Case: USA v. Pen Register

4:06-mj-00356 | U.S. District Court for the Southern District of Texas

Filed Date: May 23, 2006

Closed Date: 2006

Clearinghouse coding complete

Case Summary

On May 23, 2006, the government applied to the Southern District of Texas for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking, pursuant to the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, which is part of the Electronic Communications Privacy Act (ECPA). The application raised two novel legal issues: whether the Government may obtain "postcut-through dialed digits" containing communication contents under th…

On May 23, 2006, the government applied to the Southern District of Texas for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking, pursuant to the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, which is part of the Electronic Communications Privacy Act (ECPA). The application raised two novel legal issues: whether the Government may obtain "postcut-through dialed digits" containing communication contents under the authority of the Pen/Trap Statute; and whether limited cell site information may be obtained prospectively under the dual or hybrid authority of the Pen/Trap Statute and the Stored Communications Act ("SCA"), which was also part of ECPA.

On May 23, 2006, Magistrate Judge Stephen Smith issued an order granting in part but denying access to post-cut-through-dialed digits (any numbers dialed from a telephone after the call is initially setup or "cut-through") as well as the limited cell site authority (specifically, location of the antenna tower and sector to which the cell phone sends its signal). In response to the government's informal request, Judge Smith agreed to reconsider the dialed digits ruling and invited full briefing by the government as well as interested parties. Judge Smith also agreed to reconsider the cell site issue in light of a recent decision by a district judge in this district, In re U.S. for an Order, 433 F. Supp. 2d 804 (S.D. Tex. 2006).

In June, the government filed the requested brief. In addition, the Electronic Frontier Foundation and Center for Democracy and Technology filed an amicus brief on the issue.

On July 19, 2006, Judge Smith affirmed his decision. Judge Smith held that the government could not obtain post-cut-through dialed digits, and that the government could not prospectively obtain limited cell site information under the dual or hybrid authority of the Pen/Trap Statute and the Stored Communications Act (SCA). In re the Application of United States, 441 F. Supp. 2d 816 (S.D. Tex. 2006).

This decision cast doubt on the lawfulness of the government's ongoing internet metadata surveillance, carried out under the Foreign Intelligence Surveillance Act. So the Foreign Intelligence Surveillance Court ordered the government to address the ongoing validity of the internet metadata program in NS-DC-0062 in this Clearinghouse.

Summary Authors

Jessica Kincaid (2/5/2015)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/5329501/parties/united-states-v-pen-register/


Judge(s)

Smith, Stephen W. (Texas)

Attorneys(s) for Plaintiff

Degabrielle, Donald J. Jr. (Texas)

Stabe, Robert J. (Texas)

Other Attorney(s)

Active

Active

Active

Active

Judge(s)

Smith, Stephen W. (Texas)

Attorneys(s) for Plaintiff

Degabrielle, Donald J. Jr. (Texas)

Stabe, Robert J. (Texas)

Other Attorney(s)

Bankston, Kevin (California)

Dempsey, James X (District of Columbia)

Morris, John B. (District of Columbia)

Tien, Lee (California)

Documents in the Clearinghouse

Document

4:06-mj-00356

Docket

USA v. Pen Register

Nov. 15, 2006

Nov. 15, 2006

Docket
3

4:06-mj-00356

Order

May 25, 2006

May 25, 2006

Order/Opinion
9

4:06-mj-00356

Brief of the United States in Response to the Court's May 24, 2006 Order regarding Post-Cut-Through-Dialed Digits

June 16, 2006

June 16, 2006

Pleading / Motion / Brief
11

4:06-mj-00356

Brief Amicus Curiae of Electronic Frontier Foundation and Center for Democracy and Technology in regard to Court's May 24, 2006 Order on Post-Cut-Through Dialed Digits

June 30, 2006

June 30, 2006

Pleading / Motion / Brief
13-1

4:06-mj-00356

Opinion

441 F.Supp.2d 816, 2006 WL 2033877

July 19, 2006

July 19, 2006

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5329501/united-states-v-pen-register/

Last updated July 29, 2022, 3:07 a.m.

ECF Number Description Date Link Date / Link
1

Sealed Document as to Pen Register, filed.(mlerma, ) (jmarchand, 4). (Entered: 06/14/2006)

May 23, 2006

May 23, 2006

PACER
2

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Stephen Smith ). Parties notified. (mlerma, ) (jmarchand, 4). (Entered: 06/14/2006)

May 23, 2006

May 23, 2006

PACER
3

ORDER that the Government shall file on or before 06/16/06 a brief addressing the matters noted in this Order as to Pen Register ( Signed by Judge Stephen Smith ). Parties notified. (mlerma, ) (Entered: 06/14/2006)

May 24, 2006

May 24, 2006

Clearinghouse
4

MOTION for Kevin S. Bankston to Appear Pro Hac Vice by Electronic Frontier Foundation as to Pen Register, filed. (jmarchand) (Entered: 06/15/2006)

June 12, 2006

June 12, 2006

PACER

All documents uner bar code 4:06CI0789 as to Pen Register:, filed. (mlerma, )

June 14, 2006

June 14, 2006

PACER
5

MOTION for Leave to File Brief Amicus Curiae by Electronic Frontier Foundation as to Pen Register, filed. (Attachments: # 1 Memorandum of Law in Support; # 2 Proposed Order)(jmarchand) (Entered: 06/15/2006)

June 15, 2006

June 15, 2006

PACER

Attorney update in case as to Pen Register. Attorney Kevin S Bankston for Electronic Frontier Foundation added. (jmarchand)

June 15, 2006

June 15, 2006

PACER
6

ORDER granting 4 Motion to Appear Pro Hac Vice as to Pen Register (1).(Signed by Judge Stephen Wm Smith.) Parties notified.(jmarchand) (Entered: 06/15/2006)

June 15, 2006

June 15, 2006

PACER
7

ORDER granting 5 Motion for Leave to File Amicus Curiae as to Pen Register (1). Amicus Brief shall be filed on or before June 30, 2006.(Signed by Judge Stephen Wm Smith.) Parties notified.(jmarchand) (Entered: 06/15/2006)

June 15, 2006

June 15, 2006

PACER
8

OBJECTION by USA as to Pen Register re 7 Order on Motion for Leave to File Amicus Curiae Brief, filed. (Attachments: # 1 Proposed Order)(jmarchand) (Entered: 06/16/2006)

June 16, 2006

June 16, 2006

PACER
9

BRIEF in Response by USA as to Pen Register re 3 Order regarding Post-Cut-Through Dialed Digits, filed. (Sealed Exhibit A filed with court, Bar Code 4:06CI0789)(jmarchand) (Additional attachment(s) added on 6/15/2018: # 1 Exhibit A) (jmarchand, 4). (Entered: 06/16/2006)

June 16, 2006

June 16, 2006

Clearinghouse
10

ORDER overruling 8 Objection, regarding 9 BRIEF as to Pen Register ( Signed by Judge Stephen Wm Smith ). Parties notified. (jmarchand) (Entered: 06/16/2006)

June 16, 2006

June 16, 2006

PACER
11

BRIEF by Electronic Frontier Foundation as to Pen Register in Regard to Court's May 24, 2006 Order on Post Cut-Through Dialed Digits, filed.(Bankston, Kevin) (Entered: 06/30/2006)

June 30, 2006

June 30, 2006

Clearinghouse
12

Certificate of Service by Electronic Frontier Foundation as to Pen Register re Amicus Brief in Regard to Court?s May 24, 2006 Order on Post-Cut-Through Dialed Digits, filed. (Bankston, Kevin) (Entered: 06/30/2006)

June 30, 2006

June 30, 2006

PACER
13

OPINION as to Pen Register ( Signed by Judge Stephen Wm Smith ). Parties notified. (jmarchand) Additional attachment(s) added on 9/18/2006 (jmarchand, ). (Entered: 07/19/2006)

July 19, 2006

July 19, 2006

RECAP
14

Sealed Document as to Pen Register, filed.(mlerma, ) (Entered: 07/20/2006)

July 19, 2006

July 19, 2006

PACER
15

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Calvin Botley ). Parties notified. (mlerma, ) (Entered: 07/20/2006)

July 19, 2006

July 19, 2006

PACER
16

Sealed Document as to Pen Register, filed.(mlerma, ) (Entered: 09/15/2006)

Sept. 14, 2006

Sept. 14, 2006

PACER
17

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Frances H Stacy ). Parties notified. (mlerma, ) (Entered: 09/15/2006)

Sept. 14, 2006

Sept. 14, 2006

PACER
18

SEALED MOTION by USA as to Pen Register, filed. (mlerma, ) (Entered: 11/16/2006)

Nov. 15, 2006

Nov. 15, 2006

PACER
19

Sealed ORDER granting 18 Sealed Motion as to Pen Register (1).(Signed by Judge Stephen Smith.) Parties notified.(mlerma, ) (Entered: 11/16/2006)

Nov. 15, 2006

Nov. 15, 2006

PACER

Case Details

State / Territory: Texas

Case Type(s):

National Security

Key Dates

Filing Date: May 23, 2006

Closing Date: 2006

Case Ongoing: No

Plaintiffs

Plaintiff Description:

U.S. seeking warrant.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Constitutional Clause(s):

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Mixed

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2006 - 2006

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues