Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 1 of 9

U.S. Department of Justice

United States Attorney

Eastern District of New York
United States Attorney’s Office
610 Federal Plaza
Central Islip, New York 11722-4454

September 9, 2005

BY HAND

The Honorable James Orenstein

United States Magistrate Judge
Eastern District of New York
Long Island Federal Courthouse
924 Federal Plaza
Central Islip, New York 11722-4454

Re: In re Application For Pen Register

and Trap and Trace Device With
Cell Site Location Authority,
Magistrate's Docket No. 05-1093(JO)

Dear Magistrate Judge Orenstein:

The government respectfully moves the Court to

reconsider its Memorandum and Order entered August 25, 2005,
__ F. Supp.2d __, 2005 WL 2043543 (E.D.N.Y. Aug. 25, 2005) (the
“August 25 Order”), denying the government's application for an
order to disclose cell-site records relating to a specified
cellular telephone number. For the reasons stated below, the
government's application dated August 23, 2005 should be granted
consistent with § 103 of the Communications Assistance for Law
Enforcement Act (“CALEA”), P.L. 103-313, 108 Stat. 4279 (1994),
codified at 47 U.S.C. § 1002(a)(2)(B), under authority of 18
U.S.C. § 2703(d) of the Stored Communications Act (“SCA”) and 18
U.S.C. §§ 3121 et seq. (the pen register/trap and trace statute,
or “Pen/Trap statute”).1

1
A motion for reconsideration of a court order
determining a motion in a civil matter may be made within ten
days of the entry of the order, excluding holidays and weekends.
Fed. R. Civ. Proc. 59(e) and Loc. Civ. R. 6.3. Loc. Civ. R. 6.3.
Reconsideration under these rules is applicable to decisions of
magistrate judges, and tolls the time for appeal to the district
court. See Norex Petroleum, Ltd. v. Access Indus., Inc., 2003 WL
21872389, *1 (S.D.N.Y. 2003); Equal Employment Opportunity
Commission v. Venator Group, 2001 WL 246376, *4 (S.D.N.Y. 2001);
Yurman Design v. Chaindom Enterprises, 2000 WL 1871715, *1
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 2 of 9

A. Overview

The August 25 Order holds that disclosure of cell site

information can only be compelled by a search warrant issued on a
showing of probable cause. The Court has apparently concluded
that because cell-site information is transmitted as “electronic
communication,” 18 U.S.C, § 2510(12), it is also the “contents of
an electronic communication,” 18 U.S.C. § 2510(8), unless it is
the product of a “tracking device,” 18 U.S.C. § 3117. August 25
Order at *1. We respectfully submit that these holdings are
legally erroneous, for Congress has legislated to the contrary.

As we demonstrate below, an “electronic communication”

may provide either “contents,” see 18 U.S.C. §§ 2703(a) and
2703(b), or “information pertaining to a subscriber,” see 18
U.S.C. § 2703(c). Cell-site information constitutes “information
pertaining to a subscriber” under U.S.C. § 2703(c), not “con-
tents” under U.S.C. § 2703(a) or (b), and is not the product of a
“tracking device” or communications from it. Moreover, upon a
showing under 18 U.S.C. § 2703(d) of specific and articulable
facts demonstrating reasonable grounds to believe the information
sought is relevant and material to an ongoing investigation, 18
U.S.C. § 2703(d) authorizes the Court to order cellular telephone
providers to disclose existing cell-site usage records.

In addition, the Court is authorized to order

disclosure of cell-site information on a prospective basis where,
as here, the government's application is made not only under
authority of SCA, but also under the Pen/Trap statute in a manner
that demonstrates the prospective data to be relevant and
material as the SCA requires, see 18 U.S.C. § 2703(d). CALEA
prohibits the government from acquiring cell-site information
prospectively if it is obtained “solely pursuant” to the Pen/Trap

(S.D.N.Y. 2000); Brown v. Mineta, E.D.N.Y., order issued March

22, 2005, at p. 5 n.5. Reconsideration is also authorized in
criminal matters, either by extension of these rules or under
common law principles. See United States v. Ibarra, 502 U.S. 1,
4 (1991); United States v. Dieter, 429 U.S. 6, 8 (1976); United
States v. Healy, 376 U.S. 75, 78-80 (1964). While there is some
question whether reconsideration of a district court decision in
a criminal matter must be sought within 10 days or 30 days, see
Canale v. United States, 969 F.2d 13 (2d Cir. 1992); United
States v. Gross, 2002 WL 32096592, *1-*3 (E.D.N.Y. 2002), this
motion is made within 10 days, excluding holidays and weekends,
and is therefore timely on either view.
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 3 of 9

statute. 47 U.S.C. § 1002(a)(2)(B) (emphasis added). In

contrast, however, an order that directs disclosure of cell-site
information prospectively under authority of the SCA as well as
the Pen/Trap statute complies with CALEA.

B. Cell-Site Data Constitutes “Records

Or Other Information” Accessible To
The Government Pursuant to the SCA

The holding of the August 25 Order is based on two

erroneous conclusions: (1) that 18 U.S.C. § 2703 provides no
authority for the Court to order disclosure of data relating to
cell-site usage by a cellular telephone (“cell-site informa-
tion”), August 25 Order at *1-2; and (2) that CALEA prohibits any
use of the Pen/Trap statute to acquire cell-site information;
August 25 Order at *3-4.

In reaching the first of these conclusions, the Court

stated that “the only one” of 18 U.S.C. § 2703's provisions “that
appears arguably to permit the disclosure of cell site location
information is the language permitting the disclosure of 'the
contents of a wire or electronic communication.'” August 25
Order at *1-2. The Court rejected that hypothesis, however, on
the grounds that cell-site information constitutes a “communica-
tion from a tracking device,” which is specifically exempted from
the class of “electronic communications” discoverable under 18
U.S.C. §§ 2703(a) and 2703(b). August 25 Order at *1-2, relying
on 18 U.S.C. § 2711(1) (incorporating by reference exceptions to
definitions of “electronic communication,” codified at U.S.C.
§ 2510(12), including communications from “tracking devices”
under 18 U.S.C. § 3117).

While other aspects of the above rationale are also

open to question,2 we respectfully submit that the decisive error
occurs at the outset: the August 25 Order ignores the controlling
authority of 18 U.S.C. § 2703(c)(1)(B). In tandem with 18 U.S.C.
§ 2703(d), 18 U.S.C. §§ 2703(c)(1)(B) authorizes the government
to apply for an order and for the court to compel disclosure of
“record[s] or other information pertaining to a subscriber or
customer of such service (not including the contents of

2
As further discussed below, we respectfully submit that
a cellular telephones cannot properly be characterized as a
“tracking device” since the cell-site information that results
from its use is far less precise than the information obtained by
bona fide tracking devices under 18 U.S.C. § 3117, such as GPS
transponders and “bumper beepers.”
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 4 of 9

communications).” 18 U.S.C. § 2703(c)(1). The government's

original application as well as its renewed application in this
case (at ¶¶ 3, 10 and 11 of both applications) specifically
relied on 18 U.S.C. § 2703(c)(1).

The “record[s] or other information” available to the

government pursuant to 18 U.S.C. §§ 2703(c) include cell-site
information. As a threshold matter, cell-site information is not
the “contents of a communication” within the meaning of 18 U.S.C.
§§ 2703(a) and 2703(b). In general, such “contents” includes
only the “substance, purport, or meaning” of an electronic
communication. 18 U.S.C. § 2510(12), incorporated by reference in
the SCA at 18 U.S.C. § 2711(1). By contrast, cell-site informa-
tion conveys what neighborhood or locale a person is in or is
passing through when he operates a cellular telephone rather than
what he said. Thus, cell-site information constitutes “informa-
tion pertaining to a subscriber,” rather than the “contents of a
communication.”

Secondly, the structure of the SCA, as first enacted

and as later amended by CALEA, demonstrates an intention to
authorize courts to order disclosure of a broad array of non-
content information, including cell-site information. When it
was first enacted, the SCA permitted the disclosure pursuant to
court order (or subpoena) of the category of the catch-all
category of “record[s] or other information pertaining to a
subscriber or customer of such service (not including the
contents of communications),” now codified at 18 U.S.C. §
2703(c)(1). See P.L. 99-508, 100 Stat. 1848, 1862 (1986).
The accompanying 1986 Senate report emphasized the breadth of the
“record or other information” language: “[t]he information
involved is information about the customer’s use of the service
not the content of the customer’s communications.” S. Rep. No.
541, 99th Cong., 2d Sess., at 38 (1986).

Moreover, while Congress increased privacy protections

with respect to detailed, non-content telephone transactional
records when it enacted CALEA in 1994, CALEA's amendments to the
SCA preserved the government's right of access to such data,
including cell-site information. CALEA created a distinction
between basic subscriber records (e.g., subscriber name and
address, duration of call) and more detailed transactional data.
Basic subscriber information could still be subpoenaed without
notice, see 18 U.S.C. § 2703(c)(2). The government's access to
“record[s] or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications)” and outside the scope of basic subscriber
records was conditioned, however, on its obtaining a search
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 5 of 9

warrant or alternatively, a 2703(d) order, as newly defined by

CALEA. See P.L. 103-322, Title XXXIII, 330003(b) (1994); P.L.
103-414, Title II, § 207(a) (1994).

As the August 25 Order acknowledges (at *1), under the

SCA as amended by CALEA, courts are empowered to issue a 2703(d)
order if the government offers “specific and articulable facts
showing that there are reasonable grounds to believe that the
. . . records or other information sought are relevant and
material to an ongoing criminal investigation.” 18 U.S.C.
§ 2703(d). Congress intended this new “intermediate standard,”
midway between the standard required for issuance of a subpoena
and for a search warrant, H.R. Rep. No. 827(I), 103rd Cong., 2d
Sess., (“House CALEA Report”) at 31 (1994), to apply to detailed
transactional data, including cell-site information. In discuss-
ing the newly-added provisions of 18 U.S.C. §§ 2703(c)(1), the
House Report emphasized that the drafters understood that
“transactional records from on-line communication services reveal
more than telephone records or mail records.” House CALEA Report
at 31. Accordingly, the government henceforth would be permitted
to obtain the addresses used in email messages if (at minimum) it
satisfied the “reasonable grounds” requirements of 18 U.S.C. §
2703(d). House CALEA Report at 31.

If anything, an individual's privacy interest in the

identity of his email correspondents exceeds his privacy interest
in the identity of the neighborhood or locale in which he
operates a cellular telephone. That Congress expressly stated
that the SCA as amended by CALEA was intended to authorize
disclosure of email address information upon a proper showing
under 18 U.S.C. § 2703(d), demonstrates that Congress likewise
intended 18 U.S.C. § 2703(d) to govern arguably less intrusive
categories of detailed, non-content telephone transactional
records –- including cell-site information.

C. CALEA's Ban On Cell-Site Data Acquired

“Solely Pursuant” To The Pen/Trap Statute
Is Satisfied By An Order Issued Under
Dual Authority Of § 3123 and § 2703(d)

The August 25 Order, at *3, states that “[t]he

government . . . does not rely on the pen register statute” and,
in any event, “Congress appears to have prohibited it from doing
so” to obtain cell-site information. As to the first point, we
respectfully submit that the government did in fact invoke the
authority of the Pen/Trap statute in its original and renewed
applications for, inter alia, a cell-site location order. To the
extent that there was previously a lack of clarity on that score,
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 6 of 9

we seek to dispel it now. The government seeks by this applica-

tion to obtain authority under authority of both the SCA and the
Pen/Trap statute.

As further explained below, cell-site information that

the government seeks to obtain on a prospective basis is both
“records or other information,” see 18 U.S.C. §§ 2703(c), access
to which is conditioned on a court issuing an order that complies
with 18 U.S.C. § 2703(d) of the SCA, and information that
requires installation of a pen register, access to which is con-
ditioned on a court issuing an order under 18 U.S.C. §§ 3122 and
3123 of the Pen/Trap statute. Accordingly, each time in the
government's applications (see ¶¶ 1,6, 7 thereto) that we invoked
18 U.S.C. §§ 3122 and 3123 to seek pen register data in applica-
tions (see ¶¶ 3, 10 and 11 thereto) that also sought disclosure
of cell-site information under the SCA, the citations to the
Pen/Trap statute were likewise for the purpose of obtaining cell-
site information.

As to the assertion that Congress has banned any use of

pen registers to obtain cell-site information, we respectfully
submit that the conclusion is at odds with CALEA's careful
phrasing. CALEA authorizes the use of a pen register in
circumstances such as these, in which the SCA's requisites of
articulate facts demonstrating reasonable grounds are also
satisfied. See 18 U.S.C. § 2703(d). The provision of CALEA that
the August 25 Order cited to deny the government's application
provides as follows:

(a) ... a telecommunications carrier shall ensure that

its equipment, facilities, or services that provide a
customer or subscriber with the ability to originate,
terminate, or direct communications are capable of –
. . .

(2) expeditiously isolating and enabling the

government, pursuant to a court order or other
lawful authorization, to access call-identifying
information that is reasonably available to the
carrier– . . .

except that, with regard to information acquired solely

pursuant to the authority for pen registers and trap
and trace devices (as defined in section 3127 of title
18, United States Code), such call-identifying
information shall not include any information that may
disclose the physical location of the subscriber
(except to the extent that the location may be
determined from the telephone number). . . .
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 7 of 9

CALEA § 103(a), codified at 47 U.S.C. § 1002 (emphasis added).

There is no dispute that “[i]nformation that may

disclose the physical location of the subscriber” includes cell-
site information of the kind in issue here. Congress' prohibi-
tion on the use of pen registers to obtain cell-site information,
however, is limited to circumstances in which that data is
“acquired solely pursuant” to the authority of 18 U.S.C. § 3127
of the Pen/Trap statute. Moreover, CALEA contains not only the
“solely pursuant” clause governing the Pen/Trap statute, but also
the provisions discussed above (at 3-4) that amend the SCA to
authorize the disclosure of cell-site information, provided the
government articulates facts demonstrating “reasonable grounds to
believe” that the information sought is “relevant and material”.
18 U.S.C. § 2703(d). Accordingly, by amending the SCA, CALEA
created authority distinct from the Pen/Trap statute -- i.e., not
“solely pursuant” to that statute -- that authorizes the release
to the government of “information that may disclose the physical
location of” a cellular telephone subscriber.”

In this case, as is our practice, the government has

not sought to acquire cell-site information “solely pursuant” to
the Pen/Trap statute, but as well under the more demanding
requirements of the SCA. Under the Pen/Trap statute, a court is
empowered to authorize the installation of a pen register or trap
and trace device upon the mere finding that a law enforcement
officer “has certified . . . that the information sought is
likely to be obtained . . . is relevant to an ongoing investi-
gation. 18 U.S.C. § 3123(b). We do not seek authorization to
obtain cell-site information based on a mere finding that the
government has certified the information's likely relevance.
Rather, we have sought it based on the provisions of the SCA that
require the government to articulate and for a neutral magistrate
to find “reasonable grounds to believe” that the information
sought is “relevant and material to” that investigation. 18
U.S.C. § 2703(d). See Point B above.

That is not to say that the order that we propose could

or should issue based solely on authority of the SCA. We agree
with those portions of the August 25 Order (at *3-4) that
recognize the Pen/Trap statute plays a governing role in the
issuance of orders requiring the prospective disclosure of cell-
site obtained from the installation by a provide of a special
device or process. As amended by the USA PATRIOT ACT,3 the terms

3
P.L. 107-56, 115 Stat. 272 (2001).
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 8 of 9

“Pen register” and “trap and trace device” now include “dialing,
routing, addressing and signaling information.” See 18 U.S.C. §§
3127(3) (pen register) and 3127(4) (trap and trace device).
Service providers use cell-site information for several of those
functions and in particular, the routing of calls from their
point of origin to their intended destination. Accordingly,
orders directing the prospective collection of cell-site
information must issue under the complementary authority of the
Pen/Trap statute and -- to comply with CALEA -- of the SCA.

D. Cell-Site Information Does Not

Convert A Cellular Telephone Into
A “Tracking Device” Requiring A Warrant

The August 25 Order expresses concern that disclosure

of cell-site information pursuant to 18 U.S.C. § 2703 “would
effectively allow the installation of a tracking device without
the showing of probable cause normally required for a warrant”
August 25 Order at *2. Underlying this concern is the assertion
that cell-site information is the functional equivalent of
physical surveillance of the cellular telephone because “it
reveals that person's location at a given time” Id. We respect-
fully submit that these concerns are unfounded.

First, it is not the general rule that a “tracking

device” requires a search warrant. For example, there is no
requirement that law enforcement obtain a warrant for a proximity
beeper installed in a car tracked on the open road. See United
States v. Knotts, 460 U.S. 276 (1983). Second, although future
improvements in cell-site technology may permit the location of a
cellular phone user to be pinpointed, that is not the present
state of the technology. Cell-sites only reveal the general
vicinity of the person using a cellular telephone and the general
direction in which they are moving if they are in transit.

Thus, it is inaccurate to say a law enforcement

officer's access to cell-site information gives him a virtual
view of a target's location. Rather, it only gives him access to
routing information of the kind that is ordinarily used by the
telephone service provider and as to which a subscriber has at
best a limited privacy interest. See Smith v. Maryland, 442 U.S.
735, 744 (1979) (no “seizure” within meaning of Fourth Amendment
occurred when police obtained data obtained via pen register
installed on hardline telephone).4 Accordingly, Congress'

4
In Smith, the defendant “assumed the risk” that
telephone numbers he dialed would be disclosed by telephone
 Case 2:05-mj-01093-JO Document 4 Filed 09/09/2005 Page 9 of 9

decision to authorize the disclosure of cell-site information

upon the showings required by the SCA and the Pen/Trap statute is
entirely appropriate.

Respectfully submitted,

ROSLYNN R. MAUSKOPF
United States Attorney

By: _______________________
Burton T. Ryan. Jr.
Assistant U.S. Attorney
(631) 715-7853
Jonathan E. Davis
Assistant U.S. Attorney
(718) 254-6298

cc: Clerk of the Court (JO)

company, since “the switching equipment that processed those

numbers is merely the modern counterpart of the operator who, in
an earlier day, personally completed calls for the subscriber”.
Id.