Full opinion text
OPINION AND MEMORANDUM ORDER LISA PUPO LENIHAN, United States Magistrate Judge. 1. SUMMATION OF OPINION The Court writes to express its concerns regarding the Government’s ex parte applications for cellular telephone (“cell phone”) subscriber information from which it may identify an individual’s past or present physical/geographic movements/locations not on a showing of probable cause to believe that the information will provide evidence in an investigation premised on a reasonable suspicion of criminal activity, as under the Fourth Amendment, but rather on an articulable, reasonable belief that such information is “relevant to a ... criminal investigation” under the Stored Wire and Electronic Communications and Transactional Records Access statutes (the “Stored Communications Act” or “SCA”) alone or in tandem with the Pen Registry Statute (the “PRS”). The Court also writes to set forth its reasons for concluding that, while it recognizes the important and sometimes critical crime prevention and law enforcement value of tracking suspected criminals, the Government’s requests for Court Orders mandating a cell phone service provider’s covert disclosure of individual subscribers’ (and possibly others’) physical location information must be accompanied by a showing of probable cause. The Court emphasizes that the issue is not whether the Government can obtain movement/loeation information, but only the standard it must meet to obtain a Court Order for such disclosure and the basis of authority. It emphasizes that the Fourth Amendment standard is not a difficult one, requiring only that the Government support its belief of criminal activity and the probable materiality of the information to be obtained. The Court notes that it is entrusted with the protection of the individual civil liberties, including rights of privacy and rights of free association, so paramount to the maintenance of our democracy. The Court also observes that the location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse. Finally, the Court concludes, from its exhaustive review of the statutes and cases as to both the rapidly-developing law of electronic communications and the Fourth Amendment, together with its extensive review of the legislative history and scholarly commentary, that Congress and the Supreme Court still concur in the principle underlying this Opinion: i.e., that law enforcement’s investigative intrusions on our private lives, in the interests of social order and safety, should not be unduly hindered, but must be balanced by appropriate degrees of accountability and judicial review. For these reasons, and notwithstanding the legitimate and significant benefits in law enforcement’s ability to obtain information efficiently and effectively, this Court best serves and preserves the fundamental principles underpinning our Constitutional democracy by (1) a careful and thorough parsing of the legislation and (2) a cautious and informed balancing of the competing interests. Thus, absent express statutory authorization for ex parte access to personal movement/location information and/or a precedential/binding interpretative ruling, this Court cannot accede to the Government’s request. To the contrary, it must adhere to the canons of statutory construction and read the provisions of the various statutes implicated in a manner that (1) applies the plain language of the legislation and gives effect to each and every provision, (2) is most warranted by the legislative history and other indicia of Congressional intent, and (3) avoids a Constitutional invalidation of portions of the legislation. Accordingly, this Court holds that the SCA, either alone or in tandem with the PRS pursuant to the GALEA, does not authorize access to an individual’s cellphone-derived “location information”, either past or prospective, on a simple showing of articulable relevance to an ongoing investigation (a “reasonable relevance” standard). II. STATEMENT OF CASE AND STATUTORY PROVISION AT ISSUE Currently pending is the application of an Assistant United States Attorney requesting “that an Order be issued directing that (1) certain records of [a cell phone service provider] be disclosed to the Government, (2) this matter be sealed, and (3) [the cell phone service provider] and its agents be ordered not to disclose the existence of this application, order, and any disclosures pursuant thereto”. The Government has applied, under the Stored Communications Act (the “SCA”), 18 U.S.C. § 2703, for an Order requiring a cellular service provider to disclose the “transactional records” — including “historical cellular tower data”, “cellular tower site information”, and “sectors” — maintained with respect to a cellular telephone (“cell phone”) number in the name of one individual (the “Subscriber”) on the basis of its asserted relevance to an ongoing criminal investigation of another individual (the “Criminal Suspect”). The Government attests that the Criminal Suspect is a drug trafficker, that it is experiencing difficulty in visually surveilling that person, and that fuller knowledge of the Criminal Suspect’s whereabouts is important to its counter-trafficking operations. Owing to continuing technological advances, the information requested would enable the Government to identify where the Subscriber and any other individuals making use of the Subscriber’s cell phone, including the Criminal Suspect, have been at any/many given times in the past and where they are likely to be now and/or in the future. The SCA prohibits an electronic communications provider, including a cellular service provider (a “CSP”), from disclosing various stored, i.e. historic, subscriber telephone account information to the Government, except on appropriate legal authority: The Government maintains that it may obtain historical cellular tower site location information (hereafter “CSLI”)— and thus the location of the cell phone possessor(s) — under provisions of the SCA that authorize disclosure of “a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” under legal standards that include a Court Order issued upon “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.” §§ 2703(c)(1)(B) and (d). This Court finds that (1) the SCA expressly sets movement/location information outside its scope by defining “electronic communications” to exclude “any communication from a tracking device (as defined in § 3117)”; (2) the SCA does not establish an entitlement to information in abrogation of any other legal requirements that would otherwise apply due to the nature of that information; (3) the CA-LEA also expressly exempts information from a tracking device and, in legislating what information CSPs must compile/retain for disclosure to law enforcement on “Court Order or other lawful authorization”, also retains the Fourth Amendment or other requirements implicated by the nature of the information sought; (4) the relevant legislative history further indicates that Congress did not intend its electronic communications legislation to be read to require disclosure of an individual’s location information; to the contrary, in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing disclosure; and (5) as reading the statutes as authorizing ex parte disclosure of movementdocation information with no judicial review of the probable cause could violate citizens’ reasonable expectations of privacy, such reading would be disfavored. This Court therefore concludes, .as more fully set forth below, that it must deny the Government’s requests for cellular-telephone-derived location information, historic or prospective, absent a showing of probable cause. III. TECHNOLOGICAL DEVELOPMENT OVERVIEW As of December, 2006, there were over 233 million cellular phone subscribers in the United States, -almost ten--times the number in 1994. Our individual cell phones now come with us everywhere: not only on the streets, but in (a) business, financial, medical and other offices; (b) restaurants,- theaters and other venues of leisure activity; (c) churches, synagogues and other places of religious affiliation; and (d) our homes and those of our family members, friends, and personal and professional associates. Indeed, many individuals no long subscribe to local wireline phones, but utilize their cell phone as their residential telephone. Cellular telephone networks divide geographic areas into many coverage areas containing towers through which the cell phones transmit and receive calls. Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called “registration”, occurs approximately every seven seconds. As we change locations, our cell phones automatically switch cell towers. Cellular telephone companies “track the identity of the cell towers serving a phone”. When a call is received, a mobile telephone switching office (“MTSO”) gets the call and locates the user based on the nearest tower; the call is then sent to the phone via that tower. This process works in reverse when the user places a call. See id. In urban areas, where towers have become increasingly concentrated, tracking the location, of just the nearest tower itself can place the phone within approximately 200 feet. This location range can be narrowed by “tracking which 120 degree ‘face’ of the tower is receiving a cell phone’s signal.” Id. The individual’s location is, however, most precisely determinable by triangulating the “TDOA” or “AOA” information of the three nearest cellular towers. Alternatively, the phone can be tracked extremely accurately— within as little as 50 feet — via the built-in global positioning system (“GPS”) capabilities of over 90% of cell phones currently in use. Id. See also Who Knows Where You’ve Been?, 18 Harv. J.L. & Tech, at 308 (noting that, as of 2004, synchronized signal triangulation produced a 3-D location accurate to 65 feet). CSPs store cell tower registration histories and other information. In sum, as a result of the proliferation of cellular tower sites, the uniform/routine inclusion of a GPS device in cell phones, and industry’s implementation of additional technology required to meet Congressional mandates, including that more precise TDOA/AOA and other location information be available to emergency-assistance providers, CSPs now compile and retain extensive personal location information on their subscribers and the cell phones in use. IV. RELEVANT CONSTITUTIONAL AMENDMENT, STATUTES AND LEGISLATIVE HISTORY A. Fourth Amendment, U.S. Const. Amend. IV The Fourth Amendment establishes a fundamental protection of our right to privacy. By requiring that the Government’s investigation of information in which we hold a reasonable expectation of privacy be conditioned on a showing of probable cause to a detached judicial official, our understanding and implementation of the Fourth Amendment seeks to balance degrees of intrusion on our civil liberties against degrees of promotion of legitimate governmental interests. For the reasons discussed below, this Court believes that citizens continue to hold a reasonable expectation of privacy in the information the Government seeks regarding their physical movements/locations — even now that such information is routinely produced by their cell phones— and that, therefore, the Government’s investigatory search of such information continues to be protected by the Fourth Amendment’s warrant requirement; i.e., the Government must meet a probable cause background standard. B. Wiretap and Electronic Communications Interception and Interception of Oral Communications, 18 U.S.C. § 2510 et seq. Eighty (80) years ago, Justice Taft, writing for the majority over Justice Brandéis in dissent, concluded that a search or seizure of telephone conversations implicated no Fourth Amendment concerns because there could be no reasonable expectation of privacy in your voice projected over a ■wire outside of a building. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Congress responded to this interpretation with passage of the Communications Act in 1934, 47 U.S.C. § 605, which made wiretapping illegal, and which the Supreme Court confirmed to preclude wiretapping by law enforcement in Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937). In 1967 the Supreme Court delineated the procedural safeguards imposed by the Fourth Amendment on traditional wiretapping. Expressly because of the particular dangers of abusing electronic surveillance, the Court required that law enforcement agents had to surmount several requirements beyond those of the probable cause warrant needed to search a home. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Congress then incorporated those procedural hurdles into the Wiretap Act passed the following year. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, Title III (codified as amended at 18 U.S.C. §§ 2510-2522) (hereafter “Title III”). Currently, under 18 U.S.C. § 2518, the Government may obtain a wiretap, and listen in on calls to and from a target telephone, only by demonstrating to a District Judge that (a) there is probable cause for belief that an individual has committed/is committing/will commit a specified offense; (b) there is probable cause for belief that particular communications concerning the offense will be obtained; (c) normal investigative procedures have been tried and failed or are reasonably unlikely to succeed or be too dangerous; (d) there is probable cause for belief that the facilities from which, or place where, the communications to be intercepted are/will be used, in connection with commission of the offense, are leased/listed to/commonly used by such person. With this historical background in mind, other legislation implicated by the issue sub judice includes: C. Fed.R.Crim.P. 41 — Warrant Issuing Upon Probable Cause Rule 41 of the Federal Rules of Criminal Procedure generally provides that the Government may secure a warrant upon a showing, consistent with the requirements of the Fourth Amendment, that there is probable cause. This is the standard which the Government has long been required to meet in order to obtain Court approval for the installation and use — by law enforcement agents — of a device enabling the Government to record, or “track”, the movement of a person or thing. Rule 41, as amended by the Supreme Court in 2006, expressly provides Court authority to issue a warrant for the installation and use of a tracking device (as defined in 18 U.S.C. § 3117) for a renewable period not to exceed 45 days. The Rule also contains express provisions requiring notice within ten (10) days from the end of the warrant period (although it may be delayed) and the suppression of information wrongfully obtained. As reflected in the Judicial Conference Advisory Committee’s Notes to the 2006 Amendments, those amendments were intended to address the use of tracking devices, “which searches [had been] recognized by statute [ie., § 3117] and by case law [i.e., United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) ]”. The Committee further noted that the evidentiary standard applicable to the installation of a § 3117 tracking device was unspecified by “the tracking device statute” (ie., § 3117), and that the Supreme Court had “reserved ruling on the issue”, but that “[w]arrants may be required to monitor tracking devices when they are used to monitor persons or property in areas where there is a reasonable expectation of privacy.” See discussion infra at Section V(C). D. Electronic Communications Privacy Act of 1986 The ECPA, enacted in 1986, was a major overhaul of the Omnibus Crime Control and Safe Streets Act of 1968. Two of its subsections are relevant to consideration of the legal standard required for obtaining a Court Order for movement/location information: 1. Pen Register Statute Historically, a “Pen Register” is a device which records or decodes electronic or other impulses which identify the telephone numbers dialed or otherwise transmitted on the telephone line to which' such device is attached (ie., the numbers of outgoing calls). A trap and trace device captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electric communication was transmitted (ie., the numbers of incoming calls). These devices have been in long and frequent use and are collectively referred to as a “Pen Register” or “Trap and Trace”. Although they had been in use for some time, the standard applicable to the Government’s installation of a Trap and Trace was not addressed until 1979, when the Supreme Court concluded that the Fourth Amendment’s probable cause protections need not apply. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (holding that telephone users have no reasonable expectation of privacy in the telephone numbers they dial to connect a phone call). Congress responded to Smith by including procedures and evidentiary standards governing the installation of a Trap and Trace in the provisions of the ECPA in 1986. See 18 U.S.C. § 3121 et seq. Although the statute requires that, absent emergency, the Government must obtain a Court Order prior to installing or using a Trap and Trace, it may do so merely upon certification “that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.” 18 U.S.C. § 3122(b)(2). Such Orders routinely authorize real-time electronic monitoring of telephone call information for a limited duration, typically sixty (60) days. Id. at § 3123(c). 2. Stored Wire and Electronic Communications and Transactional Records Access As noted above, the SCA, a 20-year-old criminal-code statute enacted as Title II of the ECPA, prohibits electronic communication service providers from disclosing electronically stored, ie., historic, information to the Government, except as otherwise authorized and with appropriate legal authority. More particularly, under §§ 2703(a) and (b), the disclosure of “content” information expressly requires either a Rule 41 warrant (if it has been in electronic storage with the provider for 180 days or less) or notice to the subscriber/customer together with an administrative subpoena or Court Order (if the content has been in electronic storage with the provider for more than 180 days). In contrast, the disclosure of basic account information requires nothing more than an administrative, grand jury or trial subpoena. § 2703(c)(2). The statute also provides, in § 2703(c)(1), Records Concerning Electronic Communication Service or Remote Computing Service, that the Government may require the release of “records or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity”: (A) obtains a warrant issued [under] the Federal Rules of Criminal Procedure, (B) obtains a court order [under § 2703(d) ], (C) obtains subscriber/customer consent to disclosure, (D) submits a written request for name, address, and place of business, relevant to investigation of telemarketing fraud, or (E) seeks [basic account information] under § 2703(c)(2). Section 2703(d), in turn, sets forth the “requirements for court order”, specifying that an order for disclosure of (1) content records held by the communications provider for more than 180 days or held by a remote computing service, and to be released with notice to the subscriber/customer under subsection (b) or (2) “a record or other information pertaining to a subscriber to or customer of such service” under subsection (c), issue “only if the governmental entity offers specific and articulable facts showing 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.” Finally, and significantly, the SCA defines “electronic communications” to expressly exclude “any communication from a tracking device (as defined in § 3117)”, ie., “an electronic or mechanical device which permits the tracking of the movement of a person or object”. Id. at § 2711, Definitions (incorporating 18 U.S.C. § 2510(12)). E. Mobile Tracking Device Statute, 18 U.S.C. § 3117 (1986) This statute, also enacted in 1986, simply provides that a Court “empowered to issue a warrant or other order for the installation of a mobile tracking device” may issue an Order authorizing its use outside the Court’s jurisdiction. It broadly defines a “tracking device” as “an electronic or mechanical device which permits the tracking of the movement of a person or object.” § 3117(b). The relevant Senate Report notes that “[t]his [jurisdictional] clarification [did] not effect [sic] current legal standards for the issuance of such an order.” S. Rep. 99-541 at 10 (1986), reprinted in 1986 U.S.C.C.A.N. at pp. 3555, 3588. As noted, supra at Section IV(C), the Government has historically been required to meet the probable cause standard for warrants set forth in Fed.R.Crim.P. 41 for Court authorization prior to installing and utilizing a tracking device. F. Communications Assistance for Law Enforcement Act of 1994 (1) Statutory Provisions The Communications Assistance for Law Enforcement Act of 1994 (the “CALEA”), 47 U.S.C. § 1001 et seq., was intended to mandate communications carriers’ acquisition and implementation of technology/equipment capable of providing law enforcement with the “wire and electronic communication” information to which it was entitled under the statutes relating to electronic communication technology. The Act required telecommunications carriers to ensure, within four (4) years from enactment (i.e., by October 25,1998), that they had the ability to provide — subject to “court order or other lawful authorization” — law enforcement agencies with: access to call-identifying information that is reasonably available to the carrier — (A) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government); and (B) in a manner that allows it to be associated with the communication to which it pertains, except that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in [§ 3127]), such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number). Id. at 1002(a)(2). The statute defines “call-identifying information” to include “dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier.” § 1001(2). The CALEA, as does the SCA, expressly defines out of the “electronic communications” covered by the Act, information from a “tracking device” under § 3117. See § 1001(1) (adopting definitions of 18 U.S.C. § 2510). (2) Legislative History and Implementation The express purpose of the CALEA was to require communications service providers to acquire/implement technology to isolate and provide — on appropriate lawful authority — intercepted “content and call-identifying information” to law enforcement. See H.R.Rep. 103-827(1), reprinted in 1994 U.S.C.C.A.N. at pp. 3489, 3489-90. Passage and implementation of the CALEA entailed several years of extensive negotiations. The extent to which Government’s investigatory access to movement/location information would be implicated/affected by a requirement that it be identified/retained/provided with appropriate authority was the subject of much testimony and debate. It was clear, however, that Congress was extremely concerned that the background requirements be preserved, and that its legislation not be later asserted to have affected the judicial review protections applicable to this constitutionally-sensitive information. More particularly, the legislative history of the CALEA indicates that, during his lengthy and repeated testimony before the Senate and House, then-FBI-Director Louis Freeh addressed Congress’ concern that with advances in cell phone technology, law enforcement could obtain — by CSLI — information of an individual’s physical movement previously obtainable only through visual surveillance or the covert installation of a radio-wave transmitter. During the course of his testimony, Director Freeh reassured Congress that law enforcement was not attempting to obtain via the 1994 enactments, or to otherwise alter the standards applicable to, movement/location information. To the contrary, he asserted, the proposed legislation would “ensure[] the maintenance of the status quo”, that it “[did] not enlarge or reduce the government’s authority,” and that it “relate[d] solely to advanced technology, not legal authority or privacy ”. Director Freeh’s testimony included the following: The term “call setup information” is essentially the dialing information associated with any communication which identifies the origin and destination of a wire or electronic communication obtained through the use of a pen register or trap and trace device pursuant to court order. It does not include any information which might disclose the general location of a mobile facility or service, beyond that associated with the area code or exchange of the facility or service. There is no intent whatsoever, with reference to this term, to acquire anything that could properly be called ‘tracking’ information. Id. at 23. Director Freeh also stated, in allaying Congressional concerns: Law enforcement’s ... ability to acquire “call setup information” ... related to dialing type information — information generated by a caller which identifies the origin, duration, and destination of a wire or electronic communication, the telephone number or similar communication address. Such information ... historically, has been acquired through use of pen register or trap and trace devices pursuant to court order. Several privacy-based spokespersons have criticized the wording of the definition regarding this long-standing requirement, alleging that the government is seeking a new, pervasive, automated “tracking” capability. Such allegations are completely wrong. Some cellular carriers do acquire information relating to the general location of a cellular telephone for call distribution analysis purposes. However, this information is not the specific type of information obtained from ‘true’ tracking devices, which can require a warrant or court order when used to track within a private location not open to public view. See United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Even when such generalized location information, or any other type of ‘transactional’ information, is obtained from communications service providers, court orders or subpoenas are required and are obtained. In order to make clear that the acquisition of such information is not being sought through the use of pen register or trap and trace' devices, and is not included within the term ‘call setup information’, we are prepared to add a concluding phrase to this definition to explicitly clarify the point: except that such information (call setup information) shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number’s area code or exchange. Id. at 29 (emphasis added). Finally, Director Freeh represented, in response to a letter alleging that the Government was seeking to obtain surveillance of individuals through transactional data: This is a false issué for a number of reasons. First, as is clearly set forth in the ‘purpose’ section of the proposed legislation, the intent of the legislation is to maintain existing technical capabilities and to ‘clarify and define’ the responsibility of common carriers :'.. to provide the assistance required to ensure that government agencies can implement court orders and lawful authorizations to intercept the content of wire and electronic communications and acquire call setup information.... [It has] nothing to do with ‘transactional information’ under our federal electronic surveillance and privacy laws. All telecommunications ‘transactional’ information is already protected by federal law and is exclusively dealt with in [the SCA]. The proposed legislation does not relate to [the SCA]. Id. at 27 (quoted in Smith SD Tex.2005 Opinion, 396 F.Supp.2d at 763). Following passage of the CALEA, and in accordance with Congressional direction, the Telecommunications Industry Association (“TIA”) began the long process of the “development of the specific technological standards” by which industry could comply with its law-enforcement-assistance obligations. This entailed several years of negotiations and consultations amongst industry, law enforcement and consumer representatives “under the auspices of’ the FCC. Smith SD Tex.2006 Opinion, 441 F.Supp.2d at 820; see also 47 U.S.C. § 1006. In 1999, the FCC issued a ruling on the TIA’s proposed technical specifications and protocols (which were published as the Interim Standard/Trial Use Standard J-STD-025 or the “J-Standard”). Six aspects of the FCC ruling were challenged and consolidated for judicial review. See United States Telecom Assoc. v. FCC, 227 F.3d 450. (D.C.Cir.2000). The Court of Appeals held that the agency had “acted arbitrarily and capriciously” and/or “failed to engage in reasoned decisionmaking” as to five of its interpretations of the CA-LEA, but that it could require CSPs to have available CSLI as “call-identifying information” under the Act. Id. G.Enhanced 911 Rules As individuals’ use of cellular (rather than land-line) telephones rapidly expanded during the 1990s, it presented increasing difficulties for emergency service providers who had previously determined a caller’s location from the account address of her stationary telephone. Beginning in 1996, and continuing over several years, the FCC issued a series of “Enhanced 911 Emergency Call Systems” rules requiring CSPs to acquire the ability to identify more precisely the locations of cell phones making emergency calls. H.Wireless Communication and Public Safety Act of 1999 In this legislation, amending the Telecommunications Act and authorizing a nationwide “911” emergency service for cell phone users, Congress recognized the importance of an individual’s expectation of privacy in her physical location. See PL 106-81, 113 Stat. 1288 (Oct. 26, 1999) (amending 47 U.S.C. §§ 222, 251). More particularly, in authorizing the specifically-limited disclosure of location information to ensure the provision of emergency services, the Act directs that a customer otherwise not be deemed to have approved use/diselosure of, or access to, her CSLI absent express prior authorization. See 47 U.S.C. § 222(f). V. ANALYSIS Any contention that the Government might obtain cell tower site location information (“CSLI”) solely under the auspices of the PRS appears to have been put to bed. In a series of published Orders and Opinions over the past two years, a significant majority of Courts have also rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. In so holding, many of these Courts have repeatedly opined that real-time cell-phone-derived movement/location information is “tracking” information within § 3117. New Courts have, however, addressed in published opinion whether the Government may nonetheless covertly obtain a cell phone subscriber’s (or possessor’s) past, or historic, movemenVlocation information by the authority of the SCA. Some have suggested or credited (all but twice in dicta, and with little substantive discussion), that it may; a few have concluded or suggested that it may not. This Court concurs with those majority opinions holding that real-time CSLI constitutes tracking information and further concludes, after extensive research and careful consideration, that a distinction between real-time (“prospective”) and stored (“historic”) cell-phone-derived movement/location information would be at odds with (a) the plain language and/or natural meaning of the language of § 3117 and § 2703, (b) the rule of statutory construction requiring that effect be given to each and every provision, and (c) unambiguous Congressional intent. It would also render the related provisions of the electronic communications legislation constitutionally suspect, at best. More particularly, this Court has reached the following understanding of the issues: A. The Government’s Positions are Precluded by Textual Analysis 1. The Stored Wire and Electronic Communications and Transactional Records Access Statutes The SCA sets forth a prohibition against a CSP’s release to the Government of “records or other information” pertaining to a communications service subscriber, except as otherwise authorized with, e.g., warrant, consent, or court order. See 18 U.S.C. §§ 2702(a)(3), 2703(c), Records Concerning Electronic Communication Service or Remote Computing Service. In its application sub judice, the Government requests a § 2703(d) Order to obtain historic cellular tower site location information (“CSLI”). The Court sees two independently determinative flaws in the Government’s election to predicate its request on the SCA, rather than on a probable cause warrant under Fed.R.Crim.P. 41: (a) An Electronic Device That Is Able and Used to Provide the Government With Movement/Location Information is a “Tracking Device”, Communications From Which are (i) Expressly Excluded from the Definition of “Electronic Communications” Under the SCA and (ii) Not Pertaining to the Subscriber of an Electronic Communications Service Under the SCA The scope of the “Stored Wire and Electronic Communications and Transactional Records Access” Act, a subtitle of the “Electronic Communications Privacy Act”, is limited to information pertaining to wire or “electronic communications”, which are expressly defined to exclude communications from a device “which permits the tracking of the movement of a person or object”. On its face, this definition appears to unambiguously place the information sought outside the SCA. As technology now stands (and it will no doubt continue to rapidly evolve), triangulation of CSLI enables a covert observer to know our physical movements/locations within 50 feet; and our cell phones, whenever on, broadcast this information virtually continuously as we go about from place to place. Even without triangulation, our cell phones transmit — and our CSPs record — information of our movements to a few hundred feet. It is, therefore, extremely difficult to see how a cell phone is not now precisely an “electronic ... device which permits the tracking of the movement of a person or object.” § 3117(b). By virtue of cell phone technology, law enforcement may now electronically monitor our movements with as much — indeed, ofttimes more — scope and precision as by its traditional methods of visual surveillance and/or installation of a “beeper”. As other Courts have observed, tracking device and cell phone technologies have converged. That is, our cell phones — when utilized to record our physical movements — operate in the same manner and to the same purpose as earlier radio-wave beepers. This Court concurs, therefore, with the several thorough and thoughtful opinions to have reviewed the statutory language and reached this same conclusion. With those Courts that have opined (or assumed) that the Government may nonetheless acquire historic cell-phone-derived movement/location information by a § 2703(d) Order, we must, however, respectfully disagree. The Court finds two possible explanations for this largely-unexplained distinction between prospective and historic CSLI: (i) that stored CSLI is somehow no longer information from a tracking device excluded by § 3117 (or perhaps that, unlike real-time CSLI, it should not be regarded as such because its disclosure is somehow less intrusive or otherwise less entitled to protection); or (ii) that stored CSLI remains outside the Act’s definition of an “electronic communication” but is nonetheless within the scope of § 2703(c) because it is information that pertains to a subscriber of an electronic communication (ie., cell phone) service. (i) Historic CSLI Properly Remains Information from a Tracking Device, Excluded from the Deñnition of an “Electronic Communication” The first explanation is tantamount to an assertion that the mere storage of what appears indisputably to be information from a tracking device when garnered, alters its character. No such archival alchemy is possible. The frequent and specific information of our physical movements now transmitted by our cell phones is, necessarily, and remains, information from a device that permits the tracking of movement. The source of information does not change when it is stored. Communication from a “tracking device”, whether released to law enforcement instantaneously or with some interval of delay, is communication from a “tracking device”. Not only would acceptance of a contention that stored, or past, movement/location information is no longer “communication from a tracking device” fail to correspond to normal usage, it would render the SCA’s express exclusion of such information superfluous. More particularly, the SCA’s scope is expressly limited to “stored” communications, ie. only past data, and yet it also defines the stored electronic communications within its scope to exclude communications from a tracking device. An interpretation of “information from a tracking device” as not encompassing such information once stored would effectively read out this express limitation on what may constitute an “electronic communication” for purposes of the Act. (ii) Information Expressly Excluded from the ECPA (including the SCA) as Outside the Scope of the Term “Electronic Communication” Cannot Reasonably Be Re-Included as “Pertaining to” a Subscriber or Her Electronic Communication Service CSLI, as communication from an electronic device that permits the tracking of an individual’s movements/locations, is information of a nature expressly set aside by definition. To then say that stored information from a tracking device nonetheless comes directly back — as a record pertaining to an electronic communication service — into the scope of the SCA, a statute that carefully exempts tracking-device communications from its definition of “electronic communication”, would abrogate that express limitation. As the principal subject of this legislation was to describe the information encompassed and delineate certain procedures regarding its disclosure to law enforcement, there could be no possible purpose to the “tracking device” exclusion other than to limit the disclosure of stored information derived such devices. This Court sees, therefore, no way to reconcile the express exclusion of tracking device information with the remainder of the statutory language but to read the provision of § 2703(c) to authorize disclosure of records and other information directly pertaining to a subscriber/customer of an electronic communication service. That is, information that is regarding or derived under a service (e.g., a tracking capability/function) that may be used to facilitate the provision of an electronic communication service (e.g., the transmission of voice/text material), but that is not itself an electronic communication service (as, e.g., by definition), does not “pertain” to the subscriber of an electronic communications service within the meaning of the statute. To put this another way: Although some Courts have opined or suggested (again, almost always in dicta) that the registration, or subsequent storage, of CSLI pertains to a subscriber’s electronic communications service because it is used to facilitate the provision of that service, or because the CSPs compile it, this Court must strongly disagree. To the contrary, and even if a reading of § 2703(c) as re-including CSLI did not raise application-based concerns, it is necessary — -for reasons of statutory and Constitutional interpretation — to read § 2703(c)’s authorization for disclosure of records or information pertaining to a subscriber of an electronic communication service to exclude any movement/location information derived from her cell phone, even if incident thereto. If the excluded tracking information were brought back in, Congress’ exclusion of tracking device communications from the definition of “electronic communication” would be a pointless gesture, with no actual effect. It is apparent to this Court that Congress intended by the exclusion of tracking devices in the statutory definition that the SCA not become a vehicle for diminishing the long-recognized protections against covert disclosure of movement/location information; and it behooves the Court to interpret the SCA in a manner that gives effect to that intent. For these reasons, this Court concludes that CSLI is communication from an electronic device that permits the tracking of the movement of a person, is therefore expressly placed outside the scope of the electronic communications legislation of the SCA, and is not appropriately brought back into the scope of information which the Government may seek to obtain thereunder by any reasonable reading of § 2703(c). (b) Even if Cell-Phone-Derived Location Information Were Within Its Scope, The SCA Neither Establishes An Entitlement to Move-mentlLocation Information Under a Reasonable Relevance Standard Nor Otherwise Abrogates Otherwise Applicable Standards Even if the movement/location information now derivable from our cell phones, i.e., CSLI, were interpreted to be something other than information communicated from an electronic device “which permits the tracking of the movement of a person”, and/or even if it were interpreted to be re-included in the scope of the SCA as information pertaining to a subscriber or her use of an electronic communication service, it remains information of a character which has traditionally required a showing of probable cause/warrant under Fed.R.Crim.P. 41. And neither of the provisions on which the Government has relied in asserting entitlement to such information under a “reasonable relevance” standard suggests any Congressional alteration of that background rule. More particularly: (i) Section 2703(c) provides that the Government may require that the CSP disclose subscriber information (other than content) “only when”, after which follows a line-item list of alternative standards under which such subscriber information may be legally obtained, i e.: by warrant; court order under § 2703(d); subscriber consent; or, for telemarketing fraud or basic account information, another, de minimis, standard. Although it specifically links these last two categories of information to compliance with a specific standard, as to the remaining category of unspecified “records and other information” it simply recites those standards potentially applicable to non-content information, including a warrant issued under the Federal Rules of Criminal Procedure. Congress’ recitation of potentially-applicable standards, without more, cannot be read to replace the probable cause warrant requirement otherwise applicable to these tracking device communications with an entitlement to that same information under a reasonable relevance standard. (ii) Similarly, nothing in the language of § 2703(d) indicates that information requested by the Government is obtainable as a matter of course upon a showing of reasonable relevance to a criminal investigation. To the contrary, § 2703(d) provides that an Order for disclosure shall issue “only if’ the Government shows that the information sought is relevant. It does not provide that such an Order shall issue “if’ or “whenever” such a showing is made. Thus, under the plain language of the SCA, a showing of reasonable relevance is a necessary, but not necessarily sufficient, condition for issuance of an Order. This statutory provision is linguistically and logically equivalent to a directive that an Order shall not issue if the Government does not make the required showing of relevance; the statute is simply silent on what other requirements might apply where the Government shows reasonable relevance. The Government has argued, and some Courts have uncritically assumed, that it is entitled to a § 2703(d) Order whenever it makes the required relevance showing (as if the SCA read “if’ or “if and only if’ rather than “only if’). In addition to being contrary to the plain meaning of the language used in the statute, the Government’s interpretation would dramatically, and probably unconstitutionally, decrease the protections afforded not only to subscribers’ location information, but also to the content of stored communications such as emails and voice mails. More particularly, if issuance of a § 2703(d) Order were mandatory whenever the government made the showing contemplated therein with respect to records or other information under § 2703(c), then the same statutory language would mandate issuance of an Order for disclosure of content (stored more than 180 days) under § 2703(b) upon the same minimal showing. Such a mandatory outcome would render the SCA’s further requirement of prior notice (under § 2703(b)(1)(B)), in those instances in which the Government did not invoke the delay provisions of § 2705, a hollow protection of the subscriber’s privacy interest in the content of stored email and voice mail. The Court concludes, therefore, that the issuance of an Order under § 2708(d) remains circumscribed by otherwise applicable legal requirements according to the nature of the records or information sought. In the case of movement/location information derived from an electronic device, the traditionally-applied legal standard has been a showing of probable cause; and nothing in the text, structure, purpose or legislative history of the SCA dictates a departure from that background standard as to either historic or prospective CSLI. 2. The Communications Assistance for Law Enforcement Act of 1994 As noted above, a significant majority of Courts have rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. This Court need not tarry on this widely— and rightly — refuted contention, particularly as the United States Attorney for this District is no longer pursuing this position. See supra n. 4. B. The Government’s Positions are Contrary to Legislative History The foregoing textual analysis is strongly bolstered by a clear and consistent thread in the legislative history of various electronic communications statutes reflecting Congress’ continuing recognition of a privacy right in certain electronic communications information, including location information, and a corresponding intent to safeguard such information against disclosure under standards that would erode traditional Fourth Amendment protections. As discussed extensively above, the relevant legislative history indicates that Congress did not intend its electronic communications legislation to be read to require, on its authority, disclosure of an individual’s location information; to the contrary in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing the disclosure of movement/location information. The ECPA and the CALEA were careful to exempt communications from an electronic device capable of tracking our movements from their definitions of “electronic communications”; the history of the CALEA is replete with expressions of concern that it not be understood to alter the evidentia-ry standards (and testimony allaying those concerns); and the Wireless Communication and Public Safety Act expressly recognized the importance of an individual’s expectation of privacy in her physical location. Accordingly, the legislative history has contributed to and reaffirmed this Court’s understanding of the Congressional intent reflected in the statutory text. C. The Government’s Positions Would Render the Statutory Schemes Constitutionally Suspect This Court concludes, as a matter of statutory interpretation, that nothing in the provisions of the electronic communications legislation authorizes it to order a CSP’s covert disclosure of CSLI absent a showing of probable cause under Rule 41. And this interpretation is abundantly confirmed by consideration of the Constitutional principles at issue. For reading the statutes in the manner advocated by the Government would, as to at least a substantial portion of the information at issue, violate Americans’ reasonable expectation of privacy in any cell-phone-derived information/records as to their physical movements/locations by authorizing ex parte disclosure of that information with no judicial review of the probable cause. It appears to this Court, from its review of current Fourth Amendment case law and Constitutional principles, that this information is entitled to the judicial-review protections afforded by a probable cause warrant and historically applied to movement/location information derived from a tracking device. And its understanding informs the Court’s interpretation of the statute, just as it believes Congressional understanding of the same principles motivated statutory limitations. Even if the Government’s proffered interpretation did not impermissibly strain both the statutory language and legislative history, the doctrine of Constitutional avoidance counsels the choice of a limiting interpretation that does not require the Courts repeatedly, on an ex parte ad hoc basis, to delineate the precise bounds of Fourth Amendment protection. As discussed earlier, the Fourth Amendment prohibits unreasonable searches and seizures and, accordingly, the Government must generally demonstrate probable cause and obtain a warrant prior thereto. To trigger the Fourth Amendment’s protections, the individual must have a subjective expectation of privacy in the object of the Government’s search, and it must be one which society accepts as objectively reasonable. The Court believes, based on common experience within the community: First, that Americans do not generally know that a record of their whereabouts is being created whenever they travel about with their cell phones, or that such record is likely maintained by their cell phone providers and is potentially subject to review by interested Government officials. And second, that most Americans would be appalled by the notion that the Government could obtain such a record without at least a neutral, judicial determination of probable cause. The Court further finds that the expectation of privacy in movement/location information suggested by these prevalent attitudes is objectively reasonable because historically such information was not observable when someone was within private property and because the newly-emergent technologies create a potential to monitor associational activities in a manner that could have a chilling effect. Finally, the v„ery fact that Congress has taken pains to protect electronically-derived location information from unwarranted disclosure serves independently to make subjectively-held expectations of privacy objectively reasonable. As discussed above, some Courts have indicated that historic CSLI is routinely obtainable by law enforcement without probable cause and thus have implicitly found no reasonable expectation of privacy therein. In this Court’s view, however, the privacy and associational interests implicated are not meaningfully diminished by a delay in disclosure. The foregoing view of privacy expectations in the context of electronically-derived location information is in keeping with controlling precedent. More particularly, the Supreme Court has effectively recognized, in closely-analogous cases, an individual’s reasonable expectation of privacy in information regarding her location when she is on private premises. Compare United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (concluding that warrantless installation of electronic fracking beeper/radio transmitter inside drum of chemicals sold to the defendant illegal drug manufacturers, and used to follow their movements on public highways, implicated no Fourth Amendment concerns, as defendants had no reasonable expectation of privacy while they and their vehicle were in plain view on public highways) with United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (concluded that where the tracking beeper placed inside chemical drum was then used to ascertain presence in residences, the search was unreasonable absent probable cause). Taken together, these cases establish that without a warrant based on probable cause the Government may use a tracking device to ascertain an individual’s location on a public highway but not in a private home, ie., the public/private dichotomy is the principle harmonizing Knotts and Karo, so that a warrant is constitutionally required if and only if the location information extends onto private property. But even with this principle as a guide, the Court anticipates that routine allowance of location information up to the threshold of the private domain would necessitate increasingly-difficult line-drawing at the margins. Moreover, even if difficulties in Constitutional line-drawing were surmounted, practical limitations on the abilities of CSPs to filter their CSLI would almost certainly result in over-inclusive disclosures, and thus in transgressions of Constitutional boundaries. Accordingly, these considerations counsel adopting a statutory interpretation which, by retaining the probable cause requirement for all CSLI, would avoid repeated Constitutional adjudication and trespass into protected areas. The Government has contended, and some Courts have opined, that there is no reasonable expectation of privacy in CSLI because cell-phone-derived movement/location information is analogous to the dialed telephone numbers found unprotected by the Supreme Court in Smith v. Maryland. As explained by Magistrate Judge Smith, the Sixth Circuit has expressly (and in this Court’s view correctly) rejected this less apt analogy: The government contends that probable cause should never be required for cell phone tracking because there is no reasonable expectation of privacy in [CSLI], analogizing such information to the telephone numbers found unprotected in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Sixth Circuit rejected that analogy in United States v. Forest, 355 F.3d 942, 951-52 (6th Cir.2004). Unlike dialed telephone numbers, [CSLI] is not ‘voluntarily conveyed’ by the user to the phone company.... [I]t is transmitted automatically during the registration process, entirely independent of the user’s input, control, or knowledge. Sometimes, as in Forest, [CSLI] is triggered by law enforcement’s dialing of the particular number. 355 F.3d at 951. For these reasons the Sixth Circuit was persuaded that Smith did not extend to [CSLI], but rejected the defendant’s constitutional claim on the narrower ground that the surveillance took place on public highways, where there is no legitimate expectation of privacy. Id. at 951-52 (citing United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). Smith SD Tex.2005 Opinion, 396 F.Supp.2d at 756-573. A panel of the Sixth Circuit more recently further elucidated the bounds of the waiver of expectation doctrine in Warshak, 490 F.3d 455, in which it explained that if an intermediary’s mere ability to access information sought by the Government was enough to create an assumption of the risk bar to a reasonable expectation of privacy, vast stores of personal information would lose their Constitutional protections. Because such consequences are clearly unacceptable under the Fourth Amendment, the Sixth Circuit concluded that the “critical question” is “whether a [customer] maintains a reasonable expectation of privacy in [the information sought] vis-a-vis the [third-party provider]”. 490 F.3d at 469. The Court concluded, largely on its analysis of Katz, Miller and Smith, that a customer forfeits her reasonable expectation of privacy only as to a service provider’s records of information voluntarily conveyed and reasonably expected to be accessed by the provider’s employees in the ordinary course of its business (ie., for purposes of the provision of services). See id. at 469-76. As discussed supra, CSLI is not “voluntarily and knowingly” conveyed by cell phone users (certainly not in the way of transactional bank records or dialed telephone numbers); rather, the information is automatically registered by the cell phone. Nor are CSP employees routinely reviewing and/or utilizing CSLI in the ordinary course of the provision of telephone communications services; rather, the information is processed on separate control channels by electronic equipment. Nor does a CPS’s retention of CSLI generally serve any business purpose for the customer or for the provider in serving the customer; rather, such information is retained principally, if not exclusively, in response to Government directive. Finally, the movement/location information at issue here, unlike the records found unprotected in prior Supreme Court eases, is the subject of express Congressional protection. Indeed, Congress has reiterated throughout the legislative history of its electronic communications legislation, and reflected in the provisions of its enactments, its recognition of an individual expectation of privacy in “location information” and desire to protect this privacy right from unwarranted or unreasonable encroachment. In sum, this Court concurs with the assessment of Magistrate Judge Smith at the conclusion of his Opinion: Denial of the government’s request ... in this instance should have no dire consequences for law enforcement [as t]his type of surveillance is unquestionably available upon a traditional probable cause showin