Magistrate Judge Denies Court Order Application for Cell Tower Dumps

The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications Act for records of all of the cell phone numbers in communication with four different cell towers used around the time and place of a specific crime under investigation. The decision relies primarily on Magistrate Judge Smith’s decision now on appeal before the Fifth Circuit that held that cell-site data is protected under the Fourth Amendment and compelling it therefore requires a warrant. The opinion adds:

Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment. The Constitution mandates that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. It further provides that “no Warrants shall issue, but upon probable cause.” Id.; see also Fed.R.Crim.P. 41 (addressing the issuance of warrants). There is nothing from the Government in its four applications to support the position that the “specific and articulable facts” standard and § 2703(d) apply to cell tower dumps.

Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. In one criminal investigation, the Government received the names, cell phone numbers, and subscriber information of 179 innocent individuals. See United States v. Soto, No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum in Support of Motion to Suppress). Although the use of a court-sanctioned cell tower dump invariably leads to such information being provided to the Government, in order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information. Although this issue was raised at the hearing, the Government has not addressed it to date. This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.