Case: In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority

4:05-mj-00557 | U.S. District Court for the Southern District of Texas

Filed Date: July 7, 2005

Clearinghouse coding complete

Case Summary

In this case, filed on 07/07/2005, as part of an ongoing criminal investigation in the Southern District of Texas, the government sought a court order compelling a cell phone company to disclose records of a customer's cell phone use. Among the records sought was "cell site data," which reveals the user's physical location when the cellphone is turned on. Following its standard practice for this district, the government combined its request for subscriber records with an application to install …

In this case, filed on 07/07/2005, as part of an ongoing criminal investigation in the Southern District of Texas, the government sought a court order compelling a cell phone company to disclose records of a customer's cell phone use. Among the records sought was "cell site data," which reveals the user's physical location when the cellphone is turned on. Following its standard practice for this district, the government combined its request for subscriber records with an application to install a pen register and trap/trace device on the target phone. The underlying order and application have been seals at the government's request, in order not to jeopardize the ongoing criminal investigation. However, the court did not seal a brief filed by the U.S. on August 23, 2005, and an opinion issued on October 14, 2005. These documents concerned a matter of statutory interpretation which did not hinge on the particulars of the underlying investigation.

On August 23, 2005, the U.S. filed a brief on cell site information. The U.S. described how it traditionally used 18 U.S.C. §§ 2703(c) and (d) of the Stored Communications Act to obtain cell site information. However, in an unreleased memorandum date June 10, 2005, Magistrate Judge Stephen Smith raised two objections to that process. The U.S. addressed these objections by asserting a combined authority of both the pen/trap statute and § 2703 of the Stored Communications Act (SCA) to collect cell site information.

On September 2, 2003, the Court granted the application in large part, authorizing the continued use of a pen register/trap and trace device and disclosure of certain customer records including historical cell site data. However, the order denied access to prospective cell site information.

On October 14, 2005, Magistrate Judge Stephen Smith issued an opinion in which he again denied the government access to cell site locations. Judge Smith held that prospective cell site data qualifies as tracking device information under the Electronic Communications Privacy Act (ECPA) and that the government could not obtain prospective cell site data under the statute governing authority for pen registers and trap devices. In addition, Judge Smith held that the government could not obtain cell site data pursuant to wiretap statute or provisions of the SCA authorizing disclosure of the contents of stored communications. Finally, Judge Smith held that the order authorizing the government's use of pen register/trap and trace devices could not be used in conjunction with an SCA order authorizing access to cellphone subscriber records to collect prospective cell site data without establishing probably cause required for tracking device. In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005).

This all of the information available about the case. There were further orders in this case, but they remain under seal.

In 2006, Judge Smith again addressed another U.S. request for cell site location in USA v. Pen Register, NS-TX-0001 in this Clearinghouse. Subsequently, in NS-DC-0062, the Foreign Intelligence Court ordered the U.S. to address the ongoing validity of the National Security Agency's internet metadata surveillance program in light of that 2006 decision in NS-TX-0001.

Summary Authors

Jessica Kincaid (3/17/2015)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5229497/parties/united-states-v-pen-register/


Judge(s)

Botley, Calvin (Texas)

Notzon, Marcel C. (Texas)

Smith, Stephen W. (Texas)

Attorneys(s) for Plaintiff

Rosenberg, Chuck (Texas)

Attorneys(s) for Defendant

Tellez, Jose Salvador (Texas)

Judge(s)

Botley, Calvin (Texas)

Notzon, Marcel C. (Texas)

Smith, Stephen W. (Texas)

Attorneys(s) for Plaintiff

Rosenberg, Chuck (Texas)

Attorneys(s) for Defendant

Tellez, Jose Salvador (Texas)

Documents in the Clearinghouse

Document

Docket

USA v. Pen Register

Dec. 20, 2005 Docket
6

18 U.S.C. Section 2703(d) orders for cell site information

[NA]

Aug. 23, 2005 Pleading / Motion / Brief
5

Opinion

369 F.Supp.2d 747

Oct. 14, 2005 Order/Opinion

Resources

Title Description External URL

Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives

Margo Schlanger

Obviously there have been load of disclosures about FISA matters over the past year—between the Snowden documents, the FOIA-driven ODNI declassifications, the FISA Court’s nifty new on-line docket, a… June 26, 2014 http://justsecurity.org/...

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5229497/united-states-v-pen-register/

Last updated May 20, 2022, 3:55 a.m.

ECF Number Description Date Link
1

Sealed Document as to Pen Register, filed.(mlerma, ) (Entered: 07/20/2005)

July 7, 2005
5

OPINION ORDER as to Pen Register ( Signed by Judge Stephen Wm Smith ). Parties notified. (svaught)

Oct. 14, 2005 RECAP
2

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Calvin Botley ). Parties notified. (mlerma, ) (Entered: 07/20/2005)

July 7, 2005
6

Memorandum re 18 USC 2703(d) dated 8/23/2005 by United States of America, filed.(rkonieczny, ) (Entered: 10/19/2005)

Aug. 23, 2005
4

Sealed Document as to Pen Register, filed.(mlerma, ) (Entered: 09/09/2005)

Sept. 1, 2005
3

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Stephen Smith ). Parties notified. (mlerma, ) (Entered: 09/09/2005)

Sept. 2, 2005
7

Sealed Document as to Pen Register, filed.(mlerma, ) (Entered: 11/01/2005)

Oct. 27, 2005
8

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Nancy K. Johnson ). Parties notified. (mlerma, ) (Entered: 11/01/2005)

Oct. 27, 2005
10

SEALED ORDER as to Pen Register, entered and placed in vault. ( Signed by Judge Calvin Botley ). Parties notified. (mlerma, ) (Entered: 01/11/2006)

Dec. 20, 2005

State / Territory: Texas

Case Type(s):

National Security

Key Dates

Filing Date: July 7, 2005

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The U.S., seeking a criminal 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

Defendants

Jose Luis Granados, Private Entity/Person

Case Details

Constitutional Clause(s):

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Mixed

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2005 - None

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