In Re Electronic Communication Service to Disclose

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT

No. 08-4227

IN THE MATTER OF THE APPLICATION
OF THE UNITED STATES OF AMERICA
FOR AN ORDER DIRECTING A PROVIDER OF
ELECTRONIC COMMUNICATION
SERVICE TO DISCLOSE RECORDS TO THE
GOVERNMENT

United States of America,
Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-07-mj-00524-001)
District Judge: Honorable Terrence F. McVerry

Argued February 12, 2010

Before: SLOVITER, ROTH, and TASHIMA,* Circuit Judges

(Filed: September 7, 2010)

Mary Beth Buchanan
Robert L. Eberhardt
Office of the United States Attorney
Pittsburgh, PA 15219

*
Honorable A. Wallace Tashima, Senior Judge of the
United States Court of Appeals for the Ninth Circuit, sitting by
designation.
Mark Eckenwiler (Argued)
United States Department of Justice
Office of Enforcement Operations
Washington, DC 20530

Attorneys for Appellant

Lisa B. Freeland
Office of Federal Public Defender
Pittsburgh, PA 15222

Jennifer Granick
Kevin S. Bankston (Argued)
Matthew Zimmerman
Electronic Frontier Foundation
San Francisco, CA 94110

Jim Dempsey
Harley Geiger
Center for Democracy and Technology
Washington, DC 20006

Witold J. Walczak
American Civil Liberties Union of Pennsylvania
Pittsburgh, PA 15213

Catherine Crump
American Civil Liberties Union Foundation
New York, NY 10004

Susan A. Freiwald (Argued)
University of San Francisco School of Law
San Francisco, CA 94117

Attorneys for Amici Appellees

OPINION OF THE COURT

2
SLOVITER, Circuit Judge.

The United States (“Government”) applied for a court
order pursuant to a provision of the Stored Communications Act,
18 U.S.C. § 2703(d), to compel an unnamed cell phone provider
to produce a customer’s “historical cellular tower data,” also
known as cell site location information or “CSLI.” App. at 64.
The Magistrate Judge (“MJ”) denied the application. See In re
Application of the United States for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to the
Gov’t, 534 F. Supp. 2d 585, 616 (W.D. Pa. 2008) (hereafter
“MJOp.”). In doing so, the MJ wrote an extensive opinion that
rejected the Government’s analysis of the statutory language, the
legislative history, and the Government’s rationale for its
request. On the Government’s appeal to the District Court, the
Court recognized “the important and complex matters presented
in this case,” but affirmed in a two page order without analysis.
In re Application of the United States for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to the
Gov’t, No. 07-524M, 2008 WL 4191511, at *1 (W.D. Pa. Sept.
10, 2008). The Government appeals.

We have de novo review. See DIRECTV Inc. v. Seijas,
508 F.3d 123, 125 (3d Cir. 2007). This appeal gives us our first
opportunity to review whether a court can deny a Government
application under 18 U.S.C. § 2703(d) after the Government has
satisfied its burden of proof under that provision, a task that to
our knowledge has not been performed by any other court of
appeals.1

1
Because the Government’s application was ex parte, there
was no adverse party to review or oppose it. However, we received
amici briefs in support of affirmance of the District Court from a
group led by the Electronic Frontier Foundation and joined by the
American Civil Liberties Union, the ACLU-Foundation of
Pennsylvania, Inc., and the Center for Democracy and Technology
(hereafter jointly referred to as “EFF”) and from Susan A.
Freiwald, a law professor who teaches and writes in the area of
cyberspace law and privacy law. Representatives on behalf of EFF

3
 I.

The growth of electronic communications has stimulated
Congress to enact statutes that provide both access to
information heretofore unavailable for law enforcement
purposes and, at the same time, protect users of such
communication services from intrusion that Congress deems
unwarranted. The Stored Communications Act (“SCA”), was
enacted in 1986 as Title II of the Electronic Communications
Privacy Act of 1986 (“ECPA”), Pub. L. No. 99-508, 100 Stat.
1848 (1986) (codified as amended at 18 U.S.C. §§ 2701-2711
(2010)), which amended the Omnibus Crime Control and Safe
Streets Act of 1968 (the “Wiretap Act”), Pub. L. No. 90-351, 82
Stat. 197 (1968).2 In 1994, Congress enacted the
Communications Assistance for Law Enforcement Act
(“CALEA”), Pub. L. No. 103-414, 108 Stat. 4279, 4292 (1994)
(codified in relevant part at 18 U.S.C. § 2703 (2010)), in part to
amend the SCA.

The SCA is directed to disclosure of communication
information by providers of electronic communications
(“providers”). Section 2703(a) covers the circumstances in
which a governmental entity may require providers to disclose
the contents of wire or electronic communications in electronic
storage; section 2703(b) covers the circumstances in which a
governmental entity may require providers to disclose the
contents of wire or electronic communications held by a remote
computing service. See 18 U.S.C. § 2703(a)-(b). Neither of
those sections is at issue here. The Government does not here
seek disclosure of the contents of wire or electronic
communications. Instead, the Government seeks what is

and Professor Freiwald participated in the proceedings below and
at the oral argument before us. We are grateful to the amici for
their interest in the issue and their participation in this matter.

2
Title II of the ECPA was formally entitled “Stored Wire
and Electronic Communications and Transactional Records
Access.” Pub. L. No. 99-508, 100 Stat. 1848 (1986).

4
referred to in the statute as “a record or other information
pertaining to a subscriber to or customer of such service,” a term
that expressly excludes the contents of communications. Id. §
2703(c)(1).

Section 2703(c)(1) of the SCA provides:

(c) Records concerning electronic
communication service or remote computing
service.--(1) A governmental entity may require a
provider of electronic communication service or
remote computing service to disclose a record or
other information pertaining to a subscriber to or
customer of such service (not including the
contents of communications) only when the
governmental entity–

(A) obtains a warrant issued using the procedures
described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued
using State warrant procedures) by a court of
competent jurisdiction;

(B) obtains a court order for such disclosure under
subsection (d) of this section;

(C) has the consent of the subscriber or customer
to such disclosure;

(D) submits a formal written request relevant to a
law enforcement investigation concerning
telemarketing fraud for the name, address, and
place of business of a subscriber or customer of
such provider, which subscriber or customer is
engaged in telemarketing (as such term is defined
in section 2325 of this title); or

(E) seeks information under paragraph (2).

Id. The formal separation of these options in § 2703(c)(1)

5
evinces Congressional intent to separate the requirements for
their application. Each option in § 2703(c)(1) is an
independently authorized procedure. The only options relevant
to the matter before us are § 2703(c)(1)(A) for obtaining a
warrant and § 2703(c)(1)(B) for obtaining a court order under §
2703(d).

A third option covered by the statute provides for the
governmental entity to use “an administrative subpoena
authorized by a Federal or State statute or a Federal or State
grand jury or trial subpoena . . . .” Id. § 2703(c)(2). The
subpoena option covers more limited information – such as a
customer’s name, address, and certain technical information 3 –

3
Subsection (2) of § 2703(c) provides:

(2) A provider of electronic communication service
or remote computing service shall disclose to a
governmental entity the–

(A) name;

(B) address;

(C) local and long distance telephone connection
records, or records of session times and durations;

(D) length of service (including start date) and types
of service utilized;

(E) telephone or instrument number or other
subscriber number or identity, including any
temporarily assigned network address; and

(F) means and source of payment for such service
(including any credit card or bank account number),

of a subscriber to or customer of such service . . . .

6
as distinguished from that referred to in § 2703(c)(1) which
broadly covers “a record or other information pertaining to a
subscriber or customer.” The Government may seek such
information under any of these three options ex parte, and no
notice is required to a subscriber or customer. See id. §
2703(c)(3).

In submitting its request to the MJ in this case, the
Government did not obtain either a warrant under §
2703(c)(1)(A), or a subpoena under § 2703(c)(2), nor did it
secure the consent of the subscriber under § 2703(c)(1)(C).
Instead it sought a court order as authorized by § 2703(c)(1)(B).
The requirements for a court order are set forth in § 2703(d) as
follows:

(d) Requirements for court order.--A court order
for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent
jurisdiction and shall issue only if the
governmental entity offers specific and articulable
facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic
communication, or the records or other
information sought, are relevant and material to
an ongoing criminal investigation. In the case of a
State governmental authority, such a court order
shall not issue if prohibited by the law of such
State. A court issuing an order pursuant to this
section, on a motion made promptly by the service
provider, may quash or modify such order, if the
information or records requested are unusually
voluminous in nature or compliance with such
order otherwise would cause an undue burden on
such provider.

Id. § 2703(d) (emphasis added).

18 U.S.C. § 2703(c)(2).

7
 As the Government notes in its reply brief, there is no
dispute that historical CSLI is a “record or other information
pertaining to a subscriber . . . or customer,” and therefore falls
within the scope of § 2703(c)(1). Instead, the dispute in this
case concerns the standard for a § 2703(d) order. The
Government states that the records at issue, which are kept by
providers in the regular course of their business, include CSLI,
i.e., the location of the antenna tower and, where applicable,
which of the tower’s “faces” carried a given call at its beginning
and end and, inter alia, the time and date of a call.

The Government’s application, which is heavily redacted
in the Appendix, seeks

historical cellular tower data i.e. transactional
records (including, without limitation, call
initiation and termination to include sectors when
available, call handoffs, call durations,
registrations and connection records), to include
cellular tower site information, maintained with
respect to the cellular telephone number [of a
subscriber or subscribers whose names are
redacted].

App. at 64. The Government does not foreclose the possibility
that in a future case it will argue that the SCA may be read to
authorize disclosure of additional material.

II.

The MJ concluded, “as a matter of statutory
interpretation, that nothing in the provisions of the electronic
communications legislation authorizes it [i.e., the MJ] to order a
[provider’s] covert disclosure of CSLI absent a showing of
probable cause under Rule 41.” MJOp., 534 F. Supp. 2d at 610.
Rule 41(d) of the Federal Rules of Criminal Procedure, referred
to by the MJ, provides:

(d) Obtaining a Warrant.

8
 (1) In General. After receiving an affidavit or
other information, a magistrate judge--or if
authorized by Rule 41(b), a judge of a state court
of record--must issue the warrant if there is
probable cause to search for and seize a person or
property or to install and use a tracking device.

Fed. R. Crim. P. 41(d) (emphasis added).

The Government argues that 18 U.S.C. § 2703(d) on its
face requires only that it make a showing of “specific and
articulable facts establishing reasonable grounds” that the
information sought is “relevant and material to an ongoing
criminal investigation.” It argues that it made such a showing in
this case by the statement in its application that the requested cell
phone records are relevant and material to an ongoing
investigation into large-scale narcotics trafficking and various
related violent crimes, that nothing more is required, and that the
MJ erred in holding that something more, in particular probable
cause, is required before issuing the requested order. Thus, the
counterpoised standards are “probable cause,” the standard for a
Rule 41 warrant, and the “relevant and material” language in 18
U.S.C. § 2703(d).

We begin with the MJ’s opinion. We note, preliminarily,
that the MJ’s opinion was joined by the other magistrate judges
in that district. This is unique in the author’s experience of more
than three decades on this court and demonstrates the impressive
level of support Magistrate Judge Lenihan’s opinion has among
her colleagues who, after all, routinely issue warrants
authorizing searches and production of documents.

One of the principal bases for the MJ’s conclusion that
the Government must show probable cause for a § 2703(d) order
was her explanation that probable cause is the standard which
the Government has long been required to meet in order to
obtain court approval for the installation and use by law
enforcement agents of a device enabling the Government to
record, or “track,” movement of a person or thing. See MJOp.,
534 F. Supp. 2d at 613-14. The MJ also held that a cell phone is

9
a “tracking device” under 18 U.S.C. § 3117, and that the
Government cannot obtain information from a “tracking device”
under § 2703(d). See id. at 601-02. A statute, incorporated by
reference in § 2711(1) of the SCA, defines a “tracking device”
as “an electronic or mechanical device which permits the
tracking of the movement of a person or object.” 18 U.S.C. §
3117(b).4

Section 2703(c) applies only to “provider[s] of electronic
communication service[s].” 18 U.S.C. § 2703(c)(1). An
“electronic communication service” is defined as “any service
which provides to users thereof the ability to send or receive
wire or electronic communications.” Id. § 2510(15).5 The

4
We note that the Senate Report on the ECPA, which
encompasses the SCA, defines “electronic tracking devices” as
follows:

These are one-way radio communication devices that emit
a signal on a specific radio frequency. This signal can be
received by special tracking equipment, and allows the user
to trace the geographical location of the transponder. Such
“homing” devices are used by law enforcement personnel to
keep track of the physical whereabouts of the sending unit,
which might be placed in an automobile, on a person, or in
some other item.

S. Rep. No. 99-541, at 10 (1986), reprinted in 1986 U.S.C.C.A.N.
3555, 3564.
5
“‘[W]ire communication’ means any aural transfer made
in whole or in part through the use of facilities for the transmission
of communications by the aid of wire, cable, or other like
connection between the point of origin and the point of reception
(including the use of such connection in a switching station)
furnished or operated by any person engaged in providing or
operating such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or foreign
commerce . . . .” 18 U.S.C. § 2510(1).

10
definition of “electronic communication” found in § 2510(12)
excludes the communications from a “tracking device.” See id.
§ 2510(12) (“‘[E]lectronic communication’ . . . does not include
. . . any communication from a tracking device . . . .”). The MJ
held that CSLI that allows the Government to follow where a
subscriber was over a period of time is information from a
tracking device deriving from an electronic communications
service, and that therefore the Government cannot obtain that
information through a § 2703(d) order. See MJOp., 534 F. Supp.
2d at 589, 601. If CSLI could be characterized as information
from a tracking device, and a tracking device is not covered by
the SCA, this would be a relatively straightforward case because
the Government, when seeking judicial permission to install or
use a tracking device, must ordinarily obtain a warrant. See Fed.
R. Crim. P. 41.

The Government vigorously objects to treating CSLI from
cell phone calls as information from a tracking device. It

“‘[E]lectronic communication’ means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic or photooptical system that affects interstate or
foreign commerce, but does not include --

(A) any wire or oral communication;

(B) any communication made through a tone-only
paging device;

(C) any communication from a tracking device (as
defined in section 3117 of this title); or

(D) electronic funds transfer information stored by a
financial institution in a communications system
used for the electronic storage and transfer of funds
. . . .”

Id. § 2510(12).

11
explains that cellular calls are wire communications, that
tracking devices are excluded from the definition of electronic
communications but not from the definition of wire
communications, and that, in any event, it hasn’t sought records
from a tracking device in this case.

Section 2510(1) defines “wire communication” as “any
aural transfer made in whole or in part through the use of
facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of origin
and the point of reception (including the use of such connection
in a switching station) . . . .” 18 U.S.C. § 2510(1). The CSLI
requested by the Government consists of records of information
collected by cell towers when a subscriber makes a cellular
phone call. That historical record is derived from a “wire
communication” and does not itself comprise a separate
“electronic communication.” Thus, even if the record of a cell
phone call does indicate generally where a cell phone was used
when a call was made, so that the resulting CSLI was
information from a tracking device, that is irrelevant here
because the CSLI derives from a “wire communication” and not
an “electronic communication.” See id. § 2703(c) (providing
that the Government may require “a provider of electronic
communication service” to disclose records); id. § 2510(15)
(defining “electronic communication service” to include
providers of “wire or electronic communications”) (emphasis
added).6

6
We acknowledge that numerous magistrate judges and
district courts in other jurisdictions have addressed various issues
regarding whether the Government can obtain prospective CSLI
through the authorization found in § 2703(d) alone or in
combination with the pen register and trap and trace statutes (the
“hybrid” theory), and/or whether the Government can obtain
historical CSLI through a § 2703(d) order. See, e.g., MJOp., 534
F. Supp. 2d at 599-600 (discussing “hybrid” theory and citing
cases). Some of those cases hold that the government cannot
obtain prospective, i.e., realtime, CSLI through the “hybrid” theory.
See, e.g., In re Application of the United States for an Order: (1)

12
 As with other issues under the SCA, the issue of the

Authorizing the Installation & Use of a Pen Register & Trap &
Trace Device; (2) Authorizing the Release of Subscriber & Other
Info.; & (3) Authorizing the Disclosure of Location-Based Servs.,
Nos. 1:06-MC-6,-7, 2006 WL 1876847, at *1 (N.D. Ind. July 5,
2006); In re Application for Pen Register & Trap/Trace Device
with Cell Site Location Auth., 396 F. Supp. 2d 747, 765 (S.D. Tex.
2005); In re Application of the United States for an Order (1)
Authorizing the Use of a Pen Register & a Trap & Trace Device &
(2) Authorizing Release of Subscriber Info. &/or Cell Site Info.,
396 F. Supp. 2d 294, 327 (E.D.N.Y. 2005). Others cases hold that
the Government may obtain prospective cell site location
information through the “hybrid” theory. See, e.g., In re
Application of the United States for an Order for Prospective Cell
Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448,
461 (S.D.N.Y. 2006); In re Application of the United States for an
Order for Disclosure of Telecomm. Records & Authorizing the Use
of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 449
(S.D.N.Y. 2005). Most relevant here, at least two cases expressly
hold that historical CSLI can be obtained through a § 2703(d)
order. See In re Application of the United States for an Order: (1)
Authorizing the Installation & Use of a Pen Register & Trap &
Trace Device, & (2) Authorizing Release of Subscriber & Other
Info., 622 F. Supp. 2d 411, 418 (S.D. Tex. 2007); In re
Applications of the United States for Orders Pursuant to Title 18,
U.S.C. § 2703(d), 509 F. Supp. 2d 76, 82 (D. Mass. 2007).
Additionally, judges in at least two cases, In re Applications, 509
F. Supp. 2d at 81 n.11, and In re Application of the United States
for an Order for Disclosure of Telecommunications Records &
Authorizing the Use of a Pen Register & Trap & Trace, 405 F.
Supp. 2d 435, 449 (S.D.N.Y. 2005), have specifically held that cell
phones are not tracking devices under 18 U.S.C. § 3117. In
contrast, Judge McMahon of the Southern District of New York
held that CSLI is information from a tracking device under § 3117
and is therefore excluded from § 2703(c). See In re Application of
the United States for an Order Authorizing the Use of a Pen
Register with Caller Identification Device Cell Site Location Auth.
on a Cellular Tel., 2009 WL 159187, at *6-7 (S.D.N.Y. Jan. 13,
2009).

13
standard by which the Government may obtain CSLI is not
easily avoided. The MJ held that even if the CSLI here is
included within the scope of § 2703(c)(1), the Government must
show probable cause because a cell phone acts like a tracking
device. The MJ’s holding that probable cause was the correct
standard appeared to be influenced by her belief that CSLI, and
cell phone location information generally, make a cell phone act
like a tracking device in that the CSLI discloses
movement/location information. See MJOp., 534 F. Supp. 2d at
609 (“In the case of movement/location information derived
from an electronic device, the traditionally-applied legal
standard has been a showing of probable cause; and nothing in
the text, structure, purpose or legislative history of the SCA
dictates a departure from that background standard as to either
historic or prospective CSLI.”).

In response, the Government notes that the historical
CSLI that it sought in this case does not provide information
about the location of the caller closer than several hundred feet.
However, much more precise location information is available
when global positioning system (“GPS”) technology is installed
in a cell phone. A GPS is a widely used device installed in
automobiles to provide drivers with information about their
whereabouts. The Government argues that it did not seek GPS
information in this case.

Nonetheless, the Government does not argue that it
cannot or will not request information from a GPS device
through a § 2703(d) order. In fact, a publication of the
Computer Crime and Intellectual Property Section of the U.S.
Department of Justice contains a “Sample 18 U.S.C. § 2703(d)
Application and Order” seeking “[a]ll records and other
information relating to the account(s) and [the relevant] time
period” including “telephone records, . . . caller identification
records, cellular site and sector information, GPS data,” and
other information. U.S. Department of Justice, Computer Crime
and Intellectual Property Section, Criminal Division, Searching
and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations, 222 (3d ed. 2009) (emphasis added),
available at

14
http://www.cybercrime.gov/ssmanual/ssmanual2009.pdf (last
visited Aug. 3, 2010).

We take no position whether a request for GPS data is
appropriate under a § 2703(d) order. However, a § 2703(d)
order requiring production of CSLI or GPS data could elicit
location information. For example, historical CSLI could
provide information tending to show that the cell phone user is
generally at home from 7 p.m. until 7 a.m. the next morning
(because the user regularly made telephone calls from that
number during that time period). With that information, the
Government may argue in a future case that a jury can infer that
the cell phone user was at home at the time and date in question.

Amicus EFF points to the testimony of FBI Agent
William B. Shute during a trial in the Eastern District of
Pennsylvania in which he analyzed cell location records –
seemingly the records of the towers used during calls – and
concluded that it was “highly possible that [a cell phone user]
was at her home,” EFF App. at 20, and at another time that the
user was “in the vicinity of her home,” id. at 21. Later, Agent
Shute testified that the cell phone records revealed a genuine
probability that the individual was in another person’s home. Id.
at 25. Agent Shute also testified that at one point the phone was
in an “overlap area” of less than eight blocks. Id. at 27-28.
Moreover, Agent Shute said that he could track the direction that
the individual was traveling based on when the individual
switched from one tower to another. Id. at 21-22. According to
Agent Shute, he has given similar testimony in the past. In other
words, the Government has asserted in other cases that a jury
should rely on the accuracy of the cell tower records to infer that
an individual, or at least her cell phone, was at home.

The Government counters that Agent Shute
acknowledged that historical cell site information provides only
a rough indication of a user’s location at the time a call was
made or received. The Government correctly notes that Agent
Shute did not state that the cell-site information “is reliable
evidence” that the suspect was at home, as EFF asserts. EFF Br.
at 15. Agent Shute only stated that it is “highly possible” that

15
the user was at home or in the vicinity.

This dispute may seem to be a digression, but it is not
irrelevant. The MJ proceeded from the premise that CSLI can
track a cell phone user to his or her location, leading the MJ to
conclude that CSLI could encroach upon what the MJ believed
were citizens’ reasonable expectations of privacy regarding their
physical movements and locations. The MJ regarded location
information as “extraordinarily personal and potentially
sensitive.” MJOp., 534 F. Supp. 2d at 586. We see no need to
decide that issue in this case without a factual record on which to
ground the analysis. Instead, we merely consider whether there
was any basis for the MJ’s underlying premises.

For that purpose, we refer to two opinions of the Supreme
Court, both involving criminal cases not directly applicable here,
but which shed some light on the parameters of privacy
expectations. In United States v. Knotts, 460 U.S. 276 (1983),
the Supreme Court held that the warrantless installation of an
electronic tracking beeper/radio transmitter inside a drum of
chemicals sold to illegal drug manufacturers, and used to follow
their movements on public highways, implicated no Fourth
Amendment concerns, as the drug manufacturers had no
reasonable expectation of privacy while they and their vehicles
were in plain view on public highways. The following year, in
United States v. Karo, 468 U.S. 705 (1984), the Court held that
where a beeper placed inside a chemical drum was then used to
ascertain the drum’s presence within a residence, the search was
unreasonable absent a warrant supported by probable cause.
More specifically, the Court stated that the “case . . . present[ed]
the question whether the monitoring of a beeper in a private
residence, a location not open to visual surveillance, violates the
Fourth Amendment rights of those who have a justifiable interest
in the privacy of the residence.” Karo, 468 U.S. at 714. The
Karo Court distinguished Knotts:

[M]onitoring of an electronic device such as a
beeper is, of course, less intrusive than a full-scale
search, but it does reveal a critical fact about the
interior of the premises that the Government is

16
 extremely interested in knowing and that it could
not have otherwise obtained without a warrant.
The case is thus not like Knotts, for there the
beeper told the authorities nothing about the
interior of Knotts’ cabin . . . . here, as we have
said, the monitoring indicated that the beeper was
inside the house, a fact that could not have been
visually verified.

Id. at 715.

We cannot reject the hypothesis that CSLI may, under
certain circumstances, be used to approximate the past location
of a person. If it can be used to allow the inference of present,
or even future, location, in this respect CSLI may resemble a
tracking device which provides information as to the actual
whereabouts of the subject. The Knotts/Karo opinions make
clear that the privacy interests at issue are confined to the
interior of the home. There is no evidence in this record that
historical CSLI, even when focused on cell phones that are
equipped with GPS, extends to that realm. We therefore cannot
accept the MJ’s conclusion that CSLI by definition should be
considered information from a tracking device that, for that
reason, requires probable cause for its production.

In sum, we hold that CSLI from cell phone calls is
obtainable under a § 2703(d) order and that such an order does
not require the traditional probable cause determination. Instead,
the standard is governed by the text of § 2703(d), i.e., “specific
and articulable facts showing that there are reasonable grounds
to believe that the contents of a wire or electronic
communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation.” 18
U.S.C. § 2703(d). The MJ erred in allowing her impressions of
the general expectation of privacy of citizens to transform that
standard into anything else. We also conclude that this standard
is a lesser one than probable cause, a conclusion that, as
discussed below, is supported by the legislative history.

17
 III.

On different occasions in the MJ’s opinion, the MJ
referred to her understanding that the “relevant legislative
history indicates that Congress did not intend its electronic
communications legislation to be read to require, on its authority,
disclosure of an individual’s location information . . . .” MJOp.,
534 F. Supp. 2d at 610. We also have reviewed the legislative
history of the SCA and find no support for this conclusion.

The legislative history of the ECPA begins in 1985 with
the introduction by Representative Kastenmeier of H.R. 3378.
See 131 Cong. Rec. 24,397 (1985) (statement of Rep. Robert W.
Kastenmeier). At the hearings on H.R. 3378, Senator Leahy
explained that “the bill provides that law enforcement agencies
must obtain a court order based on a reasonable suspicion
standard before . . . being permitted access to records of an
electronic communication system which concern specific
communications.” Electronic Communications Privacy Act:
Hearings on H.R. 3378 Before the Subcomm. on Courts, Civil
Liberties, and the Admin. of Justice of the H. Comm. on the
Judiciary, 99th Cong. 7 (1985) (statement of Sen. Patrick
Leahy). H.R. 3378 was not enacted.

The statute that was enacted the following year, the
ECPA, was designed “to protect against the unauthorized
interception of electronic communications. The bill amends the
1968 law [the Wiretap Act,] to update and clarify Federal
privacy protections and standards in light of dramatic changes in
new computer and telecommunications technologies.” S. Rep.
No. 99-541, at 1 (1986). The Senate Report states that Title II of
the ECPA, the SCA, “addresses access to stored wire and
electronic communications and transactional records. It is
modeled after [legislation that] protects privacy interests in
personal and proprietary information, while protecting the
Government’s legitimate law enforcement needs.” Id. at 3; see
also 132 Cong. Rec. 27,633 (1986) (statement of Sen. Leahy that
the ECPA “provides standards by which law enforcement
agencies may obtain access to . . . the records of an electronic
communications system.”). During House consideration and

18
passage of the ECPA, Representative Moorhead explained that
“the legislation establishes clear rules for Government access to
new forms of electronic communications as well as the
transactional records regarding such communications [and] . . .
removes cumbersome procedures from current law that will
facilitate the interests of Federal law enforcement officials.” 132
Cong. Rec. 14,887 (1986) (statement of Rep. Carlos J.
Moorhead).

Eight years later, in 1994, Congress amended the statute
to keep pace with technological changes through CALEA, which
altered the standard in 18 U.S.C. § 2703 to its current state. Pub.
L. No. 103-414, 108 Stat. 4922 (1994). In Senate Report No.
103-402, which accompanied the CALEA legislation, it noted
that the bill “also expands privacy and security protection for
telephone and computer communications. The protections of the
[ECPA] are extended to cordless phones and certain data
communications transmitted by radio.” S. Rep. No. 103-402, at
10 (1994).

The legislative history strongly supports the conclusion
that the present standard in § 2703(d) is an “intermediate” one.
For example, Senate Report No. 103-402 states that
§ 2703(d)

imposes an intermediate standard to protect on-line
transactional records. It is a standard higher than a
subpoena, but not a probable-cause warrant. The
intent of raising the standard for access to
transactional data is to guard against “fishing
expeditions” by law enforcement. Under the
intermediate standard, the court must find, based
on law enforcement’s showing of facts, that there
are specific and articulable grounds to believe that
the records are relevant and material to an ongoing
criminal investigation.

Id. at 31; see also H.R. Rep. No. 103-827, pt. 1, at 31 (1994)
(noting same), reprinted in 1994 U.S.C.C.A.N. 3489, 3511. We
are aware of no conflicting legislative history on the matter, and

19
we will accept the intermediate standard as applicable to all
attempts to obtain transaction records under § 2703(d).

In its interpretation of the standard to be applied to §
2703(d) orders, the MJ referred to the testimony of then-FBI
Director Louis Freeh supporting the passage of CALEA. See
MJOp., 534 F. Supp. 2d at 596-97 (citing Digital Telephony and
Law Enforcement Access to Advanced Telecommunications
Technologies and Services: Joint Hearings on H.R. 4922 and S.
2375 Before the Subcomm. on Technology and the Law of the S.
Comm. on the Judiciary and the Subcomm. on Civil and
Constitutional Rights of the H. Comm. on the Judiciary, 103d
Cong. 2, 22-23, 27-29 (1994) (statement of Louis J. Freeh,
Director, Federal Bureau of Investigation) (“Freeh Testimony”)).
The MJ described Director Freeh’s testimony as follows:

Freeh addressed Congress’ concern that with
advances in cell phone technology, law
enforcement could obtain-by CSLI-information of
an individual’s physical movement previously
obtainable only through visual surveillance or the
covert installation of a radio-wave transmitter.
During the course of his testimony, Director Freeh
reassured Congress that law enforcement was not
attempting to obtain via the 1994 enactments, or to
otherwise alter the standards applicable to,
movement/location information.

Id. at 596.

Director Freeh’s testimony, referred to by the MJ, does
not provide support for the MJ’s conclusion that a warrant is
required to obtain CSLI. Director Freeh’s testimony regarding
allegations of “tracking” persons focused on the Government’s
ability to obtain information through a pen register or trap and
trace device, which is governed by a different, and lower,
standard than that applicable to a § 2703(d) order. See Freeh
Testimony at 33. To obtain information from pen register and
trap and trace devices, the Government need only certify “that
the information likely to be obtained by such installation and use

20
is relevant to an ongoing criminal investigation.” 18 U.S.C. §
3123(a)(1). In contrast, § 2703(d) requires “specific and
articulable facts,” “reasonable grounds to believe,” and
“material[ity]” to an ongoing criminal investigation, a higher
standard. Id. § 2703(d). Thus, the protections that Congress
adopted for CSLI in 47 U.S.C. § 1002(a)(2) 7 have no apparent
relevance to § 2703(d), and the legislative history does not show
that Congress intended to exclude CSLI or other location
information from § 2703(d). Although the language of §
2703(d) creates a higher standard than that required by the pen
register and trap and trace statutes, the legislative history
provides ample support for the proposition that the standard is an
intermediate one that is less stringent than probable cause.

IV.

Because we conclude that the SCA does not contain any
language that requires the Government to show probable cause
as a predicate for a court order under § 2703(d) and because we
are satisfied that the legislative history does not compel such a
result, we are unable to affirm the MJ’s order on the basis set
forth in the MJ’s decision. The Government argues that if it
presents a magistrate court with “specific and articulable facts
showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication, or the records or
other information sought, are relevant and material to an ongoing
criminal investigation,” 18 U.S.C. § 2703(d), the magistrate
judge must provide the order and cannot demand an additional
showing. The EFF disagrees, and argues that the requirements
of § 2703(d) merely provide a floor – the minimum showing
required of the Government to obtain the information – and that

7
See 47 U.S.C. § 1002(a)(2)(B) (“with regard to
information acquired solely pursuant to the authority for pen
registers and trap and trace devices” a telecommunications carrier
need not allow the government access to “call-identifying
information . . . that may disclose the physical location of the
subscriber (except to the extent that the location may be determined
from the telephone number) . . . .”).

21
magistrate judges do have discretion to require warrants.

We begin with the text. Section § 2703(d) states that a
“court order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent jurisdiction and
shall issue only if” the intermediate standard is met. 18 U.S.C. §
2703(d) (emphasis added). We focus first on the language that
an order “may be issued” if the appropriate standard is met. This
is the language of permission, rather than mandate. If Congress
wished that courts “shall,” rather than “may,” issue § 2703(d)
orders whenever the intermediate standard is met, Congress
could easily have said so. At the very least, the use of “may
issue” strongly implies court discretion, an implication bolstered
by the subsequent use of the phrase “only if” in the same
sentence.

The EFF argues that the statutory language that an order
can be issued “only if” the showing of articulable facts is made
indicates that such a showing is necessary, but not automatically
sufficient. EFF Br. at 4. If issuance of the order were not
discretionary, the EFF asserts, the word “only” would be
superfluous. Id. at 5. The EFF compares the use of the words
“only if” with the clearly mandatory language of the pen register
statute, 18 U.S.C. § 3123(a)(1), which states that a court “shall”
enter an ex parte order “if” the court finds that information
relevant to an ongoing criminal investigation would be found. In
other words, the difference between “shall . . . if” (for a pen
register) and “shall . . . only if” (for an order under § 2703(d)) is
dispositive.

We addressed the effect of the statutory language “only . .
. if” in the Anti-Head Tax Act, which provides that a “State or
political subdivision of a State may levy or collect a tax on or
related to a flight of a commercial aircraft or an activity or
service on the aircraft only if the aircraft takes off or lands in the
State or political subdivision as part of the flight.” 49 U.S.C. §
40116(c) (emphasis added). In Township of Tinicum v. United
States Department of Transportation, 582 F.3d 482 (3d Cir.
2009), we stated that the “phrase ‘only if’ describe[d] a
necessary condition, not a sufficient condition,” id. at 488 (citing

22
California v. Hodari D., 499 U.S. 621, 627-28 (1991)
(explaining that “only if” describes “a necessary, but not a
sufficient, condition”)), and that while a “necessary condition
describes a prerequisite[,]” id., a “sufficient condition is a
guarantee[,]” id. at 489. Adopting the example of the baseball
playoffs and World Series, we noted that while “a team may win
the World Series only if it makes the playoffs . . . a team’s
meeting the necessary condition of making the playoffs does not
guarantee that the team will win the World Series.” Id. at 488.
In contrast, “winning the division is a sufficient condition for
making the playoffs because a team that wins the division is
ensured a spot in the playoffs . . . [and thus] a team makes the
playoffs if it wins its division.” Id. at 489. The EFF’s argument,
essentially, is that our analysis of the words “only if” in §
2703(d) should mirror that in Tinicum.

This is a powerful argument to which the Government
does not persuasively respond. Under the EFF’s reading of the
statutory language, § 2703(c) creates a “sliding scale” by which
a magistrate judge can, at his or her discretion, require the
Government to obtain a warrant or an order. EFF Br. at 6. As
the EFF argues, if magistrate judges were required to provide
orders under § 2703(d), then the Government would never be
required to make the higher showing required to obtain a warrant
under § 2703(c)(1)(A). See id.

The Government’s only retort to the argument that it
would never need to get a warrant under § 2703(c)(1)(A) if it
could always get CSLI pursuant to an order under § 2703(d) is
that the warrant reference in § 2703(c)(1)(A) is “alive and well”
because a prosecutor can “at his or her option . . . employ a
single form of compulsory process (a warrant), rather than
issuing a warrant for content and a separate subpoena or court
order for the associated non-content records.” Appellant’s Reply
Br. at 14. In other words, the Government asserts that obtaining
a warrant to get CSLI is a purely discretionary decision to be
made by it, and one that it would make only if a warrant were, in
the Government’s view, constitutionally required. We believe it
trivializes the statutory options to read the § 2703(c)(1)(A)
option as included so that the Government may proceed on one

23
paper rather than two.

In response to the EFF’s statutory argument, the
Government argues that the “shall issue” language is the
language of mandate. It also asserts that without the word
“only”, the sentence would read that an order “may be issued by
[a] court . . . and shall issue if the government” makes the correct
showing. Appellant’s Reply Br. at 12. The difficulty with the
Government’s argument is that the statute does contain the word
“only” and neither we nor the Government is free to rewrite it.

The Government argues that when the statutory scheme is
read as a whole, it supports a finding that a magistrate judge
does not have “arbitrary” discretion to require a warrant. We
agree that a magistrate judge does not have arbitrary discretion.
Indeed, no judge in the federal courts has arbitrary discretion to
issue an order. Orders of a magistrate judge must be supported
by reasons that are consistent with the standard applicable under
the statute at issue. Nonetheless, we are concerned with the
breadth of the Government’s interpretation of the statute that
could give the Government the virtually unreviewable authority
to demand a § 2703(d) order on nothing more than its
assertion. Nothing in the legislative history suggests that this
was a result Congress contemplated.8

Because the MJ declined to issue a § 2703(d) order on
legal grounds without developing a factual record, she never
performed the analysis whether the Government’s affidavit even
met the standard set forth in § 2703(d). The Government’s
position would preclude magistrate judges from inquiring into
the types of information that would actually be disclosed by a

8
We are puzzled by the Government’s position. If, as it
suggests, the Government needs the CSLI as part of its
investigation into a large scale narcotics operation, it is unlikely
that it would be unable to secure a warrant by disclosing additional
supporting facts. In our experience, magistrate judges have not
been overly demanding in providing warrants as long as the
Government is not intruding beyond constitutional boundaries.

24
cell phone provider in response to the Government’s request, or
from making a judgment about the possibility that such
disclosure would implicate the Fourth Amendment, as it could if
it would disclose location information about the interior of a
home.

The Government argues that no CSLI can implicate
constitutional protections because the subscriber has shared its
information with a third party, i.e., the communications provider.
For support, the Government cites United States v. Miller, 425
U.S. 435 (1976), in which the Supreme Court found that an
individual’s bank records were not protected by the Constitution
because “all of the records [which are required to be kept
pursuant to the Bank Secrecy Act,] pertain to transactions to
which the bank was itself a party,” id. at 441 (internal quotation
and citation omitted), and “[a]ll of the documents obtained,
including financial statements and deposit slips, contain only
information voluntarily conveyed to the banks and exposed to
their employees in the ordinary course of business,” id. at 442.

The Government also cites Smith v. Maryland, 442 U.S.
735 (1979), in which the Supreme Court held that citizens have
no reasonable expectation of privacy in dialed phone numbers
because “a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties,” id., at 744,
and a phone call “voluntarily convey[s] numerical information to
the telephone company and ‘expose[s]’ that information to its
equipment in the ordinary course of business,” id. at 744. The
Court reasoned that individuals “assume[] the risk that the
company w[ill] reveal to police the numbers . . . dialed . . . [and
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.

A cell phone customer has not “voluntarily” shared his
location information with a cellular provider in any meaningful
way. As the EFF notes, it is unlikely that cell phone customers
are aware that their cell phone providers collect and store
historical location information. Therefore, “[w]hen a cell phone
user makes a call, the only information that is voluntarily and

25
knowingly conveyed to the phone company is the number that is
dialed and there is no indication to the user that making that call
will also locate the caller; when a cell phone user receives a call,
he hasn’t voluntarily exposed anything at all.” EFF Br. at 21.

The EFF has called to our attention an FCC order
requiring cell phone carriers to have, by 2012, the ability to
locate phones within 100 meters of 67% of calls and 300 meters
for 95% of calls for “network based” calls, and to be able to
locate phones within 50 meters of 67% of calls and 150 meters
of 95% of calls for “hand-set” based calls. EFF Br. at 12 n.5
(citing 47 C.F.R. § 20.18(h)(1)(2008)). The record does not
demonstrate whether this can be accomplished with present
technology, and we cannot predict the capabilities of future
technology. See Kyllo v. United States, 533 U.S. 27, 36 (2001)
(“While the technology used in the present case was relatively
crude, the rule we adopt must take account of more sophisticated
systems that are already in use or in development.”); see also id.
(“the novel proposition that inference insulates a search is
blatantly contrary to [Karo], where the police ‘inferred’ from the
activation of a beeper that a certain can of ether was in the
home.”).

Although CSLI differs from information received from a
beeper, which the Supreme Court held in Karo required a
warrant before disclosure of information from a private home,
the remarks of the Supreme Court in Karo are useful to
contemplate, particularly in connection with the Government’s
extreme position. The Supreme Court stated:

We cannot accept the Government’s contention
that it should be completely free from the
constraints of the Fourth Amendment to determine
by means of an electronic device, without a
warrant and without probable cause or reasonable
suspicion, whether a particular article-or a person,
for that matter-is in an individual’s home at a
particular time. Indiscriminate monitoring of
property that has been withdrawn from public view
would present far too serious a threat to privacy

26
 interests in the home to escape entirely some sort
of Fourth Amendment oversight.

Karo, 468 U.S. at 716.

The Government is also not free from the warrant
requirement merely because it is investigating criminal activity.
A similar argument was rejected in Karo where the Court stated:

We also reject the Government’s contention that it
should be able to monitor beepers in private
residences without a warrant if there is the
requisite justification in the facts for believing that
a crime is being or will be committed and that
monitoring the beeper wherever it goes is likely to
produce evidence of criminal activity. Warrantless
searches are presumptively unreasonable, though
the Court has recognized a few limited exceptions
to this general rule. See, e.g., United States v.
Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d
572 (1982) (automobiles); Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L.
Ed. 2d 854 (1973) (consent); Warden v. Hayden,
387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782
(1967) (exigent circumstances). The
Government’s contention that warrantless beeper
searches should be deemed reasonable is based
upon its deprecation of the benefits and
exaggeration of the difficulties associated with
procurement of a warrant. The Government argues
that the traditional justifications for the warrant
requirement are inapplicable in beeper cases, but to
a large extent that argument is based upon the
contention, rejected above, that the beeper
constitutes only a minuscule intrusion on protected
privacy interests. The primary reason for the
warrant requirement is to interpose a “neutral and
detached magistrate” between the citizen and “the
officer engaged in the often competitive enterprise
of ferreting out crime.” Johnson v. United States,

27
 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436
(1948). Those suspected of drug offenses are no
less entitled to that protection than those suspected
of nondrug offenses. Requiring a warrant will
have the salutary effect of ensuring that use of
beepers is not abused, by imposing upon agents the
requirement that they demonstrate in advance their
justification for the desired search.

Id. at 717.

Similar reasoning lay behind the MJ’s refusal to grant a §
2703(d) order. In the issue before us, which is whether the MJ
may require a warrant with its underlying probable cause
standard before issuing a § 2703(d) order, we are stymied by the
failure of Congress to make its intention clear. A review of the
statutory language suggests that the Government can proceed to
obtain records pertaining to a subscriber by several routes, one
being a warrant with its underlying requirement of probable
cause, and the second being an order under § 2703(d). There is
an inherent contradiction in the statute or at least an underlying
omission. A warrant requires probable cause, but there is no
such explicit requirement for securing a § 2703(d) order. We
respectfully suggest that if Congress intended to circumscribe
the discretion it gave to magistrates under § 2703(d) then
Congress, as the representative of the people, would have so
provided. Congress would, of course, be aware that such a
statute mandating the issuance of a § 2703(d) order without
requiring probable cause and based only on the Government’s
word may evoke protests by cell phone users concerned about
their privacy. The considerations for and against such a
requirement would be for Congress to balance. A court is not
the appropriate forum for such balancing, and we decline to take
a step as to which Congress is silent.

Because the statute as presently written gives the MJ the
option to require a warrant showing probable cause, we are
unwilling to remove that option although it is an option to be
used sparingly because Congress also included the option of a §
2703(d) order. However, should the MJ conclude that a warrant

28
is required rather than a § 2703(d) order, on remand it is
imperative that the MJ make fact findings and give a full
explanation that balances the Government’s need (not merely
desire) for the information with the privacy interests of cell
phone users.

We again note that although the Government argues that
it need not offer more than “specific and articulable facts
showing that there are reasonable grounds to believe that the . . .
information sought . . . [is] relevant and material to an ongoing
criminal investigation,” 18 U.S.C. § 2703(d), the MJ never
analyzed whether the Government made such a showing. We
leave that issue for the MJ on remand.

V.

For the reasons set forth, we will vacate the MJ’s order
denying the Government’s application, and remand for further
proceedings consistent with this opinion.

________________________________

TASHIMA, Circuit Judge, concurring:

I concur in the result and in most of the reasoning of the
majority opinion. I write separately, however, because I find the
majority’s interpretation of the discretion granted to a magistrate
judge by 18 U.S.C. § 2703(d) troubling.

The majority begins its analysis of § 2703(d) correctly:

In sum, we hold that CSLI from cell phone
calls is obtainable under a § 2703(d) order and that
such an order does not require the traditional
probable cause determination. Instead, the
standard is governed by the text of § 2703(d), i.e.,
“specific and articulable facts showing that there
are reasonable grounds to believe that the contents
of a wire or electronic communication, or the
record or other information sought, are relevant.”

29
Maj. Op. at 16-17 (quoting § 2703(d)). But the majority then
appears to contradict its own holding later in its opinion, when it
states “[b]ecause the statute as presently written gives the MJ the
option to require a warrant showing probable cause, we are
unwilling to remove that option although it is an option to be
used sparingly because Congress also included the option of a §
2703(d) order.” Id. at 28. Thus, the majority suggests that
Congress did not intend to circumscribe a magistrate’s discretion
in determining whether or not to issue a court order, while at the
same time acknowledging that “[o]rders of a magistrate judge
must be supported by reasons that are consistent with the
standard applicable under the statute at issue.” Id. at 24. I do
not believe that these contradictory signals give either magistrate
judges or prosecutors any standards by which to judge whether
an application for a § 2703(d) order is or is not legally sufficient.

Granting a court unlimited discretion to deny an
application for a court order, even after the government has met
statutory requirements, is contrary to the spirit of the statute. Cf.
Huddleston v. United States, 485 U.S. 681, 688 (1988) (noting,
in interpreting Federal Rule of Evidence 404(b), that the word
“may” does not vest with the trial judge arbitrary discretion over
the admissibility of evidence); The Federalist No. 78, p. 529 (J.
Cooke ed. 1961) (“‘To avoid an arbitrary discretion in the courts,
it is indispensable that they should be bound down by strict rules
and precedents, which serve to define and point out their duty in
every particular case that comes before them.’”).

As the majority notes, “a magistrate judge does not have
arbitrary discretion. Indeed, no judge in the federal courts has
arbitrary discretion to issue an order.” Maj. Op. at 24. I
respectfully suggest, however, that the majority’s interpretation
of the statute, because it provides no standards for the approval
or disapproval of an application for an order under § 2703(d),
does just that – vests magistrate judges with arbitrary and
uncabined discretion to grant or deny issuance of § 2703(d)

30
orders at the whim of the magistrate,9 even when the conditions
of the statute are met.

I would cabin the magistrate’s discretion by holding that
the magistrate may refuse to issue the § 2703(d) order here only
if she finds that the government failed to present specific and
articulable facts sufficient to meet the standard under § 2703(d)
or, alternatively, finds that the order would violate the Fourth
Amendment absent a showing of probable cause because it
allows police access to information which reveals a cell phone
user’s location within the interior or curtilage of his home.10 See
Kyllo v. United States, 533 U.S. 27, 35-36 (2001); United States
v. Pineda-Moreno, 2010 WL 3169573 (9th Cir. 2010) (Kozinski,
C.J., dissenting from denial of rehearing en banc).
With this caveat as to the magistrate’s duty and the scope
of her discretion on remand, I concur in the majority opinion and
in the judgment.11

9
Unless the admonition that the magistrate’s naked
power should “be used sparingly,” Maj. Op. at 28, is accepted as a
meaningful and objectively enforceable guideline.
10
Alternatively, the magistrate may condition her order
by requiring minimization to exclude those portions which disclose
location information protected by the Fourth Amendment, i.e.,
within the home and its curtilage.
11
I am also troubled by the majority’s assumption,
without any support in the record, that “[a] cell phone customer has
not ‘voluntarily’ shared his location information with a cellular
provider in any meaningful way.” Maj. Op. at 25. In Smith v.
Maryland, 442 U.S. 735 (1979), the Supreme Court held that “a
person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties.” Id. at 743-44. Subsequent
cases in this fast-changing technological era have found that this is
a fact-intensive inquiry. Compare United States v. Maynard, 2010
WL 3063788 (D.C. Cir. 2010) (holding that there is an expectation
of privacy in long-term GPS surveillance records), with U.S.
Telecom Ass’n v. FCC, 227 F.3d 450, 459 (D.C. Cir. 2000) (finding
no legitimate expectation of privacy in information, including cell

31
site location information, conveyed to the phone company in order
to complete calls); United States v. Forrester, 512 F.3d 500, 510
(9th Cir. 2008) (“[E]-mail and Internet users have no expectation
of privacy in the to/from addresses of their messages or the IP
addresses of the websites they visit because they should know that
this information is provided to and used by Internet service
providers for the specific purpose of directing the routing of
information.”).
Like the magistrate’s failure to find whether the government
made a sufficient showing under § 2703(d), see Maj. Op. at 28
(“the MJ never analyzed whether the Government made such a
showing”), I would also “leave [the expectation of privacy] issue
for the MJ on remand,” id. at 29, in the first instance, if
determination of that issue becomes relevant.

32