In this case in 2005, as part of an ongoing criminal investigation in the Southern District of Texas, the government sought a court order compelling a cell phone company to disclose records of a customer's cell phone use. Among the records sought was "cell site data," which reveals the user's physical location when the cellphone is turned on. Following its standard practice for this district, the government combined its request for subscriber records with an application to install a pen register and trap/trace device on the target phone. The underlying order and application have been seals at the government's request, in order not to jeopardize the ongoing criminal investigation. However, the court did not seal a brief filed by the U.S. on August 23, 2005, and an opinion issued on October 14, 2005. These documents concerned a matter of statutory interpretation which did not hinge on the particulars of the underlying investigation.
On August 23, 2005, the U.S. filed a brief
on cell site information. The U.S. described how it traditionally used 18 U.S.C. §§ 2703(c) and (d) of the Stored Communications Act to obtain cell site information. However, in an unreleased memorandum date June 10, 2005, Magistrate Judge Stephen Smith raised two objections to that process. The U.S. addressed these objections by asserting a combined authority of both the pen/trap statute and § 2703 of the Stored Communications Act (SCA) to collect cell site information.
On September 2, 2003, the Court granted the application in large part, authorizing the continued use of a pen register/trap and trace device and disclosure of certain customer records including historical cell site data. However, the order denied access to prospective cell site information.
On October 14, 2005, Magistrate Judge Stephen Smith issued an opinion
in which he again denied the government access to cell site locations. Judge Smith held that prospective cell site data qualifies as tracking device information under the Electronic Communications Privacy Act (ECPA) and that the government could not obtain prospective cell site data under the statute governing authority for pen registers and trap devices. In addition, Judge Smith held that the government could not obtain cell site data pursuant to wiretap statute or provisions of the SCA authorizing disclosure of the contents of stored communications. Finally, Judge Smith held that the order authorizing the government's use of pen register/trap and trace devices could not be used in conjunction with an SCA order authorizing access to cellphone subscriber records to collect prospective cell site data without establishing probably cause required for tracking device. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005).
This all of the information available about the case. There were further orders in this case, but they remain under seal.
In 2006, Judge Smith again addressed another U.S. request for cell site location in USA v. Pen Register, NS-TX-0001
in this Clearinghouse. Subsequently, in NS-DC-0062
, the Foreign Intelligence Court ordered the U.S. to address the ongoing validity of the National Security Agency's internet metadata surveillance program in light of that 2006 decision in NS-TX-0001.Jessica Kincaid - 03/17/2015