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Tracking is one of the ancillary abilities created by modern technology as the management of technology has evolved over the years. The mechanics of how electronic information is transmitted have provided law enforcement with the ability to track an individual’s whereabouts merely based on the individual’s use of technology. Two federal decisions issued in October, one arising from a Long Island investigation, have taken on the herculean task of analyzing the complexities of the use of cell phone tracking technology by authorities. The legal issues in this narrow area of technology law is just as difficult to assess and predict as it is in most other areas of technology law as far as the needs of law enforcement are concerned. The ability to track a person’s location as a result of their cell phone usage has existed for as long as two decades. Moreover, as the number of cell sites in urban areas has increased over the years, triangulating a cell user’s physical position via the radio signals generated by the phone has become increasingly simpler. Significantly, the methodology of tracking a person by cell usage is, by law, also becoming more and more available. The Federal Trade Commission now requires cell service providers to afford 911 tracking information accurate within 150 meters for 95 percent of its subscribers and within 50 meters for 67 percent. [FOOTNOTE 1] Interestingly, most modern cell phones can be tracked even when the customer is not actively using it. To make or receive calls, the phone must periodically emit a radio signal notifying the service provider of its location. Hence, it is relatively simple in most urban areas for a service provider to be able to generate a continuous map of a cell user’s whereabouts. The prospect of real-time cell phone location mapping can be a powerful tool for law enforcement to solve crimes, foil crimes in progress and even locate criminals. For example, such evidence was recently admitted in a highly publicized California murder trail to cross-examine a defendant regarding his purported whereabouts at the time of his wife’s murder. [FOOTNOTE 2] In another situation, the use of cell phone tracking helped locate a 5-year-old passenger trapped in a stolen car. Besides leaving the keys in the ignition, the child’s mother also left her cell phone by the child. The child answered her mother’s call to the phone, which allowed police to find the car and the unharmed child. [FOOTNOTE 3] From a legal standpoint, how does tracking information fit within the matrix of the type of process to be used by law enforcement (for example, subpoenas, pen register/trap and trace orders, search and eavesdropping warrants) to acquire such information? This is the question that two recent federal decisions have attempted to answer: Application for Pen Register and Trap/Trace Device with Cell Site Location, 396 FSupp2d 747 (SD Texas Oct. 14, 2005); and Application for a Pen Register and Trap and Trace Device and Authorizing Release of Subscriber Information and/or Cell Site Information, 396 FSupp2d 294 (EDNY, Oct. 24, 2005). Before evaluating those decisions, however, an overview of at least a portion of the relevant “legal matrix” is needed. Much of it is drawn from the series of federal statutes enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA), which, in part, was modified and amended by portions of the USA Patriot Act of 2001. Title II of the ECPA, called the Stored Wire and Electronic Communication Act (SCA), was enacted to, among other things, lay out the types of legal process to be used by law enforcement to acquire information stored by “public (an undefined word in the SCA) electronic communication services” and “remote computing services.” For the purposes of this article, think of your typical commercially available cell providers as fitting within the protection of the SCA. Law enforcement agencies regularly dealing with technology-related crimes have been typically trained in this area of law [FOOTNOTE 4] that certain specified information from such public service providers is obtainable via subpoena, without notice to the provider’s customer, [FOOTNOTE 5] such as the subscriber’s name and address, local and long-distance phone connection records, session time and duration records, length of service and type of service used, phone or instrument number or other subscriber identity, and temporarily assigned network address. (See 18 USC �2703(c)(2).) The next level of legal process in the SCA matrix is an order authorized by 18 USC �2703 (d) (often referred to as a “d order”). A d order allows the acquisition of all “record[s] or other information pertaining to a subscriber to or customer of such service not including the contents of communications.” The standard of proof necessary for obtaining such an order is a showing of “specific and articulable facts … that there are 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” The highest level of legal process presently in the SCA is a search warrant to obtain the contents of any stored wire communication (any communication involving the human voice) [FOOTNOTE 6] or electronic communication (virtually any other kind of computer — or electronic-generated communication such as e-mail) that has been held in electronic storage for 180 days or less. Clearly, the acquisition of cell site information is neither the content of a communication (which requires the issuance of a search warrant) nor the enumerated items of subscriber information the SCA permits law enforcement to get via subpoena. Hence, cell site information has been traditionally obtained by law enforcement, for at least 15 years, via a d order. The thinking has been that the d order is a catch-all category of information that does not fit within the SCA’s schemata of either the enumerated subpoenable information or the actual communication itself. In fact, the judge in the recent Eastern District of New York decision noted that he had issued such d orders in the past without questioning the technological or legal foundations to the extent that he did in his October written decision. To the judge’s credit, he felt that merely because he had issued such orders in the past it was nevertheless appropriate to delve into more fully whether the existing law truly allowed law enforcement to do what it had done for over a decade to obtain cell site information. ALLOWING ACQUISITION Both recent decisions ruled that “real-time” (as opposed to “historical”) cell site information can not be obtained via a d order, which is what law enforcement sought before both federal magistrates. Neither court was willing to accept the prosecutor’s interpretation of the catch-all aspect of cell site information falling within the definition of “record[s] or other information pertaining to a subscriber to or customer of such service not including the contents of communications.” The Texas court held that the acquisition of real-time cell site information was the equivalent of seeking evidence via a “mobile tracking device,” which Title I of ECPA specifically requires to be accomplished only via a search warrant. The New York court seemed to suggest that the acquisition of real-time cell site information may not be delineated anywhere in the ECPA. If not, the catch-all legal requirement may possibly be Rule 41 of the Federal Rules of Criminal Procedure, which requires the issuance of a warrant via a showing of probable cause to secure “evidence of a crime.” The court, however, felt it did not presently have to rule on whether a Rule 41 search warrant is the appropriate recourse, only that a d order was not the appropriate method of acquisition. The New York court also seemed unwilling to accept an innovative argument by the prosecutor to claim that cell site information is not being captured in real-time. In contrast, pen registers do capture the dialouts of a landline phone in real-time because law enforcement acquires a clone of the original line so that it captures the actual tones of the dialout as they occur on the original line. One of the government’s arguments in favor of the requested order was that cell site information is actually merely stored on the provider’s computer system and is simply forwarded following its storage (which admittedly might be very brief in time) to law enforcement to use. While conceding that “[a]s a matter of transitive logic the government is assuredly correct,” the court ruled that “as a matter of law I am confident that the government’s tacit position is not embraced by any statute now in effect.” It is possible the magistrate judges in Texas and New York have accurately waded through the difficult issues of technology and legal rights. Certainly an argument in favor of their decisions is the fact that modern cell phones are more closely “attached” to an individual person than any piece of technology in history. Even so, there is an argument that both courts applied statutes that never were intended to apply to this situation. When in 1986 it codified the requirement that information secured via “mobile tracking devices” be obtained via search warrant, did Congress have in mind that the ancillary abilities of cellular technology to become, in effect, such a device so that cell phone tracking should also be included in such a definition? Such ability was, at most, barely in its infancy at the time and almost certainly was below the radar scope of any legislator considering the ECPA. CONCLUSION Technology continues to provide increasingly new and expanded means of attacking crime, and yet the criminal element throughout the world is also expanding its continued use of technology to successfully conduct its business, without the shackles of having to comply with complex and convoluted laws. As such, it is time to consider whether 21st-century technology fits into a legal paradigm that was originally created in the late-18th century. But our elephantine process of congressional understanding of the need for legislative change and the political process of enacting that change hamper changing our laws to meet the legal challenges presented by technology. Even the court that issued the recent New York decision acknowledged that Congress “has simply not addressed the matter now before me.” It is safe to say that U.S. jurisprudence has yet to face any task as difficult as exists in this area of law. Stephen V. Treglia is an assistant district attorney in Nassau County, N.Y., and chief of the office’s technology crime unit.

::::FOOTNOTES:::: FN1 47 C.F.R. � 20.18. FN2 Diana Walsh & Stacy Finz, “The Peterson Trial; Defendant Lied Often, Recorded Calls Show,” San Francisco Chronicle, Aug. 26, 2004. FN3 “Girl 5, Found Safe as Man Steals Car,” Rocky Mountain News, April 22, 2004. FN4 For example, visit the Web site of the Department of Justice’s Computer Crime and Intellectual Property at www.cybercrime.gov/s&smanual2002.htm to see its manual entitled, “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations,” updated as of July 2002. FN5 The SCA allows law enforcement other abilities to obtain information if notice is provided to the subscriber whose information is sought. Such means of acquiring information are not covered in this article. FN6 Prior to the Patriot Act, stored wire communications could only be obtained via an eavesdropping order. The provision in the Patriot Act which eliminated the distinction between stored wire and electronic communications in the SCA is one of the “sunset provisions” originally scheduled to expire on Jan. 1, 2006, a date recently extended one month by Congress.

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