In re: Application of the U.S. for Historical Cell Site Data, United States Court of Appeals, 5th Circuit, Docket No. 11-20884

The Government filed three applications under § 2703 of the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712, seeking evidence relevant to three separate criminal investigations. On appeal, the issue before the court was whether court orders authorized by SCA to compel cell phone service providers to produce the historical cell site information of their subscribers were per se unconstitutional. The appellate court concluded that cell site data are business records and should be analyzed under that line of Supreme Court precedent. As such, the appellate court found that, since the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the "proper framework," the appellate court found that SCA's authorization of § 2703(d) orders for historical cell site information if an application meets the lesser "specific and articulable facts" standard, rather than the Fourth Amendment probable cause standard, was not per se unconstitutional. Further, as long as the Government met the statutory requirements, SCA did not give the magistrate judge discretion to deny the Government's application for such an order. Accordingly, the court vacated and remanded with instructions to grant the applications.

 

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