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A combination of two federal statutes gives investigators the power to obtain information on calls made from a particular phone recorded at cellular towers, a federal judge has ruled. Southern District Judge Lewis Kaplan said the Pen Register Statute, taken together with the Stored Communications Act, “clearly authorizes such disclosures,” even though there was “little indication” that Congress actually intended such a result. The ruling puts Judge Kaplan at odds with the majority of magistrate judges and two district judges who have considered the issue and found that statutory authority is lacking. But the judge said his reasoning in In re: Application of the United States for an Order for Prospective Cell Site Location on a Certain Cellular Telephone, 06 Crim. Misc. 01, squares with that of three magistrate judges, including one in the Southern District. The case began with the government requesting that Southern District Magistrate Judge Andrew Peck grant permission to use a pen register and trap and trace device (which record numbers dialed from or calling to a particular cell phone) in a criminal investigation. Magistrate Judge Peck, aligning himself with the majority view, denied the application. The government renewed its request before Judge Kaplan. The government claimed that the Pen Register Statute, 18 U.SS.C. �3121, allows courts to permit the use of devices that would report both incoming and outgoing calls as well the specific cell site information at the beginning and end of each call. Judge Kaplan said that courts are also required under the Communications Assistance for Law Enforcement Act of 1994 to rely on “additional statutory authority when ordering the disclosure of prospective cell site information under the Pen Register Statute.” That additional authority, prosecutors claim, comes from the Stored Communications Act, 18 U.S.C. �2701. Judge Kaplan said the Pen Register Statute, when it was first enacted in 1986, contained narrow definitions of pen registers and trap and trace devices-but that those definitions were “significantly broadened” in the USA PATRIOT Act of 2001 to include “signaling information.” The judge said the U.S. Court of Appeals for the District of Columbia Circuit held in United States Telecom Association v. FCC, 227 F.3d 450 (2000), that cell site information is “signaling information” under the communications assistance act. While at least one magistrate judge has interpreted the PATRIOT Act as expanding the definition merely to encompass e-mail, Judge Kaplan said “the language of the statute is clear on its face and contains no limitation to electronic communications such as email”-and that the legislative history supports this conclusion. Additional authority Judge Kaplan then agreed with the government that the communications assistance act allows such disclosure as long as it is obtained in combination with “some other authority.” “If Congress intended, in the final analysis, to prevent the disclosure of cell site information under the Pen Register Statute even in the presence of additional statutory authority – or to prohibit the disclosure of cell site information altogether, it could have said so explicitly,” he said. He said the additional authority comes from the Stored Communications Act-which states the government may obtain such an order where it provides reasonable grounds “to believe that the contents of a wire or electronic communication, or the records or other information sought are relevant and material to an ongoing criminal investigation.” Despite arguments to the contrary, “[t]he Stored Communications Act contains no explicit limitation on the disclosure of prospective data,” Judge Kaplan said. “Further, the information the government requests is, in fact, a stored, historical record because it will be received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials.” So Judge Kaplan accepted the government’s argument on the statute “at least where, as here, the government does not seek triangulation information or location information (information that can show where the caller is located) other than that transmitted at the beginning and end of particular calls.” He then granted an order authorizing investigators to capture calls made and received from the cell phone and information that identifies the antenna tower receiving transmissions from that phone at the beginning and end of a particular call – including which portion of the tower (divided into three, 120-degree arcs) received the transmission. Assistant U.S. Attorney Thomas G.A. Brown represented the government. Assistant Federal Defender Yuanchung Lee appeared as amicus curiae. – Mark Hamblett can be reached at [email protected]

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