University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name USA v. Pen Register NS-TX-0001
Docket / Court 4:06-mc-00356 ( S.D. Tex. )
State/Territory Texas
Case Type(s) National Security
Case Summary
On May 23, 2006, the government applied to the Southern District of Texas for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking, pursuant to the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, which is part of the ... read more >
On May 23, 2006, the government applied to the Southern District of Texas for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking, pursuant to the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, which is part of the Electronic Communications Privacy Act (ECPA). The application raised two novel legal issues: whether the Government may obtain "postcut-through dialed digits" containing communication contents under the authority of the Pen/Trap Statute; and whether limited cell site information may be obtained prospectively under the dual or hybrid authority of the Pen/Trap Statute and the Stored Communications Act ("SCA"), which was also part of ECPA.

On May 23, 2006, Magistrate Judge Stephen Smith issued an order granting in part but denying access to post-cut-through-dialed digits (any numbers dialed from a telephone after the call is initially setup or "cut-through") as well as the limited cell site authority (specifically, location of the antenna tower and sector to which the cell phone sends its signal). In response to the government's informal request, Judge Smith agreed to reconsider the dialed digits ruling and invited full briefing by the government as well as interested parties. Judge Smith also agreed to reconsider the cell site issue in light of a recent decision by a district judge in this district, In re U.S. for an Order, 433 F. Supp. 2d 804 (S.D. Tex. 2006).

In June, the government filed the requested brief. In addition, the Electronic Frontier Foundation and Center for Democracy and Technology filed an amicus brief on the issue.

On July 19, 2006, Judge Smith affirmed his decision. Judge Smith held that the government could not obtain post-cut-through dialed digits, and that the government could not prospectively obtain limited cell site information under the dual or hybrid authority of the Pen/Trap Statute and the Stored Communications Act (SCA). In re the Application of United States, 441 F. Supp. 2d 816 (S.D. Tex. 2006).

This decision cast doubt on the lawfulness of the government's ongoing internet metadata surveillance, carried out under the Foreign Intelligence Surveillance Act. So the Foreign Intelligence Surveillance Court ordered the government to address the ongoing validity of the internet metadata program in NS-DC-0062 in this Clearinghouse.

Jessica Kincaid - 02/05/2015


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action None on record
Defendant(s) None on record
Plaintiff Description U.S. seeking warrant.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement

Source of Relief Litigation
Form of Settlement None on record
Order Duration 2006 - 2006
Case Closing Year 2006
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
4:06-mj-356 (S.D. Tex.) 11/15/2006
NS-TX-0001-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Order 05/25/2006 (S.D. Tex.)
NS-TX-0001-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Brief of the United States in Response to the Court's May 24, 2006 Order regarding Post-Cut-Through-Dialed Digits 06/16/2006
NS-TX-0001-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Brief Amicus Curiae of Electronic Frontier Foundation and Center for Democracy and Technology in regard to Court's May 24, 2006 Order on Post-Cut-Through Dialed Digits 06/30/2006
NS-TX-0001-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 07/19/2006 (441 F.Supp.2d 816) (S.D. Tex.)
NS-TX-0001-0002.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Smith, Stephen W. (S.D. Tex.) [Magistrate]
NS-TX-0001-0002
Monitors/Masters None on record
Plaintiff's Lawyers Degabrielle, Donald J. Jr. (Texas)
NS-TX-0001-0003
Stabe, Robert J. (Texas)
NS-TX-0001-9000
Defendant's Lawyers None on record
Other Lawyers Bankston, Kevin (California)
NS-TX-0001-0004 | NS-TX-0001-9000
Dempsey, James X (District of Columbia)
NS-TX-0001-0004
Morris, John B. (District of Columbia)
NS-TX-0001-0004
Tien, Lee (California)
NS-TX-0001-0004

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