Cell Phones as an Eye of the Government: In re Application of the United States for Historical Cell Site Data

Federal authorities in Texas sought a court order from a federal magistrate to compel a cell phone service provider to disclose records for a particular cell phone number under the Stored Communications Act (SCA). These records included historical cell site data, which service providers collect and store for each of their cell phone subscribers. Historical cell site data provide the locations of antennae towers that receive the signal of a subscriber cell phone and the direction from which that signal emanates. Service providers may record and collect these data at times when the phone is in use and when the phone is idle. Federal authorities sought this order under the SCA on a showing of “specific and articulable facts,” rather than by a warrant on a showing of probable cause. The magistrate refused to grant the order as pertaining to the historical cell site data. The magistrate found that although federal authorities did meet the specific and articulable facts standard of the SCA, this provision allows the government to effect a search under the Fourth Amendment on a lower evidentiary showing than probable cause and is, therefore, unconstitutional. When the government objected to the magistrate’s ruling, the district court affirmed the magistrate’s decision. The government appealed the district court’s decision while the American Civil Liberties Union, the Electronic Frontier Foundation, and others participated as amici. In a split decision, the United States Court of Appeals for the Fifth Circuit held that court orders to compel service providers to provide historical cell site data based on the specific and articulable facts standard under the SCA do not categorically violate the Fourth Amendment and that courts do not have discretion to require a showing of probable cause when the government seeks to compel disclosure of historical cell site data under the SCA. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).