More from SS on AT&T cell site subpoena: basis for contending it was non-compliant w/ special requirements (& also, to be fair, that she didn't botch a basic legal term)

A couple of days ago, Susan responded on her blog to a question I asked about the grand jury timeline and implications for the basis on which they issued the 2/16 AT&T subpoena. Her response, discussed in this thread, indicated the subpoena failed to satisfy a requirement involving "specific and articulable facts" ("S&A facts.")

Thereafter, it was explained in the thread that "S&A facts" requirement governs search warrants, NOT grand jury subpoenas, and we assumed SS misspoke/ invoked probable cause in a context where it doesn't apply. Hoping she'd clarify or confirm she simply made an error, I posted a follow-up and Susan has since responded detailing how there is actually an S&A facts requirement (derivative of the Stored Communications Act) and why she believes it was applicable/ went unmet.

In a nutshell: "However, the Feb 18th subpoena did not comply with the requirements of a 2703(d) order, because no S&A facts were listed. It just said 'Hae was buried in Leakin Park, therefore we need this information because of reasons.' Not good enough."

TL;DR: SS explained legal basis for alleging that AT&T subpoena was improper, addressing also the view that she confused the basics of subpoena vs. search warrant.

Here is the full, lengthy exchange. Caveat is that I am not a lawyer and may not have asked the right question. Hoping attorneys will weigh in.

Question to Susan The subpoena thing continues to confuse me, and I was hoping for some additional clarity.

To quote your reply: “‘in order to obtain the historical cell site records, which they subpoenaed on 2/18, the State was required to identify “specific and articulable facts’ as to why Adnan’s cell records were relevant and material to Hae’s murder.” That “specific and articulable” concept has been explained as NOT applicable to subpoenas, but rather as a requirement for police to secure search warrants. Since evidently no parallel/equivalent probable cause idea exists in GJ/ subpoena world, it was assumed you just misspoke.

However, your comment about the non-compliance with SCA/ Stored Communications Act motivated me to dig a little (i.e. I literally Googled “SCA,” and then “SCA specific and articulable facts”), and apparently there is some sort of protection in place at least for email. Can you clarify if/ why you think that concept applied to the AT&T subpoena back in 1999? And if so, did the state outright ignore the applicability of that requirement in issuing the subpoena or did they just provide an inadequate basis, in your view? What would have been different had they complied?

Answer from Susan This requires getting into the weeds a bit, but here is a quick and dirty guide to the SCA:

For phone records (and other electronic) data, there are three categories of information. Different rules apply to each category. Those categories are:

Contents of Communications: This is things like the actual text of an e-mail that has been sent and unread, or the words spoken during a phone call. This information is protected by the Fourth Amendment, which means it is protected by the warrant requirement. In order for the police to get contents of communications, they must obtain a warrant, which means they must get the court to sign off that there is probable cause to believe that evidence of a crime will be found if there is a search. [Note: This is painfully oversimplified. The way the Fourth Amendment/SCA handles contents of communications depends on things like how long ago the e-mail was sent, whether it was read yet, the kind of e-mail service provider, etc. It’s not relevant here, though, so I’m glossing over all that.]

Non-content information, other than ‘basic subscriber information’: This includes all information which is not the content of a communication, but which is also not Basic Subscriber Info (BSI) (discussed below). It can be obtained through a “§ 2703(d) order,” which (although the documents themselves are usually styled as and referred to as subpoenas) requires a showing of specific and articulable facts:

Specifically, the statute states that “a governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity … obtains a court order for such disclosure under subsection (d) of this section.” Id. § 2703(c)(1)(B). A Section 2703 order “may be issued by any court that is a court of competent jurisdiction and shall 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.” Id. § 2703(d).

This is lower than the requirement for a warrant (which is probable cause) but higher than a usual subpoena.

Although there is still some slight lingering uncertainty concerning the status of historic cell site data (some litigants continue to argue that this info falls under the 4th Am. and requires a warrant), for the most part it’s safe to assume cell site info will always require a 2703(d) order, not a warrant.

Non-content information, basic subscriber info: This is information such as the name of a subscriber, the assigned phone number, registered address, toll billing info, and method of payment. A phone company cannot voluntarily hand this over to the government In order to obtain this, the government must issue an administrative subpoena or grand jury subpoena (or something similar). There is no requirement that the government show S&A facts, though — the government just needs to comply with its own requirements for the subpoena. In Maryland, for a GJ subpoena, this would require only that it be relevant to a criminal investigation. ——-

Now for how all that applies to this case. Basically, the Feb 16th subpoena is a subpoena sufficient to obtain BSI data, but not cellsite data. From the disclosed police files, AT&T gave BSI info on Feb 17th. The Feb 18th subpoena was signed by a judge, and in response AT&T gave historic cell site info. However, the Feb 18th subpoena did not comply with the requirements of a 2703(d) order, because no S&A facts were listed. It just said “Hae was buried in Leakin Park, therefore we need this information because of reasons.” Not good enough. Here’s an example of what S&A facts would pass muster:

Specifically, the historical cell site and toll records for Subject Phone 3 are relevant and material because the evidence establishes that Defendant Lang used Subject Phone 3 during the time period leading up to the charged incident at Mink Farm A. Lang was in constant contact through Subject Phone 3 with Defendant Johnson on Subject Phone 1 during this time period, and Defendants Lang and Johnson were charged together as co-conspirators in the criminal activity against Mink Farm A. The sought-after records will identify other individuals with whom Lang was in contact and will show Defendant Lang’s whereabouts during this time period, including locations he may have visited to purchase the items used to carry out the raid.

That obviously wasn’t present in the Feb 18th subpoena. Unfortunately, based on the current statutory scheme, this all means jack s**t, because law enforcement has what amounts to a get out of jail free card when it comes to these kinds of violations.

More concerning is the fact that the investigators very much seemed to have possessed both BSI and cell site data prior to the Feb 16th order. This would be a blatant violation of the statute. While unlawful, however, it still means jack to a defendant in Adnan’s position, because the government is free to use even unlawfully obtained info:

The government’s argument does not address the issue as to conclusory versus specific and articulable facts in regard to the information it did have. The government’s application merely listed that the subscriber information connected to IP address 24.94.200.54 would possibly relate to an on-going criminal investigation. In accordance with 18 U.S.C. § 2703(d), the government should have articulated more specific facts such as how the government obtained the information it did have at the time and how this information lead the agents to believe that the attainment of the subscriber information of this particular IP address would assist in the investigation. The government’s application for a section 2703(d) order did not meet the requirements of the statute.

Nonetheless, the government correctly points out that even if Road Runner divulged defendant’s subscriber information pursuant to a court order based on an inadequate government application, suppression is not a remedy contemplated under the ECPA.

ETA links