## Facts

- The United States conducted a criminal investigation and sought an order compelling a telecommunications provider to produce cell-site location information (CSLI) associated with a phone used by an individual under investigation.
- CSLI was stored by the provider on its servers and could be used to determine a phone’s location both historically and, depending on the data available, in something close to real time.
- The accuracy of CSLI varied depending on the type of data produced by the provider, including data from a single cell tower, triangulation from multiple towers, and, in some circumstances, GPS-based information.
- By compiling CSLI over time, the government could track an individual’s movements and infer where the individual had been.
- Federal law provided different legal thresholds for different investigative techniques, with less intrusive tools (such as pen registers, which capture dialing information but not call content) requiring a relatively low showing, and more intrusive tools (such as wiretaps) requiring a high showing plus additional statutory procedures.
- Tracking devices occupied a middle category: because tracking can reveal a person’s movements, courts generally required probable cause and additional procedures, including requirements reflected in Federal Rule of Criminal Procedure 41.
- The Stored Communications Act (SCA), including 18 U.S.C. § 2703(d), set a “specific and articulable facts” standard for certain compelled disclosures, but did not expressly state what standard applied to CSLI or whether the standard changed based on the nature and precision of the location data.
- The government argued that CSLI should be obtainable under a relevance-based standard comparable to the showing required for pen-register-type information, rather than a probable-cause warrant standard.

## Issues

1. Whether 18 U.S.C. § 2703(d) requires a court to issue an order for CSLI when the government makes the statute’s “specific and articulable facts” showing, or whether the court may require a probable-cause warrant instead.
2. Whether CSLI should be treated as relatively nonintrusive transactional information (like pen-register data) or as location tracking more analogous to a tracking device that typically triggers probable cause and Rule 41-type procedures.
3. Whether, given the privacy and Fourth Amendment concerns raised by location tracking, the SCA should be read to preserve judicial discretion rather than compel issuance of a § 2703(d) order in all qualifying applications.

## Decision

- The court held that § 2703(d) does not give the government an automatic entitlement to CSLI based solely on meeting the statute’s “specific and articulable facts” standard.
- The court concluded that judges retain discretion to require the government to proceed by probable-cause warrant to obtain CSLI in appropriate circumstances.
- The court did not resolve the Fourth Amendment question as a definitive constitutional ruling for all CSLI requests, but treated the privacy implications of location tracking as important to interpreting the statute.
- The court vacated the order under review and remanded for further proceedings consistent with its interpretation that § 2703(d) permits judicial discretion.

## Legal Principles

- Section 2703(d)’s “specific and articulable facts” standard functions as a minimum statutory threshold for certain compelled disclosures; it does not eliminate a court’s ability to require a stronger showing for more revealing information.
- When requested records enable location tracking and can reveal patterns of movement, courts may require a probable-cause warrant and use procedures associated with warrants (including Rule 41 mechanisms).
- Courts may construe statutes affecting surveillance in a way that avoids forcing routine authorization of investigative methods that raise serious constitutional questions.
- The proper standard for compelled disclosure may depend on what the data reveals and how it can be used, not merely on the label “non-content” or “transactional” information.

## Conclusion

In the Matter of the Application of the United States of America held that the Stored Communications Act’s § 2703(d) standard does not guarantee the government access to CSLI on a mere “specific and articulable facts” showing. Because CSLI can be used to track an individual’s movements with varying degrees of precision, the court concluded that judges may require the government to obtain a probable-cause warrant and use warrant procedures in appropriate cases, and it sent the matter back for reconsideration under that discretionary framework.


In the Matter of the Application of the United States of America, 2010 WL 3021950 (2010)