In re Application for Monitoring of Glob. Positioning Sys. Info.

646 F.Supp.3d 116

IN RE Application for MONITORING OF GLOBAL POSITIONING SYSTEM INFORMATION and Cell Site Location Data for Two T-Mobile Cell Phones and Search of Information Associated with the Same Numbers in Violation of [Redacted]

Case No. 22-sc-764 (ZMF)

United States District Court, District of Columbia

Signed December 20, 2022

Jennifer E. Nimer, Nimer Law LLC, Dublin, OH, for Chaitanya Kumar Neerukonda.

Ernesto Horacio Molina, Jr., U.S. Department of Justice Office of Immigration Litigation, Appellate Section, Washington, DC, Siu Wong, U.S. Department of Justice, Civil Division, Washington, DC, for Merrick B. Garland, Antony J. Blinken, Ian G. Brownlee, Alejandro N. Mayorkas, Brendan Mullarkey, John Does # 1-# 10.

Under Seal¹

MEMORANDUM OPINION

ZIA M. FARUQUI, UNITED STATES MAGISTRATE JUDGE

I. BACKGROUND

Cell phone providers can obtain the prospective precise location information ("PLI") "of a user's wireless device by relying on the device's built-in [global positioning system ("GPS")] capability,"² or "by measuring signals the device sends to multiple towers or other antennas." Geolocation Technology and Privacy: Hearing Before H. Comm. On Oversight & Gov't Reform, 114th Cong. (2016) (statement of Richard Downing, Acting Deputy Assistant Att'y Gen., U.S. Dep't of Just.).

The government applied for a search warrant (the "Warrant") to compel a cell phone service provider (the "Provider") to produce PLI³ for two individuals for a period of thirty days, pursuant to 18 U.S.C. § 2703 of the Stored Communications Act ("SCA") and Federal Rule of Criminal Procedure 41 ("Rule 41"). See Appl. for Warrant by Telephone or Other Reliable Electronic Means ("Warrant Appl.") 42, ECF No. 1. The government alleged that these two individuals were involved in ongoing criminal offenses. See Warrant Appl. at 14.

The government also submitted a combined application for a nondisclosure order pursuant to 18 U.S.C. § 2705(b) of the SCA ("NDO"), delayed notice order pursuant to 18 U.S.C. § 3103a(b) ("Delayed Notice Order"), and a sealing order citing to Washington Post v. Robinson, 935 F.2d 282, 287-89 (D.C. Cir. 1991) ("Sealing Order"). See Appl. for Nondisclosure Order Under 18 U.S.C. § 2705(b) and to Seal Warrant and Related Documents ("NDO, Sealing, & Delayed Notice Appl."), ECF No. 2. This three-headed hydra sought to preclude notice of the search. See id.

The Court granted in part and denied in part the government's requests. See Order, ECF No. 4; Min. Order (Mar. 25, 2022).

II. LEGAL AUTHORITY FOR PLI WARRANTS

In the beginning, the government sought PLI by requesting a hybrid 18 U.S.C. § 2703(d) order ("2703(d) Order") and pen register trap and trace order pursuant to 18 U.S.C. § 3123 ("PRTT"). See In re Application of U.S. for Ord. for Disclosure of Telecomms. Recs. & Authorizing Use of Pen Reg. & Trap & Trace, 405 F. Supp. 2d 435, 444-49 (S.D.N.Y. 2005). This hybrid order was subject to a lower standard of proof than the probable cause standard required for a search warrant. See id. However, even then, prescient prosecutors sought PLI pursuant to a search warrant. See In re Matter of Application of U.S. for Order Authorizing Monitoring of Geolocation & Cell Site Data for Sprint Spectrum Cell Phone Number ESN, No. 6-mc-186, 2006 WL 6217584, at *2-*4 (D.D.C. Aug. 25, 2006) (not ruling on the validity of the "hybrid theory" because the government established probable cause to obtain PLI via a warrant). The Supreme Court subsequently ruled that people have a reasonable expectation of privacy in their historical location information. See Carpenter v. United States, — U.S. —, 138 S. Ct. 2206, 2220, 201 L.Ed.2d 507 (2018).⁴ PLI requests have since evolved to a new hybrid species: a search warrant and PRTT order ("PLI Warrant"). See Warrant Appl.; see also In re Application of U.S., 405 F. Supp. 2d at 443-44 (government must combine a search warrant with a PRTT order to obtain PLI).

A. Search Warrants

Rule 41 authorizes search and seizure warrants. See Fed. R. Crim. P. 41. The SCA offers additional search warrant authority, allowing the government to obtain "information collected by" a cell phone provider.⁵ In re Matter of Search of Cellular Tel., 430 F. Supp. 3d 1264, 1268 (D. Utah 2019). SCA warrants must comport with Rule 41. See 18 U.S.C. § 2703(c)(1)(A).

PLI Warrants draw on the SCA for two reasons. First, "warrants issued pursuant to the SCA are exempted from the [in-district] venue limitation of Rule 41(b)[.]" United States v. Guzman Loera, 24 F.4th 144, 158 (2d Cir. 2022). Second, the SCA allows the government to petition a court to forbid a provider from giving its customer notice of the search. See 18 U.S.C. § 2705(b).

B. Pen Register Act

A PRTT order forces a provider to "capture [and produce] real-time records of numbers dialed and calls received" for up to sixty days. United States v. Griffin, No. 2:17-cr-20639, 2022 WL 2072042, at *6 (E.D. Mich. June 8, 2022); see 18 U.S.C. § 3123(c)(1). Prior to the Pen Register Act, the government could only compel a provider to prospectively produce such data via the All Writs Act. See United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). At bottom, New York Telephone reveals that the government requires some authority to compel prospective actions from a third party.⁶ See id.

A PRTT order provides the government with the authority to compel a provider to produce PLI data. See In re Matter of Application of U.S. for Ord. Authorizing Installation & Use of Pen Reg., 415 F. Supp. 2d 211, 214 (W.D.N.Y. 2006) ("[L]ocation data is encompassed by the term 'signaling information' when that term was added to the Pen Statute by Congress in 2001 as part of the Patriot Act[.]"); In re Application of U.S., 405 F. Supp. 2d at 440-41 ("[P]hysical location data would have been obtainable under the Pen Register Statute[.]").⁷

That the government must obtain PLI via a search warrant—instead of a § 2703(d) order—does not obviate the need for a PRTT order. See N. Y. Tel. Co., 434 U.S. at 176-77, 98 S.Ct. 364; Griffin, 2022 WL 2072042, at *6. The government shares this belief, as the Warrant request cites the Pen Register Act. See Warrant Appl. at 12.

Adding the Pen Register Act authority minimally burdens the government. To obtain a PRTT order, an attorney for the government must "certif[y]" that use of the PRTT "is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1). That showing is far less than probable cause. See United States v. Jones, No. 21-cr-89, 2022 WL 4282098, at *4-5 (W.D. Ky. May 24, 2022) R. & R. adopted, 2022 WL 3335773, at * 1 (W.D. Ky. Aug. 12, 2022). Thus, a search warrant request will always satisfy the PRTT Order threshold. See id. at *5 (collecting cases). The only added labor is administrative: (1) a statement on the application and warrant reflecting the PRTT request/order, see 18 U.S.C. § 3122(a)(1)-(2); (2) the prosecutor's signature on the affidavit—which normally is not included in a search warrant application, see § 3122(a)(1), (b)(2); (3) the identity of the subscriber of the phone, see § 3123(b)(1)(A); and (4) the identity of the subject(s) of the investigation, see § 3123(b)(1)(B).

C. Compliance of the Warrant

The government's application complied with Rule 41 by establishing probable cause of ongoing criminal offenses. See Warrant Appl. at 14-39. The government further complied with the SCA by demonstrating that overt acts occurred in this district, which permitted the Court to issue an out-of-district warrant upon the Provider. See, e.g., Warrant Appl. at 18. The government also complied with the requirements of the Pen Register Act. See Warrant Appl. at 44. Thus, the Court issued a hybrid warrant authorizing the government to compel the Provider to provide the targets' PLI for a period of thirty days. See Search & Seizure Warrant, ECF No. 3.

III. NONDISCLOSURE AND DELAYED NOTICE ORDERS

The government relied on two statutes to preclude direct notice of the search warrant to the targets of its investigation. First, the government requested an NDO, see NDO, Sealing, & Delayed Notice Appl., which would require the Provider "not to notify any other person . . . of the existence or content of the Warrant for a period of 180 days." Id. at 1. Second, the government requested a Delayed Notice Order. See Warrant Appl. at 1. Separately, the government also sought to prevent the public from learning of the Warrant by requesting a Sealing Order. See NDO, Sealing, & Delayed Notice Appl. The Court granted the NDO and Sealing Order, see Order, ECF No. 4, but denied the request for a Delayed Notice Order, see Min. Order (Mar. 25, 2022).

A. NDOs Are Appropriate for PLI Warrants

The SCA does not require the government or a provider "to provide notice to a subscriber or customer" about the issuance of a search warrant. § 2703(c)(3). Historically, many providers opted not to notify subscribers, but that is no longer the prevailing norm. See Craig Timberg, Apple, Facebook, others defy authorities, increasingly notify users of secret data demands after Snowden revelations, Wash. Post (May 1, 2014), https://tinyurl.com/262mhk52. However, the SCA empowers the government—through an NDO—to forbid a provider from disclosing notice of the warrant to a subscriber. See § 2705(b). To obtain an NDO, the government must demonstrate that "there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in—(1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial." § 2705(b)(1)-(5). NDOs are only available for SCA warrants. See In re Application of U.S. for Order Pursuant to 28 U.S.C. § 1651(a) Precluding Notice of Grand Jury Subpoena, No. 19-wr-10, 2019 WL 4619698, at *5 (D.D.C. Aug. 6, 2019).

The...