• On September 7, 2010, the US Court of Appeals for the Third Circuit was presented with its “first opportunity to review whether a court can deny a Government application under 18 U.S.C. § 2703(d) [of the Stored Communications Act] after the Government has satisfied its burden of proof under that provision, a task that to our knowledge has not been performed by any other court of appeals.” The Government had applied for a federal court order compelling an unnamed cell phone provider to produce a customer’s “historical cellular tower data,” or cell site location information (CSLI). The magistrate judge, in an opinion joined by all her fellow magistrate judges and affirmed by the district court, denied the application on the ground that the government had failed to make a showing of probable cause. The Government argued that it did not need to make such a showing under § 2703(d), which by its terms requires simply a showing of “specific and articulable facts establishing reasonable grounds” that the information sought is “relevant and material to an ongoing criminal investigation.” The Third Circuit agreed that the “standard is governed by the text of § 2703(d),” which the court acknowledged was a “lesser [standard] than probable cause.” Nevertheless, the court of appeals reasoned that the statute in this case may require an extra showing of probable cause. The Third Circuit remanded the matter for a fuller explanation for why that additional showing was required in this particular case: “Because the statute as presently written gives the [magistrate] the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly because Congress also included the option of a § 2703(d) order. However, should the [magistrate] conclude that a warrant is required rather than a § 2703(d) order, on remand it is imperative that the [magistrate] make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.” In re Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, No. 08-4227 (3d Cir.).
  • On August 30, 2010, the US District Court for the District of Delaware largely denied the motion to dismiss of the City of Wilmington against the complaint of Clear Wireless that appealed from the Zoning Board’s denial of a zoning variance. Similar applications had been granted to Sprint, T-Mobile, Cricket and MetroPCS to install similar equipment. The court held that Clear Wireless has stated a valid discrimination claim under 47 U.S.C. § 332(c)(7)(B)(i)(I), rejecting the city’s argument that Clear will render the property over-saturated with equipment and is more intrusive than the other carriers’ equipment. Perhaps most significantly, the court also held that Clear has stated a claim under 47 U.S.C. § 332(c)(7)(B)(i)(II) for “prohibiting the provision of personal wireless services.” The Third Circuit Court of Appeals, which includes Delaware in its circuit, held in 1999 that only the first would-be provider could seek relief under this subsection of the Act, but the Delaware court noted that that holding was superseded by a November 2009 FCC decision stating that this statutory section applies to subsequent carriers as well. The court denied as moot Clear’s claims stemming from the City’s failure to issue a written zoning decision. Clear Wireless, LLC v. City of Wilmington, C.A. No. 10-218-MPT.