Full opinion text
MEMORANDUM AND ORDER ORENSTEIN, United States Magistrate Judge. The United States seeks reconsideration of my earlier order in this matter, reported at In Matter of Application of the U.S. for an Order (1) Authorizing the Use of a Pen Register and Trap and Trace Device, 384 F.Supp.2d 562 (E.D.N.Y.2005) (the “August Order”), denying its application for the “disclosure of the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and, if reasonably available, during the progress of a call, for the Subject Telephone.” Renewed Sealed Application (“Application”) at 1-2. Such applications are normally considered ex parte, but in light of the novelty of the issue and the absence at the time the August Order was written of any published case law, I have also allowed amicus curiae the Electronic Frontier Foundation (“EFF”) to submit a letter-brief in opposition to the instant motion. Having considered all of the arguments as well as the intervening decision in In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 2005 WL 2656621, 396 F.Supp.2d 747 (S.D.Tex.2005) (“Cell Site ”), I conclude that at least some of the government’s objections to the August Order’s reasoning are well taken, and therefore grant the motion to reconsider. On reconsideration, as explained below, I conclude that existing law does not permit the government to obtain the requested information on a prospective, real-time basis without a showing of probable cause. I therefore again deny the government’s application. I. Background On a motion for reconsideration, I would normally start the discussion of background facts and procedural history with a disclaimer assuming the reader’s familiarity with the challenged order. Not so here: having gotten at least one thing dead wrong in the August Order, see n. 4, infra, I will optimistically assume the reader’s ignorance rather than continue to advertise my own. I therefore proceed essentially from scratch. A. The Initial Application And Proposed Orders On August 23, 2005, the government simultaneously filed three documents, all of which remain under seal: an application for certain relief, a proposed order authorizing law enforcement agents to take certain investigative steps with the compelled assistance of the relevant provider of telecommunications services (the Sealed Order of Authorization, or “Authorization Order”), and a complementary separate order directed to the provider itself (the Sealed Order to Service Provider, or “Provider Order”). Because portions of each document are relevant to the discussion below, I reproduce those portions here. 1.The Application The government’s application explicitly sought three forms of relief, and cited the specific statutory authority on which it relied for each: 1. Pursuant to 18 U.S.C. §§ 3122 and 3123, [an order] authorizing the continued installation and use of a pen register and the use of a trap and trace device for a period of sixty days ... on the [Subject Telephone;] 2. Pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), [an order] directing continued disclosure of subscriber information for all published, non-published, or unlisted numbers dialed or otherwise transmitted to and from the Subject Telephone, upon oral or written demand by [the relevant law enforcement officers]; and 3. Pursuant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d), [an order] directing continued disclosure of the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and, if reasonably available, during the progress of the call, for the Subject Telephone. Application at 1-2. In support of the application to continue using the pen/trap devices, the prosecutor made the requisite certifications under the Pen/Trap Statute, see 18 U.S.C. § 3122(b), and in fact went beyond the requirement of a bare-bones certification “that the information likely to be obtained is relevant to an ongoing criminal investigation,” id. § 3122(b)(2), by explaining the basis for that certification. Application at 3-4. The prosecutor next went on to recite the basis for the remaining requests under the SCA by providing “specific and articulable facts showing that there are reasonable grounds to believe that the subscriber information pertaining to telephone numbers identified through the pen register and trap and trace device on the Subject Telephone and cell site information regarding the Subject Telephone will be relevant and material to an ongoing criminal investigation[.]” Id. at 5; see id. at 5-7 (reciting facts). The Application then went on to make several requests for relief that added detail to the earlier requests to use pen/trap devices and secure subscriber information. For reasons that will become clear, the structure of those requests is pertinent, and I summarize them here. First, in a multi-part paragraph generally purporting to rely on provisions of the SCA, the government requested that the court issue an order authorizing (a) the continued installation and use of a pen register, (b) the continued installation and use of a trap and trace device, and (c) an additional request not pertinent to the instant matter made “pursuant to 18 U.S.C. § 3123(b)(1)(C).” Application at 7-8. Nothing in the paragraph referred to cell site authority. The remaining requests all sought orders compelling assistance from telecommunications service providers. Specifically, the government sought orders directing the relevant providers (a) to notify government agents of service changes for the Subject Telephone; (b) “[p]ursuant to 18 U.S.C. § 3123(a)(1) and § 3123(b)(2),” to furnish appropriate assistance to the installation and use of the pen/trap devices; (c) to “furnish the results of the pen register and trap and trace installations to [government agents] as soon as practicable, and on a continuing basis ... for the duration of the order[;]” and (d) “not to disclose the existence of this order or the pen register and cell site location authorization” or other associated information to any person absent a court order. Application at 9-11. Thus, although the Application did request “disclosure” of prospective cell site information in its general request for relief at the beginning of the document, it did not request an order directing any service provider to furnish such information in the detailed prayer for relief at the end of the document, and did not in any manner specify who was supposed to make the requested “disclosure.” Nevertheless, as discussed below, the proposed Authorization and Provider Orders did include language requiring such assistance. 2. The Authorization Order The proposed Authorization Order included both findings and several specific orders. The proposed findings closely tracked the three requests for relief at the beginning of the Application: Pursuant to 18 U.S.C. § 3123, Applicant has certified that the information likely to be obtained by such use [of pen/trap devices] is relevant to an ongoing criminal investigation.... Pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), Applicant has offered specific and articu-lable facts showing that there are reasonable grounds to believe that subscriber information for [numbers gleaned from the pen/trap devices] is relevant and material to an ongoing criminal investigation ... Pursuant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d), Applicant has further established that there are specific and articulable facts showing that there are reasonable grounds to believe that cell site information is relevant and material to an ongoing criminal investigation.... Authorization Order at 1-2; cf. Application at 1-2. On the basis of those findings, the Authorization Order proposed nine specific orders. The first two authorized law enforcement agents, “pursuant to 18 U.S.C. § 3123,” to continue the installation and use of pen/trap devices, including for purposes of recording or decoding “dialing, routing, addressing or signaling information.” The third required relevant service providers, “pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d),” to provide subscriber information about the numbers obtained from the use of the pen/trap devices. The fourth — the denial of which is at issue in this litigation' — • required, “pursuant to 18 U.S.C. §§ 2703(c)(1)(B), 2703(c)(2) and 2703(d), that the wireless carriers shall provide” cell site information. Authorization Order at 2-4. The fifth specific order provided that “this authorization for the continued installation and use of a pen register and trap and trace device” applies to the Subject Telephone even after any changes in the number assigned to the same instrument, under certain conditions — but it did not provide for such continued authorization as to cell site information. The sixth specific order complemented the fifth by requiring service providers to notify the government agents about relevant service changes to the Subject Telephone. Authorization Order at 4-5. The seventh and eighth specific orders imposed obligations on the service providers relating only to the pen/trap devices and made no mention of cell site information: the former required service providers to furnish agents with all information and assistance necessary to accomplish the devices’ installation and use, and the latter required providers to furnish the results of the devices’ use to agents as soon as practicable and on a continuous basis. Finally, the ninth specific order directed the investigating agency to compensate service providers for certain expenses and the tenth provided for appropriate secrecy and sealing. Authorization Order at 5-6. In sum, the Authorization Order, like the Application, cited only the SCA — and not the Pen/Trap Statute — in connection with the disclosure of cell site information. The Authorization Order likewise directed the relevant carriers to provide cell site information but did not refer to the disclosure of such information in the specific directions regarding changes to the Subject Telephone, the furnishing of assistance, or the speedy and continuous disclosures of information during the pendency of the order. 3. The Provider Order The Provider Order contained one “whereas” clause followed by eleven specific orders. The latter were essentially verbatim repetitions of the specific orders in the Authorization Order, and I therefore do not describe them at length here. The former recited that the court had “entered an order pursuant to Title 18, United States Code, §§ 3121-26 and § 2703(d) authorizing the use of a pen register [with cell site location authority] and a trap and trace device for a period of sixty days from the date of this order on” the Subject Telephone. Provider Order at 1 (brackets in original). The phrasing suggests that the only cell site information the government contemplated obtaining as a result of the Authorization Order would be prospective (ie., pertaining to calls not yet made at the time of the order), rather than the disclosure of actual records held by the service providers about previously made calls. The phrasing further suggests that the prospective cell site information the government sought would be obtained via the pen register- — and thus, by negative inference, not by means of a separate disclosure of information by the service provider. As the Provider Order specified that government agents would “install, or cause to be installed” the pen register, Provider Order at 1, it thus appears that the government contemplated obtaining the requested cell site information by means of the authorized investigative actions of its agents rather than by the actual disclosure of records or information held by any service provider. B. Procedural History The government submitted the Application and proposed orders ex parte on August 23, 2005. On August 25, 2005, I signed the proposed orders but struck out in each the paragraph directing the service providers to disclose cell site information (and also, in the “whereas” clause of the Provider Order, the bracketed reference to “cell site location authority”). The same day, I issued the August Order to explain the reasons for that outcome. On September 9, 2005, the government filed a document styled “Notice of Appeal.” Docket Entry (“DE”) 3. Although the document itself does not specify whether the appeal is being taken to the district judge on miscellaneous duty in this district’s Long Island courthouse or to the United States Court of Appeals, the docket entry information that the government provided upon electronically filing the document described it as a “Notice of Appeal of a Magistrate Judge’s Decision to a District Judge (on a mj case).” DE 3. Later the same day, the government filed a letter-motion asking me to reconsider the August Order. DE 4 (the “Motion”). On September 16, EFF sent me an unsolicited letter requesting leave to file a brief in opposition to the government’s motion as amicus curiae. DE 5. Having already come to the view that I would benefit from adversarial testing of the government’s arguments on the novel legal issue presented,1 granted EFF’s application. DE 6. EFF thereafter submitted its letter in response to the government’s Motion on September 23, 2005. DE 7 (the “Response”). After several delays (most of which were authorized, see DE 8-DE 9 and orders endorsed thereon), the government submitted its reply to the EFF Response on October 11, 2005. DE 12 (the “Reply”). As of that time, when all of the briefs on the instant matter had been submitted, my August Order was the only published federal court decision on the propriety of governmental applications for cell site information based on a showing less exacting than probable cause. Luckily, that was about to change. C. The Intervening Cell Site Decision On October 14, 2005, the Honorable Stephen Wm. Smith, United States Magistrate Judge for the Southern District of Texas, issued a decision resolving virtually the same issue now before me: what legal standard the government must satisfy to compel the disclosure of ... prospective or “real-time” cell site data. More particularly, is this location information merely another form of subscriber record accessible upon a showing of “specific and articulable facts” under 18 U.S.C. § 2703(d), as the government contends? Or does this type of surveillance require a more exacting standard, such as probable cause under Federal Rule of Criminal Procedure 41? Cell Site, at 750, 2005 WL 2656621 at *2. I say the issues are “virtually the same” rather than “identical” advisedly: although the government’s statutory arguments to Judge Smith were essentially the same as those now made to me, the application at issue in the Texas case was not identical to the one here. In particular, the scope of the cell site information sought in Texas may have been materially different from the information sought here. As noted above, the Application before me sought “disclosure of the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and if reasonably available, during the progress of a call, for the Subject Telephone.” Application at 1-2. The Texas application made the same request, but also sought “information regarding the strength, angle, and timing of the caller’s signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technology, protocols, and network architecture.” Cell Site, at 749, 2005 WL 2656621 at *1. It may be that the government contemplated that a grant of the Application in the matter before me would implicitly authorize it to get the additional information explicitly requested in the Texas matter, but I assume otherwise, as the government manifestly knows how to make explicit its intention to seek such authority. As will become evident in the discussion below, any such difference between the two applications may be critical to a determination of whether the disclosure of cell site information implicates the rules applicable to a “tracking device” as defined in 18 U.S.C. § 3117(b). That is because the additional information requested in Texas might enable law enforcement agents to engage in “a process of triangulation from various cell towers,” and thereby “track the movements of the target phone, and hence locate a suspect using that phone.” Cell Site, at 751, 2005 WL 2656621 at *3 n. 5 (citing Darren Handler, Note, An Island of Chaos Surrounded by a Sea of Confusion: The E911 Wireless Device Location Initiative, 10 Va. J.L. & Tech. 1, at *8, *17-*21 (Winter 2005); Note, Who Knows Where You’ve Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 Harv. J.L. & Tech. 307, 308-16 (Fall 2004)). In a meticulous and persuasive opinion, Judge Smith first described the technological and statutory matrix in which the instant issue arises, and then went on to explain why the government’s position is untenable. Specifically, Judge Smith concluded that the disclosure of cell site information turns a mobile telephone into a “tracking device” and therefore such disclosure may not be authorized without a showing of probable cause. Id. at 753-58, 2005 WL 2656621 at *5-9. Judge Smith also considered and rejected- the government’s contention that, independent of the tracking device statute, cell site information is available pursuant to a less exacting showing either under the SCA alone, id. at 757-61, 2005 WL 2656621 at *9-12, or pursuant to a hybrid application invoking both the SCA and the Pen/Trap statute. Id. at 760-65, 2005 WL 2656621 at *12-15. As will become apparent, Judge Smith’s analysis has made my job in the instant case considerably easier, but it does not resolve all of the issues before me. II. Discussion A. Procedural Issues Before addressing the substantive issues on which Cell Site provides invaluable guidance, I must first clear some procedural hurdles that were not presented in the Texas case. 1. Reconsideration In General a. Is Reconsideration Available? There is no specific rule, either in the Federal Rules of Criminal Procedure or in this court’s Local Criminal Rules, providing for the reconsideration of a ruling on a criminal matter. Moreover, while the court has explicitly made many of its Local Civil Rules applicable to criminal cases, the specific rule governing motions for reconsideration, Local Civil Rule 6.3, is not among those so incorporated. See Loc.Crim. R. 1.1(b) (incorporating Loc. Civ. R. 1.2 through 1.10, 39.1, 58.1, and 67.1). Accordingly, there is good reason to conclude that the Board of Judges of this district has deliberately chosen not to permit motions for reconsideration in criminal matters. Given the general disfavor with which motions for reconsideration are viewed in the civil context, such a choice would hardly be unreasonable in the context of criminal cases, where courts, are hard pressed, even without such motions, to give defendants, the government, and the public the speedy trials that the law requires. Nevertheless, such motions are made in criminal cases, and courts in this district have resolved them according to the same principles that apply in the civil context. See, e.g., United States v. RW Professional Leasing Services Corp., 327 F.Supp.2d 192, 196 (E.D.N.Y.2004) (citing Dellefave v. Access Temps., Inc., 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001); In re Houbigant, Inc., 914 F.Supp. 997, 1001 (S.D.N.Y.1996)); United States v. Avellino, 129 F.Supp.2d 214, 217 (E.D.N.Y.2001) (granting reconsideration .without discussion of standard of review); United States v. Mosquera, 816 F.Supp. 168 (E.D.N.Y.1993). The same is true in other federal jurisdictions, and the Supreme Court appears to have condoned the practice, albeit without directly ruling on the source of authority for it. See, e.g., United States v. Ibarra, 502 U.S. 1, 4, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991). The salutary practice avoids needless appellate litigation in those cases where a court can readily recognize and correct its own errors. Moreover, the concern about speedy trials is not present in the context of this criminal matter — which in any event is technically considered a “miscellaneous” one because it has been given neither a civil nor a criminal docket number, see Loe. R. 50.1(a), (e) — where no defendant has been charged. Accordingly, I will assume that I have the authority to reconsider my earlier decision at the government’s request, notwithstanding the absence of an explicit rule to that effect. b. The Standard of Review The standard of review applicable. to a motion for reconsideration under the civil rules that the government cites by analogy is a familiar one: This standard is “strict.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). Such motions are committed to the “sound discretion of the district court,” see McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983), and the burden is on the movant to demonstrate that the Court overlooked controlling decisions or material facts that were before it on the original motion, and that might “materially have influenced its earlier decision.” Anglo Am. Ins. Co. v. CalFed, Inc., 940 F.Supp. 554, 557 (S.D.N.Y.1996). The movant may neither repeat “arguments already briefed, considered and decided,” nor “advance new facts, issues or arguments not previously presented.” Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990) (citations omitted). Rather he must “point to, controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader, 70 F.3d at 257. Carione v. United States, 368 F.Supp.2d 196, 198 (E.D.N.Y.2005). The prohibition that bars the movant from advancing arguments not previously presented might be deemed sufficient to resolve the instant application, in light of the fact that the government, despite an explicit invitation, initially declined to submit any argument supporting its Application. However, as I noted at the time, the government also purported to reserve the right to present such arguments “in the future, either in seeking review of any denial of relief in the instant matter or in connection with other applications.” 384 F.Supp.2d at 563. While I do not endorse such an approach as a routine matter, and do not in any way suggest that the tactic suffices to supersede the case law barring such piecemeal litigation, I nevertheless consider the government’s arguments as if properly before me for two reasons. First, the instant issue is an important one that is ripe for decision and affects the daily business of this court; judicial economy is therefore advanced rather than frustrated by reaching the merits here. Second, even without the prompting of the new arguments set forth in the government’s motion, I would deem reconsideration appropriate on the ground that I have noted relevant law that I overlooked in my initial decision, namely, 18 U.S.C. § 2510(8). 2. Timeliness I consider the motion for reconsideration to have been timely filed. Assuming the government may properly seek reconsideration by analogy to applicable civil rules (see Fed.R.Civ.P. 59(e); Loe. Civ. R. 6.3), it had ten days, excluding intervening weekends and holidays, to file its application. See Fed.R.Civ.P. 6(a); Loe. Civ. R. 6.3 — 6.4; see also Fed.R.Crim.P. 45(a)(2) (similar computation rule in criminal cases); Loc.Crim. R. 45.1. Applying that rule, September 9, 2005, was the last day on which the government could seek reconsideration by analogy to the local civil rules. I therefore need not resolve the government’s dubious suggestion that a motion for reconsideration of a ruling on a criminal matter may be timely if made within 30 days of the original ruling. See Motion at 1-2 n. 1 (citing Canale v. United States, 969 F.2d 13 (2d Cir.1992); United States v. Gross, 2002 WL 32096592, *1-3 (E.D.N.Y. Dec. 5, 2002)). 3. The Effect Of The “Notice Of Appeal” As noted above, the instant motion for reconsideration was filed after the government filed its Notice of Appeal (twelve minutes after, according to the docket). If that Notice had been an appeal to the Second Circuit of a final order of the district court, it would be “an event of jurisdictional significance [that would divest] the district court of its control over those aspects of the case involved in the appeal.” Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir.2004) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)); see also 28 U.S.C. § 1291. I assume that the government’s description of the Notice in its docket entry clarifies any ambiguity in the document itself, and that the Notice is in fact meant to trigger review by a district judge of my order, and that in doing so, it is again relying on an analogy to civil practice — in this case, Fed.R.Civ.P. 72. Viewed in that light, the Notice does nothing to divest me of the power to decide the instant motion, as there is no rule analogous to that in Motorola that divests a magistrate judge of authority to act as to matters under review by a district judge (although judicial economy of course counsels against parallel proceedings on the same issue before both). I assume that the government’s actions in this respect are a form of insurance against the possibility that in the time between the issuance of this decision and the time it’s attorneys become aware of it, the time to seek review by the district judge on miscellaneous duty will lapse. Thus, in theory, upon the issuance of this decision, the already-filed Notice of Appeal will take immediate effect, thereby preserving the right to seek review on the basis of a supporting brief to be submitted later. I have no need to opine on the need for or effectiveness of such procedures; I note only that they do not appear to deprive me of the authority to determine the motion now before me. 4. Potential Mootness The government’s original application sought relief over a 60-day period. I granted partial relief on August 25, 2005, meaning that the government’s ability to obtain the requested cell site information would have expired in any event on October 24, 2005. The instant decision is therefore made at a time when, at least in theory, a different outcome could afford the government at least minimal relief. It is therefore not moot. To the extent that the issuance of this order does, as a practical matter, come so late that a different outcome would not in fact afford the government any meaningful relief, I nevertheless conclude that the matter is not moot. The difficulty of completing the litigation before me and review by higher courts within the 60-day period may well suggest the applicability of a recognized exception to the “case or controversy” requirement that applies to circumstances that are capable of repetition while evading review. Specifically, the government’s disagreement with my ruling relates to a proposed course of action that “was in duration too short to be fully litigated prior to its cessation or expiration, and ... there is a reasonable expectation that the same ... party will be subjected to the same” denial of the same proposed action again in future applications. United States v. Quattrone, 402 F.3d 304, 309 (2d Cir.2005) (citations and internal quotations omitted). B. The Legal Landscape Having cleared the procedural underbrush, I can now begin to take full advantage of (ie., plagiarize) the Cell Site opinion. To the extent I follow the latter decision’s lead, it is not because I view it as controlling, nor even because I am simply deferring to persuasive precedent (although it is assuredly that). Rather, my reliance reflects the fact that I have considered precisely the same statutes and legislative history as Judge Smith (and apparently many of the same arguments), and have independently arrived at the same conclusions as did he. Having done so, it is simply a matter of efficiency to cite or quote from his decision rather than reinvent the wheel. As Judge Smith carefully demonstrated, Despite frequent amendment, the basic architecture of electronic surveillance law erected by the ECPA remains in place to this day. This statutory scheme has four broad categories, arranged from highest to lowest legal process for obtaining court approval: • wiretaps, 18 U.S.C. §§ 2510-2522 (super-warrant); • tracking devices, 18 U.S.C. § 3117 (Rule 41 probable cause); • stored communications and subscriber records, 18 U.S.C. § 2703(d) (specific and articulable facts); • pen register/trap and trace, 18 U.S.C. §§ 3121-3127 (certified relevance). Cell Site, at 753, 2005 WL 2656621 at *4-5. I need not replicate Judge Smith’s detailed explanation, but it is instructive and persuasive authority on which I rely and to which I invite the reader’s attention. For present purposes, it suffices simply to explain the parenthetical shorthand phrases quoted above. As Judge Smith noted, the statutory regime establishes four progressively more burdensome levels of legal process through which the government must go to obtain progressively intrusive types of surveillance authority. The least exacting process is the certification required to obtain permission to use pen/trap devices: a prosecutor need only certify that the information to be obtained via pen/trap devices “is relevant to an ongoing criminal investigation” and a court must thereupon grant the request. See Cell Site, at 752, 2005 WL 2656621 at *4 (citing 18 U.S.C. § 3122(b)(2); id. § 3123(a)(1), (2); J. Carr & P. Bellia, The Law of Electronic Surveillance § 1:26, at 1-25 (West 2004)). The next level of process is required when the government seeks access to any “record or other information pertaining to a subscriber to or customer of [electronic communication] service (not including the contents of communications).” 18 U.S.C. § 2703(c)(1). To obtain such disclosure, the government must offer “specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). The next level of burden is the familiar probable cause standard under Rule 41 that applies generally to applications for search warrants. Judge Smith also concludes that that level of process applies when the government seeks to install a tracking device, as defined in 18 U.S.C. § 3117(b), an issue I address below in Part F of this discussion. Finally, Judge Smith’s reference to a “super-warrant” requirement applicable to governmental requests for authorization to conduct wiretaps alludes to certain specific requirements of Title III. In many ways, an application to intercept the contents of communications parallels a traditional warrant application: it must establish probable cause to believe that particularly described evidence of a specific crime will be found by giving the government leave to search a particularly described place. In the case of a wiretap, the evidence is the contents of communications and the “place” to be searched is, in essence, a telephone line. But Title III also requires additional showings not necessary to obtain a more traditional warrant: in particular, the applicant must demonstrate that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous[.]” 18 U.S.C. § 2518(3)(c). It is this additional requirement — that a wiretap be a technique of last resort — that makes the Title III standard a “super-warrant” showing. It is against this statutory backdrop that I assess the government’s efforts to secure authorization to obtain cell site information on a showing less exacting than probable cause, as well as the EFF’s suggestion that such information requires a showing comparable to Title Ill’s super-warrant requirement. C. A Certification Of Relevance Under The Pen/Trap Statute Is Insufficient The government does not assert that it can obtain the prospective cell site information at issue on the strength of a bare certification of relevance under the Pen/ Trap Statute. At least I think it does not, though I confess that my conclusion in that regard necessarily rests on a best-two-out-of-three approach to reading the government’s submissions. Compare Application at 1-2 (seeking cell site information “[p]ur~ suant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d)”) with Motion at 7 (“We do not seek authorization to obtain cell site information based on a mere finding that the government has certified the information’s likely relevance.”) and Reply at 7 (“The Court may therefore reasonably base its authority to order disclosure on a prospective basis entirely on the Pen/Trap Statute”). To the extent my reading of the government’s intention is incorrect, I adhere to my earlier conclusion that Congress has prohibited the government from relying on a mere certification of relevance to obtain prospective cell site information through the use of pen/trap devices. As I explained in the August Order: Section 103(a)(2) [CALEA] requires each telecommunications carrier to ensure that the telephone service it provides is capable of being used by authorized law enforcement agents for certain investigative purposes. However, the statute explicitly provides that “with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title 18, United States Code), such call-identifying information shall not include any information that may disclose the physical location of the subscriber .... ” 47 U.S.C. § 1002(a)(2)(B) (emphasis added).... By its terms, the provision just quoted does no more than govern what a private sector entity must do to assist law enforcement. At the risk of building a straw man, it could thus be argued that CALEA does nothing to prohibit agents from seeking, and courts from granting, authority to obtain cell site location information. There are two flaws with that argument. First, parsing the statute so finely to achieve such a construction would plainly be at odds with the legislators’ intent. In reporting favorably on CALEA, the House Judiciary Committee sought quite emphatically to quell concerns about how the proposed legislation might infringe individual Americans’ privacy rights: THE LEGISLATION ADDRESSES PRIVACY CONCERNS Since 1968, the law of this nation has authorized law enforcement agencies to conduct wiretaps pursuant to court order.... The bill will not expand that authority. However, as the potential intrusiveness of technology increases, it is necessary to ensure that government surveillance authority is clearly defined and appropriately limited. In the [past] eight years ... society’s patterns of using electronic communications technology have changed dramatically. ... Therefore, [CALEA] includes provisions, which FBI Director Freeh supported in his testimony, that add protections to the exercise of the government’s current surveillance authority. Specifically, the bill: 2. Expressly provides that the authority for pen registers and trap and trace devices cannot be used to obtain tracking or location information, other than that which can be determined from the phone number. Currently, in some cellular systems, transactional data that could be obtained by a pen register may include location information. H.R. Rep. 103-827 at 17, reprinted at 1994 U.S.C.C.A.N. 3489, 3497 (Oct. 4, 1994) (emphasis added). It is thus clear that Congress intended to regulate not only what telecommunications providers could give, but also what law enforcement agents could “obtain.” 384 F.Supp.2d at 565. D. An Offer Of Specific And Articula-ble Facts Under Section 2703(d) Is Insufficient The government’s initial application appeared to seek prospective cell site information solely on the basis of its showing of specific and articulable facts pursuant to § 2703, and on reconsideration the government adheres to the view that such a showing alone suffices. See Motion at 3-5. As explained below, I disagree. 1. Judge Smith’s Analysis In Cell Site a. The Subscriber’s Use Of Electronic Communications Service The government rests its application for cell site information on the provision of § 2703 that permits the disclosure of “record[s] or other information pertaining to a subscriber or customer of [electronic communication] service (not including the contents of communications).” 18 U.S.C. § 2703(c)(1) (quoted in Motion at 3^f). Judge Smith rejected that position on the ground that prospective cell site information does not “pertain to the subscriber’s use of the provider’s electronic communication service.” 396 F.Supp.2d at 758, 2005 WL 2656621 at *10. He reached that conclusion based on the following syllogism: 1. “Electronic communication service” must involve the transmission of “wire or electronic communications.” 18 U.S.C. §§ 2510(15), 2711(1). 2. The acquisition of cell site information does not involve the transmission of “wire or electronic communications.” a. “Electronic communications” are excluded because: i. “electronic communication” excludes “any communication from a tracking device,” see 18 U.S.C. § 2510(12)(C), and ii. the acquisition of cell site information converts a mobile telephone into a tracking device as defined in 18 U.S.C. § 3117. b. “Wire communications” are excluded because: i. a “wire communication” must involve a transfer of the human voice, see 18 U.S.C. § 2510(1), (18), and ii. the transmission of cell site information over a control channel, which is separate from the voice channel used in a mobile telephone call, does not involve the transfer of the human voice. See United States v. Forest, 355 F.3d 942, 949 (6th Cir.2004) (“cell site data clearly does not fall within the definitions of wire or oral communications”). See 396 F.Supp.2d at 753-56, 2005 WL 2656621 at *5-7 (explaining why acquisition of cell site information converts a mobile telephone into a tracking device), 758-60, *10-*11 (explaining the remaining steps of the syllogism). b. Structural Distinctions Between The SCA And Surveillance Laws A second and independent reason for Judge Smith’s rejection of the government’s rebanee on the SCA as authority for obtaining prospective cell site information is based on the structural differences between that law and other statutes that explicitly provide for the prospective surveillance of communications. I quote his analysis in full: Even more compelling is the structural argument against allowing access to prospective cell site data under the SCA. Unlike other titles of the ECPA, which regulate methods of real-time surveillance, the SCA regulates access to records and communications in storage. As impbed by its full title (“Stored Wire and Electronic Communications and Transactional Records Access”), the entire focus of the SCA is to describe the circumstances under which the government can compel disclosure of existing communications and transaction records in the hands of third party service providers. Nothing in the SCA contemplates a new form of ongoing surveillance in which law enforcement uses co-opted service provider facilities. Unlike wiretap and pen/trap orders, which are inherently prospective in nature, § 2703(d) orders are inherently retrospective. This distinction is most clearly seen in the duration periods which Congress mandated for wiretap and pen/trap orders. Wiretap orders authorize a maximum surveillance period of 30 days, which begins to run no later than 10 days after the order is entered. 18 U.S.C. § 2518(5). Pen/trap orders authorize the installation and use of a pen register for a period “not to exceed sixty days.” 18 U.S.C. § 3123(c)(1). By contrast, Congress imposed no duration period whatsoever for § 2703(d) orders. Likewise, Congress expressly provided that both wiretap orders and pen/trap orders may be extended by the court for limited periods of time. 18 U.S.C. §§ 2518(5), 3123(c)(2). There is no similar provision for extending § 2703(d) orders. Pen/ trap results are ordinarily required to be furnished to law enforcement “at reasonable intervals during regular business hours for the duration of the order.” 18 U.S.C. § 3124(b). The wiretap statute authorizes periodic reports to the court concerning the progress of the surveillance. 18 U.S.C. § 2518(6). Again, nothing resembling such ongoing reporting requirements exists in the SCA. Another notable omission from § 2703(d) is sealing of court records. Wiretap orders and pen/trap orders are automatically sealed, reflecting the need to keep the ongoing surveillance under wraps. 18 U.S.C. §§ 2518(8)(b), 3123(d)(1). The SCA does not mention sealing. Pen/trap orders must also direct that the service providers not disclose the existence of the order to third parties until otherwise ordered by the court. 18 U.S.C. § 3123(d)(2). Section 2705(b) of the SCA authorizes the court to enter a similar non-disclosure order, but only upon a showing of possible adverse consequences, such as “seriously jeopardizing an investigation or unduly delaying a trial.” 18 U.S.C. § 2705(b)(l)-(5). Taken together, the presence of these provisions in other titles of the ECPA and their corresponding absence from the SCA cannot simply be dismissed as a coincidence or congressional absentmindedness. Pen registers and wiretaps are surveillance techniques for monitoring communications yet to occur, requiring prior judicial approval and continuing oversight during coming weeks and months; § 2703(d) permits access to customer transaction records currently in the hands of the service provider, relating to the customer’s past and present use of the service. Like a request for production of documents under Federal Rule of Civil Procedure 34, § 2703(d) contemplates the production of existing records, not documents that may be created at some future date related to some future communication. That is the most obvious explanation why the SCA makes no mention of surveillance periods, extensions, periodic reporting, or sealing. If Congress had not intended the SCA to be retrospective in nature, it would have included the same prospective features it built into the wiretap and pen/trap statutes. 396 F.Supp.2d at 760-61, 2005 WL 2656621 at *11-12. c. The Applicability Of Cell Site To This Case I find both parts of Judge Smith’s analysis extremely persuasive. In particular, I agree that cell site information is excluded from the definition of both “wire communications” and “electronic communications,” and I further agree that the profound structural differences between the SCA and the electronic surveillance statutes suggest that Congress did not intend the former to be a vehicle for allowing prospective, real-time surveillance of a mobile telephone user’s physical location and movements during the course of a call. Nevertheless, I do not simply rest on my agreement with those parts of Cell Site for several reasons that I explore below. 2. The Cell Site Analysis Applies Regardless Of Whether The Application In This Case Seeks Triangulation Information To the extent Judge Smith’s syllogism relies on the finding that the application before him effectively sought to transform a mobile telephone into a tracking device, I cannot make the same assumption here even if I agree with his legal analysis. That is because the application before Judge Smith explicitly sought permission to obtain not only the location of the cell site through which each mobile telephone call would be processed, but also additional information — “information regarding the strength, angle, and timing of the caller’s signal measured at two or more cell sites,” 396 F.Supp.2d at 749, 2005 WL 2656621 at *1—that might allow the government to triangulate the caller’s position. See id. at 750, 2005 WL 2656621, *3. The application before me did not explicitly seek such information, and the government’s Motion relies in part on the proposition that its application would provide only limited information about the telephone user’s location. See Motion at 8 (“Cell-sites only reveal the general vicinity of the person using a cellular telephone and the general direction in which they are moving if they are in transit.”); Reply at 11 (quoting United States Telecom Ass’n v. FCC, 227 F.3d 450, 463 (D.C.Cir.2000) (“FCC”)) (appearing to suggest that the cell site information at issue discloses no more than “the nearest cell site at the start and end of the call”). As a result, I must consider whether the application before me likewise implicates the tracking device statute notwithstanding the possibly more limited scope of cell site information the government seeks here. The question is easily answered in the affirmative, and by the decision in Cell Site itself. In that case, the government took the surprising position that even acquiring information about multiple cell sites (thereby possibly allowing triangulation) “does not provide ‘detailed’ location information.” 396 F.Supp.2d at 755, 2005 WL 2656621 at *6. If potential triangulation does not do the trick, I cannot imagine the level of additional detail that the government in Cell Site would have acknowledged as sufficient to implicate the tracking device statute. But I need not assay the reasonableness of that position; for purposes of the instant analysis it is enough that the Cell Site decision, like my own, gives due consideration to the government’s assertion that a tracking device provides greater certainty about an individual’s location than does the acquisition of cell site information. As Judge Smith noted in Cell Site, the tracking device statute “does not distinguish between general vicinity tracking and detailed location tracking.” 396 F.Supp.2d at 755, 2005 WL 2656621 at *6. Instead, the statute simply defines a tracking device as “an electronic or mechanical device which permits the tracking of the movement of a person or thing.” 18 U.S.C. § 3117(b). Moreover, as Cell Site points out, 396 F.Supp.2d at 755 n. 12, 2005 WL 2656621 at *7 n. 12, the Department of Justice itself uses the term “tracking device” to describe a device that acquires “information that will allow [a mobile telephone] properly to transmit the user’s voice to the cell tower” and thereby determine “the direction and signal strength (and therefore the approximate distance) of the target phone.” U.S. Dep’t of Justice, Electronic Surveillance Manual at 45 (rev. June 2005) (the “Manual ”). The reference to a single “cell tower” rather than to multiple sites suggests that this “tracking device” (as the government describes it) relies on no more information than the Application in this ease seeks. In the August Order I wrote the following: Based on the government’s application, it appears that the [statutory] definition [of “tracking device”] precisely describes the attribute of the Subject Telephone (or such other instrument as actually would produce the requested information) that renders the disclosure of cell site location information relevant and material to the ongoing investigation. As the Application recites, the general geographic location of the Subject Telephone derived from cell site information used by the Subject Telephone can be used to corroborate the observations of surveillance agents. More specifically, surveillance agents can compare observations of the user of the Subject Telephone with cell site information in order to verify the identification and location of the user of the Subject Telephone. Application ¶ 10. In other words, the requested information is useful in the same way that physical surveillance of the telephone user is useful: it reveals that person’s location at a given time. The fact that the requested order would authorize the disclosure of cell site location information, “if reasonably available, during the progress of a call,” [Authorization Order] at 4, further suggests that the authorization, if granted, would effectively allow the installation of a tracking device without the showing of probable cause normally required for a warrant. 384 F.Supp.2d at 564. I adhere to that view on reconsideration, and therefore agree with Judge Smith that the acquisition of cell site information does not pertain to the use of electronic communications service. 3. The Government Does Not Seek Disclosure Of Information By A Provider With due respect to my colleague, I believe that while the syllogism regarding the relationship between cell site information and the term “electronic communications service” is correct as far as it goes, the analysis is useful only to a certain extent. As noted above, the syllogism leads to the conclusion that prospective cell site information does not “pertain to the subscriber’s use of the provider’s electronic communication service.” 396 F.Supp.2d at 758, 2005 WL 2656621 at *10 (emphasis added). But § 2703 does not predicate a court’s authority to issue a disclosure order on the applicant’s ability to show that the requested information pertains to such “use.” Instead, the statute authorizes the disclosure of “information pertaining to a subscriber to or customer of such service[.]” 18 U.S.C. § 2703(c)(1) (emphasis added). Thus, while I agree that cell site information does not, for the reasons explained in Cell Site, pertain to a subscriber’s or customer’s use of electronic communications service, I disagree that that finding alone suffices to reject the government’s application. In addition, the government raises an argument here that does not appear to have been addressed in Cell Site and that could, if valid, undermine the persuasiveness of the second part of the rationale in that case. Specifically, the government argues that there is no cognizable difference between historical and prospective cell site information because, “in an era of electronic communications, every datum communicated electronically is ‘retrospective’ or ‘historical’ once it is captured.” Reply at 7. For ease of reference, I call this the “instantaneous storage” theory. In essence, the government starts with the proposition, with which I have no quarrel, that a court may properly, under § 2703, compel a provider to disclose historical cell site information about past calls that it currently has in electronic storage. The government then goes on to reason that all it seeks here, in asking for essentially real-time access to prospective cell site information, is more of the same: Thus, a court order to a provider to disclose cell-site information at or close to the time that it enters the provider’s datastream is prospective in one sense but is otherwise retrospective. It is prospective with respect to the continuing obligation that the order imposes on the provider to turn over data as it is captured. That obligation, however, only accrues with respect to cell-site information for a particular time, after the provider’s network has captured it in the course of processing a call. Thus, the same datum that is prospectively covered by a disclosure order is a “record” by the time that it must be turned over to law enforcement. Reply at 7 (emphasis in original). In light of the foregoing, I must consider whether the government’s instantaneous storage theory suffices to overcome the reasoning in Cell Site and justify a different result. The government’s use of statutory construction principles to show that the “Stored Communications Act” authorizes the government to acquire information that has never been stored about a communication that does not yet exist is imaginative, and not entirely without precedent. In Regina v. Ojibway, 8 Crim. L.Q. 137 (1965), a reviewing court similarly applied canons of statutory construction to find, contrary to the more pedestrian opinion of the magistrate below, that a pony is within the protected class defined by the terms of the “Small Birds Act.” See Stevens v. City of Louisville, 511 S.W.2d 228, 230-31 (Ky.1974) (reprinting the wholly fictional Ojibway decision). Creative as it is, I find the instantaneous storage theory unpersuasive for at least two reasons. a. An Order Under Section 2703 Can Apply Only To Information Already In Existence The government cites no authority for the proposition that a court may issue an order under § 2703(d) (or any other part of the SCA) that is “prospective with respect to the continuing obligation that the order imposes on the provider to turn over data as it is captured[.]” Reply at 7. As I read the statute, it confers no such power. To the contrary, it provides that a court may issue an order requiring the disclosure of records or information on the basis of a prosecutor’s showing that the requested items “are relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(d) (emphasis added). The exclusive use of the present tense — rather than, for example, the phrase “are or may be”— suggests that the items requested must already be in existence. So too does another subsection of the same statute, as the following discussion demonstrates. Had I granted the Application in its entirety, 60 days later the government would have had a record of the cell site information for all calls made in the interim. But the Application’s request was not the only way for the government to achieve that result; to the contrary, the SCA plainly provides an alternate mechanism for doing so. Specifically, upon commencing the use of its pen register pursuant to my order, the government could have made a direct request to the provider to “take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.” 18 U.S.C. § 2703(f)(1). The provider would have been required to comply without the need for a court order. Id. Sixty days later, upon the expiration of the pen register authorization, the government could have asked the court to issue an order requiring the disclosure of the cell site information thus preserved on the basis of its showing of specific and articulable facts. 18 U.S.C. § 2703(d). The only difference between the procedure just described and the one the government strives mightily to defend in this case is the difference between the acquisition of historical evidence about a person’s movements and the prospective, real-time tracking of that person. To the extent that difference is an important one, Congress has empowered the government to satisfy its investigative needs upon a showing of probable cause, as discussed below in Part F. Another reason to suspect the validity of the government’s instantaneous storage theory is that it proves too much. If it is true that the transmission of cell site information over the control channel used for a given mobile telephone call may be considered “storage” sufficient to bring the information within the scope of § 2703(c)(1), then it must also be true that the transmission of the same call’s contents over the voice channel may likewise be considered “storage” sufficient to bring those contents within the scope of § 2703(a). Cf. United States v. Councilman, 418 F.3d 67 (1st Cir.2005). The latter provision permits the disclosure of “the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less ... pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure ....” 18 U.S.C. § 2703(a). In other words, if the government’s reliance on the essentially instantaneous nature of storage is valid, then it can easily bypass the super-warrant requirement applicable to the interception of wire and electronic communications under Title III simply by describing those communications as in “electronic storage” and obtaining a warrant under Rule 41. At the risk of being cavalier, I trust that no explanation is needed of the assertion that such a result would plainly frustrate the intent of Congress in enacting and repeatedly preserving the requirements of Title III that exceed the requirements of Rule 41. I therefore conclude, contrary to the government’s unsupported assertion, that § 2703 does not authorize a court to enter a prospective order to turn over data as it is captured. Instead, the statute establishes a mechanism for compelling the disclosure of information existing at the time an order is issued and for compelling the preservation of such information in the period before such an order is obtained. b. An Order Under Section 2703 Can Only Authorize A Provider’s Disclosure Of Information, Not Interception By Law Enforcement The government’s instantaneous storage theory also fails because, even if the cell site information can properly be viewed as entering electronic storage as soon as it is transmitted over the control channel, that fact alone does not make it available to the government. Instead, it merely makes the information subject to disclosure by the service provider. But there appears to be no such actual disclosure contemplated here. As far as I can discern from the original Application and proposed orders, the government purposes to obtain cell site information directly from its own devices and processes, rather than via disclosure from the telecommunications providers. The SCA authorizes the government to “require a provider ... to disclose a record or other information pertaining to a subscriber to or customer of [electronic communication] service,” 18 U.S.C. § 2703(c)(1) (emphasis added), but does not empower a court to allow a law enforcement officer to intercept such information directly. Yet if the government’s intent is to secure disclosure of cell site information from the provider rather than to intercept it directly, I cannot find any suggestion in the application papers, or in the briefing on the instant motion, as to how and when that disclosure will be accomplished. The application papers are to some extent ambiguous: on one hand, the detailed requests for directions to the providers in the Application say nothing about disclosing cell site information and the general request for cell site information seeks “disclosure” of cell site information without saying who is to disclose it; on the other hand, the Authorization and Provider Orders included provisions directing the carrier to provide cell site information. However, I chalk up that ambiguity to a proofreading error. Of greater concern is the absence of any indication of how the government would, as a practical matter, obtain “disclosure” of cell site information from the provider after the fact — however quickly — rather than intercept the information by means of its pen register. As Judge Smith has explained, with reference to the government’s own manual, see Cell Site, — F.Supp.2d at -, 2005 WL 2656621 at *2-3 (citing the Manual at 178-79 n. 41), the cell site information the government seeks is apparently conveyed via a control channel that is paired with a voice channel when a mobile telephone is used to make a telephone call. A pen register by definition provides access to that control channel, and that is apparently what the government intends in seeking “dialing, routing, addressing or other signaling information ... transmitted from the Subject Telephone” as part of its pen register application. Application at 7-8. Indeed, the government makes clear in its Reply that it contemplates “cell site information entering a service provider’s information system and ... being relayed