SDNY amended application for cellphone location and pen register warrant, June 2020

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK¶

In re: Second Warrant and Order For Prospective and Historical Location Information and Pen Register Information for the Cellphone Assigned Call Number 978-525-8484, USAO Reference No. 2018R01618¶

AMENDED APPLICATION¶

___ Mag. ___¶

Amended Application for Second Warrant and Order for Cellphone Location and Pen Register Information¶

The United States of America, by its attorney, Audrey Strauss, Acting United States Attorney for the Southern District of New York, Assistant United States Attorney, of counsel, respectfully requests that the Court issue the accompanying proposed Second Warrant and Order for prospective and historical location information and pen register information for a cellphone. As grounds for this Amended Application the Government relies on the following facts and authorities.¶

I. Introduction¶

1. I am an Assistant United States Attorney in the U.S. Attorney’s Office for the Southern District of New York. This Amended Application is submitted in conjunction with the accompanying amended affidavit of a law enforcement agent (“Amended Agent Affidavit”), to be sworn before this Court, and incorporated by reference herein. I make this Amended Application based on information and belief, including the Amended Agent Affidavit, my review of other documents in the case, and information received from investigative personnel.

2. The Investigating Agency, Target Cellphone, Subscriber, Target Subject, Service Provider, Subject Offenses, Successor Service Provider, and Successor Cellphone referenced in this Amended Application are as specified in the Amended Agent Affidavit.

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II. Legal Authority¶

A. Prospective Location Information¶

3. The Government seeks to obtain both precision location information and cell site data for the Target Cellphone on a prospective basis (the “Prospective Location Information”) for a period of 45 days from the date of this order – the same period of time for which a warrant for a tracking device may be granted under Rule 41(e)(2)(C). It bears noting, however, that while the Prospective Location Information may permit “tracking” the user of the phone in the colloquial sense, this is not an application for a warrant for a “tracking device” as defined in Fed. R. Crim. P. 41(a)(2)(E) and 18 U.S.C. § 3117(b). Those provisions only apply where an agent is seeking to physically install a tracking device on a given object. Instead, the Prospective Location Information will be obtained by requiring the Service Provider to provide the information.

4. The authority for this application is found in 18 U.S.C. § 2703(c)(1), which authorizes a court of competent jurisdiction to require any electronic communication service provider (which includes a cellular telephone service provider¹) to disclose any “record or other information pertaining to a subscriber” other than the “contents of communications,” when the government obtains, inter alia, a warrant under the applicable procedures of Rule 41. See 18 U.S.C. § 2703(c)(1)(A). Because data concerning a subscriber’s location, such as precision location information and cell site data, constitutes “information pertaining to a subscriber” that does not include the “contents of communications,” that data is among the types of information available

1 See 18 U.S.C. § 2711(1) (incorporating by cross-reference statutory definitions set forth in 18 U.S.C. § 2510); 18 U.S.C. § 2510(15) (defining “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications”).¶

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under § 2703(c)(1)(A). $ ^{2} $ Further, as specified in 18 U.S.C. § 2711(3), this Court is a court of competent jurisdiction under the Stored Communications Act because it has jurisdiction over the Subject Offenses.¶

5. The Government’s request for cell site data also implicates the pen register statute, because such data constitutes signaling information used by the Service Provider to route communications to and from the Target Cellphone. In order to collect such data, a valid pen register order is required.$^3$ Accordingly, I hereby certify pursuant to 18 U.S.C. § 3122 that such signaling information is relevant to an ongoing investigation being conducted by the Investigating Agency into suspected violations of the Subject Offenses by the Target Subject.

B. Historical Location Information¶

6. The Government also seeks historical cell site data for the Target Cellphone for the period from June 1, 2020 to the present (the “Historical Location Information”). Because such data—like “Prospective Location Information”—constitutes information concerning a subscriber, the Court is authorized to order the Service Provider to provide this data pursuant to a warrant

2 See In re Application, 460 F. Supp. 2d 448, 459–60 & n. 55 (S.D.N.Y. 2006) (Kaplan, J.) (cellphone location information falls within § 2703(c)(1)); accord, e.g., United States v. Caraballo, 963 F. Supp. 2d 341, 361 (D.Vt. 2013); In re Order, 632 F. Supp. 2d 202, 207 (E.D.N.Y. 2008); In re Application, 405 F. Supp. 2d 435, 444-45 (S.D.N.Y. 2005). But see In re Application, 849 F. Supp. 2d 526, 574 (D.Md. 2011) (rejecting view that cellular location data falls within the scope of the SCA and finding that phone must be treated as “tracking device” for purposes of Rule 41 where used to collect location data); In re Application, 2009 WL 159187, at *5-*6 (S.D.N.Y. Jan.13, 2009) (McMahon, J.) (same).¶

3 See 18 U.S.C. § 3121 (prohibiting use of pen register or trap and trace device without an order under the pen register statute); 3127(3) & (4) (defining pen register and trap and trace device to include devices or processes that record, inter alia, signaling information). Although cell site data constitutes “signaling” information within the meaning of the pen register statute, a separate statute precludes the Government from relying “solely” on the authority provided by the pen register statute to ascertain a subscriber’s location. 47 U.S.C. § 1002(a). Here, the Government seeks to obtain such data pursuant to 18 U.S.C. § 2703(c) as well as the pen register statute, rather than “solely” under the latter statute. See In re Application, 460 F. Supp. 2d at 456-59.¶

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application under 18 U.S.C. § 2703(c), under the applicable procedures of Rule 41. See 18 U.S.C. § 2703(c)(1)(A). I respectfully submit that the same probable cause supporting the Government’s request for a warrant to obtain the Prospective Location Information requested above also supports the issuance of a warrant under § 2703(c) for the requested Historical Location Information. In addition, the Government seeks toll records for the same period as the Historical Location Information. Pursuant to 18 U.S.C. § 2703(d), I respectfully submit that the Amended Agent Affidavit offers specific and articulable facts showing that there are reasonable grounds to believe that the toll record information sought is relevant and material to an ongoing criminal investigation.¶

C. Pen Register Information¶

7. Finally, the Government seeks an order pursuant to 18 U.S.C. §§ 3121-26 authorizing the use of a pen register on the Target Cellphone for a period of 45 days from the date of this order. Specifically, the Government seeks an order directing the Service Provider to furnish any information, facilities, and technical assistance necessary to operate, unobtrusively and with minimum disruption of service, a pen register and trap and trace device to capture all dialing, routing, addressing, or signaling information associated with each call transmitted to or from the Target Cellphone, as specified further in the proposed Second Warrant and Order (the “Pen Register Information”). $^4$

4 The Government is also not seeking authorization to obtain post-cut-through dialed digits (“PCTDD”), or digits that are dialed after a telephone call from the Target Cellphone has been connected. Pursuant to the attached Order, if possible, the Service Provider will forward only precut-through-dialed digits to the Investigating Agency. However, if the Service Provider’s technical capabilities require it to forward all dialed digits, including PCTDD, to the Investigating Agency, the Investigating Agency will only decode and forward to the agents assigned to the investigation the numbers that are dialed before the call is cut through.¶

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8. I hereby certify pursuant to 18 U.S.C. § 3122 that the Pen Register Information is relevant to an ongoing investigation being conducted by the Investigating Agency into suspected violations of the Subject Offenses by the Target Subject.

D. Sealing and Non-Disclosure Order to Service Provider¶

9. When the Government obtains records or information under § 2703(c), it is not required to notify the subscriber or customer. 18 U.S.C. § 2703(c)(3). Additionally, the Government may obtain an order precluding the Service Provider from notifying the subscriber or any other third-party of the warrant or order obtained, for such period as the Court deems appropriate, where there is reason to believe that such notification will result in endangering the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, or intimidation of potential witnesses, or will otherwise seriously jeopardize the investigation. 18 U.S.C. § 2705(b).

10. Further, 18 U.S.C. § 3123(d) provides that an order directing installation of a pen register or trap and trace device shall direct the pertinent service provider “not to disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person unless or until otherwise ordered by the Court.”

11. Accordingly, as explained further in the Amended Agent Affidavit, in light of the confidential nature of the continuing criminal investigation and the adverse consequences expected in the event of premature notification, the Government respectfully requests that the Court direct the Service Provider not to notify the Subscriber or any other person of the Second Warrant and Order sought herein for a period of one year, subject to extension upon application to the Court, if necessary.

12. For similar reasons, I respectfully request that the proposed Second Warrant and Order, this Amended Application, and the accompanying Amended Agent Affidavit, be maintained under

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seal until the Court orders otherwise, except that the Government be permitted without further order of this Court to serve this Second Warrant and Order on the Service Provider; provide copies of the Second Warrant and Order or the supporting Amended Application and Amended Agent Affidavit as need be to personnel assisting the Government in the investigation and prosecution of this matter; and disclose these materials as necessary to comply with discovery and disclosure obligations in any prosecutions related to this matter.¶

III. Prior Requests¶

13. As set forth in the Amended Agent Affidavit, the Government previously requested Cellphone Location and Pen Register information for the Target Cellphone in an Application and Agent Affidavit submitted on or about June 29, 2020. $ ^{5} $ Also on or about June 29, 2020, United States Magistrate Judge Katharine H. Parker granted the application and signed a Warrant and Order for the requested information. On June 30, 2020, the Government learned that the Agent Affidavit contained two inadvertent errors. Accordingly, the Government is submitting this Amended Application and Amended Agent Affidavit to correct those errors and to seek a Second Warrant and Order.

5 The original application also sought authorization for Cellphone Location and Pen Register information for a second Target Cellphone, 917-520-3106, which was identified as Target Cellphone-1 in that application and which was also granted on or about June 29, 2020. Because there were no errors in the application with respect to Target Cellphone-1, the Government does seek a Second Warrant and Order with respect to that phone.¶

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14. Except as may be set forth above, no prior request for the relief requested herein has been made.

Dated: New York, New York¶

June 30, 2020¶

Assistant United States Attorney¶

Tel.:¶

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