Magistrate Judge Rejects Govt's Attempt To Use A Stored Records Law To Seek Future Cell Site Location Info

from the thanks-for-the-warrant-but-you're-still-doing-it-wrong dept

Someone’s keeping the government in line in Idaho. Federal judge Ronald E. Bush isn’t just skimming warrant applications and signing them. He’s actually reading them and applying the law. This probably isn’t endearing him to federal agents.

In May of this year, he told the government that forcing a suspect to unlock a phone using swipe pattern was unconstitutional. He told the government the same thing a couple of months later when it was attempting to get a court order compelling fingerprint production. One of these was rolled back by the district court, but it appears warrant applications in Ronald Bush’s court are receiving more scrutiny than they are elsewhere.

Judge Bush’s latest pushback deals with cell site location info. This information, collected by cell service providers, used to be acquired without a warrant. Up until the Supreme Court’s 2018 decision, CSLI was considered a third party record that could be obtained with only a subpoena. Historical location data now needs warrants, hence these warrant applications — one of which Judge Bush has rejected [PDf}.

Bush says the Stored Communications Act (SCA) warrant is fine as long as the government sticks to, you know, stored communications. But the government wants to do more under this same authority. Since the government doesn’t appear to know exactly where its suspect is located, it wants to use the SCA to track the location of the suspect’s phone as location records are generated.

The second application, however, seeks not historical location information or other historical subscriber data, but rather seeks thirty days of prospective “location information” regarding the target telephone. In other words, the Government seeks a warrant under the Stored Communications Act to permit the Government to gather future information, which the application defines to include “all available E-911 Phase II data, GPS data, latitude-longitude data, and other precise location information, as well as data about which ‘cell towers’ (i.e., antenna towers covering specific geographic areas) and ‘sectors’ (i.e., faces of the towers) received a radio signal from the cellular telephone.” Such location information is sometimes referred to as “real-time cell-site location information” or “real-time CSLI.”

As the judge points out, the SCA does not cover records that haven’t been created yet, much less “stored.”

The Court will deny the second application because the SCA does not authorize issuance of a warrant to allow the Government to collect prospective location information.

There is an option the government can use to collect real time CSLI. Under Rule 41, the government can obtain this data, deploying the warrant to collect the info as it comes in. But the government doesn’t want to use its Rule 41 powers because they’re a bit more limited in scenarios like these. SCA warrants can compel production from anywhere. Rule 41 allows tracking of an individual’s movements via a device (or a third party) but the “device” must be installed in the district. Since the government doesn’t actually know where the targeted phone is located, it cannot meet the venue requirements needed to secure judicial permission.

The government’s argument is basically, “If you don’t let us do this the wrong way, there’s a possibility we won’t be able to do it at all.”

The Government notes that “if the Court declines to issue the warrant, the Government will have to rely on other less-direct and potentially less-effective methods to find” the subject.

The court agrees this might be more difficult for the government.

The Court will accept the Government’s representation that the task of locating the suspect may be more cumbersome if the prospective location information warrant is not granted.

But it isn’t the court’s job to make the government’s work easier.

[T]he relative expediency or arguable cumbersomeness of the method of obtaining the location information sought by the Government is not a basis to rule that the SCA allows for something which its language otherwise does not permit.

The government will have to cut investigative corners somewhere else. Judge Bush’s court isn’t going to help out by participating in the government’s self-induced SCA delusion. Stored records aren’t records that don’t exist presently and still have a chance of never existing, no matter how much the government believes they are.

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