Friday, October 01, 2010

Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo

In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703.

In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.

On appeal, the Government argues that the Act does not require it to demonstrate Rule 41 probable cause, but rather, under Sec. 2703(d), only “specific and articulable facts” demonstrating reasonable grounds to believe that the contents of the data “are relevant and material to an ongoing criminal investigation.” The Third Circuit held while the Act permits the Magistrate Judge to issue a disclosure order without a warrant showing probable cause, it also gives the Magistrate Judge the option to require a showing of probable cause before issuing a disclosure order.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.

When calculating intended loss, the question is not whether the defendant could have sold the items at the prices claimed by the government but whether the defendant intended to do so

The defendant in United States v. Kirschner ,  __ F.3d __, 2021 WL 1570250 (3d Cir. April 22, 2021), imported counterfeit coins and bullion ...