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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

F I L E D
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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No. 11-20884

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.
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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.

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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.

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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).

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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.

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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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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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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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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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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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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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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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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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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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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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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 ma