Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 1 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Daniel J. Pochoda (SBA 021979) Kelly J. Flood (SBA 019772) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 dpochoda@acluaz.org kflood@acluaz.org Linda Lye* AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm St., 2nd Floor San Francisco, California 94111 Telephone (415) 621-2493 llye@aclunc.org Hanni M. Fakhoury* ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 x. 117 hanni@eff.org *Application for admission pro hac vice pending Additional counsel listed on signature page Attorneys for Proposed Amici Curiae 18 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 19 20 UNITED STATES OF AMERICA, 21 22 23 24 Plaintiff, v. DANIEL RIGMAIDEN, Defendant. 25 26 27 28 CASE NO. 2:08-CR-00814-DGC Amici Brief In Support of Daniel Rigmaiden CASE NO.: 2:08-CR-00814-DGC [PROPOSED] BRIEF AMICI CURIAE IN SUPPORT OF DANIEL RIGMAIDEN'S MOTION TO SUPPRESS ORAL ARGUMENT REQUESTED Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 2 of 26 1 TABLE OF CONTENTS 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT.............................1 3 II. STINGRAY TECHNOLOGY IS BOTH INVASIVE AND PRECISE...............2 4 III. USE OF THE STINGRAY VIOLATED THE FOURTH AMENDMENT..........................................................4 5 A. 6 7 1. 9 10 B. 11 13 14 15 The Stingray Search Was Not Within The Scope Of 08-90330................................................................5 2. 8 12 N.D. Cal. 08-90330 Was Not A Valid Warrant Authorizing The Stingray Search................................................................4 The Government Cannot Obtain Judicial Authorization To Engage In A Search Using Technology It Has Failed To Explain To The Issuing Magistrate.................................6 Mr. Rigmaiden Has A Reasonable Expectation Of Privacy In An Aircard Registered Under An Alias Because The First Amendment Protects Anonymous Internet Speech..........................................12 IV. THE GOVERNMENT VIOLATED THE FOURTH AMENDMENT WHEN IT OBTAINED CELL SITE RECORDS WITHOUT A WARRANT...............................................................15 V. CONCLUSION............................................................................17 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden i Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 3 of 26 TABLE OF AUTHORITIES 1 2 3 FEDERAL CASES 4 United States v. Oliva, 686 F.3d 1106 (9th Cir. 2012)........................................................... 11 5 6 Dalia v. United States, 441 U.S. 238 (1979) .......................................................................... 6 7 Groh v. Ramirez, 540 U.S. 551, 558 (2004) .................................................................. 12 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011)............................................................ 13 In re Application for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel (In re Cell Location Info)., 849 F. Supp. 2d 526 (D. Md. 2011) .................................................. 16 In re Application for an Order Authorizing Installation & Use of a Pen Register, 415 F. Supp. 2d 211(W.D.N.Y. 2006) .............................................. 16 In re Application for an Order Authorizing Installation and Use of a Pen Register and Trap and Trace Device (In re Stingray), F.Supp.2d_, 2012 WL 2120492, *1 (S.D. Tex. June 2, 2012) .......... 9, 12 In re Application for an Order Authorizing the Disclosure of Prospective Cell Site Info., 412 F. Supp. 2d 947. 958 (E.D. Wis. 2006) .................................. 16 In re Application for an Order Authorizing the Installation & Use of a Pen Register Device, 497 F. Supp. 2d 301 (D.P.R. 2007) ............................................... 16 In re Application for an Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 132 (D.D.C. 2005) .............................................. 17 In re Application for an Order Authorizing Use of a Cellular Telephone Digital Analyzer, 885 F.Supp. 197, 201 (C.D. Cal. 1995)......................................... 10 In re Application for an Order Pursuant to 18 U.S.C. ?2703(d) (In re Cell Tower Dump), 2012 WL 4717778 *4 (S.D. Tex. Sept. 26, 2012) .................... 9, 11 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden iii Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 4 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In re Application for Historical Cell Site Data, 747 F. Supp. 2d 827(S.D. Tex. 2010) ........................................... 16 In re Application for Pen Register & Trap/Trace Device With Cell Site Location Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005) .......................................... 17 In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113 (E.D.N.Y. 2011) .......................................... 16 In re Application of U.S. for an Order Authorizing Installation & Use of a Pen Register & a Caller Identification Sys. on Tel. Numbers (Sealed), 402 F. Supp. 2d 597 (D. M 2005) ................................................. 17 In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d Cir. 2010) .......................................................... 17 In re Application of U.S. for an Order: (1) Authorizing Use of a Pen Register & Trap & Trace Device, (2) Authorizing Release of Subscriber & Other Info., (3) Authorizing Disclosure of Location-Based Services, 727 F. Supp. 2d 571 (W.D. Tex. 2010) ......................................... 17 In re Cell Provider Disclosure, 620 F.3d at 317-18 ........................................................................ 17 In re U.S. for Orders Authorizing Installation & Use of Pen Registers & Caller Identification Devices on Tel. Numbers, 416 F. Supp. 2d 390 (D. Md. 2006) .............................................. 16 Katz v. United States, 389 U.S. 347 (1967) ...................................................................... 13 Kyllo v. United States, 533 U.S. 27(2001) ........................................................................... 5 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ...................................................................... 13 McIntyre v. Ohio Elections Comm'n., 514 U.S. 334 (1995) ...................................................................... 13 Rakas v. Illinois, 439 U.S. 128 (1978) ...................................................................... 12 Silverman v. United States, 365 U.S. 505 (1961) ........................................................................ 5 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden iv Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 5 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Stanford v. Texas, 379 U.S. 476 (1965) ........................................................................ 7 United States v. Bautista, 362 F.3d 584 (9th Cir. 2004).......................................................... 15 United States v. Comprehensive Drug Testing, Inc. (CDT), 621 F.3d 1162 (9th Cir. 2010) (en banc) .......................................... 2 United States v. Coverson, 2011 WL 1044632 *5 (D. Ala. Mar. 22, 2011)............................. 14 United States v. Daniel, 982 F.2d 146 (5th Cir. 1993).......................................................... 14 United States v. Davis, 2011 WL 2036463 *3 (D. Or. May 24, 2011) .............................. 14 United States v. Forrester, 512 F.3d 500 (9th Cir. 2007).......................................................... 17 United States v. Hurd, 499 F.3d 963 (9th Cir. 2007)............................................................ 6 United States v. Jones, 132 S.Ct. 945 (2012) .......................................................... 2,5,16,17 United States v. Karo, 468 U.S. 705 (1984) ........................................................................ 5 United States v. Lewis, 738 F.2d 916 (8th Cir. 1984).......................................................... 15 United States v. Lozano, 623 F.3d 1055 (9th Cir. 2010)........................................................ 14 United States v. Pitts, 322 F.3d 449 (7th Cir. 2003).......................................................... 14 United States v. Rettig, 589 F.2d 418 (9th Cir. 1979)............................................................ 2 United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)......................................................... 17 United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986)............................................................ 1 United States v. Suarez-Blanca, 2008 WL 4200156, *6 (N.D. Ga. Apr. 21, 2008) ......................... 14 United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).......................................................... 17 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden v Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 6 of 26 1 United States v. Young, 573 F.3d 711 (9th Cir. 2009).......................................................... 15 2 STATE CASES 3 Commonwealth v. Pitt, No. 2010-0061, 2012 WL 927095, at *4 (Mass. Super. Feb. 23, 2012) ............. 9, 17 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001) ..................................................... 13 Doe v. Cahill, 884 A.2d 451 (Del. 2005) ............................................................. 13 Haisch v. Allstate Ins. Co., 197 Ariz. 606 (App. Div. 2000) .................................................... 15 Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)...............................................13 Krinsky v. Doe 6, 72 Cal.Rptr.3d 231 (Cal. App. 2008) ............................................ 13 Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. App. 2007) .................................................... 13 OTHER AUTHORITIES Active GSM Interceptor, ABILITY ............................................................... 4 Cell Phone Intercept Apparatus, VIEW SYSTEMS ....................................... 4 Daehyun Strobel, "IMSI Catcher" .............................................................. 3 Brochure, PKI Electronic Intelligence ........................................................ 4 Hannes Federrath, "Protection in Mobile Communications," ................... 3 Harris Corp. Product Sheet ......................................................................... 4 Harris, Wireless Products Group Price List ................................................ 4 Harris Corporation "AmberJack"................................................................ 3 Juliam Dammann, "IMSI-Catcher and Man-in-the-Middle attacks" .......... 3 25 Resp. to National Telecommunications Information Administration Notice of Inquiry .................................................... 4 26 What You Need to Know About Your Network, AT&T............................... 4 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden vi Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 7 of 26 1 STATUTES 2 18 U.S.C. ?2518...............................................................11 3 18 U.S.C. ?2701...............................................................16 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden vii Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 8 of 26 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT 2 This case will likely result in the first decision to address the constitutional 3 implications of a so-called "stingray" device, which locates and identifies wireless devices 4 in its vicinity and can be used for other forms of surveillance. The government concedes 5 that the device located Mr. Rigmaiden within his home and its use constituted a search, 6 but contends that he lacked a reasonable privacy expectation because he purchased his 7 aircard under an alias, and the search was conducted pursuant to a proper warrant. Amici 8 explain why these two arguments have dramatic constitutional implications and must be 9 rejected. In addition, amici discuss several salient aspects of the surveillance technology 10 used here. Finally, Amici explain why the government's separate location tracking effort 11 through the collection of 38 days of cell site location information constituted a Fourth 12 Amendment search. 13 Stingrays are highly intrusive and indiscriminate. To locate a suspect's cell phone, 14 stingrays obtain information from all devices on the same network in a given area and 15 send signals into the homes, bags, or pockets of the suspect and third parties alike. This 16 type of device, even if not the one used here, can capture the content of communications, 17 not merely the location of the device. Their use implicates the privacy interests of the 18 suspect, as well as untold numbers of third parties as to whom there is no probable cause. 19 Yet the underlying Affidavit and supporting Application failed to disclose the 20 government's intent to use a stingray and the device's indiscriminate intrusiveness into 21 protected areas. 22 sophisticated, uniquely invasive technology that it never explained to the magistrate. To 23 construe this Order as a valid "warrant" authorizing the use of the stingray would prevent 24 magistrates from making informed determinations on warrant applications and encourage 25 the government to keep magistrates in the dark. The government cannot obtain judicial approval for a search using 26 The Fourth Amendment assigns judicial officers a critical role in ensuring that all 27 aspects of a search are supported by probable cause and are not overly intrusive. See 28 United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). The government's omission CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 1 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 9 of 26 1 of material information in a warrant application prevents the court from exercising this 2 constitutional function. United States v. Rettig, 589 F.2d 418, 422-23 (9th Cir. 1979). 3 Judicial supervision is particularly important with evolving technology, where there is a 4 heightened risk of overly intrusive searches. See United States v. Comprehensive Drug 5 Testing, Inc. (CDT), 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc). 6 As interpreted by the government, the Order authorized it to send signals into the 7 home of and obtain information about the devices and whereabouts of Mr. Rigmaiden and 8 third parties as to whom it lacked probable cause. Because the government withheld 9 material information about stingray technology, the magistrate was not on notice of the 10 need to limit and particularize the search, so as to mitigate the impact on third parties (if 11 feasible) and prevent the Order from becoming a de facto "general warrant." 12 This case is a stark illustration of how Fourth Amendment privacy protections - 13 for suspects and third parties alike will significantly be eroded if the government fails to 14 apprise judicial officers about new surveillance technologies. The government seeks 15 blanket authorization to conduct searches using invasive new technologies, without 16 providing the issuing magistrate even rudimentary information about how the technology 17 works. This Court should not countenance the government's effort to render meaningless 18 the role of courts as an essential safeguard against unconstitutional searches and seizures. 19 In addition, the government wrongly asserts that Mr. Rigmaiden lacked a 20 reasonable privacy expectation because he used an alias. Because the First Amendment 21 protects the right to anonymous internet speech, his privacy interest was objectively 22 reasonable. 23 Finally, the government engaged in a Fourth Amendment search when it obtained 24 38 days of cell site location information. Five justices agree that prolonged location 25 tracking violates reasonable expectations of privacy. See United States v. Jones, 132 S.Ct. 26 945, 955 (2012) (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). 27 II. 28 STINGRAY TECHNOLOGY IS BOTH INVASIVE AND PRECISE "Stingray" is the name for the Harris Corporation's line of "cell site simulator" CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 2 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 10 of 26 1 technology, also called "IMSI catchers" by technologists, in reference to the unique 2 identifier - or international mobile subscriber identity of wireless devices. 1 Wireless 3 carriers provide coverage through a network of base stations that connect wireless devices 4 on the network to the regular telephone network. An IMSI catcher masquerades as a 5 wireless carrier's base station; wireless devices then communicate with it as though it 6 were actually the carrier's base station. One common feature of IMSI catchers is the 7 ability to determine the location of mobile phones or wireless broadband data cards (or 8 aircards). 2 Amici emphasize four points about the operation of these devices pertinent to 9 the legal issues before the Court. 3 10 First, stingrays impact third parties, not just the target of an investigation. In 11 mimicking a wireless company's network equipment, the stingray sends signals to and 12 triggers an automatic response from third parties' mobile devices. 4 The government 13 concedes as much, and contends that its dragnet sweep of third-party information 14 necessitated its destruction of evidence after the tracking mission. See Order, Doc. 723 at 15 18. The devices may also disrupt third parties' network connectivity. 5 16 Second, the devices broadcast electronic signals that penetrate the walls of private 17 locations not visible to the naked eye, including homes, offices, and other private 18 19 20 21 22 23 24 25 26 27 28 1 Although "Stingray" refers to a specific line of Harris Corporation products, see infra, note 9, amici use the term "stingray" in this brief generically to refer to IMSI catchers. 2 See, e.g., HARRIS SOLE SOURCE VENDOR LETTER, http://egov.ci.miami.fl.us/Legistarweb/ Attachments/48003.pdf at 6 (Harris Corporation "AmberJack" operates with other Harris products, "enabling tracking and location of targeted mobile phones"). 3 IMSI catchers vary, depending on among other things, whether the target phone operates on a "GSM" (e.g., AT&T) or "CDMA" (e.g., Verizon) network, and whether the IMSI catcher is "active" or "passive." This discussion focuses on commons features. 4 See, e.g., Hannes Federrath, "Protection in Mobile Communications," in Mulilateral Security in Communications, at 5 (G?nter M?ller et al. eds., 1999) ("possible to determine the IMSIs of all users of a radio cell"), available at http://epub.uniregensburg.de/7382/1/Fede3_99Buch3Mobil.pdf; Daehyun Strobel, "IMSI Catcher," Seminararbeit, Ruhr-Universit?t, Bochum, Germany at 13 (July 13, 2007) ("An IMSI Catcher masquerades as a Base Station and causes every mobile phone of the simulated network operator within a defined radius to log in."), available at http://www.emsec.rub.de/media/crypto/attachments/files/2011/04/imsi_catcher.pdf. 5 Juliam Dammann, "IMSI-Catcher and Man-in-the-Middle attacks," presentation at Seminar on Mobile Security, University of Bonn at 19 (February 9, 2011), available at http://cosec.bit.uni-bonn.de/fileadmin/user_upload/teaching/10ws/10ws-semmobsec/talks/dammann.pdf. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 3 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 11 of 26 1 locations of the target and third parties in the area. 6 Depending on the device's signal 2 strength, the broadcast radius can reach up to "several kilometers." 7 3 Third, the devices can pinpoint an individual with extraordinary precision, in some 4 cases "within an accuracy of 2 m[eters]." 8 The government has conceded that the device 5 located Mr. Rigmaiden precisely within his apartment. Order, Doc. 723 at 15, 19. 6 Fourth, although the specific device used by the FBI in this case may have been 7 configured not to intercept content, materials from several surveillance vendors selling 8 IMSI catchers show that these devices are certainly capable of doing so. 9 9 III. 10 USE OF THE STINGRAY VIOLATED THE FOURTH AMENDMENT The government's use of the stingray violated the Fourth Amendment A. 11 N.D. Cal. 08-90330 Was Not A Valid Warrant Authorizing The Stingray Search 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The devices send signals like those emitted by a carrier's own base stations. See, e.g., Harris Corp. product sheet at 1 ("Active interrogation capability emulates base stations"), available at http://servv89pn0aj.sn.sourcedns.com/~gbpprorg/2600/Harris_StingRay.pdf. Those signals, of course, "penetrate walls" (necessarily, to provide connectivity indoors). What You Need to Know About Your Network, AT&T, http://www.att.com/gen/pressroom?pid=14003; see also E.H. Walker, Penetration of Radio Signals Into Buildings in the Cellular Radio Environment, 62 THE BELL SYSTEMS TECHNICAL JOURNAL 2719 (1983), available at http://www.alcatel-lucent.com/bstj/vol62-1983/articles/bstj62-92719.pdf. 7 Strobel, supra, note 4, at 13. 8 See, e.g., "GSM Cellular Monitoring Systems" brochure by PKI Electronic Intelligence GmbH at 12 (device can "locat[e]... a target mobile phone within an accuracy of 2 m[eters]"), available at http://www.docstoc.com/docs/99662489/GSM-CELLULARMONITORING-SYSTEMS---PKI-Electronic-#; Resp. to National Telecommunications Information Administration Notice of Inquiry (Doc. #100504212-0212-01) Requesting Information on Preventing Contraband Cell Phone Use in Prisons, submitted by Bahia 21 Corp. at 3 (June 11, 2010), available at http://www.ntia.doc.gov/files/ntia/comments/100504212-021201/attachments/BAHIA21%20resposne%20to%20NTIA%20NOI.pdf (a US surveillance vendor offering fixed IMSI catchers to be installed in prisons to detect contraband cell phones, promising 10-15m accuracy of geolocation identification) . 9 See, e.g., Harris, Wireless Products Group Price List at 8 (September 2008) (StingRay line of products includes "Intercept Software Package" for GSM phones), available at https://info.publicintelligence.net/Harris-SurveillancePriceList.pdf; Active GSM Interceptor, ABILITY, http://www.interceptors.com/intercept-solutions/Active-GSMInterceptor.html (describing IBIS II device: "The user can control the level of service to the target mobiles, selectively Jam specific mobiles, perform silent calls, call or SMS on behalf of target mobile, change SMS messages on the fly, detect change of SIM card or change of handset, and support Direction Finding system and many additional operational features."); Cell Phone Intercept Apparatus, VIEW SYSTEMS, http://www.viewsystems.com/pdf/CIA_11_20_06.pdf("Optional voice decode, record and forward; see also Dammann, supra, note 5, at 5 ("is able to eavesdrop"). CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 4 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 12 of 26 1 The government concedes a Fourth Amendment search occurred, a concession 2 compelled by Supreme Court precedent. 10 But the government cannot plausibly claim 3 that N.D. Cal. 08-90330 was a warrant that authorized the government to use the 4 stingray. 11 1. 5 6 The Stingray Search Was Not Within The Scope Of 08-90330 The government's stingray search did not fall within the scope of N.D. Cal. 08The Order directs Verizon to provide the government with information and 7 90330. 8 assistance, but nowhere authorizes the government to search or seize anything. 12 9 Nor could this defect be cured by the Application and Affidavit, which indicate 10 only that the government sought Verizon's assistance in locating the aircard. See, e.g., 11 Application at 1 ("submits this Application in support of an Order directing Verizon 12 Wireless to assist agents of the" FBI) (emphasis added). These documents nowhere use 13 the term "stingray," and instead make fleeting references to a "mobile tracking device." 14 16 But the only description of the device is buried at the end of an 18-page declaration: The cell sites provide a link between the Target Broadband Access Card/Cellular Telephone and Verizon Wireless facilities, where the [sic] Verizon Wireless [can] then determine the general location of the Target Broadband Access Card/Cellular Telephone. The mobile tracking equipment ultimately generate[s] a signal that 17 10 15 18 19 20 21 22 23 24 25 26 27 28 First, the device pinpointed Mr. Rigmaiden's location within his residence. Like the beeper placed into a can of ether, in turn taken into a residence, in United States v. Karo, 468 U.S. 705 (1984), the "monitoring of [the] electronic device" here was a search because it "reveal[ed] a critical fact about the interior of the premises that the Government is extremely interested in knowing about and that it could not otherwise have obtained without a warrant." Id. at 715; see also Kyllo v. United States, 533 U.S. 27, 34 (2001) (thermal imaging to detect heat from home constituted search). Second, the device sent electronic signals to penetrate the walls of Mr. Rigmaiden's residence (and unsuspecting third parties). This "unauthorized physical penetration into the premises" constituted a search. Silverman v. United States, 365 U.S. 505, 509 (1961) (finding search where government used "spike mike," a microphone attached to spike inserted into walls of house); see also Jones, 132 S.Ct. at 949 (installation and monitoring of GPS on suspect's vehicle constituted search because of "physical intrusion" "for the purpose of obtaining information"). 11 N.D. Cal. 08-90330 and 08-90331 are lodged under seal at Doc. 470. This Court denied Defendant's motion to unseal those documents because at the time they remained subject to a seal order in the issuing Court, the Northern District of California. See Doc. 727. Amicus has since obtained an order in the Northern District unsealing the two Orders, and the underlying Applications and Affidavits. See Lye Decl., filed herewith, ??4-9. 12 See Order at 2 ("The Court therefore ORDERS ... that Verizon Wireless ... shall"); id.at 3 ("It is further ORDERED ... that Verizon Wireless shall"). The orders, applications and affidavits in 08-90330 and 08-90331, the government's companion application for cell site information, are attached at Lye Decl., Exh. 2 & 3, respectively. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 5 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 13 of 26 1 fixes the geographic position of the Target Broadband Access Card/Cellular Telephone. 2 Affidavit at ?42 (emphasis added). Particularly because the Application sought Verizon's 3 assistance, these two sentences suggest that Verizon would determine the location of the 4 aircard by monitoring some unspecified "mobile tracking equipment." 5 In evaluating whether a search falls outside the scope of a warrant, a court looks to 6 "the circumstances surrounding the issuance of the warrant, the contents of the search 7 warrant, and the circumstances of the search." United States v. Hurd, 499 F.3d 963, 966 8 (9th Cir. 2007) (internal quotation marks, citation omitted). 9 In this case, the "contents of the search warrant" do not authorize the government 10 to perform any search or seizure. Dalia v. United States, 441 U.S. 238 (1979), on which 11 the government relies, see Gov.'s Resp., Doc. 873 at 51, has no bearing on this case. The 12 warrant there contained critical language not present here: "WHEREFORE, it is hereby 13 ordered that: Special Agents of the Federal Bureau of Investigation ... are authorized ... 14 to: ...Intercept oral communications...." Dalia, 441 U.S. at 242 n.4. The government 15 makes much of the finding of "probable cause" but that speaks only to whether the 16 government complied with the Fourth Amendment in obtaining information and 17 assistance from Verizon (to which the Order was directed), not whether the search the 18 government conducted fell within the scope of this Order. 13 2. 20 The Government Cannot Obtain Judicial Authorization To Engage In A Search Using Technology It Has Failed To Explain To The Issuing Magistrate 21 If, however, the Order could be construed to authorize a search, which it cannot, 19 22 23 24 25 26 27 28 13 Indeed, there is good reason to believe that the government fully understood that the stingray search was not within the scope of 08-90330. Emails written after the stingray search located Mr. Rigmaiden suggest that the government did not wish to disclose its use of the stingray to the court in its subsequent application for a warrant to search Mr. Rigmaiden's apartment. See E-mail from Denise Medrano, Special Agent, to Albert Childress (July 17, 2008) (Doc. 587-2, Exh. 34) (government sought "to develop independent probable cause of the search warrant...FBI does not want to disclose the [redacted]"); E-mail from Fred Battista, AUSA, to Shawna Yen (July 17, 2008) (Doc. 587-3, Exh. 38) ("The main effort now may be to tie the target to the case without emphasis on the [redacted]."). Why would the government labor to avoid disclosure of a search for which it had obtained a warrant? Its desire to avoid disclosure only makes sense if the government believed at the time what the face of the Order makes clear - that the stingray search was not within the scope of 08-90330. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 6 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 14 of 26 1 the Order would be an unconstitutional "general warrant." By failing to apprise the 2 magistrate that it intended to use a stingray, what the device is, and how it works, it 3 prevented the judge from exercising his constitutional function of ensuring that warrants 4 are not overly intrusive and all aspects of the search are supported by probable cause. 5 The Fourth Amendment was "the product of [the Framers'] revulsion against" 6 "general warrants" that provided British "customs officials blanket authority to search 7 where they pleased for goods imported in violation of the British tax laws." Stanford v. 8 Texas, 379 U.S. 476, 481, 482 (1965). The particularity requirement serves two purposes. 9 It "prevents general, exploratory searches and indiscriminate rummaging through a 10 person's belongings." Spilotro, 800 F.2d at 963. "It also ensures that the magistrate 11 issuing the warrant is fully apprised of the scope of the search and can thus accurately 12 determine whether the entire search is supported by probable cause." Id. 13 The role of the magistrate is key. In Rettig, the Ninth Circuit required suppression 14 where the government withheld material information about the intended scope of the 15 search. 589 F.2d at 422-23. After applying unsuccessfully for a search warrant for 16 cocaine-related evidence, the government went to a different magistrate, obtained a 17 warrant for evidence of a marijuana offense, and then engaged in a broad search, seizing 18 cocaine-related items. Id. at 420-21. The court found a Fourth Amendment violation: 19 The magistrate may have granted the marijuana search warrant, but subject to 20 "limitations" on the scope of the search and seizure "to prevent an overly intrusive 21 search." Id. at 423. "A judicial officer cannot perform the function of issuing a warrant 22 particularly describing the places to be searched and things to be seized," if "the agents 23 withh[o]ld [material] information." Id. at 423. 24 The Ninth Circuit has emphasized the heightened need for judicial supervision in 25 the context of evolving technology, where the danger of overly intrusive searches and 26 seizures is acute. In CDT, the government searched and seized electronic records of 27 hundreds of people, as part of its investigation of steroid use by ten baseball players. 621 28 F.3d at 1166. While law enforcement may "need ... broad authorization to examine CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 7 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 15 of 26 1 electronic records" ("[t]here is no way to be sure exactly what an electronic file contains 2 without somehow examining its contents"), that need "creates a serious risk that every 3 warrant for electronic information will become, in effect, a general warrant, rendering the 4 Fourth Amendment irrelevant." Id. at 1176. The en banc court therefore discussed "the 5 procedures and safeguards that federal courts must observe in issuing and administering 6 search warrants and subpoenas for electronically stored information," to prevent such 7 searches from becoming overly intrusive. Id. at 1166; see also id. at 1170-71, 1177. 8 Chief Judge Kozinski, in a concurring opinion joined by four other judges, 9 emphasized "the government's duty of candor in presenting a warrant application." See 10 id. at 1178 (Kozinski, C.J., concurring). While the government may explain theoretical 11 risks of concealment and evidence destruction that would weigh in favor of a broad 12 warrant, it "should also fairly disclose the actual degree of such risks.... A lack of candor 13 in this or any other aspect of the warrant application must bear heavily against the 14 government in the calculus of any subsequent motion to return or suppress the seized 15 data." Id. (emphasis in original); see also id. at 1180 (providing guidance for electronic 16 searches, including protocols for segregation and redaction of third-party data). 17 The government here failed to provide then-Magistrate, now-Judge, Seeborg with 18 essential information about the nature and scope of the search. The Application and 19 Affidavit indicated only that the government sought to obtain information from Verizon, 20 not that the government sought to engage in its own search of Mr. Rigmaiden's home. 21 The Application provides no explanation of a stingray. The Affidavit states only "[t]he 22 mobile tracking equipment ultimately generate[s] a signal that fixes the geographic 23 position" of the aircard, but did not provide any explanation whatsoever of what the 24 mobile tracking equipment was and how it "ultimately generate[s]" that signal. Affidavit 25 at ?42. It did not explain that the device broadcasts signals to all devices in the area, 26 receives information about other devices in the possession of third parties, potentially 27 disrupts the connections of third-party devices, and penetrates the walls of every private 28 residence in the vicinity, not solely that of the target. See supra at Part II. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 8 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 16 of 26 1 The Affidavit is particularly misleading because its sole, conclusory paragraph 2 purporting to describe the stingray is identical to the paragraph of the Affidavit submitted 3 in support of the government's companion Application in 08-90331 to install an entirely 4 different device, a pen register/trap and trace. Compare Affidavit (08-90330) at ?42, with 5 Affidavit (08-90331) at ?42. Thus, the government's submissions completely failed to 6 convey to the judge that it was seeking to use the unique device at issue here, and not a 7 more common form of location tracking technology. 8 9 The government's "lack of candor" (CDT, 621 F.3d at 1170 (Kozinski, C.J., concurring)), was highly consequential. 10 Had the government candidly told the judge that it intended to use a stingray, he 11 may have denied the application without prejudice to a subsequent application providing 12 further details about the technology. This is precisely what a federal magistrate did in one 13 of the two other decisions of which amici are aware involving a stingray. See In re 14 Application for an Order Authorizing Installation and Use of a Pen Register and Trap and 15 Trace Device (In re Stingray), _F.Supp.2d_, 2012 WL 2120492, *1 (S.D. Tex. June 2, 16 2012). 14 As the same magistrate explained in denying a statutory application for cell site 17 records of all subscribers from several cell towers, an understanding of "the technology 18 involved" is necessary to "appreciate the constitutional implications of" the warrant 19 application, particularly where, as here, the technology entails "a very broad and invasive 20 search affecting likely hundreds of individuals in violation of the Fourth Amendment." In 21 re Application for an Order Pursuant to 18 U.S.C. ?2703(d) (In re Cell Tower Dump), 22 2012 WL 4717778 *4 (S.D. Tex. Sept. 26, 2012). 23 But with more complete information, the judge may have denied the application on 24 the ground that use of a stingray is too intrusive, for example, because of the impact on 25 third parties. This is what a federal magistrate did in the other stingray decision, involving 26 the government's statutory application to use the device. See In re Application for an 27 14 28 That case involved an application to use the device under the pen register statute, not for a warrant. The court concluded, based on the scant information before it, that the device did not fall under the statutory definition of a pen register. Id. at *5. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 9 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 17 of 26 1 Order Authorizing Use of a Cellular Telephone Digital Analyzer, 885 F.Supp. 197, 201 2 (C.D. Cal. 1995) (denying statutory application to use stingray because, inter alia, 3 "depending upon the effective range of the digital analyzer, telephone numbers and calls 4 made by others than the subjects of the investigation could be inadvertently intercepted"). 5 That stingrays obtain information about third parties "creates a serious risk that every 6 warrant for [a stingray] will become, in effect, a general warrant," to search persons as to 7 whom there is no probable cause. See CDT, 621 F.3d at 1176. 8 Indeed, the record suggests that the judge may well have denied the application 9 had he known how precisely it is able to locate a suspect. The government submitted a 10 companion application for historical cell site information that relied on a substantially 11 similar factual predicate. Compare Affidavit (08-90331), with Affidavit (08-90330). But 12 in the Order on the companion application, the judge expressly stated that the government 13 was "not authorized to obtain" cell site information that would allow it "to determine the 14 precise location of the user of the Target Device." See N.D. Ca. Order 08-90331 at 3:6-10 15 (emphasis added). 16 government obtained an Order which it now claims authorized it do exactly what the 17 judge prohibited it from doing in a companion Order - precisely locating the aircard. By withholding information about the stingray's capabilities, the 18 Alternatively, had the judge been fully apprised about the technology and how it 19 functions, he may ultimately have issued a warrant, but could have crafted "explicit 20 limitations ... to prevent an overly intrusive search." Rettig, 589 F.2d at 423. 21 Such limitations are especially necessary with stingray devices. First, the devices 22 obtain third-party information. The government asserts that its data destruction after the 23 tracking mission was intended to protect these third parties. Doc. 674-1 ?5. But after the 24 fact data destruction does not prevent third-party residential searches. Moreover, although 25 the Order submitted by the government and signed by the judge provided for data 26 destruction, the Application and Affidavit failed to contain any "discussion about ... the 27 privacy rights ... of these innocent subscribers whose information will be compromised" 28 by the search. See In re Cell Tower Dump, 2012 WL 471778, *4 (denying application for CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 10 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 18 of 26 1 cell phone information of suspect and third parties). Had the court been alerted to the 2 existence of this issue, it might have developed a procedure other than wholesale data 3 purging, such as "[s]egregation and redaction" of third-party information "by specialized 4 personnel or an independent third party." See CDT, 621 F.3d at 1180 (Kozinski, C.J., 5 concurring). It was for the magistrate, not the government, to determine how best to 6 balance the government's need for information, third-party privacy, and the suspect's 7 interest in future access to potentially exculpatory information. 8 Second, and relatedly, the government failed to inform the magistrate that 9 stingrays operate by broadcasting signals to all devices within a given area and what area 10 it sought to search here, facts that are highly material to the appropriate scope of the 11 search, viz., its impact on third parties as to whom there was no probable cause. The 12 government's failure to include these facts prevented the judge from "exercis[ing] 13 meaningful supervision over" the search, for example, by imposing a limitation on the 14 broadcast radius of the stingray. Rettig, 589 F.2d at 422. 15 Third, some IMSI catchers are capable of capturing content. See supra at Part II. 16 The government now asserts that the device used here was not capable of doing so. But 17 information about the capability and limitations of the technology proposed to be used 18 bears on whether a given search is overly intrusive, and should have been provided to the 19 magistrate at the time of the Application. 15 20 In short, the government's failure to inform the judge about the stingray prevented 21 him from exercising his constitutional supervisory function. These material omissions 22 prevented the magistrate from meaningfully evaluating the necessity of limitations on the 23 search - for example, related to the size of the search area and protocols for handling 24 third-party data. Such limitations would have prevented the government from expanding 25 this Order into a general warrant to engage in a highly intrusive search, including of third 26 15 27 28 If the government wishes to intercept content, it must comply with the heightened requirements for a wiretap. See 18 U.S.C. ?2518; United States v. Oliva, 686 F.3d 1106, 1113 (9th Cir. 2012) (in wiretap application, "the government cannot obtain - nor may courts approve - electronic surveillance orders by using ambiguous terminology that can be misconstrued to authorize interception of communications beyond what is intended"). CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 11 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 19 of 26 1 parties as to whom it lacked probable cause. Where the government engages in a search 2 pursuant to a general warrant, "we must regard the search as 'warrantless'..." Groh v. 3 Ramirez, 540 U.S. 551, 558 (2004). 16 4 Given the heightened risk of intrusive searches posed by advances in technology, 5 "the government's duty of candor in presenting a warrant application," CDT, 621 F.3d at 6 1178 (Kozinski, C.J., concurring), requires it to explain to magistrates the technology and 7 "the process by which the technology will be used to engage in the electronic 8 surveillance." In re Stingray, 2012 WL 2120492 at *1. In light of their impact on third 9 parties and their potential to capture content, IMSI catchers are a potent illustration of the 10 Ninth Circuit's concern in CDT that absent judicial supervision, warrants authorizing 11 electronic searches risk becoming "general warrant[s], rendering the Fourth Amendment 12 irrelevant." 621 F.3d at 1176. 17 B. 13 14 Mr. Rigmaiden Has A Reasonable Expectation Of Privacy In An Aircard Registered Under An Alias Because The First Amendment Protects Anonymous Internet Speech 15 The government contends that Mr. Rigmaiden lacks standing to raise this Fourth 16 Amendment challenge because his use of an alias rendered his privacy expectation 17 objectively unreasonable. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (defendant 18 must prove subjective and objective expectation of privacy). 18 This argument is meritless. 19 First, even if the analysis turned solely on the aircard, the privacy interest is not 20 simply in using an alias to engage in an ordinary commercial transaction, but in an 21 22 23 24 25 26 27 28 16 The government's reliance on Karo is misplaced. See Gov's. Resp., Doc. 873 at 52. The Court in Karo stated "it will still be possible to describe the object into which the beeper is to be placed" and suggested that such information (along with probable cause and the duration of the proposed surveillance) would suffice. 468 U.S. at 718. Even with a beeper, which has far less technological capacity for intrusion than a stingray, the Court expected the government to explain the basic methodology of the proposed electronic surveillance (that the government intended to install a beeper at all, and where it sought to do so). The government here withheld from the judge the pertinent analogous information. 17 There is a serious question whether stingray technology - because of its inevitable impact on third parties - can ever be used consistent with the Fourth Amendment. But the Court can conclude that the stingray search in this case violated the Fourth Amendment on scope or particularity grounds. 18 The government does not dispute that Mr. Rigmaiden manifested a subjective expectation of privacy. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 12 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 20 of 26 1 inherently expressive activity, accessing the internet anonymously. Mr. Rigmaiden has a 2 legitimate expectation of privacy in his aircard because the constitutional right to 3 anonymous internet speech is surely "one that society is prepared to recognize as 4 reasonable." Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 5 "The internet is a unique democratizing medium unlike anything that has come 6 before....Through the internet, speakers can bypass mainstream media to speak directly to 7 'an audience larger and more diverse than any the framers could have imagined.'" Doe v. 8 Cahill, 884 A.2d 451, 455-56 (Del. 2005) (citation omitted). "Under our constitution, 9 anonymous [speech] ... is not a pernicious, fraudulent practice, but an honorable tradition 10 of advocacy and of dissent." McIntyre v. Ohio Elections Comm'n., 514 U.S. 334, 357 11 (1995). "As with other forms of expression, the ability to speak anonymously on the 12 Internet promotes the robust exchange of ideas and allows individuals to express 13 themselves freely without fear of economic or official retaliation or concern about social 14 ostracism." In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) 15 (internal quotation marks, citation omitted). 19 16 Mr. Rigmaiden used his internet connection to access political speech, such as 17 materials related to the 2008 election. See Def's. Mot. to Supress, Doc. 824 at 201-02. 18 The government, however, would force Mr. Rigmaiden and other speakers to forfeit their 19 Fourth Amendment right to be free of warrantless searches simply by exercising their First 20 Amendment right to engage in anonymous speech. But cf. Lingle v. Chevron U.S.A. Inc., 21 544 U.S. 528, 547 (2005) (discussing unconstitutional conditions doctrine). 22 The government's cases simply do not support its far-reaching and speechCf. Gov.'s Resp., Doc. 873 at 58-59. 23 inhibiting theory. None of them involve a 24 defendant's interest in anonymous internet access, and indeed one succinctly rejects the 25 26 27 28 19 Recognizing the constitutional status of anonymous internet speech, courts across the country apply demanding standards before those allegedly harmed by the speech can unmask an anonymous speaker. See, e.g., Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Krinsky v. Doe 6, 72 Cal.Rptr.3d 231 (Cal. App. 2008); Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. App. 2007); Cahill, 884 A.2d at 460-61; Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001). CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 13 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 21 of 26 1 proposition that use of an alias forecloses a reasonable privacy expectation. In United 2 States v. Pitts, 322 F.3d 449 (7th Cir. 2003), the court upheld a search of a package mailed 3 to a fictitious name, but on the very different ground that the defendants had abandoned 4 the parcel. Id. at 455. The majority went on to criticize the concurrence cited by the 5 government: The refusal of the concurrence in Pitts - and the government here - to 6 recognize a legitimate privacy expectation because of the alias either means that 7 "everyone with a legitimate reason to remain anonymous should lose their expectation of 8 privacy in the post" simply "because some people employ an alias and use the mail 9 illegally," or that "only people using an alias for legitimate reasons may retain an 10 expectation of privacy in their mailings while those who employ an alias for illicit 11 purposes may not." Id. at 458. This Court should not embrace a theory that "turn[s] the 12 Fourth Amendment on its head." Id. 13 Most of the government's alias cases rest on the unremarkable proposition that one 14 cannot assert a privacy expectation in the property of another, and as a result, reject the 15 defendant's assertion of a reasonable privacy expectation "when an individual uses an 16 alias or fictitious name and there is no other evidence linking the defendant to the item or 17 property." United States v. Suarez-Blanca, 2008 WL 4200156, *6 (N.D. Ga. Apr. 21, 18 2008) (emphasis added); see also id. at n.6 ("no evidence linking the subscriber, 'Felix 19 Baby,' to Rodriguez"). 20 Here, by contrast, the government's entire care is premised on 20 the link between the aircard and Mr. Rigmaiden. 21 21 22 23 24 25 26 27 28 20 The government's other alias cases similarly do not support its position. See also United States v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993) (upholding search of package where defendant disavowed connection to name on package); United States v. Coverson, 2011 WL 1044632 *5 (D. Ala. Mar. 22, 2011) ("The alias Jay Jenkins was not an alias adopted and regularly used by Coverson."). United States v. Davis, 2011 WL 2036463 *3 (D. Or. May 24, 2011), similarly found an insufficient connection between the defendant and the account at issue ("not the registered owner or subscriber of the phone," "not registered as a permissible user"), but suggests that the Court would have found a legitimate privacy expectation had the Defendant presented "evidence that," like Mr. Rigmaiden, "he had used an alias to obtain the phone." Id. at *3. 21 The government's remaining cases involve the opinion of a single judge, see United States v. Lozano, 623 F.3d 1055, 1060-61 (9th Cir. 2010) (majority upholding search of package because postal worker had reasonable suspicion to detain the package, and a subsequent dog sniff indicated the presence of drugs; alias played no role in decision), or CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 14 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 22 of 26 1 Second, the government's focus on the aircard is misplaced. Mr. Rigmaiden has 2 standing because he has an undisputed privacy expectation in the place that was searched, 3 his residence. In Karo, in which the Court found use of a beeper to monitor suspects 4 indoors to be a search, the Court expressly addressed standing; its analysis turned not on 5 the privacy interest in the beeper or the can of ether in which it was placed, but in the 6 places electronically monitored. See 468 U.S. at 719-20. The government concedes the 7 stingray identified Mr. Rigmaiden while inside his apartment. "At the risk of belaboring 8 the obvious, private residences are places in which the individual normally expects 9 privacy free of governmental intrusion not authorized by a warrant, and that expectation is 10 plainly one that society is prepared to recognize as justifiable." Id. at 714. 22 11 The gravamen of the government's argument is that Mr. Rigmaiden has no 12 legitimate expectation of privacy because he is "a thief and fugitive." Gov.'s Opp., Doc. 13 873 at 61. "We may not justify the search after the fact, once we know illegal activity was 14 afoot; the legitimate expectation of privacy does not depend on the nature of the 15 defendant's activities, whether innocent or criminal." Pitt, 322 F.3d at 458. 16 IV. 17 18 19 THE GOVERNMENT VIOLATED THE FOURTH AMENDMENT WHEN IT OBTAINED CELL SITE RECORDS WITHOUT A WARRANT The government also violated the Fourth Amendment by obtaining 38 days of historical cell site information from Verizon without a warrant. 23 The Supreme Court's recent decision in Jones - in which nine justices agreed that 20 21 22 23 24 25 26 27 28 out of circuit dictum, see United States v. Lewis, 738 F.2d 916, 919 n.2 (8th Cir. 1984) ("the challenged search warrants may be decided on other grounds"). 22 Nor is his legitimate interest in his residence diminished by use of an alias. The government asserts "fraud" but nowhere demonstrates that Mr. Rigmaiden's name was material to the rental transaction (or his purchase of the aircard and laptop); because he fully paid his rent with money orders (and for the aircard and laptop with cash and a prepaid debit card) (Def's. Mot. to Suppress, Doc. 824 at 196-99), there is no showing that any vendor suffered damage. But see Haisch v. Allstate Ins. Co., 197 Ariz. 606, 610 (App. Div. 2000) (elements of fraud include "false, material representation" by defendant and detrimental reliance and proximate damage by victim). Moreover, an individual retains a reasonable privacy expectation even in a fraudulently procured location, until evicted. See United States v. Young, 573 F.3d 711, 716 (9th Cir. 2009); United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004). Because Mr. Rigmaiden had not been evicted at the time of the search, he maintained a reasonable privacy expectation in his apartment. 23 The government's brief does not specify the time period; Mr. Rigmaiden contends it was 38 days. See Gov.'s Resp., Doc. 873 at 32; Def's Mot. to Supress, Doc 824-1 at 217. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 15 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 23 of 26 1 installation and monitoring of a GPS device on a car over 28 days constituted a Fourth 2 Amendment search - supports the conclusion that location tracking using 38 days of cell 3 site records is also a search. The Jones majority relied on a narrow "trespass" theory. See 4 Jones, 132 S.Ct. at 949. But five justices in two concurrences agreed that prolonged 5 electronic location tracking, even while a suspect travels in public areas, violates 6 reasonable privacy expectations because it generates a "precise [and] comprehensive" 7 record about intimate details, such as "familial, political..., and sexual associations." See 8 id. at 955 (Sotomayor, J., concurring); accord id. at 964 (Alito, J., concurring). 9 Cell site information can track location with a precision similar to GPS 10 technology. See, e.g., In re Application for an Order Authorizing Disclosure of Location 11 Info. of a Specified Wireless Tel (In re Cell Location Info)., 849 F. Supp. 2d 526, 540 (D. 12 Md. 2011). Both Jones concurrences cited data disclosed to cell phone providers as issues 13 of Fourth Amendment concern. See. 132 S.Ct. at 957 (Sotomayor, J., concurring); id. at 14 963 (Alito, J., concurring). Given the similar precision of the technology, the conclusion 15 of five justices in Jones that 28 days of GPS tracking violated reasonable privacy 16 expectations compels the same conclusion with 38 days of cell site information. 17 The government contends that no federal court has ever suppressed cell site 18 records. See Gov.'s Resp., Doc. 873 at 45:6-16. But many courts have denied statutory 19 requests for cell site data and required the government to satisfy warrant requirements. 24 20 The only two circuits to decide the issue have issued conflicting opinions. 25 21 24 22 23 24 25 26 27 28 See e.g., In re Cell Location Info, 849 F. Supp. 2d at 583; In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011); In re Application for an Order Authorizing the Installation & Use of a Pen Register Device, 497 F. Supp. 2d 301, 311 (D.P.R. 2007); In re Application for an Order Authorizing Installation & Use of a Pen Register, 415 F. Supp. 2d 211, 214 (W.D.N.Y. 2006); In re Application for an Order Authorizing the Disclosure of Prospective Cell Site Info., 412 F. Supp. 2d 947. 958 (E.D. Wis. 2006) aff'd, 2006 WL 2871743 (E.D. Wis. Oct. 6, 2006); In re U.S. for Orders Authorizing Installation & Use of Pen Registers & Caller Identification Devices on Tel. Numbers, 416 F. Supp. 2d 390, 39697 (D. Md. 2006); see also In re Application for Historical Cell Site Data, 747 F. Supp. 2d 827, 846 (S.D. Tex. 2010) (on appeal to Fifth Circuit, No. 11-20884). 25 Compare In re Application for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't (In re Cell Provider Disclosure), 620 F.3d 304 (3d Cir. 2010) (judge may require government to obtain search warrant for cell site records), with United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) (no search warrant needed). CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 16 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 24 of 26 1 The government's reliance on the third-party doctrine is misplaced. Gov.'s Resp., 2 Doc. 873 at 40-45. The Third Circuit and other courts have rejected the applicability of 3 the doctrine to cell site records, which are often generated automatically by the device, not 4 voluntarily by the user. See In re Cell Provider Disclosure, 620 F.3d at 317-18. 26 Justice 5 Sotomayor in her Jones concurrence observed that the doctrine is "ill suited to the digital 6 age, in which people reveal a great deal of information about themselves to third parties in 7 the course of carrying out mundane tasks." 132 S. Ct. at 957 (Sotomayor, J., concurring); 8 see also United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (rejecting application 9 of third-party doctrine to email, even though stored with internet service provider). 27 10 Further, the government's argument that the Pen/Trap Statute, 18 U.S.C. ??3121, 11 et seq., and Stored Communication Act, 18 U.S.C. ?? 2701, et seq., authorize the 12 disclosure of cell site information has been rejected by many courts. 28 This Court should 13 do so for the reasons set forth in those decisions. 14 V. 15 16 CONCLUSION For the foregoing reasons, the government's use of the stingray and collection of cell site location information violated the Fourth Amendment. 17 18 19 20 21 22 23 24 25 26 27 28 26 See also In re Application for Historical Cell Site Data, 747 F. Supp. 2d at 844-45; In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth. (In re Trap/Trace), 396 F. Supp. 2d 747, 756-57 (S.D. Tex. 2005); Commonwealth v. Pitt, 2012 WL 927095, at *4 (Mass. Super. Feb. 23, 2012). 27 The government cites United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007), in which the court found no expectation of privacy in IP address information. But Forrester "does not imply that more intrusive techniques ... are also constitutionally identical." Id. at 511. Cell site location data over a 38-day period is more intrusive than simple IP address information because it reveals intimate details about familial and other associations. See Jones, 132 S.Ct. 955 (Sotomayor, J., concurring). 28 See, e.g., cases cited, supra note 24; see also In re Application for an Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 132 133 (D.D.C. 2005); In re Application for an Order: (1) Authorizing Use of a Pen Register & Trap & Trace Device, (2) Authorizing Release of Subscriber & Other Info., (3) Authorizing Disclosure of Location-Based Services, 727 F. Supp. 2d 571, 575 (W.D. Tex. 2010); In re Application for an Order Authorizing Installation & Use of a Pen Register & a Caller Identification Sys. on Tel. Numbers, 402 F. Supp. 2d 597, 600 (D. Md. 2005); In re Trap/Trace, 396 F. Supp. 2d at 765; In re Application for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device, 396 F. Supp. 2d 294, 326-27 (E.D.N.Y. 2005); see also In re Application for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 2006 WL 468300, at *2. CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 17 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 25 of 26 1 2 Dated: October 19, 2012 3 Respectfully submitted, By: /s/ Daniel J. Pochoda Daniel J. Pochoda 4 Linda Lye* AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm St., 2nd Floor San Francisco, California 94111 Telephone: (415) 621-2493 llye@aclunc.org 5 6 7 8 Daniel J. Pochoda (SBA 021979) Kelly J. Flood (SBA 019772) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 dpochoda@acluaz.org kflood@acluaz.org 9 10 11 12 13 14 Ben Wizner* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 bwizner@aclu.org 15 16 17 18 19 22 Hanni M. Fakhoury* Staff Attorney ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 x. 117 hanni@eff.org 23 *Application for admission pro hac vice pending 20 21 24 Attorneys for amici curiae 25 26 27 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 18 Case 2:08-cr-00814-DGC Document 904-3 Filed 10/19/12 Page 26 of 26 1 2 CERTIFICATE OF SERVICE I hereby certify that on October 19, 2012 I caused the attached document to be 3 electronically transmitted to the Clerk's Office using the ECF system for filing and 4 transmittal of a Notice of Electronic Filing to the following ECF registrants: 5 6 Florence, AZ 85132Taylor W. Fox, PC 2 North Central Ave., Suite 735 Phoenix, AZ 85004 Attorney for Defendant Ransom Carter 7 8 9 Frederick A. Battista Assistant United States Attorney Two Renaissance Square 40 North Central Ave., Suite 1200 Phoenix, AZ 85004 10 11 12 Peter S. Sexton Assistant United States Attorney Two Renaissance Square 40 North Central Ave., Suite 1200 Phoenix, AZ 85004 13 14 15 17 James R. Knapp Assistant United States Attorney Two Renaissance Square 40 North Central Ave., Suite 1200 Phoenix, AZ 85004 18 Attorneys for United States 16 19 20 21 22 23 24 25 26 27 Copy of the attached document, mailed this 19th day of October, 2012, to: Daniel David Rigmaiden Agency No. 10966111 CCA-CADC PO Box 6300 /s/Gloria Torres 28 CASE NO. 2:08-CR-00814-DGC Amicus Brief In Support of Daniel Rigmaiden 19