Posts Tagged ‘eavesdropping warrant’

Cell Site Data — Is a Warrant Really Required?

Monday, March 23rd, 2009

cell-tower.png

The 3rd Circuit is hearing an interesting appeal on whether the government needs to get a warrant before demanding cell site data from phone companies.

Cell sites are those transmitters you see on rooftops and towers, beaming and receiving cell phone communications. Their range varies from a few blocks to a circle twenty miles across, depending on their power and local geography. When a cell phone is being used, it’s communicating with a particular cell site.

Phone company records will show what cell site was being used by a particular phone at any given time. Law enforcement often requests such records, to help narrow down possible locations for an individual using a phone. This can be particularly useful if the individual is in motion, because his signal will be picked up by a series of cell sites, which can be used to map his progress.

This is passive data, as opposed to an active “ping” whereby a signal is sent directly to a particular phone for the purpose of identifying its location.

Most phone companies will not provide real-time cell site data to law enforcement without a court order. So court orders are routinely sought, often in conjunction with pen registers (calling records which show the time and phone number for calls sent and received). 18 U.S.C. § 2703 permits such an order when there are “specific and articulable facts showing that there are reasonable grounds to believe that… the records… are relevant and material to an ongoing criminal investigation.” These are called 2703(d) orders, and are different from eavesdropping warrants requiring probable cause.

In this case, the feds asked for a 2703(d) order, but unusually did not seek real-time cell site info. Instead, they asked for an order permitting them to get historical data. They’d been investigating drug trafficking, and were tracking one subject’s phones already. During the investigation, they identified what they believed to be the phone of their subject’s supplier. Physical surveillance proving difficult, the feds wanted to see historical cell site data, to see if they could figure out how the supplier had moved around.

The magistrate denied that request, holding that a request for real-time data would have been fine, but that historical data is not permitted pursuant to a 2703(d) order.

(As an aside, the investigators learned of the supplier’s number in June 2007, but didn’t apply for the historical data until February 2008. We know the feds take an inordinate amount of time in their wire and pen applications — one reason why they do comparatively few of them — but eight or nine months is astonishing.)

The feds appealed to the district court, arguing that the magistrate’s decision was bizarre. Instead, however, the district court went further than the magistrate had, and ruled that a warrant based on probable cause would be required for such historical records.

Although we are on the defense side, it seems as though both the magistrate and the district court judge got things backwards. Real-time cell site data, one would expect, is significantly more intrusive of privacy than historical data from up to six months ago. Real-time data can be used to locate where a person is now. The law clearly permits this more invasive search to be performed with a mere order. To require a probable cause warrant for the clearly less-invasive search makes little sense.

The ACLU, meanwhile, has stepped in with an amicus brief opposing the government. They basically argue that, yes, a 2703(d) order would have been sufficient, but the magistrate had the discretion to require a probable cause warrant instead. They then argue that, no, a 2703(d) order would not have been sufficient, and in fact a probable cause warrant ought to be required for all cell site information. People don’t know their cell site data is being collected, so they have an expectation of privacy.

We’re frankly not thrilled with the quality of either side’s brief. But the ACLU wins the “silliest syllogism” award for this one: They hypothesize a subject named Bob. Bob is talking on his cell phone as he enters his office, so with real-time cell site info the police now know he’s in his office. Bob is surveilled to his house. Once inside his house, he makes another call. But without the cell-site info, the cops would have no reason to believe the cell phone never left Bob’s office. Riiiight.

This is a case of first impression in the Third Circuit. One could easily see them ruling against the feds, too.

Feds who, by the way, brought this on themselves.

Seriously. They could have simply subpoenaed the historical business records without going to a judge in the first place. Asking permission to do something novel is the best way to create a precedent saying you can’t do it. But subpoenaing already-existing business records from phone companies is strictly routine. If they’d done it that way, we’d wager that the court would even have compelled the phone company to comply, if the need arose.

NYPD and DOJ Wiretap Fight: Each Accuses the Other of Endangering the Public

Friday, November 21st, 2008

pen-register.png

Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.