amendment. Second, it claims that the magistrate judge’s judicial notice of
certain facts, to the extent they were adopted by the district court, was improper.
To these merits issues presented by the Government, amicus Professor Orin
Kerr adds two threshold issues: whether this case is ripe and whether 28 U.S.C.
§ 1291 gives the court appellate jurisdiction over it.
A. Jurisdiction
1. Ripeness
Professor Kerr claims that this controversy is not ripe. He asserts that the
issue of whether a court order complies with the Fourth Amendment must be
addressed after officers execute the order, not before. According to Professor
Kerr, exclusively ex post review of such orders is “essential because Fourth
Amendment law is extremely fact-specific.” Although we agree that this
approach is preferable in most cases, see Warshak v. United States, 532 F.3d 521,
528 (6th Cir. 2008) (en banc) (“The Fourth Amendment is designed to account
for an unpredictable and limitless range of factual circumstances, and
accordingly it generally should be applied after those circumstances unfold, not
before.” (emphasis added)), we also agree that, as he says, here we are presented
with the unusual circumstance of “an abstract question of [Fourth Amendment]
law with no connection to a genuine factual record.” Because the district court
concluded that the § 2703(d) order provision was categorically unconstitutional
with respect to an entire class of records – historical cell site information – that
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is covered under the plain text of § 2703(c), our review of its decision addresses
only whether the fact that the Government’s request was for such records is, by
itself, sufficient to make its applications for § 2703(d) orders unconstitutional.3
This issue satisfies our test for ripeness. Such cases are ripe when they
meet two criteria. “First, they are fit for judicial decision because they raise
pure questions of law. Second, [the plaintiff] would suffer hardship if review
were delayed.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d
279, 287-88 (5th Cir. 2012). Here, the Government applied for three § 2703(d)
orders, and the magistrate judge denied its applications on the basis that the
SCA’s authorization of such orders for cell site information violates the
Constitution. The district court adopted the magistrate judge’s decision to deny
the applications on constitutional grounds. The Government’s claim that this
denial is improper and deprives it of a legitimate investigatory tool is a question
of law, amenable to judicial resolution. Moreover, this is the only time that the
Government can challenge the denial of its order. It cannot wait until after it
executes the order, because there is no order to execute. The dispute is ripe for
review.
The cases cited by Professor Kerr do not alter this conclusion. He points
out that in Warshak, the Sixth Circuit, sitting en banc, discussed how
expectations of privacy, particularly in the context of “ever-evolving
technologies,” typically turn on concrete, case-by-case determinations of a
“limitless range of factual circumstances.” 532 F.3d at 527-28. However, we are
only asked to decide whether every instance of one particular factual
circumstance – § 2703(d) orders for historical cell site information – is
unconstitutional. If we conclude that such orders are not categorically
3
For our review, it does not matter how any eventual search would be carried out. Of
course, if the Government executed the order in an unconstitutional manner, any evidence it
obtained might be subject to suppression. But that is not the issue presented here.
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unconstitutional, specific orders within that category certainly may be
unconstitutional because of additional facts involved in the case. But we do not
need such facts to determine if orders for historical cell site records are per se
unconstitutional.
Moreover, Warshak involved a plaintiff who sought an injunction against
the United States to prevent it from obtaining and executing any § 2703(d) order
against him in the future. Id. at 524-25. Because no order existed, or might ever
exist, the Sixth Circuit held that his claim was too speculative to be ripe for
adjudication. Id. at 525-31. Similarly, Professor Kerr notes that we dismissed,
sua sponte, as unripe a pre-enforcement challenge brought by two unions
against a state railway safety law, which they claimed authorized drug testing
of railroad employees without probable cause. See United Transp. Union v.
Foster, 205 F.3d 851, 857-59 (5th Cir. 2000). We held that the unions’ claims
were speculative and, thus, premature. Id. But to trigger the drug tests in the
law challenged in Foster:
[T]he following train of events would necessarily have to occur:
First, a train must be involved in a collision at a Louisiana railroad
crossing . . . Second, even assuming that such a collision occurs, . . .
a law enforcement officer must have “reasonable grounds to believe
the person to have been operating or in physical control of the
locomotive engine while under the influence” of alcohol or other
illegal controlled substances. . . . Third, “reasonable grounds to
believe” would have to be interpreted to mean something other than
“probable cause.” . . . Finally, a Louisiana officer would have to order
such testing without actually having “probable cause.”
Id. at 858; see also Chandler v. Miller, 520 U.S. 305, 309-10, 318-22 (1997)
(invalidating a state law mandating drug testing for political candidates without
requiring the candidates to wait until after they were tested to challenge the
law). Unlike the plaintiffs in Warshak and Foster, the Government’s claims are
not speculative. It has already been denied the use of § 2703(d) orders for
historical cell site information by the district court.
6
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2. Appellate jurisdiction
Professor Kerr does not believe that the order denying the Government’s
application is a final order over which this court has appellate jurisdiction under
28 U.S.C. § 1291.4 He argues instead that the Court must treat the
Government’s appeal as a petition for a writ of mandamus. But federal appellate
courts have long treated denials of similar orders under the Wiretap Act as
appealable final orders, basing their jurisdiction to review them expressly on
§ 1291. See Application of the United States, 563 F.2d 637, 641 (4th Cir. 1977);
Application of the United States, 427 F.2d 639, 642 (9th Cir. 1970). The Third
Circuit also appears to have based its jurisdiction to review a denial of a
§ 2703(d) order on § 1291. See In re Application of the United States for an Order
Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d
304 (3d Cir. 2010); see also WRIGHT, MILLER & COOPER, 15B FED. PRAC. & PROC.
§ 3919.9 (2d ed.) (“Denial of a government application for a search warrant
concludes the only matter in the district court. . . . Appeal is available as from
a final decision.”). But see United States v. Savides, 658 F. Supp. 1399, 1404
(N.D. Ill. 1987), aff’d sub nom. United States v. Pace, 898 F.2d 1218 (7th Cir.
1990) (“[T]he government has no right to appeal if it believes the magistrate
erred in denying the warrant.”). We proceed under § 1291, recognizing that an
application for this type of order is an independent proceeding, not tied to any
4
Professor Kerr also alleges that there is an Article III problem with allowing
magistrate judges to address constitutional questions. But, because the order is appealable
under § 1291, the magistrate judge’s opinion is subject to de novo review by a district judge.
See FED. R. CRIM. P. 59(b)(3); see also id. advisory committee note (explaining that the task of
clarifying whether a matter is “dispositive” and therefore subject to de novo review is left to
courts, and also that “the district judge retains the authority to review any magistrate judge’s
decision or recommendation whether or not objections are timely filed [by the losing party]”).
This plenary review of the magistrate judge’s conclusions by an Article III judge satisfies the
constitutional requirements of Article III. See Peretz v. United States, 501 U.S. 923, 939
(1991); Thomas v. Arn, 474 U.S. 140, 154-55 (1985).
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current criminal case, and that denying or granting the order finally disposes of
the proceeding.5
B. Fourth Amendment challenge
The district court held that the SCA violates the Fourth Amendment
because the Act allows the United States to obtain a court order compelling a cell
phone company to disclose historical cell site records merely based on a showing
of “specific and articulable facts,” rather than probable cause.6 We review this
ruling, applying Katz v. United States and its progeny to determine whether the
Government’s acquisition of these electronic records constitutes a search or a
seizure subject to the Fourth Amendment’s probable cause. 389 U.S. 347, 353
(1967).
The SCA regulates disclosure of stored electronic communications by
service providers. With regard to compelled disclosure of non-content records or
other subscriber information, the Act requires the Government to, as relevant
here, secure either a warrant or a court order for the records. 18 U.S.C.
§ 2703(c).7 If the Government seeks a court order, such an order:
[M]ay be issued by any court that is a court of competent
jurisdiction and shall issue only if the governmental entity offers
5
Particularly in the case where a court denies the Government’s application despite
finding that the Government has met its evidentiary burden, in contrast to a case where the
court finds that the application is not supported by evidence that satisfies the relevant
standard, the order is final, because in such a case the Government cannot return to the court
with additional evidence sufficient to convince the court to grant its application. Cf. Savides,
658 F. Supp. at 1404 (“A probable cause determination on an application for a search warrant
by a magistrate is not a final order.” (emphasis added)).
6
Amicus Susan Freiwald expresses concern that the SCA allows executive branch
officials to police themselves. We have difficulty understanding this fear. An official must
prove to a neutral magistrate that his application for a § 2703(d) order meets the “specific and
articulable facts” standard set by Congress. Moreover, if the official executes the order
improperly, an injured party may seek judicial review of his actions. These safeguards
adequately protect against executive overreaching.
7
The Government is not required to provide notice to the subscriber. § 2703(c)(3).
8
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specific and articulable facts showing that there are reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation.
§ 2703(d). The “specific and articulable facts” standard is a lesser showing than
the probable cause standard that is required by the Fourth Amendment to
obtain a warrant. U.S. CONST. amend. IV; see In re Application of the United
States, 620 F.3d at 315 (holding that Ҥ 2703(d) creates a higher standard than
that required by the pen register and trap and trace statutes” but “a less
stringent [standard] than probable cause”); Warshak, 631 F.3d at 291.
1. Discretion
The ACLU contends that we can avoid the constitutional issue by holding
that the magistrate judge had discretion under the SCA to require the
Government to seek a warrant rather than a § 2703(d) order to obtain historical
cell site information. In support of its argument, the ACLU relies on a Third
Circuit decision in which the majority of the panel held that the SCA “gives the
[magistrate judge] the option to require a warrant showing probable cause.” In
re Application of the United States, 620 F.3d at 319. The majority reached this
conclusion after analyzing the text of the statute. First, it noted that an order
“may be issued” by any court with jurisdiction, which is “language of permission,
rather than mandate.” Id. at 315. It concluded that Congress’s use of this
phrase “strongly implies court discretion.” Id. Second, it observed that this
implication was “bolstered by the subsequent use of the phrase ‘only if’ in the
same sentence.” Id.; see § 2703(d) (“[An order] shall issue only if the
governmental entity offers specific and articulable facts that there are
reasonable grounds to believe [that the records] sought, are relevant and
material to an ongoing criminal investigation.”). The majority explained that
both the Third Circuit and the Supreme Court had determined that “‘only if’
describe[s] a necessary condition, not a sufficient condition.” In re Application
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of the United States, 620 F.3d at 316 (quoting Twp. of Tinicum v. U.S. Dep’t of
Transp., 582 F.3d 482, 488 (3d Cir. 2009)); see California v. Hodari D., 499 U.S.
621, 628 (1991). Therefore it held that the specific and articulable facts standard
was necessary to allow, but not sufficient to require, the magistrate judge to
issue a § 2703(d) order.
This construction of the SCA, however, ignores the intervening “shall” in
the provision. “The word ‘shall’ is ordinarily ‘the language of command.’”
Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (quoting Anderson v. Yungkau,
329 U.S. 482, 485 (1947)); see Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26, 35 (1998) (“The Panel’s instruction comes in terms of the
mandatory ‘shall,’ which normally creates an obligation impervious to judicial
discretion.”). Including this “shall” in our interpretation of the SCA, as we
should, see Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir. 2006) (“It is ‘a
cardinal principle of statutory construction’ that ‘a statute ought, upon the
whole, to be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.” (quoting TRW Inc. v. Andrews,
534 U.S. 19, 21 (2001))), we reach a different conclusion from that of the Third
Circuit.
Reading the provision as a whole, we conclude that the “may be issued”
language is permissive – it grants a court the authority to issue the order – and
the “shall issue” term directs the court to issue the order if all the necessary
conditions in the statute are met. These conditions include both the
requirements specified by § 2703(b) (for orders seeking the contents of electronic
communications) or those specified by § 2703(c) (for orders seeking non-content
records of such communications) and the “specific and articulable facts standard”
laid out in § 2703(d) itself. Therefore, to obtain an order for the historical cell
site records of a particular cell phone owner, the Government may apply to a
court that has jurisdiction. And that court must grant the order if the
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Government seeks an order (1) to “require a provider of electronic
communication service or remote computing service” (2) “to disclose a [non-
content] record or other information pertaining to a subscriber to or customer of
such service” when the Government (3) meets the “specific and articulable facts”
standard. If these three conditions are met, the court does not have the
discretion to refuse to grant the order.8 See In re Application of the United States
for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 148 (E.D. Va.
2011) (“The fact that ‘only if’ creates a necessary but not sufficient condition . .
. does not automatically create a gap in the statute that should be filled with
judicial discretion. The Court considers it more likely that the ‘only if’ language
in § 2703(d) clarifies that any conditions established by (b) and (c) are
cumulative with respect to the standard set forth in paragraph (d). The default
rule remains that the judicial officer ‘shall issue’ an order when the government
meets its burden.”).
Even if the text of the statute supported the ACLU’s argument that
magistrate judges have discretion to require the Government to secure a
warrant for cell site information, such discretion would be beside the point here.
The district court did not simply decide that the Government must secure a
warrant in this case. It held, adopting the magistrate judge’s conclusion, that
8
The Third Circuit observed that “Congress would, of course, be aware that such a
statute mandating the issuance of a § 2703(d) order without requiring probable cause and
based only on the Government’s word may evoke protests by cell phone users concerned about
their privacy. The considerations for and against such a requirement would be for Congress
to balance. A court is not the appropriate forum for such balancing.” In re Application of the
United States, 620 F.3d at 319. While we disagree with the Third Circuit that the Government
need only give its word to obtain a § 2703(d) order – rather, the Government must show
“specific and articulable facts” – we agree with the Third Circuit’s statement of Congress’s
authority. But we believe Congress has weighed these considerations and set this balance.
The text of the statute shows that Congress does not want magistrate judges second-guessing
its calculus. See id. at 320 (Tashima, J., concurring) (“Granting a court unlimited discretion
to deny an application for a court order, even after the government has met statutory
requirements, is contrary to the spirit of the statute.”).
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“[w]hen the government requests records from cellular services, data disclosing
the location of the telephone at the time of particular calls may be acquired only
by a warrant issued on probable cause. . . . The standard under the Stored
Communications Act is below that required by the Constitution.” See also
Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled
warrantless disclosure of cell site data violates the Fourth Amendment,” despite
the fact that historical cell site information clearly falls within a category of data
for which the SCA requires only a § 2703(d) order); cf. In re Application of the
United States, 620 F.3d at 307-08. Thus, the district court held that all § 2703(d)
orders for cell site information were unconstitutional, so it had no discretion to
grant such an order. See In re Application of the United States, 620 F.3d at 319
(holding, in a case where the magistrate judge below had not ruled on the
constitutionality of the SCA, that a magistrate judge has discretion under the
statute to require the Government to seek a warrant). Therefore, we cannot
avoid the question of whether the SCA’s authorization of § 2703(d) orders under
a “specific and articulable facts” standard is constitutional.
2. The constitutional question
The Government and the ACLU focus their analysis of the
constitutionality of the SCA as applied to historical cell site data on distinct
questions. The ACLU focuses on what information cell site data reveals –
location information – and proceeds to analyze the § 2703(d) orders under the
Supreme Court’s precedents on tracking devices. In contrast, the Government
focuses on who is gathering the data – private cell service providers, not
government officers – and analyzes the provision under the Court’s business
records cases.
The ACLU contends that individuals have a reasonable expectation of
privacy in their location information when they are tracked in a space, like the
home, that is traditionally protected or when they are tracked for a longer period
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of time and in greater detail than society would expect.9 The ACLU relies on the
concurrences in United States v. Jones, 132 S. Ct. 945 (2012), which concluded
that prolonged GPS monitoring of a vehicle could constitute a search, id. at 964
(Alito, J., concurring in the judgment) (joined by Justices Ginsburg, Breyer, and
Kagan); see id. at 955 (Sotomayor, J., concurring) (expressly agreeing with
Justice Alito’s concurrence on this point).10 The ACLU points out that
individuals are only in vehicles for discrete periods, but most people carry cell
phones on their person at all times, making the tracking more detailed and
invasive. The Government responds that cell site data are only collected when
a call is made, which is a discrete event, just like a car ride.
Moreover, the Government argues that cell site information is less precise
than GPS location information. It contends that these data are not sufficiently
accurate to reveal when someone is in a private location such as a home. But the
ACLU points out that the reason that the Government seeks such information
is to locate or track a suspect in a criminal investigation. The data must be
precise enough to be useful to the Government, which would suggest that, at
least in some cases, it can narrow someone’s location to a fairly small area. See
FCC Commercial Mobile Services, 47 C.F.R. § 20.18(h)(1) (2012) (requiring cell
9
The ACLU argues that the extended time period – sixty days – for which the
Government sought historical cell site records contravenes privacy expectations. But the
Supreme Court has upheld a court order for records that included three monthly statements,
or roughly ninety days of records. United States v. Miller, 425 U.S. 435, 438 (1976).
10
The ACLU, as well as the magistrate judge’s opinion, Historical Cell Site Data, 747
F. Supp. 2d at 841-43, also cite the protections in the Wireless Communication and Public
Safety Act of 1999 as evidence that society recognizes a privacy interest in location
information, though the ACLU recognizes that, under Supreme Court precedent, statutory
protections are not determinative. See City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010)
(“Respondents point to no authority for the proposition that the existence of statutory
protection renders a search per se unreasonable under the Fourth Amendment. And the
precedents counsel otherwise.”). But the SCA is a statute as well, and there is little reason
to think that absence of statutory protection for a certain type of information is any less
evidence of society’s lack of a privacy interest in that information than presence of legal
protection is evidence of such an interest.
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phone carriers to have, by 2012, the ability to locate phones within 100 meters
of 67% of calls and 300 meters for 95% of calls for network based calls, and to be
able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of
calls for hand-set based calls). And the Supreme Court held in United States v.
Karo that without a warrant the Government cannot determine by means of a
beeper whether a particular article (in that case a cannister of ether) is in an
individual’s home at a particular time. 468 U.S. 705, 719 (1984). In response,
the Government argues that a pen register can similarly locate someone to his
home. If a person makes a call from his home landline, he must be located in his
home at the landline’s receiver. Yet the Court in Smith v. Maryland
nevertheless sanctioned the warrantless use of pen registers, installed by the
phone company at the request of police, to record the numbers dialed from
particular landlines. 442 U.S. 735, 745-46 (1979).
This argument highlights the difference between the Government’s and
the ACLU’s approaches to this issue. Both Karo and Smith involved the
Government’s acquisition of information about the interior of a home: that a
particular canister was located in the home or that a person was calling
particular numbers from a phone in the home. But in Karo (as in Jones), the
Government was the one collecting and recording that information. And this is
the distinction on which the Government’s affirmative argument turns. The
Government recognizes that “[w]hat a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth Amendment
protection.” Katz, 389 U.S. at 351; see also id. at 350-51 (“[T]he Fourth
Amendment cannot be translated into a general constitutional ‘right to privacy.’
That Amendment protects individual privacy against certain kinds of
governmental intrusion . . . . But the protection of a person’s general right to
privacy – his right to be let alone by other people – is, like the protection of his
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property and of his very life, left largely to the law of the individual States.”
(emphasis added)).
Therefore, the Government, when determining whether an intrusion
constitutes a search or seizure, draws a line based on whether it is the
Government collecting the information or requiring a third party to collect and
store it, or whether it is a third party, of its own accord and for its own purposes,
recording the information. Where a third party collects information in the first
instance for its own purposes, the Government claims that it can obtain this
information later with a § 2703(d) order, just as it can subpoena other records
of a private entity. Compare Smith, 442 U.S. at 743 (finding significant that “the
phone company does in fact record this information for a variety of legitimate
business purposes” (emphasis added)), with Jones, 132 S. Ct. at 964 (Alito, J.,
concurring in the judgment) (expressing concern over the application of existing
Fourth Amendment doctrine to “the use of GPS tracking technology for law
enforcement purposes” (emphasis added)). We agree.
This question of who is recording an individual’s information initially is
key because:
[T]he individual must occasionally transact business with other
people. When he does so, he leaves behind, as evidence of his
activity, the records and recollections of others. He cannot expect
that these activities are his private affair. To the extent an
individual knowingly exposes his activities to third parties, he
surrenders Fourth Amendment protections, and, if the Government
is subsequently called upon to investigate his activities for possible
violations of the law, it is free to seek out these third parties, to
inspect their records, and to probe their recollections for evidence.
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030,
1043 (D.C. Cir. 1978). Moreover, “[t]he fortuity of whether or not the [third
party] in fact elects to make a quasi-permanent record” of information conveyed
to it “does not . . . make any constitutional difference.” Smith, 442 U.S. at 745.
15
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No. 11-20884
The third party can store data disclosed to it at its discretion. And once an
individual exposes his information to a third party, it can be used for any
purpose, as “[i]t is established that, when a person communicates information
to a third party even on the understanding that the communication is
confidential, he cannot object if the third party conveys that information or
records thereof to law enforcement authorities.” SEC v. Jerry T. O’Brien, Inc.,
467 U.S. 735, 743 (1984) (emphasis added).11
The Government does concede that the subpoenaed third party must have
possession of – the right to control – the records before officials can require it to
turn them over. The Government, therefore, distinguishes cases where a
landlord or hotel manager merely has the right to enter the apartment or room
of another. The Government acknowledges that “the government may not
subpoena the landlord to produce the tenant’s personal papers from her
apartment.” However, it contrasts these situations from the one presented in
United States v. Miller, 425 U.S. 435 (1976). In Miller, the Court rejected a bank
depositor’s Fourth Amendment challenge to a subpoena of bank records because,
as the bank was a party to the transactions, the records belonged to the bank.
Id. at 440-41 (“[T]he documents subpoenaed here are not respondent’s private
11
Although the ACLU contends that this sort of compulsory process requires notice
and an opportunity to litigate the order’s validity before it is executed, the Government notes
that it is the party who owns the records, not the party whose information is recorded, that
has this right to challenge the order. See Jerry T. O’Brien, 467 U.S. at 743 (concluding that
Supreme Court precedents “disable respondents from arguing that notice of subpoenas issued
to third parties is necessary to allow a target to prevent an unconstitutional search or seizure
of his papers”). The SCA provides that “[a] governmental entity receiving records or
information [of non-content data] is not required to provide notice to a subscriber or customer”
before or after government officials obtain this information. § 2703(c)(3). Insofar as the ACLU
believes that the SCA is constitutionally problematic because it does not require these officials
to ever disclose to the subscriber that they sought and obtained his non-content records –
whether or not information gleaned from the records led to a criminal prosecution, cf. Jones,
132 S. Ct. at 964 (showing special concern for situations where government officials “secretly
monitor” individuals (emphasis added)) – we note that nothing in the non-content records
provisions of the SCA prevents cell service providers from informing their subscribers of such
government requests.
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No. 11-20884
papers. . . . [R]espondent can assert neither ownership nor possession. Instead,
these are the business records of the bank[]. . . . [They] pertain to transactions
to which the bank was itself a party.” (citation and internal quotation marks
omitted)).
This qualification that the right to possession hinges on whether the third
party created the record to memorialize its business transaction with the target,
rather than simply recording its observation of a transaction between two
independent parties, recently gained context and support from a case decided by
the Sixth Circuit. In that case, United States v. Warshak, the court of appeals
held that the “government may not compel a commercial [internet service
provider] to turn over the contents of a subscriber’s emails without first
obtaining a warrant based on probable cause.” 631 F.3d 266, 288 (6th Cir. 2010).
The court reasoned that the emails were communications between two
subscribers, not communications between the service provider and a subscriber
that would qualify as business records. The provider was merely the
“intermediary.” Id. at 286.
Defining business records as records of transactions to which the record-
keeper is a party also fits well with the historical and statutory distinction
between communications content and addressing information. See United States
v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) (“In a line of cases dating back to
the nineteenth century, the Supreme Court has held that the government cannot
engage in a warrantless search of the contents of sealed mail, but can observe
whatever information people put on the outside of mail, because that
information is voluntarily transmitted to third parties.”) (collecting cases); see,
e.g., 18 U.S.C. § 2703(b)-(c). Communications content, such as the contents of
letters, phone calls, and emails, which are not directed to a business, but simply
sent via that business, are generally protected. However, addressing
information, which the business needs to route those communications
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No. 11-20884
appropriately and efficiently are not. See Smith, 442 U.S. at 741 (finding
significant that pen registers, unlike the listening device employed in Katz, “do
not acquire the contents of communications” and do not require a warrant);
Forrester, 512 F.3d at 511 (“The government’s surveillance of e-mail addresses
also may be technologically sophisticated, but it is conceptually indistinguishable
from government surveillance of physical mail. . . . E-mail, like physical mail,
has an outside address ‘visible’ to the third-party carriers that transmit it to its
intended location, and also a package of content that the sender presumes will
be read only by the intended recipient.”).
Under this framework, cell site information is clearly a business record.
The cell service provider collects and stores historical cell site data for its own
business purposes, perhaps to monitor or optimize service on its network or to
accurately bill its customers for the segments of its network that they use. The
Government does not require service providers to record this information or
store it. The providers control what they record and how long these records are
retained. The Government has neither “required [n]or persuaded” providers to
keep historical cell site records. Jones, 132 S. Ct. at 961 (Alito, J., concurring in
the judgment). In the case of such historical cell site information, the
Government merely comes in after the fact and asks a provider to turn over
records the provider has already created.
Moreover, these are the providers’ own records of transactions to which it
is a party. The caller is not conveying location information to anyone other than
his service provider. He is sending information so that the provider can perform
the service for which he pays it: to connect his call. And the historical cell site
information reveals his location information for addressing purposes, not the
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No. 11-20884
contents of his calls.12 The provider uses this data to properly route his call,
while the person he is calling does not receive this information.
The ACLU points out that this conveyance of location information to the
service provider nevertheless must be voluntary in order for the cell phone
owner to relinquish his privacy interest in the data. The ACLU asserts that
here it is not. According to the ACLU, “[w]hen a cell phone user makes or
receives a call, there is no indication to the user that making or receiving that
call will . . . locate the caller.” A user cannot voluntarily convey something which
he does not know he has.
The Government disputes the assertion that cell phone users do not
voluntarily convey location information. It contends that the users know that
they convey information about their location to their service providers when they
make a call and that they voluntarily continue to make such calls. We agree.
In Smith, the Supreme Court recognized that:
All telephone users realize that they must “convey” phone numbers
to the telephone company, since it is through telephone company
switching equipment that their calls are completed. All subscribers
realize, moreover, that the phone company has facilities for making
12
The Ninth Circuit has similarly concluded that “e-mail to/from addresses and IP
addresses constitute addressing information and do not necessarily reveal any more about the
underlying contents of communication than do phone numbers.” Forrester, 512 F.3d at 510.
It noted that:
Like IP addresses, certain phone numbers may strongly indicate the underlying
contents of the communication; for example, the government would know that
a person who dialed the phone number of a chemicals company or a gun shop
was likely seeking information about chemicals or firearms. Further, when an
individual dials a pre-recorded information or subject-specific line, such as
sports scores, lottery results or phone sex lines, the phone number may even
show that the caller had access to specific content information. Nonetheless, the
Court in Smith and Katz drew a clear line between unprotected addressing
information and protected content information that the government did not
cross here.
Id. These observations are equally applicable to historical cell site data.
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No. 11-20884
permanent records of the numbers they dial, for they see a list of
their long-distance (toll) calls on their monthly bills.
442 U.S. at 742. Furthermore, it observed that “[m]ost phone books tell
subscribers, on a page entitled ‘Consumer Information,’ that the company ‘can
frequently help in identifying to the authorities the origin of unwelcome and
troublesome calls.’” Id. at 742-43.
A cell service subscriber, like a telephone user, understands that his cell
phone must send a signal to a nearby cell tower in order to wirelessly connect his
call. See United States v. Madison, No. 11-60285-CR, 2012 WL 3095357, at *8
(S.D. Fla. July 30, 2012) (unpublished) (“[C]ell-phone users have knowledge that
when they place or receive calls, they, through their cell phones, are
transmitting signals to the nearest cell tower, and, thus, to their
communications service providers.”). Cell phone users recognize that, if their
phone cannot pick up a signal (or “has no bars”), they are out of the range of
their service provider’s network of towers. And they realize that, if many
customers in an area attempt to make calls at the same time, they may overload
the network’s local towers, and the calls may not go through. Even if this cell
phone-to-tower signal transmission was not “common knowledge,” California v.
Greenwood, 486 U.S. 35, 40 (1988), the Government also has presented evidence
that cell service providers’ and subscribers’ contractual terms of service and
providers’ privacy policies expressly state that a provider uses a subscriber’s
location information to route his cell phone calls. In addition, these documents
inform subscribers that the providers not only use the information, but collect
it. See also Madison, 2012 WL 3095357, at *8 (“Moreover, the cell-phone-using
public knows that communications companies make and maintain permanent
records regarding cell-phone usage, as many different types of billing plans are
available . . . . Some plans also impose additional charges when a cell phone is
used outside its ‘home area’ (known commonly as ‘roaming’ charges). In order
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No. 11-20884
to bill in these different ways, communications companies must maintain the
requisite data, including cell-tower information.”). Finally, they make clear that
providers will turn over these records to government officials if served with a
court order. Cell phone users, therefore, understand that their service providers
record their location information when they use their phones at least to the same
extent that the landline users in Smith understood that the phone company
recorded the numbers they dialed.
Their use of their phones, moreover, is entirely voluntary. See United
States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) (“There is no Fourth
Amendment violation because Skinner did not have a reasonable expectation of
privacy in the data given off by his voluntarily procured pay-as-you-go cell
phone.”). The Government does not require a member of the public to own or
carry a phone. As the days of monopoly phone companies are past, the
Government does not require him to obtain his cell phone service from a
particular service provider that keeps historical cell site records for its
subscribers, either. And it does not require him to make a call, let alone to make
a call at a specific location.
Nevertheless, the ACLU argues that, while an individual’s use of his
phone may be voluntary, he does not voluntarily convey his cell site information
because he does not directly convey it to his service provider. The only
information he directly conveys is the number he dials. See In re Application of
the United States, 620 F.3d at 317 (“[W]hen a cell phone user makes a call, the
only information that is voluntarily and knowingly conveyed to the phone
company is the number that is dialed.”). This crabbed understanding of
voluntary conveyance would lead to absurd results. For example, if a user
programmed a contact’s telephone number into his phone’s speed dial memory,
he would only need to dial the speed dial reference number to make the call.
Would that mean that the Government would be unable to obtain the contact’s
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No. 11-20884
actual telephone number from his service provider? Clearly not. The contact’s
telephone number is necessary for the service provider to connect the call; the
user is aware of this fact; therefore, he is aware that he is conveying that
information to the service provider and voluntarily does so when he makes the
call.13 A similar analysis for cell site information leads to the conclusion that a
user voluntarily conveys such information when he places a call, even though he
does not directly inform his service provider of the location of the nearest cell
phone tower. Because a cell phone user makes a choice to get a phone, to select
a particular service provider, and to make a call, and because he knows that the
call conveys cell site information, the provider retains this information, and the
provider will turn it over to the police if they have a court order, he voluntarily
conveys his cell site data each time he makes a call.
Finally, the ACLU argues that advances in technology have changed
society’s reasonable expectations of privacy in information exposed to third
parties. See Jones, 132 S. Ct. 963-64 (Alito, J., concurring in the judgment) (“In
the pre-computer age, the greatest protections of privacy were neither
constitutional nor statutory, but practical. . . . Devices like the one used in the
present case, however, make long-term monitoring relatively easy and cheap.”);
see also id. at 957 (Sotomayor, J., concurring). We agree that technological
13
In an analogous context, when a customer makes a credit card purchase at a store
or restaurant, he does not directly convey the location of the transaction to his credit card
company. Nevertheless, law enforcement officers can obtain his credit card records from the
company with a subpoena, see, e.g., United States v. Maturo, 982 F.2d 57, 59 (2d Cir. 1992)
(DEA agents obtained a subpoena for the credit card records of an investigatory target.), and
use them to track his location, see, e.g., United States v. Kragness, 830 F.2d 842, 865 (8th Cir.
1987) (“The government introduced credit-card records and an airline-ticket stub which show
that [the defendant] traveled from Minneapolis/St. Paul to Miami on August 16, 1980.”); see
also 12 U.S.C. §§ 3402, 3407, 3409 (prescribing that federal officials can obtain an individual’s
financial records, such as credit card statements, pursuant to judicial subpoena served on his
financial institution if “there is reason to believe that the records sought are relevant to a
legitimate law enforcement inquiry,” and, subject to certain exceptions, the individual has
notice and an opportunity to object to the disclosure before it occurs).
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No. 11-20884
changes can alter societal expectations of privacy. See id. at 962 (Alito, J.,
concurring) (“Dramatic technological change may lead to periods in which
popular expectations are in flux and may ultimately produce significant changes
in popular attitudes. New technology may provide increased convenience or
security at the expense of privacy, and many people may find the tradeoff
worthwhile. And even if the public does not welcome the diminution of privacy
that new technology entails, they may eventually reconcile themselves to this
development as inevitable.”). At the same time, “[l]aw enforcement tactics must
be allowed to advance with technological changes, in order to prevent criminals
from circumventing the justice system.” Skinner, 690 F.3d at 778 (citing United
States v. Knotts, 460 U.S. 276, 284 (1983)). Therefore, “[i]n circumstances
involving dramatic technological change, the best solution to privacy concerns
may be legislative. A legislative body is well situated to gauge changing public
attitudes, to draw detailed lines, and to balance privacy and public safety in a
comprehensive way.” Jones, 132 S. Ct. at 964 (Alito, J., concurring in the
judgment).
Congress has crafted such a legislative solution in the SCA. The statute
conforms to existing Supreme Court Fourth Amendment precedent. This
precedent, as it now stands, does not recognize a situation where a conventional
order for a third party’s voluntarily created business records transforms into a
Fourth Amendment search or seizure when the records cover more than some
specified time period or shed light on a target’s activities in an area traditionally
protected from governmental intrusion. We decline to create a new rule to hold
that Congress’s balancing of privacy and safety is unconstitutional.14
14
The Government also argues on appeal that the district court erred by overruling the
Government’s objections to the magistrate judge’s judicially-noticed findings of fact. Because
we hold that the magistrate judge had no discretion to deny the Government’s application for
a § 2703(d) order, we need not reach the issue of whether its judicial notice of facts was
improper.
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No. 11-20884
We understand that cell phone users may reasonably want their location
information to remain private, just as they may want their trash, placed
curbside in opaque bags, Greenwood, 486 U.S. at 40-41, or the view of their
property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451
(1989), to remain so. But the recourse for these desires is in the market or the
political process: in demanding that service providers do away with such records
(or anonymize them) or in lobbying elected representatives to enact statutory
protections. The Fourth Amendment, safeguarded by the courts, protects only
reasonable expectations of privacy.
Recognizing that technology is changing rapidly, we decide only the
narrow issue before us. Section 2703(d) orders to obtain historical cell site
information for specified cell phones at the points at which the user places and
terminates a call are not categorically unconstitutional. We do not address
orders requesting data from all phones that use a tower during a particular
interval, orders requesting cell site information for the recipient of a call from
the cell phone specified in the order, or orders requesting location information
for the duration of the calls or when the phone is idle (assuming the data are
available for these periods). Nor do we address situations where the
Government surreptitiously installs spyware on a target’s phone or otherwise
hijacks the phone’s GPS, with or without the service provider’s help.
IV. CONCLUSION
Cell site data are business records and should be analyzed under that line
of Supreme Court precedent. Because the magistrate judge and district court
treated the data as tracking information, they applied the wrong legal standard.
Using the proper framework, the SCA’s authorization of § 2703(d) orders for
historical cell site information if an application meets the lesser “specific and
articulable facts” standard, rather than the Fourth Amendment probable cause
standard, is not per se unconstitutional. Moreover, as long as the Government
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No. 11-20884
meets the statutory requirements, the SCA does not give the magistrate judge
discretion to deny the Government’s application for such an order. Therefore,
we VACATE district court’s order and REMAND with instructions to grant the
Government’s applications.
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No. 11-20884
DENNIS, Circuit Judge, dissenting:
In my view, this appeal should be decided by adhering to the Supreme
Court’s constitutional question avoidance doctrine and construing the applicable
ambiguous provisions of the Stored Communications Act to require that the
government must obtain a warrant in order to secure an order requiring an
electronic communications provider to disclose data potentially protected by the
Fourth Amendment, such as the historical cell site location data sought in this
case. Because the government did not apply for a warrant, but instead sought
such data based only on a showing of reasonable suspicion, the district court
reached the correct result in denying the government’s request for an order for
the provider to disclose that data. Accordingly, I would affirm the result reached
by the district court, and I respectfully dissent from the majority opinion’s
contrary interpretation of the Stored Communications Act and its unnecessary
interpretation of the Fourth Amendment as not affording individuals protection
of their historical cell site location data.
This appeal properly turns on construction of a statute, rather than on
interpretation of the Fourth Amendment. Provisions of the 1986 Stored
Communications Act codified at 18 U.S.C. § 2703 authorize the government to
require a cellular service provider to disclose a customer’s call records, “not
including the contents of communications,” without the customer’s consent, “only
when the government[] . . . obtains a warrant” or “obtains a court order for such
disclosure under subsection [2703](d).” 18 U.S.C. § 2703(c)(1)(A)-(B). A
§ 2703(d) order, in turn, “may be issued by any court . . . of competent
jurisdiction and shall issue only if the government[]” demonstrates reasonable
suspicion “that . . . the records . . . are relevant and material to an ongoing
criminal investigation.” Id. § 2703(d). Critically, the statute is ambiguous as
to when the government is to follow “warrant procedures” under § 2703(c)(1)(A).
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The government argues that the statute nonetheless should be read as
requiring courts to grant every § 2703(d) application that meets the statutory
reasonable suspicion standard, regardless of the type of customer records sought.
In the government’s view, it need never follow “warrant procedures,”
notwithstanding that such procedures are the first mechanism provided for in
the statute. See id. § 2703(c)(1)(A).
The majority adopts the government’s interpretation of the statute,
creating a circuit split with the only other Court of Appeals that has considered
the interpretive question. See In re Application of U.S. for an Order Directing
a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304,
315-17 (3d Cir. 2010). By doing so, the majority is forced to confront the serious
and debatable constitutional question of whether cellular customers have a
legitimate Fourth Amendment privacy interest in the “cell site location
information” generated when we use our phones. The substantial difficulty of
this question is reflected in the Supreme Court’s conscientious avoidance of
similar questions regarding the Fourth Amendment implications of modern
telecommunications technologies. See United States v. Jones, 132 S. Ct. 945,
953-54 (2012); City of Ontario v. Quon, 130 S. Ct. 2619, 2629-30 (2010). The
majority adopts the government’s position on this issue as well, holding that
cellular customers do not have a Fourth Amendment privacy interest in
historical cell site location information. On this point too, the majority splits
from the Third Circuit, the only other Court of Appeals to have considered the
issue. See In re Application of U.S. for an Order Directing a Provider of Elec.
Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d at 317-18. This
divergence of authority illustrates the difficulty and uncertainty of the
constitutional issue.
Respectfully, I believe that the majority’s approach contravenes Supreme
Court precedent applying the canon of constitutional avoidance, “[‘]a cardinal
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No. 11-20884
principle’ of statutory interpretation.” See Zadvydas v. Davis, 533 U.S. 678, 689
(2001). “[T]he canon of constitutional avoidance . . . is a tool for choosing
between competing plausible interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend the alternative which
raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381
(2005). Here, because the government’s interpretation “give[s] rise to [a]
substantial constitutional question[],” see INS v. St. Cyr, 533 U.S. 289, 300
(2001), precedent requires that we “first ascertain whether a construction of the
statute is fairly possible by which the constitutional question may be avoided,”
United States v. Sec. Indus. Bank, 459 U.S. 70, 78 (1982) (internal quotation
marks omitted) (quoting Lorillard v. Pons, 434 U.S. 575, 577 (1978)).
Here, such an “alternative interpretation” is not only “fairly possible,” see
St. Cyr, 533 U.S. at 299-300, but indeed better accords with the statute’s text,
structure, and purpose than the interpretation advanced by the government and
adopted by the majority. Section 2703(c) may be fairly construed to provide for
“warrant procedures” to be followed when the government seeks customer
records that may be protected under the Fourth Amendment, including
historical cell site location information. See 18 U.S.C. § 2703(c)(1)(A). This
construction gives meaning and effect to all of the statute’s words and provisions
without rendering any superfluous. It also accords with the enacting Congress’s
intent to create a statutory framework flexible enough to permit “the law [to]
advance with the technology to ensure the continued vitality of the [F]ourth
[A]mendment.” S. Rep. No. 99-541, at 5 (1986). Moreover, this construction
effectuates a workable framework that does not require magistrates to speculate
on societal expectations in ex parte application proceedings devoid of the
concrete investigative facts upon which Fourth Amendment analysis depends.
Based on this analysis, I would hold that the government must obtain a
warrant pursuant to § 2703(c)(1)(A) in order to compel disclosure of the cell site
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No. 11-20884
location records it seeks here, which may be protected from disclosure or seizure
absent a warrant. Thus, I would hold that the magistrate judge and district
court erred in pronouncing upon the constitutional question and therefore would
vacate the constitutional ruling below. However, the magistrate and the district
court reached the right result by denying the government’s application for an
order compelling disclosure of cell site data without a showing of probable cause.
I would affirm on statutory grounds the order denying the government’s
§ 2703(d) application with respect to historical cell site location data.
I
The Stored Communications Act was enacted as Title II of the Electronic
Communications Privacy Act of 1986, P.L. 99-508 (1986). The legislation’s
purpose was “to update and clarify Federal privacy protections and standards
in light of dramatic changes in new computer and telecommunications
technologies.” S. Rep. No. 99-541, at 1 (1986). Section 2703 “details the
procedures the government may employ to obtain stored information from a
third-party provider, depending upon whether the government is seeking the
contents of a stored communication, or non-content information.” In re
Application of U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d
283, 296 (4th Cir. 2013) (Wilson, J., concurring) (citing 18 U.S.C. § 2703(a)-(c)).
Subsection 2703(c)(1) provides in relevant part:
A governmental entity may require a provider of electronic
communication service or remote computing service to disclose a
record or other information pertaining to a subscriber or customer
of such service (not including the contents of the communications)
only when the governmental entity —
(A) obtains a warrant issued using the procedures described
in the Federal Rules of Criminal Procedure (or, in the case of
a State court, issued using State warrant procedures) by a
court of competent jurisdiction; [or]
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(B) obtains a court order for such disclosure under subsection
(d) . . . .
18 U.S.C. § 2703(c)(1)(A)-(B). Subsection 2703(d) provides in pertinent part:
A court order for disclosure under subsection (b) or (c) may be issued
by any court that is a court of competent jurisdiction and shall issue
only if the governmental entity offers specific and articulable facts
showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication, or the records or
other information sought, are relevant and material to an ongoing
criminal investigation.
Id. § 2703(d). The “specific and articulable facts” standard set forth in § 2703(d),
id., “is essentially a reasonable suspicion standard,” In re Application of U.S. for
an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d at 287.1
The government and the majority maintain that these provisions
unambiguously mean that a magistrate must issue a § 2703(d) order whenever
the government’s application meets the statutory reasonable suspicion standard.
Under this reading, the statute never requires the government to follow the
warrant procedures provided for in subsection 2703(c)(1)(A), regardless of the
type of non-content records the government seeks.
Contrary to the government’s argument, however, the statute is
ambiguous as to when the “warrant procedures” described in subsection
2703(c)(1)(A) are to be followed. Thus, we must apply the avoidance canon, a
“rule[] for resolving textual ambiguity,” Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119, 140 (2005), “counseling that ambiguous statutory language be
construed to avoid serious constitutional doubts,” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 516 (2009).
1
See, e.g., United States v. Khanalizadeh, 493 F.3d 479, 483 (5th Cir. 2007) (“Officers
must base their reasonable suspicion on ‘specific and articulable facts,’ not merely ‘inarticulate
hunches’ of wrongdoing.”); see also Terry v. United States, 392 U.S. 1, 21 (1968).
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II
“The appropriate starting point when interpreting any statute is its plain
meaning.” United States v. Molina-Gazca, 571 F.3d 470, 472 (5th Cir. 2009). “In
ascertaining the plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language and design of the
statute as a whole.” Id. (quoting K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988)). “It is ‘a cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.’” TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)). “Interpretation of a word or phrase depends upon reading the whole
statutory text, considering the purpose and context of the statute, and consulting
any precedents or authorities that inform the analysis.” Dolan v. U.S. Postal
Serv., 546 U.S. 481, 486 (2006).
First, the plain language of subsection 2703(d) states that an order “may
be issued by any court that is a court of competent jurisdiction.” 18 U.S.C.
§ 2703(d) (emphasis added); see In re Application of U.S. for an Order Directing
a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d at
315-16 (“This is the language of permission, rather than mandate. If Congress
wished that courts ‘shall,’ rather than ‘may,’ issue § 2703(d) orders whenever the
intermediate standard is met, Congress could easily have said so.” (citation
omitted)).
The plain language of subsection 2703(d) also prohibits a court from
issuing the statutory order if the government’s application does not make out the
statutory reasonable suspicion standard. The statute provides that an order
“shall issue only if the governmental entity offers specific and articulable facts
showing that there are reasonable grounds to believe that the . . . records or
other information sought[] are relevant and material to an ongoing criminal
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investigation.” 18 U.S.C. § 2703(d) (emphasis added). The best plain reading of
this language is simply that an order may not issue unless the standard is met.2
In other words, a showing of reasonable suspicion clearly is a necessary
condition for the issuance of a § 2703(d) order, but not a sufficient condition.
Contrary to the assertions of the government and the majority, nowhere does the
statute by its terms require a court to issue a § 2703(d) order whenever the
government’s application demonstrates reasonable suspicion.
The Supreme Court has specifically contrasted the meanings of
“whenever” and “only if,” explaining that the latter “states a necessary, but not
a sufficient, condition.” California v. Hodari D., 499 U.S. 621, 627-28 (1991).
The Court reiterated this point in construing a statutory formulation similar to
that here. In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Court analyzed the
language of 28 U.S.C. § 2253(c)(2), which governs the standard for issuance of
a certificate of appealability (“COA”) to a habeas petitioner. The Court
explained:
Section 2253(c)(2) . . . provides that “[a] certificate of appealability
may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.” (Emphasis added.) A
“substantial showing” does not entitle an applicant to a COA; it is
a necessary and not a sufficient condition. Nothing in the text of
§ 2253(c)(2) prohibits a circuit justice or judge from imposing
additional requirements, and one such additional requirement has
been approved by this Court.
2
Cf. Barker v. Hercules Offshore, 713 F.3d 208, 223 (5th Cir. 2013) (discussing
“Congress’s recent clarification of 28 U.S.C. § 1441(b)” whereby instead of stating that “‘[a]ny
other such action shall be removable only if none of the . . . defendants is a citizen of the State
in which such action is brought,’ the statute now explicitly specifies that a ‘civil action
otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any
of the . . . defendants is a citizen of the State in which such action is brought” (emphasis
omitted)); Carver v. Lehman, 558 F.3d 869, 876 n.12 (9th Cir. 2009) (“‘May . . . only if’ would
be effectively identical to ‘shall . . . unless’; ‘may . . . if’ is not.” (elisions in original) (emphasis
removed)).
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Miller-El, 537 U.S. at 349 (second and third alterations in original). Other
courts have applied this same understanding of “only if.” See Keweenaw Bay
Indian Cmty. v. United States, 136 F.3d 469, 475 (6th Cir. 1998) (explaining that
under 25 U.S.C. § 2710(d)(1), which “provid[es] that Class III gaming activities
‘shall be lawful on Indian lands only if such activities are . . . conducted in
conformance with a valid Tribal–State compact,’” “[a] valid, approved compact
is a necessary, but not a sufficient condition for Class III gaming”); Williams v.
Ward, 556 F.2d 1143, 1158 n.6 (2d Cir. 1977) (characterizing the statutory
formulations “release . . . shall . . . be granted . . . only if . . .” and “no prisoner
shall be released on parole unless . . .” as both “phrased . . . as necessary rather
than sufficient conditions” (emphasis added)). The Third Circuit’s discussion of
this point in its recent analysis of § 2703(d) is illustrative:
[T]he “phrase ‘only if’ describe[s] a necessary condition, not a
sufficient condition[.]’ . . . [W]hile a ‘necessary condition describes a
prerequisite[,] a ‘sufficient condition is a guarantee[.]’ . . . [For]
example[,] . . . while “a team may win the World Series only if it
makes the playoffs . . . a team’s meeting the necessary condition of
making the playoffs does not guarantee that the team will win the
World Series.” In contrast, “winning the division is a sufficient
condition for making the playoffs because a team that wins the
division is ensured a spot in the playoffs . . . [and thus] a team
makes the playoffs if it wins its division.”
In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n
Serv. to Disclose Records to the Gov’t, 620 F.3d at 317 (some alterations in
original) (citations omitted) (quoting Township of Tinicum v. U.S. Dep’t of
Transp., 582 F.3d 482, 489-90 (3d Cir. 2009)).
Following the government, the majority argues that this reading violates
the superfluity canon by “ignor[ing]” the word “shall,” Maj. Op. 10, in § 2703(d)’s
statement that an “order may be issued by any court that is a court of competent
jurisdiction and shall issue only if” reasonable suspicion is shown, 18 U.S.C.
§ 2703(d) (emphasis added). However, the government’s own interpretation
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renders superfluous the word “only” in the very same provision. That is, under
the government’s reading, the statute ought to simply say that an “order may be
issued by any court that is a court of competent jurisdiction and shall issue . . .
if the” government’s application meets the statutory standard. See id.; see also
United States v. Nordic Village, Inc., 503 U.S. 30, 32 (1992) (“[It is a] settled rule
that a statute must, if possible, be construed in such fashion that every word has
some operative effect.”); Carver, 558 F.3d at 876 n.12 (“The distinction between
‘if’ and ‘only if[]’ . . . is not a mere quibble over vocabulary — it goes right to the
heart of whether [a condition is a] necessary or sufficient condition[] . . . .”).
The government’s argument would have some force if Congress had
actually omitted the word “only” from the phrase “shall issue only if,” as the
government apparently believes Congress intended. See In re Application of
U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records
to the Gov’t, 620 F.3d at 317 (“The difficulty with the Government’s argument is
that the statute does contain the word ‘only’ and neither we nor the Government
is free to rewrite it.”). Indeed, the warrant provision of the Federal Rules of
Criminal Procedure — specifically adverted to in § 2703(c)(1)(A) and thus plainly
part of the statutory context within which the text must be read3 — would have
served as a ready model. Rule 41 requires that “[a]fter receiving an affidavit or
other information, a magistrate judge — or . . . authorized . . . judge of a state
3
“It is a ‘fundamental canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the overall statutory scheme.’” FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). Although “[t]he Federal
Rules . . . are not enacted by Congress, . . . ‘Congress participates in the rulemaking process,’
and “the Rules do not go into effect until Congress has had at least seven months to look them
over.” Bus. Guides, Inc. v. Chromatic Commc’ns. Enters., Inc., 498 U.S. 533, 552 (1991)
(citation omitted) (citing 28 U.S.C. § 2074 (Rules Enabling Act)). Thus, courts “must assume
that Congress [is] aware of th[e] [Federal] [R]ule[s] [of Criminal Procedure] when [legislation
is] drafted.” United States v. Mitchell, 723 F.2d 1040, 1046 (1st Cir. 1983); see also, e.g.,
United States v. Thompson, 287 F.3d 1244, 1250 (10th Cir. 2002) (“Federal Rule of Criminal
Procedure 6(f) sheds further light on the meaning of ‘found’ in 18 U.S.C. § 3282.”).
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court of record — must issue the warrant if there is probable cause to search for
and seize a person or property or to install and use a tracking device.” Fed. R.
Crim. P. 41(d)(1) (emphasis added). Similarly, in a related section of Title 18,
Congress explicitly provided for mandatory issuance of surveillance orders.4
Section 3123 governs “[i]ssuance of an order for a pen register or a trap and trace
device” and mandates that “upon an application” by a government attorney for
such a device, “the court shall enter an ex parte order authorizing the
installation and use of [the device], if the . . . information likely to be obtained
. . . is relevant to an ongoing criminal investigation.” 18 U.S.C. § 3123(a)(1)
(emphasis added).5 In rejecting the same interpretation of the statute advanced
by the government here, the Third Circuit described “th[is] difference between
‘shall . . . if’ (for a pen register) and ‘shall . . . only if’ (for an order under
§ 2703(d))” as “a powerful argument to which the Government does not
persuasively respond.” In re Application of U.S. for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d at 315-
4
“We assume that Congress is aware of existing law when it passes legislation.” Miles
v. Apex Marine Corp., 498 U.S. 19, 32 (1990). Additionally, “the meaning of one statute may
be affected by other Acts.” Brown & Williamson Tobacco Corp., 529 U.S. at 133; see also Green
v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1990) (Scalia, J., concurring) (“The meaning
of terms on the statute books ought to be determined, [in part] . . . on the basis of which
meaning is . . . most compatible with the surrounding body of law into which the provision
must be integrated — a compatibility which, by a benign fiction, we assume Congress always
has in mind.”); cf. Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress
includes particular language in one section of a statute but omits it in another . . . , it is
generally presumed that Congress acts intentionally in the disparate inclusion or exclusion.”
(alterations in original) (quoting Russello v. United States, 464 U.S. 16, 23 (1983))).
5
This distinct “if . . . shall” formulation also appears in an analogous statute governing
the issuance of orders for the production of records by judges of the Foreign Intelligence
Surveillance Court. See 50 U.S.C. § 1861(c)(1) (providing that, upon government application
for an order requiring the production of records for a counter-terrorism investigation, “if the
judge finds that the application meets the [statutory] requirements” — including “a statement
of facts showing that there are reasonable grounds to believe that the [records] sought are
relevant to an authorized investigation” — the judge shall enter an ex parte order as
requested” (emphasis added)).
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16; see also Carver, 558 F.3d at 876 n.12 (noting the critical semantic “distinction
between ‘if’ and ‘only if’”).
Accordingly, it cannot be said that the only plausible construction of the
statute is that a magistrate must issue a § 2703(d) order whenever the
government demonstrates reasonable suspicion. Because the statute is at least
ambiguous as to when warrant procedures are to be followed, if the government’s
interpretation “raise[s] serious constitutional problems, [we must] construe the
statute to avoid such problems unless such construction is plainly contrary to the
intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988).
III
The government’s interpretation raises the question of whether § 2703(c)
offends the Fourth Amendment by authorizing law enforcement to obtain cell
site location information without a warrant, which in turn depends on whether
cellular customers have a reasonable expectation of privacy in that information.
See, e.g., Kyllo v. United States, 533 U.S. 27, 33 (2001) (“[A] Fourth Amendment
search occurs when the government violates a subjective expectation of privacy
that society recognizes as reasonable.” (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring)). This constitutes a “substantial
constitutional question[],” see St. Cyr, 533 U.S. at 300, requiring application of
the avoidance canon.
As the Eleventh Circuit recently observed, the Supreme Court has
“underscore[d] its disinclination to establish broad precedents as to privacy
rights vis-a-vis electronic devices and emerging technologies” because of “the
difficulty in determining what privacy expectations are reasonable.” Rehberg v.
Paulk, 611 F.3d 828, 845 (11th Cir. 2010) (citing City of Ontario v. Quon, 130 S.
Ct. 2619, 2630 (2010)). In Quon, the Supreme Court cautioned that “[t]he
judiciary risks error by elaborating too fully on the Fourth Amendment
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implications of emerging technology before its role in society has become clear.”
130 S. Ct. at 2629. The Court avoided setting forth “[a] broad holding concerning
employees’ privacy expectations vis-à-vis employer-provided technological
equipment.” Id. at 2630. Instead, the Court held it “preferable to dispose of
th[e] case on narrower grounds.” Id. The Court achieved this narrower
disposition by “assum[ing] several propositions arguendo,” including that a
municipal police officer “ha[s] a reasonable expectation of privacy in the text
messages sent on the pager provided to him by the City.” Id. Particularly
relevant here, the Court explained:
In Katz, the Court relied on its own knowledge and experience to
conclude that there is a reasonable expectation of privacy in a
telephone booth. [Katz, 389 U.S. at 360-61 (Harlan, J., concurring).]
It is not so clear that courts at present are on so sure a ground. . . .
Rapid changes in the dynamics of communication and information
transmission are evident not just in the technology itself but in
what society accepts as proper behavior.
Quon, 130 S. Ct. at 2629.
Similarly, every member of the Court acknowledged last year that law
enforcement’s access to the location information generated by cell phones raises
serious constitutional questions. United States v. Jones, 132 S. Ct. 945 (2012).
In Jones, the Court unanimously held that attaching a global positioning system
(“GPS”) tracking device to a car and monitoring the car’s movements without a
valid warrant violated the Fourth Amendment, but divided in its reasoning.
Notably, a majority eschewed engaging with the “particularly vexing problems”
of applying a privacy analysis, id. at 953, and instead held that a search had
occurred because of the trespass inherent in “physically occup[ying] private
property for the purpose of obtaining information,” id. at 949; see also id. at 950
(“The Government contends that . . . Jones had no ‘reasonable expectation of
privacy’ in . . . the locations of the Jeep on the public roads, which were visible
to all. But we need not address the Government’s contentions, because Jones’s
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Fourth Amendment rights do not rise or fall with the Katz formulation.”). The
Court explained that even though “[i]t may be that [obtaining four weeks of
location information] through electronic means, without an accompanying
trespass, is an unconstitutional invasion of privacy, . . . [Jones] d[id] not require
[the Court] to answer that question,” which would “lead[] . . . needlessly into
additional thorny problems.” Id. at 953-54. The Court noted that “[it] may have
to grapple with these ‘vexing problems’ in some future case.” Id. at 954.
Justice Sotomayor cast the critical fifth vote in support of the majority
opinion. However, her concurrence expressed serious doubt about extending the
third party records doctrine applied in Smith v. Maryland, 442 U.S. 735 (1979)6
— and relied upon by today’s majority — to location information generated by
modern devices such as “GPS-enabled smartphones.” Jones, 132 S. Ct. at 955-57
(Sotomayor, J., concurring). Justice Sotomayor explained:
[In future cases] considering the existence of a reasonable societal
expectation of privacy in the sum of one’s public movements[,] . . . it
may be necessary to reconsider the premise that an individual has
no reasonable expectation of privacy in information voluntarily
disclosed to third parties. This approach is ill suited to the digital
age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out mundane
tasks. People disclose the phone numbers that they dial or text to
their cellular providers; the URLs that they visit and the e-mail
addresses with which they correspond to their Internet service
providers; and the books, groceries, and medications they purchase
to online retailers. . . . I would not assume that all information
voluntarily disclosed to some member of the public for a limited
6
Smith held that no Fourth Amendment “search” occurred, and thus “no warrant was
required,” when the government used a “pen register” to obtain the numbers that a telephone
customer dialed because even if the customer “entertained [an] actual [i.e., subjective]
expectation of privacy in the phone numbers he dialed, . . . his expectation was not ‘legitimate,”
because the customer “voluntarily conveyed to [the phone company] information that it had
facilities for recording and that it was free to record,” such that the customer thereby
“assumed the risk that the information would be divulged to police.” 442 U.S. at 742-44 .
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purpose is, for that reason alone, disentitled to Fourth Amendment
protection.
Id. at 957 (citations omitted); see also id. at 956 n.* (“Owners of GPS-equipped
. . . smartphones do not contemplate that these devices will be used to enable
covert surveillance of their movements.”). Significantly, Justice Sotomayor
explained that she “join[ed] the majority’s opinion” “because the Government’s
physical intrusion on Jones’ Jeep” made “[r]esolution of these difficult questions
. . . unnecessary.” Id. at 957 (emphasis added). Justice Alito, writing for four
justices, expressed similar concerns. See id. at 963 (Alito, J., concurring in the
judgment) (“Recent years have seen the emergence of many new devices that
permit the monitoring of a person’s movements. . . . Perhaps most significant,
cell phones and other wireless devices now permit wireless carriers to track and
record the location of users . . . . The availability and use of these and other new
devices will continue to shape the average person’s expectations about the
privacy of his or her daily movements.”).
Quon and Jones thus suggest that warrantless compulsion of cell site
location records raises serious Fourth Amendment questions. The cautious
approach taken by the Supreme Court makes clear that lower courts venture
onto uncertain terrain in applying a reasonable expectation of privacy analysis
to this law enforcement practice. Justice Sotomayor’s decisive concurrence in
Jones warns us not to “assume that all information voluntarily disclosed to some
member of the public for a limited purpose is, for that reason alone, disentitled
to Fourth Amendment protection.” See id. at 957 (Sotomayor, J., concurring).
“Although dicta, we do take such pronouncements from the Supreme Court
seriously.” Croft v. Perry, 624 F.3d 157, 164 (5th Cir. 2010). The divergent
conclusions reached by the Third Circuit and today’s majority starkly illustrate
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this uncertainty.7 In light of the difficulty of the constitutional question, “there
is no reason for rushing forward to resolve [it] here.” See Jones, 132 S. Ct. at
954. Rather, as in Jones and Quon, “[p]rudence counsels caution before . . .
establish[ing] far-reaching premises that define the existence, and extent, of
privacy expectations.” See Quon, 130 S. Ct. at 2629.
IV
Because there is substantial doubt as to whether cell phone users have a
reasonable expectation of privacy in cell site location information, it is not
merely “preferable to dispose of this case on narrower grounds,” see id., but
“incumbent upon us to read the statute to eliminate those doubts so long as such
a reading is not plainly contrary to the intent of Congress,” United States v. X-
Citement Video, Inc., 513 U.S. 64, 78 (1994). “This cardinal principle has its
roots in Chief Justice Marshall’s opinion for the Court in Murray v. The
Charming Betsy, 2 Cranch 64, 118 (1804), and has for so long been applied by
th[e] [Supreme] Court that it is beyond debate.” Edward J. DeBartolo Corp., 485
U.S. at 575.
Rather than acknowledge this obligation, however the majority adopts the
government’s textually strained, constitutionally loaded construction after a
cursory analysis; and boldly proceeds to pronounce upon the constitutional issue.
The majority states that “we cannot avoid the [constitutional] question” because
the district court below “held that all § 2703(d) orders for cell site information
[are] unconstitutional.” See Maj. Op. 11-12. However, this unsupported
7
See In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv.
to Disclose Records to the Gov’t, 620 F.3d at 317-18 (“A cell phone customer has not
‘voluntarily’ shared his location information with a cellular provider in any meaningful
way. . . . [I]t is unlikely that cell phone customers are aware that their cell phone providers
collect and store historical location information. Therefore, ‘[w]hen a cell phone user makes
a call, the only information that is voluntarily and knowingly conveyed to the phone company
is the number that is dialed and there is no indication to the user that making that call will
also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed
anything at all.’” (final alteration in original)).
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assertion is contrary to the Supreme Court’s instruction that whatever the basis
for a decision below, “we must independently inquire whether there is another
interpretation, not raising . . . serious constitutional concerns, that may be fairly
ascribed to [the statute].” Edward J. DeBartolo Corp., 485 U.S. at 577
(emphasis added); accord, e.g., St. Cyr, 533 U.S. at 299-300 (“[I]f an otherwise
acceptable construction of a statute would raise serious constitutional problems,
and where an alternative interpretation of the statute is ‘fairly possible,’ we are
obligated to construe the statute to avoid such problems.” (emphasis added)
(citations omitted)).8
As required by these precedents, I have endeavored to “ascertain whether
a construction of the statute is fairly possible by which the constitutional
question may be avoided.” See Sec. Indus. Bank, 459 U.S. at 78. I conclude that
such a construction is not only fairly possible, but better accords with the text,
structure, and purpose of the statute than the government’s interpretation.
V
A better interpretation is to read subsections 2703(c) and (d) together as
implicitly directing that the warrant procedures incorporated into subsection
2703(c)(1)(A) are to be followed when law enforcement seeks records that may
be protected by the Fourth Amendment. This alternative construction is both
“plausible” and “fairly possible,” see Milavetz, Gallop & Milavetz, P.A. v. United
States, 130 S. Ct. 1324, 1334 (2010), and certainly is not “plainly contrary to the
intent of Congress,” see X-Citement Video, Inc., 513 U.S. at 78; Edward J.
DeBartolo Corp., 485 U.S. at 575. Rather, this construction effectuates the text,
structure, and purpose of the statute.
8
Our obligation to “independently inquire” into plausible alternative interpretations,
see Edward J. DeBartolo Corp., 485 U.S. at 577 (emphasis added), is particularly pronounced
in this ex parte proceeding.
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For the reasons stated above, this alternative construction is not
inconsistent with the ambiguous language of § 2703(d). Unlike the government’s
interpretation, this reading has the considerable virtue of “giv[ing] effect to all
of th[e] [statute’s] provisions.” See United States ex rel. Eisenstein v. City of New
York, 556 U.S. 928, 933 (2009). “[O]btain[ing] a warrant” is the first-listed
procedure by which the government may seek to require the disclosure of non-
content call records under § 2703(c). 18 U.S.C. § 2703(c)(1)(A). Subsection
2703(c)(1)(A) specifically adverts to the warrant “procedures described in the
Federal Rules of Criminal Procedure” and “State warrant procedures.” Id.
§ 2703(c)(1)(A); see also, e.g., Fed. R. Crim. P. 41. The superfluity canon dictates
that we should prefer a construction of § 2703(c) that gives meaning and
significance to the warrant mechanism set forth in subsection 2703(c)(1)(A),
rather than rendering this provision superfluous or insignificant. See TRW Inc.,
534 U.S. at 31. The construction I propose does precisely this, by construing
subsection 2703(c)(1)(A) as applying when law enforcement seeks records that
may be protected by the Fourth Amendment.
By contrast, the government’s reading renders subsection 2703(c)(1)(A)
largely insignificant if not entirely superfluous.9 See In re Application of U.S. for
an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the
Gov’t, 620 F.3d at 317 (“The Government’s only retort to the argument that it
9
I note that § 2703(d) provides that “[i]n the case of a State governmental authority,
[a § 2703(d)] court order shall not issue if prohibited by the law of such State.” 18 U.S.C.
§ 2703(d). Thus, even under the government’s reading, the “State warrant procedures”
adverted to in § 2703(c)(1)(A) would presumably be utilized by the law enforcement agencies
of such a state. However, because this limitation on the issuance of § 2703(d) orders applies
only to “State governmental authorit[ies],” the government’s construction nonetheless renders
superfluous § 2703(c)(1)(A)’s specific citation to the warrant “procedures set forth in the
Federal Rules of Criminal Procedure.” See 18 U.S.C. § 2703(c)(1)(A). Moreover, the language
of subsection 2703(c)(1)(A) is identical to the description of warrant procedures under
subsection 2703(a), in which a warrant is the only means by which the government may obtain
the contents of an email stored for 180 days or less. See 18 U.S.C. § 2703(a).
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would never need to get a warrant under § 2703(c)(1)(A) if it could always get
[cell site location information] pursuant to an order under § 2703(d) is that the
warrant reference in § 2703(c)(1)(A) is ‘alive and well’ because a prosecutor can
‘at his or her option . . . employ a single form of compulsory process (a warrant),
rather than issuing a warrant for content and a separate subpoena or court
order for the associated non-content records.’ In other words, the Government
asserts that obtaining a warrant to get [cell site location information] is a purely
discretionary decision to be made by it, and one that it would make only if a
warrant were, in the Government’s view, constitutionally required. We believe
it trivializes the statutory options to read the § 2703(c)(1)(A) option as included
so that the Government may proceed on one paper rather than two.” (elision in
original) (citations to briefs omitted)).
This construction also accords with the larger structure of § 2703, which
repeatedly categorizes records based on considerations of privacy and provides
different and escalating mechanisms by which the government may access them.
See Brown & Williamson Tobacco Corp., 529 U.S. at 133 (“A court must . . .
interpret [a] statute ‘as a symmetrical and coherent regulatory scheme’ and ‘fit,
if possible, all parts into an harmonious whole.’” (citations omitted)). First,
subsection 2703(a) provides that the government “may require the disclosure by
[an email service] of the contents of” a subscriber email stored for 180 days or
less “only pursuant to a warrant.” See id. § 2703(a). Under subsection 2703(b),
the government may access the content of an email stored for longer than 180
days pursuant to either a subpoena or § 2703(d) order along with “prior notice
. . . to the subscriber.” Id. § 2703(a)-(b). Subsection 2703(c) then provides four
different mechanisms by which the government may access non-content call
records without customer consent. Id. § 2703(c). To require disclosure of more
extensive and revealing types of non-content information, the government must
employ increasingly formal procedures. At the most permissive end of this
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hierarchy, a law enforcement agency conducting a telemarketing fraud
investigation may obtain “the name, address and place of business of a
subscriber who is engaged in telemarketing” using only “a formal written
request” to the service provider. Id. § 2703(1)(D). To access somewhat more
revealing customer information — such as a customer’s “telephone connection
records,” “records of session times and durations,” “length of service,” “telephone
or instrument number or other subscriber number or identity,” and “means and
source of payment” — the government must “use[] an administrative subpoena
authorized by a Federal or State statute or a Federal or State grand jury or trial
subpoena.” Id. § 2703(1)(E), (2). The government may seek information beyond
such “essentially billing-related or business records,” In re Application of U.S.
for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d at 297 (Wilson, J.,
concurring), “only when [it] . . . obtains a warrant [or] . . . a [§ 2703(d)] order,” 18
U.S.C. § 2703(c)(1)(A)-(B) (emphasis added). It accords with this statutory
structure to construe subsection 2703(c)(1)(A)’s warrant provision — the most
formal and exacting of the procedures described — as applying to those records
that may be subject to Fourth Amendment protection.
Like the statutory language and structure, the legislative history suggests
that Congress drafted § 2703(c) to be flexible enough to avoid constitutional
concerns that might endanger the statute’s validity. The Stored
Communications Act was intended “to protect privacy interests in personal and
proprietary information, while protecting the Government’s legitimate law
enforcement needs.” S. Rep. No. 99-541, at 3 (1986) (Committee Report).10 The
drafters were explicitly mindful of the need for privacy protections to evolve with
10
“In surveying legislative history [the Supreme Court] ha[s]repeatedly stated that the
authoritative source for finding the Legislature’s intent lies in the Committee Reports on the
bill, which ‘represen[t] the considered and collective understanding of those Congressmen
involved in drafting and studying proposed legislation.’” Garcia v. United States, 469 U.S. 70,
76 (1984) (third alteration in original) (quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)).
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“dramatic changes in new . . . telecommunications technologies” such as “cellular
. . . telephones.” See id. at *1-2. The Committee Report stated:
When the Framers of the Constitution acted to guard against the
arbitrary use of Government power to maintain surveillance over
citizens, there were limited methods of intrusion into the ‘houses,
papers, and effects’ protected by the [F]ourth [A]mendment. During
the intervening 200 years, development of new methods of
communication and devices for surveillance has expanded
dramatically the opportunity for such intrusions. . . .
[T]he law must advance with the technology to ensure the continued
vitality of the fourth amendment. Privacy cannot be left to depend
solely on physical protection, or it will gradually erode as technology
advances. Congress must act to protect the privacy of our citizens.
If we do not, we will promote the gradual erosion of this precious
right.
Id. at *1-2, 5 (1986). Congress was also mindful that “[i]n th[e] rapidly
developing area of communications [such as] cellular non-wire telephone
connections . . . , distinctions such as [whether there does or does not exist a
reasonable expectation of privacy] are not always clear or obvious.” Id. at *4
(final alteration in original).11
As Congress is well aware, “the Constitution invests the Judiciary, not the
Legislature, with the final power to construe the law.” Nationwide Mut. Ins. Co.
v. Darden, 503 U.S. 318, 325 (1992). In drafting the Stored Communications
Act, Congress certainly knew that a statute permitting law enforcement to
access information about a suspect without a warrant or consent could be subject
to constitutional challenge and potential invalidation. See Marshall v. Barlow’s,
Inc., 436 U.S. 307 (1978) (holding statute unconstitutional insofar as it
purported to authorize search without warrant or warrant equivalent); Berger
v. New York, 388 U.S. 41 (1967) (holding facially unconstitutional statute
11
See also H.R. Rep. No. 106-932, at 17 (2000) (“Currently, there are no clear legal
standards governing when the government can collect location information from cell phone
companies.”).
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authorizing issuance of orders for electronic eavesdropping without probable
cause). The drafters of the Stored Communications Act were consciously
engaged in an ongoing conversation between Congress and the Court regarding
privacy protections. See, e.g., S. Rep. No. 99-541, at 2 (1986) (citing Berger, 388
U.S. 41).12
“It is presumable that Congress legislates with knowledge of our basic
rules of statutory construction,” McNary v. Haitian Refugee Ctr., 498 U.S. 479,
496 (1991), and the constitutional avoidance canon has long been recognized as
“[‘]a cardinal principle’ of statutory interpretation,” Zadvydas, 533 U.S. at 689.
Indeed, that canon “rest[s] on the reasonable presumption that Congress did not
intend” its enactments to be construed so as to “raise[] serious constitutional
doubts.” Clark, 543 U.S. at 381. In § 2703(c), Congress appears to have created
a framework capable of accommodating constitutional concerns that might arise
by providing for the use of warrant procedures as a sort of safety valve by which
such concerns could be avoided and thereby alleviated. Subsection 2703(c)(1)(A)
strongly indicates that Congress intended warrant procedures to play a
meaningful role in its legislative effort to balance “protect[ion] [of] privacy
interests” with “legitimate law enforcement needs.” See S. Rep. No. 99-541 at
3 (1986).13
12
See also Bartnicki v. Vopper, 532 U.S. 514, 522-23 (2001) (“In Berger, we held that
New York’s broadly written statute authorizing the police to conduct wiretaps violated the
Fourth Amendment. Largely in response to that decision, and to our holding in Katz v. United
States, 389 U.S. 347 (1967), that the attachment of a listening and recording device to the
outside of a telephone booth constituted a search, ‘Congress undertook to draft comprehensive
legislation both authorizing the use of evidence obtained by electronic surveillance on specified
conditions, and prohibiting its use otherwise.[’]”).
13
See also In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n
Serv. to Disclose Records to the Gov’t, 620 F.3d at 317 n.8 (“In our experience, magistrate
judges have not been overly demanding in providing warrants as long as the Government is
not intruding beyond constitutional boundaries.”); cf. Johnson v. United States, 333 U.S. 10,
13-14 (1948) (“When the right of privacy must reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by a policeman or Government enforcement
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In observing that the government’s interpretation raises serious
constitutional doubts and construing § 2703 in light of that observation, I take
no position on the constitutional question of whether or when the Fourth
Amendment itself would require the government to obtain a warrant for cell site
location records. As the Supreme Court has emphasized, “the canon of
constitutional avoidance . . . allows courts to avoid the decision of constitutional
questions”; it “is not a method of adjudicating constitutional questions by other
means.” Clark, 543 U.S. at 381. In my view, we must accord Congress the
respect inherent in “the reasonable presumption” upon which the avoidance
canon rests, see id., by reading the statute as adopted by a body mindful of the
constitutional complexities of privacy legislation. Indeed, the legislative history
reflects precisely such concerns. See See S. Rep. 99-541 at 1-5 (1986); cf. Jones,
132 S. Ct. at 964 (Alito, J., concurring in the judgment) (“In circumstances
involving dramatic technological change, the best solution to privacy concerns
may be legislative. A legislative body is well situated to gauge changing public
attitudes, to draw detailed lines, and to balance privacy and public safety in a
comprehensive way.”). Moreover, as the Supreme Court noted in Clark, “[i]t is
not at all unusual to give a statute’s ambiguous language a limiting construction
called for by one of the statute’s applications.” See Clark, 543 U.S. at 380; see
also Zadvydas, 533 U.S. at 689 (“We have read significant limitations into
[numerous] statutes in order to avoid their constitutional invalidation.”).14
agent.”); Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment) (“[W]here uncertainty
exists with respect to whether a certain period of GPS surveillance is long enough to constitute
a Fourth Amendment search, the police may always seek a warrant.”).
14
In Zadvydas, the Court “read an implicit limitation into” an immigration detention
statute, 8 U.S.C. § 1231(a)(6) (1994). 533 U.S. at 689. “[T]he Government[] argu[ed] that the
statute . . . set[] no ‘limit on the length of time beyond the removal period that an alien who
falls within one of the [statutory] categories may be detained.’” Id. Applying the avoidance
canon in light of a potential due process problem, the Court construed the statute as implicitly
“limit[ing] an alien’s post-removal-period detention to a period reasonably necessary to bring
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VI
Having concluded that the statute is best construed as directing that
warrant procedures be followed when the government seeks non-content records
that may be protected by the Fourth Amendment, I would further hold that
historical cell site location records constitute one example of this potentially
protected information. Thus, I would hold that the government must obtain a
warrant pursuant to § 2703(A)(1)(B) when it seeks to compel disclosure of
historical cell site location data, because that individual data may be
constitutionally protected.
The precise nature of the cell site location records sought in the present
case is a matter of some dispute. In general, however, historical cell site location
information appears to consist of, at minimum, a cellular service provider’s
records of which “cell sites” — i.e., “cell towers” or “base stations” mounted with
antennae — a particular customer’s cell phone has accessed over a particular
period. The briefs submitted by the government and various amici provide
different accounts of the precision of the information that such records contain.
The magistrate judge below premised his Fourth Amendment analysis upon a
series of “findings . . . based on expert testimony . . . given at a [June 2010]
House Judiciary Subcommittee hearing . . . [intended] to educate Congress on
the current state of location technology in the telecommunications industry.” In
about that alien’s removal from the United States.” Id. In Clark, the Court applied the same
limiting construction to all the statutory categories. 543 U.S. at 377-79.
Here, as with the statute construed in Zadvydas and Clark, it is not clear that Congress
intended § 2703(c)’s statement that “[a] governmental entity may require a provider . . . to
disclose [non-content customer] records” without the customer’s consent “only when the
governmental entity . . . obtains a warrant” or “a [§ 2703(d)] order,” see 18 U.S.C. § 2703(c)(1)
(emphasis added), to mean that the government has sole discretion as to when to follow
warrant procedures. See Zadvydas, 533 U.S. at 697 (“We cannot find . . . any clear indication
of congressional intent to grant the Attorney General the power to hold indefinitely in
confinement an alien ordered removed. . . . The Government points to the statute’s word ‘may.’
But while ‘may’ suggests discretion, it does not necessarily suggest unlimited discretion. In
that respect the word ‘may’ is ambiguous.”).
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re Application of U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 830
(S.D. Tex. 2010) (Smith, M.J.). In particular, the magistrate judge looked to the
testimony of Matt Blaze, “Associate Professor of Computer and Information
Science, University of Pennsylvania.” Id. at 830 n.13; see also id. at 831-33 nn.
7-28. A subsequent committee report summarized Professor Blaze’s testimony
at the June 2010 hearing as follows:
Professor Blaze educat[ed] the Subcommittee on location
technologies — specifically how different technologies interface with
cell phones and locate their positions with varying degrees of
specificity and precision in various types of environments, both
indoors and out. Professor Blaze explained how, even if a network
only records cell tower data (as opposed to GPS), the precision of
that data will vary widely for any given customer over the course of
a day and, for a typical user over time, some of that data will likely
have locational precision similar to that of GPS. Indeed, in urban
areas where providers are using microcell technology, the level of
precision for cell tower location data can include individual floors
and rooms within buildings.
H.R. Rep. No. 111-712, at 90 (2011).
The government disputes several of these assertions. As the majority
acknowledges, however, it is undisputed that “the reason that the Government
seeks such information is to locate or track a suspect in a criminal investigation”
and that “[t]he data must be precise enough to be useful to the Government,
which would suggest that, at least in some cases, it can narrow someone’s
location to a fairly small area.” Maj. Op. 13. Moreover, there seems to be no
serious question that the precision of these records is constantly increasing as
cellular service providers construct ever denser networks of base stations and
substations to keep pace with consumer demand and to comply with federal
regulations requiring them to provide emergency dispatchers with increasingly
precise coordinates for 911 calls placed by cell phone. See 47 C.F.R.
§ 20.18(h)(1). However, I will not attempt to wade into the empirical debate as
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to whether or when network-based cell site location records will provide law
enforcement with information regarding a suspect’s location and movements
that are equivalent to phone-based GPS location records.15 Even were it possible
to ascertain the nature of the records generated and stored by the various
cellular service providers, such a determination is unnecessary here.
Although government access to cell site location information was not
specifically envisioned or considered by Congress when it enacted the Stored
Communications Act, presently these records appear to be the most personally
revealing information that may be said to fall within § 2703(c)’s framework for
the disclosure of “information pertaining to a subscriber or customer . . . not
including the contents of communications.” See 18 U.S.C. § 2703(c)(1). The
general character of cell site location information and the purposes for which the
government seeks it make it largely analogous to GPS location information,
which the Supreme Court has indicated may implicate Fourth Amendment
privacy interests. See Jones, 132 S. Ct. at 953-54; id. at 955-57 (Sotomayor, J.,
concurring); id. at 963-64 (Alito, J., concurring in the judgment).
Accordingly, I would hold that subsection 2703(c)(1)(A) applies to
historical cell site location records, such that the statute requires the
government to “obtain[] a warrant” to compel their disclosure. See 18 U.S.C.
§ 2703(c)(1)(A).
VII
The Third Circuit recently analyzed § 2703(c) without reference to
avoidance principles. In contrast to today’s majority, I agree with the Third
Circuit that § 2703(c) is best read as not requiring a court to issue a § 2703(d)
15
Cf. Quon, 130 S. Ct. at 2629 (“In Katz, the Court relied on its own knowledge and
experience to conclude that there is a reasonable expectation of privacy in a telephone booth.
It is not so clear that courts at present are on so sure a ground.” (citation omitted)).
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order whenever the government’s application satisfies the statutory reasonable
suspicion standard. See In re Application of U.S. for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d at 314-
17. However, the Third Circuit would give effect to subsection 2703(c)(1)(A) by
instructing magistrates to determine whether to insist upon warrant procedures
by engaging in a Katz-like inquiry that “balances the Government’s need . . . for
[cell site location] information with the privacy interests of cell phone users.”
See id. at 319.16 Respectfully, it seems to me that this would require magistrates
routinely to conduct a constitutional privacy analysis of the kind the Supreme
Court has instructed courts to avoid whenever fairly possible.17 In this respect,
I believe that the Third Circuit failed to heed the Supreme Court’s repeated
admonitions regarding the difficulty and uncertainty of conducting this sort of
privacy analysis at a time when communications technologies and our
corresponding privacy expectations are both in flux.18
16
The Third Circuit committed the same error as today’s majority by unnecessarily
pronouncing upon the ultimate constitutional question of whether cellular customers have a
reasonable expectation of privacy in cell site location information. See In re Application of U.S.
for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620
F.3d at 317-18.
17
Similarly, the proposal set forth in Judge Tashima’s Third Circuit concurrence is at
odds with avoidance principles insofar as it suggests that magistrates should attempt to
determine whether issuing a § 2703(d) order “would violate the Fourth Amendment absent a
showing of probable cause.” See id. at 320 (Tashima, J., concurring).
18
See Quon, 130 S. Ct. at 2629; see also Jones, 132 S. Ct. at 962 (Alito, J., concurring
in the judgment) (“The Katz expectation-of-privacy test . . . involves a degree of circularity and
judges are apt to confuse their own expectations of privacy with those of the hypothetical
reasonable person to which the Katz test looks. In addition, the Katz test rests on the
assumption that this hypothetical reasonable person has a well-developed and stable set of
privacy expectations. But technology can change those expectations. Dramatic technological
change may lead to periods in which popular expectations are in flux and may ultimately
produce significant changes in popular attitudes.” (citations omitted)); cf. Rehberg, 611 F.3d
at 846 (“[T]he questions of whether Fourth Amendment principles governing a search of [a
suspect]’s home also should apply to subpoenas sent to a third-party [internet service provider
(ISP)] for electronic data stored on the third-party’s server, and whether [the suspect] had a
reasonable privacy expectation in the contents of his personal emails sent voluntarily through
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Moreover, ex parte application proceedings conducted in the absence of
concrete investigative facts provide a poor vehicle for the development of Fourth
Amendment doctrine. The Quon Court cautioned against using “the facts in [a
single] case . . . to establish far-reaching” privacy principles. 130 S. Ct. at 2629.
It seems to me even less prudent to set forth such principles in the context of an
ex parte § 2703(d) application, in which there is literally no factual record
whatsoever.19 The speculative nature of this abstract constitutional analysis
confirms that § 2703(c) is best construed to provide for warrant procedures when
the government seeks information pertaining to individuals that may be
constitutionally protected, such as historical cell site location records.
VIII
In sum, I conclude that the text of the Stored Communications Act is
ambiguous as to when the government is to follow warrant procedures to compel
that third-party ISP, are complex, difficult, and ‘far-reaching’ legal issues that we should be
cautious about resolving too broadly.” (quoting Quon, 130 S. Ct. at 2629)).
19
See Sibron v. New York, 392 U.S. 40, 59 (1968) (“The constitutional validity of a
warrantless search is pre-eminently the sort of question which can only be decided in the
concrete factual context of the individual case.”); Warshak v. United States, 532 F.3d 521, 528
(6th Cir. 2008) (en banc) (“In determining the . . . the legitimacy of citizens’ expectations of
privacy, courts typically . . . reach[] case-by-case determinations that turn on the concrete, not
the general, and offer[] incremental, not sweeping, pronouncements of law[,] . . . in two
discrete, post-enforcement settings: (1) a motion to suppress in a criminal case or (2) a
damages claim . . . against the officers who conducted the search. In both settings, the
reviewing court looks at the claim in the context of an actual, not a hypothetical, search and
in the context of a developed factual record of the reasons for and the nature of the search.”
(citations omitted)); Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va.
L. Rev. 1241, 1281 (2010) (“[E]x ante predictions of reasonableness will be more error prone
than ex post assessments [because] ex ante restrictions require courts to ‘slosh [their] way
through the factbound morass of reasonableness’ without actual facts.” (third alteration in
original) (footnotes omitted) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007))); cf.
Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (explaining that Article III standing doctrine
works to “assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination” and “preserves the vitality of the
adversarial process by assuring . . . that the legal questions presented . . . will be resolved, not
in the rarified atmosphere of a debating society, but in a concrete factual context conducive
to a realistic appreciation of the consequences of judicial action” (second elision in original)).
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disclosure of non-content customer call records. To resolve this ambiguity, I
would apply the Supreme Court’s constitutional avoidance jurisprudence. I
would recognize that non-consensual, warrantless compulsion of customer cell
site location records raises serious and debatable constitutional questions. In
order to avoid these difficult questions, as we must if fairly possible, I would
construe the statutory framework as implicitly directing that § 2703(c)(1)(A)
warrant procedures be followed when the government seeks non-content records
that may be constitutionally protected, including historical cell site location
records. Thus, I would instruct magistrates to require the government to obtain
a warrant pursuant to § 2703(c)(1)(A) when it seeks cell site location data.
Accordingly, I would affirm the denial of the government’s application to compel
disclosure of such records here without consent or a warrant supported by
probable cause, albeit on different grounds than those relied upon by the district
court and magistrate judge. Therefore, and for the reasons set forth above, I
respectfully dissent.
53