On Petition for Extraordinary Writ to the United States Supreme Court
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Extraordinary Writ of Habeas Corpus
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XXXXX XXXXXXXX, Petitioner Pro Se
Hazelton USP
1640 Sky View Drive
Bruceton Mills, WV 26525
# (304) 379-5000
QUESTIONS PRESENTED
1. Are Cellular Service Providers “agents/actors” of the State/Government and thus subject to constitutional restraint over a citizen’s Historical CSLI?
2. If Cellular Service Providers are designated by this court to be “agents/actors” for 4th amendment purposes would this activate the highest level of 4th amendment protection/safeguard (a warrant based on probable cause would be needed to effectuate the release of Historical CSLI)?
3. If the above two apriorisms are affirmed is SCA 18 U.S.C. 2703 (d) unconstitutional since it allows the obtaining of Historical CSLI with a court order that is obtained under a lesser offer of proof ( “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 to an ongoing criminal investigation)?
4. Can Historical CSLI be equated and likened to a GPS Tracking device’s saved information and thus would this activate the same 4th amendment protections that are currently required by said GPS Tracking device and it’s saved information?
TABLE OF CONTENTS this has to be finished last…
Questions Presented ………………………
Table of Contents…………………………..
Supreme Court’s authorization to issue Extraordinary Writ of Habeas Corpus…..
Petitioner’s right to file Extraordinary Writ of Habeas Corpus……………………….
The Crisis in our United States Court Appellate Jurisdictions………………………..
U.S. Supreme Court’s authority to review legislative statutes………………………..
Cellular Service Providers have been mandated to follow Rule E911………………..
Criteria to gage agent/actorship of Cellular Service Provider(CSP’s)…………………
Contrasting and Comparing criteria to gage if CSP’s are “agents/actors”…………..
CSP’s as “agents/actors” are subject to Constitutional limitations……………………
The inapplicability of the “Third Party Doctrine” on this issue………………………..
“Significant” nexus between CSP’s and the Government…………………………………
Relief sought……………………………….
TABLE OF CITED AUTHORITIES
Abbott v. Gardner, 387 U.S. 136, (1967), pp. 148-49…………………………..
Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507……………………………….
Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010)……………
Boyd v. United States, 116 U.S. 616……….
Brentwood, 531 U.S. at 304………………..
Byars v United States, 273 U.S. 28, at 33-34…………
Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)……….
Commonwealth v Augustine 4 N.E.3d 846 (Mass. 2014)………………….
Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971))…………….
Corngold v United States, 367 F.2d 1……..
Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2…………..
Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765)………………
Evans v. Newton, 382 U.S. 296, at 299 (1966)…………………….
Flagg Bros. V Brooks, 436 U.S. 149, 176 (1978)……………………
Georgia Code 69-504 and 69-505………………………………………..
Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)…………………………
Historical Cell Site Data, 747 F. Supp. 2d at 846……………………….
Hylton v. United States 3 U.S. 171 (1796)………………………………..
Illinois v. Krull, 480 U.S. 340 (1987)………………………………………
In re Application of the United States for Historical Cell Site Data
724 F.3d 600 (5th Cir. 2013)……………….
Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1974)…….
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)………
Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002)………………….
Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. 922, 937 (1982)….
Lustiq v U.S. 338 U.S. 74……………………
Marbury v. Madison 5 U.S. 137 (1803)…..
N.Y. v. Ray, 65 N.Y.2d 282, at 286……….
Opulent Life Church v. City of Holly Springs, Mississippi,
697 F.3d 279, 286…………………………
Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986)………..
People v Adler, 50 N.Y.2d 730, 737……….
People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3…………………
People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 ……………..
People v Esposito, 37 N.Y.2d 156, 160……..
People v. Fierro (1965) 236 Cal.App.2d 344, 348……………………..
People v Horman, 22 N.Y.2d 378, 380……………………………..
People v Jones, 47 N.Y.2d 528………………………….
People v. McKinnon (1972) 7 Cal.3d 899, 912…………………………
People v. North (1981) 29 Cal.3d 509, 514…………………………..
People v. Warren (1990) 219 Cal.App.3d 619, 622…………………..
Renée McDonald Hutchins, Tied Up in Knotts? GPS……………………………….
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485,
125 L.Ed.2d 38 (1993)……………………….
Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614………..
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)………….
Technology and the Fourth Amendment, 55 UCLA L. Rev.
409, 455 (2007)……….
Terry v Ohio 392 U.S. 1, at 15………………
Tribe, American Constitutional Law 18-7 (1978)……………………
United States v. Jacobsen (1984) 466 U.S. 109, 113………………..
United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003)….
United States v. Rogers, No. 13 CR 952, __ F.3d __, 2014 WL 5152543, at
*2 (N.D. Ill. Oct. 9, 2014)………………………….
Union Pac. R.Co.V. Botsford. 141 U.S. 250, at 251……………
U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600,
606 (5th Cir. 2013)……………………..
U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433…………………
U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705……………………
U.S. v. Cleveland (9th Cir. 1995), 38 F.3d 1092, 1093………….
U.S. v Jones 565 U.S. 3 (2012)……………..
U.S. v. Lambert (6th Cir.1985) 771 F.2d 83, 89………………….
U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325…………………….
Warshak, 631 F.3d 266………………………………………
………….Must finish adding cases from this writ…..
CITATIONS
Add the orders/opinions of the District/Circuit Court….
CONSTITUTIONAL AND STATUTORY PROVISIONS
UNITED STATES SUPREME COURT’S JURISDICTIONAL POWER TO REVIEW LEGISLATIVE STATUTES
Inferred Constitutional authority for Supreme Court judicial review of legislative statutes and administrative regulations was confirmed in Hylton v. United States , 3 U.S. 171 (1796); and, Marbury v. Madison, 5 U.S. 137 (1803). These cases show that the United States Supreme Court has jurisdiction over this matter.
THE UNITED STATES CONSTITUTION, AMENDMENT IV.
The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
THE STORED COMMUNICATIONS ACT, 18 U.S.C. § 2703
The Stored Communications Act, 18 U.S.C. § 2703, provides in relevant part:
(c) Records concerning electronic communication service or remote computing service. (1) 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—
(a) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; [or]
(b) obtains a court order for such disclosure under subsection (d) of this section; (d) Requirements for court order.– A court order for disclosure under subsection (b) or (c) 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.
THE WIRELESS COMMUNICATIONS AND PUBLIC SAFETY ACT OF 1999
REVISION OF THE COMMISSION’S RULES TO ENSURE COMPATIBILITY WITH ENHANCED 911 EMERGENCY CALLING SYSTEMS. Resolved the petitions for reconsideration or clarification of the rules the Commission adopted in the E911 First Report and Order, CC Docket No. 94-102, 11 FCC Rcd 18676 (1996), adopted June 12, 1996. Dkt No.: cc- 94-102. Action by the Commission. Adopted: December 1, 1997. by MO&O. (FCC No. 97-402)
Must finish adding applicable statutes, regulations found at bottom in extras. ie. FCC E911 rule/statute.
STATEMENT OF CASE
The facts that are material to the consideration of the questions presented are:
With respect to question (1): add the fcc rule E911 and it’s mandate upon cellular service providers. ..
On June 12, 1996, the Commission adopted a Report and Order and a Further Notice of Proposed Rulemaking in this docket, establishing rules requiring wireless carriers to implement 911 and Enhanced 911 (E911) services.1 The Commission received 16 petitions for reconsideration of the E911 First Report and Order.
REVISION OF THE COMMISSION’S RULES TO ENSURE COMPATIBILITY WITH ENHANCED 911 EMERGENCY CALLING SYSTEMS.. Resolved the petitions for reconsideration or clarification of the rules the Commission adopted in the E911 First Report and Order, CC Docket No. 94-102, 11 FCC Rcd 18676 (1996), adopted June 12, 1996. Dkt No.: cc- 94-102. Action by the Commission. Adopted: December 1, 1997. by MO&O. (FCC No. 97-402).
Schlichting, FCC, at 245. The original deadline for carriers to begin using precise location technology was October 1, 2001. However, five nationwide carriers petitioned to modify the deadline, and on October 5, 2001, the FCC conditionally approved their requests to modify the schedule but re-affirmed that all carriers and call centers must fully complete the implementation of auto-location technology by December 31, 2005. See FEDERAL COMMUNICATIONS COMM’N, FCC ACTS ON WIRELESS CARRIER AND PUBLIC SAFETY REQUESTS REGARDING ENHANCED WIRELESS 911 SERVICES (2001). http://www.fcc.gov/Bureaus/Wireless/News_Releases/2001/nrwl0127.html. The major wireless carriers filed quarterly status reports with the FCC detailing the status of the rollout of auto-location technology on or around February 1, 2002. These reports are available by searching Docket Number 94-102 in the FCC’s Electronic Comment Filing System, http://www.fcc.gov/e-file/ecfs.html.
In November 2000, the Cellular Telecommunications and Internet Association (“CTIA”) filed a petition with the FCC requesting such a rulemaking and asking that the FCC adopt the CTIA’s proposed privacy guidelines as a safe harbor for any location information service provider that follows the principles. In March 2001, the FCC issued a notice requesting comments to help determine whether it should proceed with the rulemaking that the CTIA requested. About fifty entities filed comments on the petition, and the comment period closed on April 24, 2001. To date, the FCC has not issued a decision on the petition.
…question (2): Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and a host of succeeding cases obligates that anytime the government substantially use a private person/entity to acquire evidence to be used against someone the fullest panoply of 4th amendment protections are implicated.
…question 3: add the cases that say that a court order is a lesser standard of “showing” than a warrant based on probable cause.
U.S. CONST. amend. IV; United States v. Davis, 785 F.3d 498, 505 (11th Cir. 2015) (explaining that “[§ 2703(d)’s] statutory standard is less than the probable cause standard for a search warrant”); In re U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600, 606 (5th Cir. 2013) (“The ‘specific and articulable facts’ standard is a lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant.”); In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010) (holding that “§ 2703(d) creates a higher standard than that required by the pen register and trap and trace statutes” but “a less stringent [standard] than probable cause”); Warshak, 631 F.3d 266 ( The Honorable Justice Boggs in delivering the opinion of the court said, “government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause.”; also Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a § 2703(d) order).
…question 4: add cases, judges opinions, etc that say a warrant is needed for GPS tracking and it’s info
obvious if a warrant isn’t needed to acquire a GPS stored information this would allow a convenient way for law enforcement to bypass the GPS warrant requirement by waiting one day to obtain the records of GPS realtime info because today’s realtime GPS info will become tomorrow’s stored GPS info.
Since GPS saved information is the by-product (fruit) of realtime GPS information it cannot legally exist for extraction unless the warrant requirement needed to facilitate it source, realtime GPS information, has been satisfied..
United States v ANTOINE JONES, 132 S.Ct. 945 (2012), No. 10-1259.
ARGUMENT
With the court’s permission I proceed. It is prudent that we first explore the “ripeness of the issue.”
The prestigious Justices of the court have said in Abbott v Gardner, 387 U.S. 136, (1967), pp. 148-48;
“Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”
The courts have reiterated this precept in Opulent Life Church v. City of Holly Springs, Mississippi, 697 F.3d 279, 286, “Ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). It is “peculiarly a question of timing,” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), whose “basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Determining whether a claim is ripe for judicial review requires the evaluation of (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.”Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.”
When we apply the above two criteria to your petitioner’s writ we see that the “fitness of the issues for judicial decision” are ripe because they raise pure questions of law and this court knows best to what degree.
In applying the first criteria the “pure questions of law” presented are:
1. Are Cellular Service Providers “agents/actors” of the State/Government and thus subject to constitutional limitations over a citizen’s Historical CSLI? ;
2. If Cellular Service Providers are designated by this court to be “agents/actors” for 4th amendment purposes, would this activate the highest level of 4th amendment safeguard, (a warrant based on probable cause…needed to effectuate the release of Historical CSLI? ;
3. If the above two apriorisms are affirmative is SCA 18 U.S.C. 2703 (d) unconstitutional since it allows the obtaining of Historical CSLI with a court order that is obtained under a lesser offer of proof ( “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 to an ongoing criminal investigation)? ; , and
4. Can Historical CSLI be equated and likened to a GPS Tracking device and it’s saved information and thus would this activate the same 4th amendment protections that are currently required by said GPS Tracking device and its saved information?
Applying the 2nd criteria to your petitioner’s writ we see that if this writ is delayed your petitioner will suffer unredressable hardship. Your petitioner’s liberty is currently and will continue to be restrained because the fruit of the poisonous tree that facilitates his restraint in both his cases( add Ind. #’s) was his HSCLI. Your petitioner has recently submitted a direct appeal on his case and if it is heard and ruled upon by the Court of Appeals before this writ is decided the decision can only be adverse as to this highly debated issue with respect to the suppression of his introduced Historical CSLI. ..must confirm status of appeal.
The decision rendered in Illinois v. Krull, 480 U.S. 340 (1987) would effectively gauntlet any achievable legal redress of your petitioner’s Historical CSLI suppression claim via his appeal because of the good faith exception to the exclusionary rule and thus your petitioner would suffer unaddressable hardship if review of this writ is delayed. The Honorable Justices have held:
“[p]enalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 350. Such reliance on a duly enacted statute is unreasonable only “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.” Id. at 355. Absent the patent unconstitutionality of such a statute, an officer’s good faith reliance on it may not be penalized through suppression of evidence.”
Your Honorable Justices the reasons relied upon for allowance of this Writ, I pray, will warrant its affirmation by this court. It is only by this court’s permission that I humbly proceed.
Your petitioner brings forth this petition before the United States Supreme Court for an issuance of an “Extraordinary Writ of Habeas Corpus” as authorized and prescribed by 28 U.S.C. 1651 (a), which states:
Issuance by the Court of an extraordinary writ authorized by 28 U. S. C. § 1651(a) is not a matter of right but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.
Your petitioner humbly moves before this court to show, as prescribed by 28 U.S.C. 1651 (a) that by the court’s granting of the writ this decision will greatly aid in Court’s appellate jurisdictions by restoring conformity and consistency of court’s decisions back to their uniform and cohesive state.
Your petitioner will also show that exceptional circumstances warrant the exercise of the Court’s discretionary powers and that adequate relief cannot be obtained in any other form or from any other court.
Your petitioner understands that the issuance by the court of an extraordinary writ is not a matter of right, but of discretion sparingly exercised.
To proceed, your Honors currently in the Court appellate jurisdictions of our United States there is a great crisis of epic proportion. This crisis evolved from the legislative enactment of SCA 18 U.S.C. 2703 (d) which allows the obtaining of Historical CSLI from Cellular Service Providers with a Court order. It states that such an order:
” [M]ay 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.”
Let us get a clear understanding of what Historical Cell Site Location Information is. We find such an understanding in United States v. Rogers, No. 13 CR 952, __ F.3d __, 2014 WL 5152543, at *2 (N.D. Ill. Oct. 9, 2014), from the honorable Judge Kocoras who thoroughly described historical cell site information. As Judge Kocoras explained:
” Wireless technology operates through a network of cellular towers that emit radio frequencies capable of carrying the human voice and other data. Cellular phones are able to be located in one of two ways: by cell-site tracking, or by Global Positioning System (“GPS”) signal tracking. Cell-site tracking relies on a cellular phones’ requirement that they be constantly connected to a mobile network. To facilitate a cellular phone’s connection to a mobile network, cellular phones are programmed to be constantly searching for the nearest cellular tower to ensure connection to the strongest signal. Once the phone selects the strongest signal, it transmits the user’s identifying data so that the subscriber’s network confirms the cell phone’s location to route any incoming calls. This constant search and submission of information occurs every few seconds. If the signal to a tower changes, or if a mobile phone moves, the mobile phone may switch its signal to a new tower. For a more extensive definition please see: Timothy Stapleton, Note, The Elec. Communication’s Privacy Act and Cell Location Data, 73 Brook.L.Rev., 383 – 389. (2007).
Your Honors, this crisis has exponentially aggrandized because a court order is obtained under the “specific and articulable facts” standard which is a lesser showing than the probable cause decorum that is required by the Fourth Amendment to obtain a warrant, see U.S. CONST. amend. IV; United States v. Davis, 785 F.3d 498, 505 (11th Cir. 2015) (explaining that “[§ 2703(d)’s] statutory standard is less than the probable cause standard for a search warrant”); In re U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600, 606 (5th Cir. 2013) (“The ‘specific and articulable facts’ standard is a lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant.”); In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010) (holding that “§ 2703(d) creates a higher standard than that required by the pen register and trap and trace statutes” but “a less stringent [standard] than probable cause”); Warshak, 631 F.3d 266 ( The Honorable Justice Boggs in delivering the opinion of the court said, “government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause.”; also Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a § 2703(d) order. As we shall see this dilemma, that has persisted for well over a decade, qualifies as an exceptional circumstance that warrants the exercise of the Court’s discretionary powers, and this court knows best.
Currently, courts within our United States appellate jurisdictions have reached diverse decisions as to the constitutional legality of SCA 18 U.S.C. 2703 (d). Decisions that, because of their 180 degree difference, have severed the once cohesive union of our Court’s appellate jurisdictions and turned them into virtual tug of wars, ( see, Commonwealth v Augustine 4 N.E.3d 846 (Mass. 2014) in which the court concluded, ” like the motion judge, that although the CSLI at issue here is a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case—where the CSLI obtained covered a two-week period—the warrant requirement of art. 14 applies.”
The Honorable Magistrate Judge Lisa Pupo Lenihan has said ; “IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO THE GOVERNMENT ) (Magistrate’s No. 07-524M ), at, VI. CONCLUSION “Because this Court concludes that the Government does not have a statutory entitlement to an electronic communication service provider’s covert disclosure of cell-phone-derived movement/location information, the Government’s application(s) for such information, absent a showing of probable cause under Fed. R. Civ. P. 41, must be denied.” This Opinion is joined, in the interest of judicial efficiency, by Magistrate Judges Caiazza, Hay, Baxter and Mitchell.
add more cases …
Despotically speaking, depending on what Court appellate jurisdiction a person may get arrested in will literally mean the difference between life in prison and him or her not even receiving a violation, two of the farthest reaching extremes of a continuum.
Never so prevalent in U.S. history have there been decisions from various courts in our appellate jurisdictions that have contributed to such high degrees of nonconformity and inconsistency in our judicial system as there currently is. See United States v. Quartavious Davis,
United States v. Graham, In re Telephone Info (Koh), In re Telephone Info (Cousins)
Fifth Circuit Cell Phone Tracking Case,, Commonwealth v. Augustine
add more current /cases….
Moreover, decisions that are stripped of legal redress because the good-faith doctrine allows the reliance upon the currently legal SCA 18 U.S.C. 2703 (d), see Illinois v. Krull, 480 U.S. 340 (1087), in which the Supreme Court held that:
“[p]enalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 350. Such reliance on a duly enacted statute is unreasonable only “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.” Id. at 355. Absent the patent unconstitutionality of such a statute, an officer’s good faith reliance on it may not be penalized through suppression of evidence.
In applying the above criteria to the totality of the circumstances known, or that should have been known, to the Legislatures at the time they enacted and/or amended SCA 18 U.S.C. 2703(d) it becomes apparent that:
1.The legislature did wholly abandon its responsibility to enact constitutional law when they failed to take into account the monumentous sensitive and highly personal nature of a person’s HSCLI as evidenced by the following:
“The Mobile Wireless Web, Data Services and Beyond: Emerging Technologies and Consumer Issues Federal Trade Commission, February 2002.” , p.8.
Davidson, Center for Democracy and Technology, at 190; Ponemon, Guardent, Inc., at 192-93; see Moore, 24/7 Media, Inc., at 196.
2.The legislature did wholly abandon its responsibility to enact constitutional law when they allowed the obtaining of HCSLI with a court order which was clearly a lesser standard than a warrant based on probable cause, Moreover; in doing so they in essence and in fact not only watered down our 4th amendment of the United States Constitution but amended it defacto.
3.The Legislature did wholly abandon its responsibility to enact constitutional law when they failed to acknowledge and take into account that a person has a reasonable expectation of privacy in his or hers HCSLI. ( see…pg. 8 which states, “Panelists recognized that personally identifiable location information is extremely sensitive.62 A representative of the Center for Democracy and Technology stated that companies will be able to track location in a way that was never available before, and many consumers do not know about this technology. 63 at:
4.The Legislature did wholly abandon its responsibility when they failed to take into account the fact or even the possibility that Cellular Service Providers are “agents/actors” for the State and Government, respectively, and thus the “fullest panoply of constitutional protections” must be implicated for the protection of a citizen’s Historical CSLI..
Id. at 355, the court has further said “Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). All logic disposes that this applies even more so to District Judges in its intent and encompassment.
Your Honors, at the time law enforcement applied for your petitioner’s Historical CSLI there was much debate as to the constitutionality of SCA 18 U.S.C. 2703(d) which would give rise to a law enforcement agent and judge knowing that the statute was unconstitutional. In fact, Senior Judges Orenstein and Garaufis, are from the very same court that your petitioner’s proceedings were held. Both prestigious Judges are of the highest caliber and icons of the court and both has expressed adamant discern over the legality of SCA 18 U.S.C. 2703 (d).
It would be responsible and reasonable behavior for a judge, when faced with the absence of precedential cases from higher courts to follow and, at the very least, consult opinions and decisions from other judges on the district level. This was not done in your petitioner’s case and had it been done the decision to grant a court order under SCA 18 U.S.C. 2703 (d) may have been different.
The “acting in good faith” of the Judge who granted the court order to release the petitioner’s HCSLI is highly questionable. In delivering the opinion of the court, the Honorable Judge Bradley has said in Boyd v. United States, 116 U.S. 616, at 639, “It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.”
It is the duty of every judicial body to ever be on the lookout for “stealthy encroachments” that may lead to constitutional violations against the citizens that come before its courts.
Since it is the duty of all judges to be on the lookout for constitutional violations against its citizens what would be their duty when potential constitutional violations are brought to light by other judges, especially by well respected senior judges from their own district and court?
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR
AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION (2010)
The Honorable Magistrate Judge James Orenstein, (E.D.N.Y.) has said, “The Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society. Because I conclude, for the reasons set forth above, that granting the government’s request for warrantless access to almost two months’ worth of historical cell-site location records would help to create just such a dilemma, I deny its application.”
On August 22, 2011, the Honorable Judge Garaufis (E.D.N.Y.) ruled that the Government’s request for at least 113 days of cumulative cell-site-location records for an individual’s cell phone constitutes a search under the Fourth Amendment, and consequently, such information may not be obtained without a warrant and the requisite showing of probable cause pursuant to 18 U.S.C. 2703(c)(1)(a) and Federal Rule of Criminal Procedure 41.
He stated, ” Like in Kyllo, the court here confronts the question of what “limits there are upon this power of technology to shrink the realm of guaranteed privacy.” Id. at 33. The advent of technology collecting cell-site-location records has made continuous surveillance of a vast portion of the American populace possible: a level of Governmental intrusion previously inconceivable, It is natural for Fourth Amendment doctrine to evolve to meet these changes. . .The cell phone has replaced the public telephone to near extinction; yet, to date Fourth Amendment doctrine has not developed to embrace the vital role the cell phone has come to play in private communication and the new Fourth Amendment challenges in creates.. The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by “choosing” to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records. . .While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits, It is time that the courts begin to address whether revolutionary champs in technology require changes to existing Fourth Amendment doctrine Hem, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here.”
The Honorable Judge Bradley (S.D.N.Y.) foresaw the possibility of tainted legislative enactments in delivering the opinion of the court more than 85 years ago when he said, in Boyd v. United States, 116 U.S. 616, at 639:
” It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”
The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34;
“The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”
In Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), the Honorable Lord Camden … has said,
“Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect.
Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society.
Observe the wisdom as well as mercy of the law. The strongest evidence before a trial, being only ex parte, is but suspicion; it is not proof. Weak evidence is a ground of suspicion, though in a lower degree; and if suspicion at large should be a ground of search, especially in the case of libels, whose house would be safe?”
With the court’s permission, I humbly postulate before this court that these exceptional circumstances warrant the exercise of the Court’s discretionary powers. In light of this current megalithic crisis the issuance of an Extraordinary Writ from this court would dramatically aid in our Court appellate jurisdictions by returning them back to their uniform, consistent, and balanced state.
Inferred Constitutional authority for Supreme Court judicial review of legislative statutes and administrative regulations was confirmed in Hylton v. United States , 3 U.S. 171 (1796); and, Marbury v. Madison, 5 U.S. 137 (1803). These cases show that the United States Supreme Court is the only court that has exclusive jurisdiction over this issue and thus adequate relief cannot be obtained in any other form or from any other court.
The granting of this Extraordinary Writ of Habeas Corpus should proceed forth because of the nonconformity of judicial decisions in our U.S. appellate courts on this issue, absence of courts that have jurisdiction over this issue, lack of authoritative precedential rulings pertaining to this issue, lack of redress on this issue, and most importantly the social injustices done to myself and other citizens of our country. I therefore humbly beseech this court to accept and grant this Extraordinary Writ of Habeas Corpus.
As we shall see, cellular service providers are “agents/actors”, because they collect HCSLI at the behest/instigation of the government ( as per FCC rule E911 ) 1. Since CSPs are “agents” as well as private entities, all said information they acquire and relinquish, regardless of ownership, can only be achieved under the fullest “panoply of constitutional protections, see, United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003) (citing Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In order to prevail on the issue of HCSLI and mandate its requiring of a warrant to obtain, one must prove the unconstitutionality of SCA 18 U.S.C. 2703 (d) which allows the obtaining of HCSLI with a court order. In order to prove this unconstitutionality we must first clearly understand that the “[The Fourth Amendment] is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official …See United States v. Jacobsen (1984) 466 U.S. 109, 113 and that the government cannot avoid constitutional responsibility by using a private individual as its agent, see Lustiq v U.S. 338 U.S. 74, 79 quoting the Honorable Justice Frankfurter. Secondly, we must significantly show that the private citizen/entity (cellular service provider) are “agents” for 4th amendment purposes and that they was/are acting at the behest or instigation of the government, and/or exhibited one or more of many conducts as outlined in the following court cases : Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614; see, Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), [“The test [is whether the citizen] must be regarded as having acted as an instrument or agent of the state”] ; Lustiq v U.S. 338 U.S. 74, 78 [“[A] search is a search by a federal official if he had a hand in it”] ; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 [search at officers’ “behest or instigation”] ; People v. Fierro (1965) 236 Cal.App.2d 344, 348 [“In brief, the question is one of the extent of government involvement in an invasion conducted by the private citizen.”] ; People v. McKinnon (1972) 7 Cal.3d 899, 912 [Fourth Amendment applies if officers “hired and paid” the person to conduct warrantless searches,” or if he were to “open and search a specific package at [their] express direction or request”]; People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3 [civilian was acting at an officer’s request]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “requested the illegal search”] ; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with, or cloaked in the authority of the state”] ; U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705 [“[T]wo elements must be shown in order to treat ostensibly private action as a state-sponsored search: (1) the police must have instigated, encouraged, or participated in the search; and (2) the private individual must have engaged in the search with the intent of assisting the police.” Citation]; People v. Warren (1990) 219 Cal.App.3d 619, 622 [“The relevant factors used in determining whether the governmental participation is significant, or de minimis, are (1) the government’s knowledge and acquiescence, and (2) the intent of the party performing the search.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose; and, U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [a “critical” factor is “whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further [his] own ends.”] The prestigious justices have said in Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), “Where a private party acts as an ‘instrument or agent’ of the state in effecting a search and seizure, Fourth Amendment interests are implicated.”
The U.S. Supreme Court decisions of Coolidge and countless succeeding federal and state cases demands that anytime the government (police, federal agent, etc) significantly use a private citizen/entity (cellular service provider) as its agent (state actor) in acquiring evidence against someone this invokes the “full panoply of constitutional protections” (i.e. …a warrant based on probable cause is needed), see. Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986) in reiterating N.Y. v. Ray, 65 N.Y.2d 282, at 286, “Private conduct, however may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections”., also; (People v Jones, 47 N.Y.2d 528; People v Esposito, 37 N.Y.2d 156, 160;People v Adler, 50 N.Y.2d 730, 737; Corngold v United States, 367 F.2d 1.). Relevant indicia of State involvement, which may transform private conduct into State action, include: a clear connection between the police and the private investigation (People v Horman, 22 N.Y.2d 378, 380); completion of the private act at the instigation of the police (People v Esposito, supra); close supervision of the private conduct by the police (People v Esposito, supra); and a private act undertaken on behalf of the police to further a police objective) (People v Adler, supra).
In applying the standards set forth by past exemplary Judicial minds in their decisions to gage “agent” status we shall see that cellular services providers are “ agents” for 4th Amendment purposes. In applying the criteria found in U.S. v. Cleveland (9th Cir. 1995) 38 F.3d 1092, 1093 to determine if CSPs are “agents” for 4th amendment purposes, [“[T]he relevant inquiry is: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.”] we see that CSPs are “agents” for fourth amendment purposes. When we apply said criteria set forth in U.S. V. Cleveland to your petitioner’s case we see, with respect to (1), that yes, because of Rule E911, the government clearly knew of the intrusive conduct (On December 11 and 12, 2000, the Federal Trade Commission (“FTC”) held a public workshop to educate itself and the public about emerging wireless technologies and to provide a forum for discussion of the consumer protection issues raised by these technologies, see: “The Mobile Wireless Web, Data Services and Beyond: Emerging Technologies and Consumer Issues Federal Trade Commission, February 2002.”
This report was prepared by Allison Brown and Jessica Rich of the FTC staff, a government agency. In quoting page 8 of the report, ” Panelists generally agreed that the generation and potential use of location-based information is one of the most significant privacy issues in the wireless age. Many panelists, representing both industry and consumer groups, stated that location-based services raise concerns because the consumer’s specific location can be tracked whenever the user’s device is on, which could be a significant portion of the day. Panelists recognized that personally identifiable location information is extremely sensitive.
Since the government (FTC) created Rule E911, and set its parameters their level of acquiescence can only be said to be fully capitulated . In essence and in fact the government were the ringleaders every step of the way. They formulated as well as mandated substantial rules to be followed and were kept fully informed on a quarterly basis by Cellular Service providers as to this emerging technology and the sensitivity thereof.
With respect to (2), since E911 mandates that all CSP’s collect this information for E911 purposes, to be turned over to the government , their assistance to the government is clearly not “de minimus” but rather substantial.
In U.S. v. Lambert (6th Cir.1985) 771 F.2d 83, 89 in gauging “agent status” the court has said, [“First, the police must have instigated, encouraged or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.”]
When applying the standard set forth in U.S. v Lambert to this issue we see that by the government’s implementation of Rule E911 they not only instigated and encouraged the search but mandated it as well. Secondly, we see that since E911 requires all CSP’s to collect and turn over this information to the government for E911 purposes, their level of assisting the police in their investigative efforts is clear and proactively inclusive. Cellular Service Providers “agent” status is further exhibited when both the “public function test” as well as the “Lugar test” is applied to its situation. The “public function test” states that a private entity will be considered a state actor if the private entity assumes or is delegated a power “ traditionally exclusively reserved to the State”, see Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1974).
In the United States collecting evidence for criminal trials has always been traditionally exclusively reserved to the State/Government. When FCC Rule E911 delegated this responsibility to cellular service providers this provided more than enough “nexus” to satisfy the “significant” requisite for classifying them as “actor/agents” for fourth amendment purposes.
When the government’s FCC rule E911 endowed Cellular Service Providers with the power and/or function to collect HCSLI for the Public Safety Agency they (CSP’s) became “instrumentalities of the government/state” and thus they became subjected to constitutional limitations and restraints of the highest magnitude; Moreover, restraints in not collecting this information ( because of their private entity status) but restraint in relinquishing this information for criminal investigative purposes, and this court knows best.
In quoting Evans v. Newton, 382 U.S. 296, at 299 (1966), “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”
Your Honorable Justices, under the state action doctrine the Bill of Rights applies to official police. “Whether termed ‘traditional,’ ‘exclusive,’ or ‘significant’….the State’s delegation of that power to a private party is, accordingly, subject to due process scrutiny”, see Flagg Bros. V Brooks, 436 U.S. 149, 176 (1978) and is subject to constitutional limitations, see 4th Amend, U.S. Constitution.
When we view the decisions and rationale used by the court in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) we see that, just as your petitioner is asserting in his case, a legislative statute provided the basis for a constitutional deprivation.
Likewise, Georgia Code 69-504 and 69-505 enacted and adopted in 1905 made segregation of parks legal by circumventing current segregation laws and thus made lawful charitable trusts “dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose” and provide that “the use of said park, pleasure ground, or other property so conveyed to said municipality [may] be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only . . . .”
Your Honors, regulatory policy can constitute government action (see. Tribe, American Constitutional Law 18-7 (1978); Moreover, as in Flagg Bros., Inc. v. Brooks, 436 U.S. 149, at 155 (1978) and Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. 922, at 937 (1982) both require the identification of a state actor. When we apply the mandated “two prong test” that the “Lugar Test” outlines to this issue before this court we see that it too dictates that cellular service providers are state/federal actors /agents for fourth amendment purposes ( Lugar v Edmondson Oil Co., Inc., supra, 457 U.S. 922, at 937).
The first prong of the Lugar Test states that the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.
The deprivation occurs in the relinquishing of a person’s HCSLI by cellular service providers at the behest of the government under the rule of conduct as outlined in the legislative rule SCA 18 U.S.C. 2703 (d). The second prong of the Lugar Test states, the party charged with the deprivation must be a person (entity) who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is chargeable to the State.
The party charged with the deprivation are the cellular service providers while already established as “actors/agents” of the State /Government because of FCC Rule E911 and their conduct is chargeable to the Government , because of their obligations instigated by, instructed upon, and mandated by the requirements of said Rule E911. It is fortunate that FCC rule E911 delegates all cellular service providers as actors/agents of the State and thereby activates the fullest umbrella of 4th amendment constitutional considerations and protections . If not for the past implementation of the E911 rule the third party doctrine would create an unbreachable gauntlet that would cause chaos in our U.S. courts for years to come.
Because the government mandated that all CSP’s collect precise location information for E911 purposes prior to any post 2001 contract between CSP’s and customers it is clear, and this court knows best, that the third party doctrine is inapplicable despite the wording of future contracts between CSP’s and their customers.
The only way FCC rule E911 can fulfill its mandated obligations is if all “actors” abide by the most strictest adherence to 4th amendment protocols, i.e., a warrant based on probable cause would be needed to effectuate release of HCSLI. All enforcement agencies are obliged to protect and abide by the U.S, Constitution because of their oath; Therefore, SCA 18 U.S.C. 2703 (d) is unconstitutional because it allows for release of HCSLI using a lesser standard of proof (specific and articulable facts ).
“Satisfaction of any one test is sufficient to find state action so long as no countervailing factor exists.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002), which says: “See Brentwood, 531 U.S. at 304 (‘When … the relevant facts show pervasive entwinement…the implications of state action is not affected by pointing out that the facts might not loom large under a different test.’)”).
Your Honors truth stands clear from falsehood so no matter what test we use to gauge “actorship” with respect to CSP’s the results will be conclusively affirmative as to the “agent/actor” status of Cellular Service Providers. What has substantially officiated and cemented all cellular service providers statuses as “agents/actors” of the government was the “significant” nexus that was created in or around 2001 when the government’s FCC issued a set of rules, called the Enhanced 911 rules (E911 rules), that mandated all wireless carriers to collect precise location information in the near future in order to improve the delivery of emergency services…See, The Mobile Wireless Web, Data, Services and Beyond: Emerging Technologies and Consumer Issues, pg. 9… published by the Federal Trade Commission, by Robert Ptofsky February,2002..
On the issue of Historical CSLI being equated to and likened to GPS TRACKING Information the Honorable Justices have ruled:
“The privacy interests affected by long-term GPS monitoring, as identified in Maynard and the Jones concurrences, apply with equal or greater force to historical CSLI for an extended time period.” See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass. 2014) (“CSLI implicates the same nature of privacy concerns as a GPS tracking device.”). “[C]itizens of this country largely expect the freedom to move about in relative anonymity without the government keeping an individualized, turn-by-turn itinerary of our comings and goings.” Renée McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 455 (2007).
Government use of tracking devices is governed by Rule 41 of the Federal Rules of Criminal Procedure, FED. R. CRIM. P. 41(b)(4), (d)(1), (e)(2)(C), (f)(2), when the use of a tracking device implicates the Fourth Amendment, see H.R. Rep. 99-647, at 60 (1986).
This wizened court has ruled: HCSLI data not only functions more like a GPS tracking device but has greater functions as well. Applying this fact to the case at hand, this court has ruled in U.S. v Jones 565 U.S. 3 (2012) …(a warrant based on probable cause is needed to track someone via GPS).
The Wise and Honorable Justices have said in Union Pac. R.Co.V.Botsford. 141 U.S. 250, at 251, “No right is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
The Well-balanced Justices of the court has said in Terry v Ohio 392 U.S. 1, at 15: “Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials”.
The Honorable and Well respected Justice Frankfurter has said in Lustig v United States, 338 U.S. 74, at 78-79:
“[A] search is a search by a federal agent if he had a hand in it***the decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanction means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.”
The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34, “The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”
The Gouled Case, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, having under review the rights of a citizen under the Fourth and Fifth Amendments to the Constitution, Mr. Justice Clarke, speaking for the unanimous court, said: “It would not be possible to add to the emphasis with which the framers of our Constitution and this court [citing cases] have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the `full enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.”
CONCLUSION In closing, our judicial system is not yet perfect but it is a system that can only work if we meticulously safeguard all elements of our Constitution. When we sacrifice one atom’s weight of our constitutional rights for a paltry gain, lack of insight, or for whatever reason the end result can only lead to chaos, nonconformity, and inconsistency in our courts decisions, nonparallel judicial mindset, along with increased mayhem in society (cause and effect) as is prevalent because of this issue today, Moreover; these problems are in addition to the iniquitous violations already incurred by countless citizens of our great country, the United States.
We must clean house, send a message, and put safeguards in place that will insure our predecessors will be spared the turmoil that we see is evident from such actions.
I humbly and respectfully besiege this court to return our judicial system back to its near as can be flawless
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The Unconstitutionality of SCA 18 U.S.C. 2703 (d)
Bismillah
______No.
In The Supreme Court of the United States
__________________
” In re XXXXX XXXXXXXX “
Petitioner,
TERRY O’BRIEN, WARDEN
HAZELTON USP, WEST VIRGINIA
Respondent,
__________________
On Petition for Extraordinary Writ to the United States Supreme Court
__________________
Extraordinary Writ of Habeas Corpus
__________________
XXXXX XXXXXXXX, Petitioner Pro Se
Hazelton USP
1640 Sky View Drive
Bruceton Mills, WV 26525
# (304) 379-5000
QUESTIONS PRESENTED
1. Are Cellular Service Providers “agents/actors” of the State/Government and thus subject to constitutional restraint over a citizen’s Historical CSLI?
2. If Cellular Service Providers are designated by this court to be “agents/actors” for 4th amendment purposes would this activate the highest level of 4th amendment protection/safeguard (a warrant based on probable cause would be needed to effectuate the release of Historical CSLI)?
3. If the above two apriorisms are affirmed is SCA 18 U.S.C. 2703 (d) unconstitutional since it allows the obtaining of Historical CSLI with a court order that is obtained under a lesser offer of proof ( “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 to an ongoing criminal investigation)?
4. Can Historical CSLI be equated and likened to a GPS Tracking device’s saved information and thus would this activate the same 4th amendment protections that are currently required by said GPS Tracking device and it’s saved information?
TABLE OF CONTENTS this has to be finished last…
Questions Presented ………………………
Table of Contents…………………………..
Supreme Court’s authorization to issue Extraordinary Writ of Habeas Corpus…..
Petitioner’s right to file Extraordinary Writ of Habeas Corpus……………………….
The Crisis in our United States Court Appellate Jurisdictions………………………..
U.S. Supreme Court’s authority to review legislative statutes………………………..
Cellular Service Providers have been mandated to follow Rule E911………………..
Criteria to gage agent/actorship of Cellular Service Provider(CSP’s)…………………
Contrasting and Comparing criteria to gage if CSP’s are “agents/actors”…………..
CSP’s as “agents/actors” are subject to Constitutional limitations……………………
The inapplicability of the “Third Party Doctrine” on this issue………………………..
“Significant” nexus between CSP’s and the Government…………………………………
Relief sought……………………………….
TABLE OF CITED AUTHORITIES
Abbott v. Gardner, 387 U.S. 136, (1967), pp. 148-49…………………………..
Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507……………………………….
Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010)……………
Boyd v. United States, 116 U.S. 616……….
Brentwood, 531 U.S. at 304………………..
Byars v United States, 273 U.S. 28, at 33-34…………
Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)……….
Commonwealth v Augustine 4 N.E.3d 846 (Mass. 2014)………………….
Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971))…………….
Corngold v United States, 367 F.2d 1……..
Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2…………..
Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765)………………
Evans v. Newton, 382 U.S. 296, at 299 (1966)…………………….
Flagg Bros. V Brooks, 436 U.S. 149, 176 (1978)……………………
Georgia Code 69-504 and 69-505………………………………………..
Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)…………………………
Historical Cell Site Data, 747 F. Supp. 2d at 846……………………….
Hylton v. United States 3 U.S. 171 (1796)………………………………..
Illinois v. Krull, 480 U.S. 340 (1987)………………………………………
In re Application of the United States for Historical Cell Site Data
724 F.3d 600 (5th Cir. 2013)……………….
Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1974)…….
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)………
Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002)………………….
Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. 922, 937 (1982)….
Lustiq v U.S. 338 U.S. 74……………………
Marbury v. Madison 5 U.S. 137 (1803)…..
N.Y. v. Ray, 65 N.Y.2d 282, at 286……….
Opulent Life Church v. City of Holly Springs, Mississippi,
697 F.3d 279, 286…………………………
Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986)………..
People v Adler, 50 N.Y.2d 730, 737……….
People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3…………………
People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 ……………..
People v Esposito, 37 N.Y.2d 156, 160……..
People v. Fierro (1965) 236 Cal.App.2d 344, 348……………………..
People v Horman, 22 N.Y.2d 378, 380……………………………..
People v Jones, 47 N.Y.2d 528………………………….
People v. McKinnon (1972) 7 Cal.3d 899, 912…………………………
People v. North (1981) 29 Cal.3d 509, 514…………………………..
People v. Warren (1990) 219 Cal.App.3d 619, 622…………………..
Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct.335,
42 L.Ed.2d 320 (1974)………………………
Renée McDonald Hutchins, Tied Up in Knotts? GPS……………………………….
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485,
125 L.Ed.2d 38 (1993)……………………….
Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614………..
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)………….
Technology and the Fourth Amendment, 55 UCLA L. Rev.
409, 455 (2007)……….
Terry v Ohio 392 U.S. 1, at 15………………
Tribe, American Constitutional Law 18-7 (1978)……………………
United States v. Jacobsen (1984) 466 U.S. 109, 113………………..
United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003)….
United States v. Rogers, No. 13 CR 952, __ F.3d __, 2014 WL 5152543, at
*2 (N.D. Ill. Oct. 9, 2014)………………………….
Union Pac. R.Co.V. Botsford. 141 U.S. 250, at 251……………
U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600,
606 (5th Cir. 2013)……………………..
U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433…………………
U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705……………………
U.S. v. Cleveland (9th Cir. 1995), 38 F.3d 1092, 1093………….
U.S. v Jones 565 U.S. 3 (2012)……………..
U.S. v. Lambert (6th Cir.1985) 771 F.2d 83, 89………………….
U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325…………………….
Warshak, 631 F.3d 266………………………………………
………….Must finish adding cases from this writ…..
CITATIONS
Add the orders/opinions of the District/Circuit Court….
CONSTITUTIONAL AND STATUTORY PROVISIONS
UNITED STATES SUPREME COURT’S JURISDICTIONAL POWER TO REVIEW LEGISLATIVE STATUTES
Inferred Constitutional authority for Supreme Court judicial review of legislative statutes and administrative regulations was confirmed in Hylton v. United States , 3 U.S. 171 (1796); and, Marbury v. Madison, 5 U.S. 137 (1803). These cases show that the United States Supreme Court has jurisdiction over this matter.
THE UNITED STATES CONSTITUTION, AMENDMENT IV.
The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
THE STORED COMMUNICATIONS ACT, 18 U.S.C. § 2703
The Stored Communications Act, 18 U.S.C. § 2703, provides in relevant part:
(c) Records concerning electronic communication service or remote computing service. (1) 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—
(a) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; [or]
(b) obtains a court order for such disclosure under subsection (d) of this section; (d) Requirements for court order.– A court order for disclosure under subsection (b) or (c) 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.
THE WIRELESS COMMUNICATIONS AND PUBLIC SAFETY ACT OF 1999
REVISION OF THE COMMISSION’S RULES TO ENSURE COMPATIBILITY WITH ENHANCED 911 EMERGENCY CALLING SYSTEMS. Resolved the petitions for reconsideration or clarification of the rules the Commission adopted in the E911 First Report and Order, CC Docket No. 94-102, 11 FCC Rcd 18676 (1996), adopted June 12, 1996. Dkt No.: cc- 94-102. Action by the Commission. Adopted: December 1, 1997. by MO&O. (FCC No. 97-402)
Must finish adding applicable statutes, regulations found at bottom in extras. ie. FCC E911 rule/statute.
STATEMENT OF CASE
The facts that are material to the consideration of the questions presented are:
With respect to question (1): add the fcc rule E911 and it’s mandate upon cellular service providers. ..
On June 12, 1996, the Commission adopted a Report and Order and a Further Notice of Proposed Rulemaking in this docket, establishing rules requiring wireless carriers to implement 911 and Enhanced 911 (E911) services.1 The Commission received 16 petitions for reconsideration of the E911 First Report and Order.
REVISION OF THE COMMISSION’S RULES TO ENSURE COMPATIBILITY WITH ENHANCED 911 EMERGENCY CALLING SYSTEMS.. Resolved the petitions for reconsideration or clarification of the rules the Commission adopted in the E911 First Report and Order, CC Docket No. 94-102, 11 FCC Rcd 18676 (1996), adopted June 12, 1996. Dkt No.: cc- 94-102. Action by the Commission. Adopted: December 1, 1997. by MO&O. (FCC No. 97-402).
Schlichting, FCC, at 245. The original deadline for carriers to begin using precise location technology was October 1, 2001. However, five nationwide carriers petitioned to modify the deadline, and on October 5, 2001, the FCC conditionally approved their requests to modify the schedule but re-affirmed that all carriers and call centers must fully complete the implementation of auto-location technology by December 31, 2005. See FEDERAL COMMUNICATIONS COMM’N, FCC ACTS ON WIRELESS CARRIER AND PUBLIC SAFETY REQUESTS REGARDING ENHANCED WIRELESS 911 SERVICES (2001). http://www.fcc.gov/Bureaus/Wireless/News_Releases/2001/nrwl0127.html. The major wireless carriers filed quarterly status reports with the FCC detailing the status of the rollout of auto-location technology on or around February 1, 2002. These reports are available by searching Docket Number 94-102 in the FCC’s Electronic Comment Filing System, http://www.fcc.gov/e-file/ecfs.html.
In November 2000, the Cellular Telecommunications and Internet Association (“CTIA”) filed a petition with the FCC requesting such a rulemaking and asking that the FCC adopt the CTIA’s proposed privacy guidelines as a safe harbor for any location information service provider that follows the principles. In March 2001, the FCC issued a notice requesting comments to help determine whether it should proceed with the rulemaking that the CTIA requested. About fifty entities filed comments on the petition, and the comment period closed on April 24, 2001. To date, the FCC has not issued a decision on the petition.
…question (2): Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and a host of succeeding cases obligates that anytime the government substantially use a private person/entity to acquire evidence to be used against someone the fullest panoply of 4th amendment protections are implicated.
…question 3: add the cases that say that a court order is a lesser standard of “showing” than a warrant based on probable cause.
U.S. CONST. amend. IV; United States v. Davis, 785 F.3d 498, 505 (11th Cir. 2015) (explaining that “[§ 2703(d)’s] statutory standard is less than the probable cause standard for a search warrant”); In re U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600, 606 (5th Cir. 2013) (“The ‘specific and articulable facts’ standard is a lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant.”); In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010) (holding that “§ 2703(d) creates a higher standard than that required by the pen register and trap and trace statutes” but “a less stringent [standard] than probable cause”); Warshak, 631 F.3d 266 ( The Honorable Justice Boggs in delivering the opinion of the court said, “government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause.”; also Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a § 2703(d) order).
…question 4: add cases, judges opinions, etc that say a warrant is needed for GPS tracking and it’s info
obvious if a warrant isn’t needed to acquire a GPS stored information this would allow a convenient way for law enforcement to bypass the GPS warrant requirement by waiting one day to obtain the records of GPS realtime info because today’s realtime GPS info will become tomorrow’s stored GPS info.
Since GPS saved information is the by-product (fruit) of realtime GPS information it cannot legally exist for extraction unless the warrant requirement needed to facilitate it source, realtime GPS information, has been satisfied..
United States v ANTOINE JONES, 132 S.Ct. 945 (2012), No. 10-1259.
ARGUMENT
With the court’s permission I proceed. It is prudent that we first explore the “ripeness of the issue.”
The prestigious Justices of the court have said in Abbott v Gardner, 387 U.S. 136, (1967), pp. 148-48;
“Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”
The courts have reiterated this precept in Opulent Life Church v. City of Holly Springs, Mississippi, 697 F.3d 279, 286, “Ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). It is “peculiarly a question of timing,” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), whose “basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Determining whether a claim is ripe for judicial review requires the evaluation of (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.”Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.”
When we apply the above two criteria to your petitioner’s writ we see that the “fitness of the issues for judicial decision” are ripe because they raise pure questions of law and this court knows best to what degree.
In applying the first criteria the “pure questions of law” presented are:
1. Are Cellular Service Providers “agents/actors” of the State/Government and thus subject to constitutional limitations over a citizen’s Historical CSLI? ;
2. If Cellular Service Providers are designated by this court to be “agents/actors” for 4th amendment purposes, would this activate the highest level of 4th amendment safeguard, (a warrant based on probable cause…needed to effectuate the release of Historical CSLI? ;
3. If the above two apriorisms are affirmative is SCA 18 U.S.C. 2703 (d) unconstitutional since it allows the obtaining of Historical CSLI with a court order that is obtained under a lesser offer of proof ( “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 to an ongoing criminal investigation)? ; , and
4. Can Historical CSLI be equated and likened to a GPS Tracking device and it’s saved information and thus would this activate the same 4th amendment protections that are currently required by said GPS Tracking device and its saved information?
Applying the 2nd criteria to your petitioner’s writ we see that if this writ is delayed your petitioner will suffer unredressable hardship. Your petitioner’s liberty is currently and will continue to be restrained because the fruit of the poisonous tree that facilitates his restraint in both his cases( add Ind. #’s) was his HSCLI. Your petitioner has recently submitted a direct appeal on his case and if it is heard and ruled upon by the Court of Appeals before this writ is decided the decision can only be adverse as to this highly debated issue with respect to the suppression of his introduced Historical CSLI. ..must confirm status of appeal.
The decision rendered in Illinois v. Krull, 480 U.S. 340 (1987) would effectively gauntlet any achievable legal redress of your petitioner’s Historical CSLI suppression claim via his appeal because of the good faith exception to the exclusionary rule and thus your petitioner would suffer unaddressable hardship if review of this writ is delayed. The Honorable Justices have held:
“[p]enalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 350. Such reliance on a duly enacted statute is unreasonable only “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.” Id. at 355. Absent the patent unconstitutionality of such a statute, an officer’s good faith reliance on it may not be penalized through suppression of evidence.”
Your Honorable Justices the reasons relied upon for allowance of this Writ, I pray, will warrant its affirmation by this court. It is only by this court’s permission that I humbly proceed.
Your petitioner brings forth this petition before the United States Supreme Court for an issuance of an “Extraordinary Writ of Habeas Corpus” as authorized and prescribed by 28 U.S.C. 1651 (a), which states:
Issuance by the Court of an extraordinary writ authorized by 28 U. S. C. § 1651(a) is not a matter of right but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.
Your petitioner humbly moves before this court to show, as prescribed by 28 U.S.C. 1651 (a) that by the court’s granting of the writ this decision will greatly aid in Court’s appellate jurisdictions by restoring conformity and consistency of court’s decisions back to their uniform and cohesive state.
Your petitioner will also show that exceptional circumstances warrant the exercise of the Court’s discretionary powers and that adequate relief cannot be obtained in any other form or from any other court.
Your petitioner understands that the issuance by the court of an extraordinary writ is not a matter of right, but of discretion sparingly exercised.
To proceed, your Honors currently in the Court appellate jurisdictions of our United States there is a great crisis of epic proportion. This crisis evolved from the legislative enactment of SCA 18 U.S.C. 2703 (d) which allows the obtaining of Historical CSLI from Cellular Service Providers with a Court order. It states that such an order:
” [M]ay 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.”
Let us get a clear understanding of what Historical Cell Site Location Information is. We find such an understanding in United States v. Rogers, No. 13 CR 952, __ F.3d __, 2014 WL 5152543, at *2 (N.D. Ill. Oct. 9, 2014), from the honorable Judge Kocoras who thoroughly described historical cell site information. As Judge Kocoras explained:
” Wireless technology operates through a network of cellular towers that emit radio frequencies capable of carrying the human voice and other data. Cellular phones are able to be located in one of two ways: by cell-site tracking, or by Global Positioning System (“GPS”) signal tracking. Cell-site tracking relies on a cellular phones’ requirement that they be constantly connected to a mobile network. To facilitate a cellular phone’s connection to a mobile network, cellular phones are programmed to be constantly searching for the nearest cellular tower to ensure connection to the strongest signal. Once the phone selects the strongest signal, it transmits the user’s identifying data so that the subscriber’s network confirms the cell phone’s location to route any incoming calls. This constant search and submission of information occurs every few seconds. If the signal to a tower changes, or if a mobile phone moves, the mobile phone may switch its signal to a new tower. For a more extensive definition please see: Timothy Stapleton, Note, The Elec. Communication’s Privacy Act and Cell Location Data, 73 Brook.L.Rev., 383 – 389. (2007).
Your Honors, this crisis has exponentially aggrandized because a court order is obtained under the “specific and articulable facts” standard which is a lesser showing than the probable cause decorum that is required by the Fourth Amendment to obtain a warrant, see U.S. CONST. amend. IV; United States v. Davis, 785 F.3d 498, 505 (11th Cir. 2015) (explaining that “[§ 2703(d)’s] statutory standard is less than the probable cause standard for a search warrant”); In re U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600, 606 (5th Cir. 2013) (“The ‘specific and articulable facts’ standard is a lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant.”); In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304, 315 (3d Cir. 2010) (holding that “§ 2703(d) creates a higher standard than that required by the pen register and trap and trace statutes” but “a less stringent [standard] than probable cause”); Warshak, 631 F.3d 266 ( The Honorable Justice Boggs in delivering the opinion of the court said, “government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause.”; also Historical Cell Site Data, 747 F. Supp. 2d at 846 (concluding that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a § 2703(d) order. As we shall see this dilemma, that has persisted for well over a decade, qualifies as an exceptional circumstance that warrants the exercise of the Court’s discretionary powers, and this court knows best.
Currently, courts within our United States appellate jurisdictions have reached diverse decisions as to the constitutional legality of SCA 18 U.S.C. 2703 (d). Decisions that, because of their 180 degree difference, have severed the once cohesive union of our Court’s appellate jurisdictions and turned them into virtual tug of wars, ( see, Commonwealth v Augustine 4 N.E.3d 846 (Mass. 2014) in which the court concluded, ” like the motion judge, that although the CSLI at issue here is a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case—where the CSLI obtained covered a two-week period—the warrant requirement of art. 14 applies.”
The Honorable Magistrate Judge Lisa Pupo Lenihan has said ; “IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO THE GOVERNMENT ) (Magistrate’s No. 07-524M ), at, VI. CONCLUSION “Because this Court concludes that the Government does not have a statutory entitlement to an electronic communication service provider’s covert disclosure of cell-phone-derived movement/location information, the Government’s application(s) for such information, absent a showing of probable cause under Fed. R. Civ. P. 41, must be denied.” This Opinion is joined, in the interest of judicial efficiency, by Magistrate Judges Caiazza, Hay, Baxter and Mitchell.
add more cases …
Despotically speaking, depending on what Court appellate jurisdiction a person may get arrested in will literally mean the difference between life in prison and him or her not even receiving a violation, two of the farthest reaching extremes of a continuum.
Never so prevalent in U.S. history have there been decisions from various courts in our appellate jurisdictions that have contributed to such high degrees of nonconformity and inconsistency in our judicial system as there currently is. See United States v. Quartavious Davis,
United States v. Graham, In re Telephone Info (Koh), In re Telephone Info (Cousins)
Fifth Circuit Cell Phone Tracking Case,, Commonwealth v. Augustine
add more current /cases….
Moreover, decisions that are stripped of legal redress because the good-faith doctrine allows the reliance upon the currently legal SCA 18 U.S.C. 2703 (d), see Illinois v. Krull, 480 U.S. 340 (1087), in which the Supreme Court held that:
“[p]enalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 350. Such reliance on a duly enacted statute is unreasonable only “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.” Id. at 355. Absent the patent unconstitutionality of such a statute, an officer’s good faith reliance on it may not be penalized through suppression of evidence.
In applying the above criteria to the totality of the circumstances known, or that should have been known, to the Legislatures at the time they enacted and/or amended SCA 18 U.S.C. 2703(d) it becomes apparent that:
1.The legislature did wholly abandon its responsibility to enact constitutional law when they failed to take into account the monumentous sensitive and highly personal nature of a person’s HSCLI as evidenced by the following:
“The Mobile Wireless Web, Data Services and Beyond: Emerging Technologies and Consumer Issues Federal Trade Commission, February 2002.” , p.8.
Davidson, Center for Democracy and Technology, at 190; Ponemon, Guardent, Inc., at 192-93; see Moore, 24/7 Media, Inc., at 196.
2.The legislature did wholly abandon its responsibility to enact constitutional law when they allowed the obtaining of HCSLI with a court order which was clearly a lesser standard than a warrant based on probable cause, Moreover; in doing so they in essence and in fact not only watered down our 4th amendment of the United States Constitution but amended it defacto.
3.The Legislature did wholly abandon its responsibility to enact constitutional law when they failed to acknowledge and take into account that a person has a reasonable expectation of privacy in his or hers HCSLI. ( see…pg. 8 which states, “Panelists recognized that personally identifiable location information is extremely sensitive.62 A representative of the Center for Democracy and Technology stated that companies will be able to track location in a way that was never available before, and many consumers do not know about this technology. 63 at:
https://drive.google.com/file/d/0B1q7pqeJ0PWGbmJqNVVkVnJSN0h4cHRSQ2hyWnZienR5YlJz/view?usp=docsli st_api
4.The Legislature did wholly abandon its responsibility when they failed to take into account the fact or even the possibility that Cellular Service Providers are “agents/actors” for the State and Government, respectively, and thus the “fullest panoply of constitutional protections” must be implicated for the protection of a citizen’s Historical CSLI..
Id. at 355, the court has further said “Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). All logic disposes that this applies even more so to District Judges in its intent and encompassment.
Your Honors, at the time law enforcement applied for your petitioner’s Historical CSLI there was much debate as to the constitutionality of SCA 18 U.S.C. 2703(d) which would give rise to a law enforcement agent and judge knowing that the statute was unconstitutional. In fact, Senior Judges Orenstein and Garaufis, are from the very same court that your petitioner’s proceedings were held. Both prestigious Judges are of the highest caliber and icons of the court and both has expressed adamant discern over the legality of SCA 18 U.S.C. 2703 (d).
It would be responsible and reasonable behavior for a judge, when faced with the absence of precedential cases from higher courts to follow and, at the very least, consult opinions and decisions from other judges on the district level. This was not done in your petitioner’s case and had it been done the decision to grant a court order under SCA 18 U.S.C. 2703 (d) may have been different.
The “acting in good faith” of the Judge who granted the court order to release the petitioner’s HCSLI is highly questionable. In delivering the opinion of the court, the Honorable Judge Bradley has said in Boyd v. United States, 116 U.S. 616, at 639, “It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.”
It is the duty of every judicial body to ever be on the lookout for “stealthy encroachments” that may lead to constitutional violations against the citizens that come before its courts.
Since it is the duty of all judges to be on the lookout for constitutional violations against its citizens what would be their duty when potential constitutional violations are brought to light by other judges, especially by well respected senior judges from their own district and court?
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR
AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION (2010)
The Honorable Magistrate Judge James Orenstein, (E.D.N.Y.) has said, “The Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society. Because I conclude, for the reasons set forth above, that granting the government’s request for warrantless access to almost two months’ worth of historical cell-site location records would help to create just such a dilemma, I deny its application.”
On August 22, 2011, the Honorable Judge Garaufis (E.D.N.Y.) ruled that the Government’s request for at least 113 days of cumulative cell-site-location records for an individual’s cell phone constitutes a search under the Fourth Amendment, and consequently, such information may not be obtained without a warrant and the requisite showing of probable cause pursuant to 18 U.S.C. 2703(c)(1)(a) and Federal Rule of Criminal Procedure 41.
He stated, ” Like in Kyllo, the court here confronts the question of what “limits there are upon this power of technology to shrink the realm of guaranteed privacy.” Id. at 33. The advent of technology collecting cell-site-location records has made continuous surveillance of a vast portion of the American populace possible: a level of Governmental intrusion previously inconceivable, It is natural for Fourth Amendment doctrine to evolve to meet these changes. . .The cell phone has replaced the public telephone to near extinction; yet, to date Fourth Amendment doctrine has not developed to embrace the vital role the cell phone has come to play in private communication and the new Fourth Amendment challenges in creates.. The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by “choosing” to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records. . .While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits, It is time that the courts begin to address whether revolutionary champs in technology require changes to existing Fourth Amendment doctrine Hem, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here.”
The Honorable Judge Bradley (S.D.N.Y.) foresaw the possibility of tainted legislative enactments in delivering the opinion of the court more than 85 years ago when he said, in Boyd v. United States, 116 U.S. 616, at 639:
” It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”
The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34;
“The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”
In Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), the Honorable Lord Camden … has said,
“Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect.
Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society.
Observe the wisdom as well as mercy of the law. The strongest evidence before a trial, being only ex parte, is but suspicion; it is not proof. Weak evidence is a ground of suspicion, though in a lower degree; and if suspicion at large should be a ground of search, especially in the case of libels, whose house would be safe?”
With the court’s permission, I humbly postulate before this court that these exceptional circumstances warrant the exercise of the Court’s discretionary powers. In light of this current megalithic crisis the issuance of an Extraordinary Writ from this court would dramatically aid in our Court appellate jurisdictions by returning them back to their uniform, consistent, and balanced state.
Inferred Constitutional authority for Supreme Court judicial review of legislative statutes and administrative regulations was confirmed in Hylton v. United States , 3 U.S. 171 (1796); and, Marbury v. Madison, 5 U.S. 137 (1803). These cases show that the United States Supreme Court is the only court that has exclusive jurisdiction over this issue and thus adequate relief cannot be obtained in any other form or from any other court.
The granting of this Extraordinary Writ of Habeas Corpus should proceed forth because of the nonconformity of judicial decisions in our U.S. appellate courts on this issue, absence of courts that have jurisdiction over this issue, lack of authoritative precedential rulings pertaining to this issue, lack of redress on this issue, and most importantly the social injustices done to myself and other citizens of our country. I therefore humbly beseech this court to accept and grant this Extraordinary Writ of Habeas Corpus.
As we shall see, cellular service providers are “agents/actors”, because they collect HCSLI at the behest/instigation of the government ( as per FCC rule E911 ) 1. Since CSPs are “agents” as well as private entities, all said information they acquire and relinquish, regardless of ownership, can only be achieved under the fullest “panoply of constitutional protections, see, United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003) (citing Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
In order to prevail on the issue of HCSLI and mandate its requiring of a warrant to obtain, one must prove the unconstitutionality of SCA 18 U.S.C. 2703 (d) which allows the obtaining of HCSLI with a court order.
In order to prove this unconstitutionality we must first clearly understand that the “[The Fourth Amendment] is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official …See United States v. Jacobsen (1984) 466 U.S. 109, 113 and that the government cannot avoid constitutional responsibility by using a private individual as its agent, see Lustiq v U.S. 338 U.S. 74, 79 quoting the Honorable Justice Frankfurter.
Secondly, we must significantly show that the private citizen/entity (cellular service provider) are “agents” for 4th amendment purposes and that they was/are acting at the behest or instigation of the government, and/or exhibited one or more of many conducts as outlined in the following court cases : Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614; see, Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), [“The test [is whether the citizen] must be regarded as having acted as an instrument or agent of the state”] ; Lustiq v U.S. 338 U.S. 74, 78 [“[A] search is a search by a federal official if he had a hand in it”] ; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 [search at officers’ “behest or instigation”] ; People v. Fierro (1965) 236 Cal.App.2d 344, 348 [“In brief, the question is one of the extent of government involvement in an invasion conducted by the private citizen.”] ; People v. McKinnon (1972) 7 Cal.3d 899, 912 [Fourth Amendment applies if officers “hired and paid” the person to conduct warrantless searches,” or if he were to “open and search a specific package at [their] express direction or request”]; People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3 [civilian was acting at an officer’s request]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “requested the illegal search”] ; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with, or cloaked in the authority of the state”] ; U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705 [“[T]wo elements must be shown in order to treat ostensibly private action as a state-sponsored search: (1) the police must have instigated, encouraged, or participated in the search; and (2) the private individual must have engaged in the search with the intent of assisting the police.” Citation]; People v. Warren (1990) 219 Cal.App.3d 619, 622 [“The relevant factors used in determining whether the governmental participation is significant, or de minimis, are (1) the government’s knowledge and acquiescence, and (2) the intent of the party performing the search.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose; and, U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [a “critical” factor is “whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further [his] own ends.”]
The prestigious justices have said in Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), “Where a private party acts as an ‘instrument or agent’ of the state in effecting a search and seizure, Fourth Amendment interests are implicated.”
The U.S. Supreme Court decisions of Coolidge and countless succeeding federal and state cases demands that anytime the government (police, federal agent, etc) significantly use a private citizen/entity (cellular service provider) as its agent (state actor) in acquiring evidence against someone this invokes the “full panoply of constitutional protections” (i.e. …a warrant based on probable cause is needed), see. Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986) in reiterating N.Y. v. Ray, 65 N.Y.2d 282, at 286, “Private conduct, however may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections”., also; (People v Jones, 47 N.Y.2d 528; People v Esposito, 37 N.Y.2d 156, 160;People v Adler, 50 N.Y.2d 730, 737; Corngold v United States, 367 F.2d 1.).
Relevant indicia of State involvement, which may transform private conduct into State action, include: a clear connection between the police and the private investigation (People v Horman, 22 N.Y.2d 378, 380); completion of the private act at the instigation of the police (People v Esposito, supra); close supervision of the private conduct by the police (People v Esposito, supra); and a private act undertaken on behalf of the police to further a police objective) (People v Adler, supra).
In applying the standards set forth by past exemplary Judicial minds in their decisions to gage “agent” status we shall see that cellular services providers are “ agents” for 4th Amendment purposes.
In applying the criteria found in U.S. v. Cleveland (9th Cir. 1995) 38 F.3d 1092, 1093 to determine if CSPs are “agents” for 4th amendment purposes, [“[T]he relevant inquiry is: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.”] we see that CSPs are “agents” for fourth amendment purposes.
When we apply said criteria set forth in U.S. V. Cleveland to your petitioner’s case we see, with respect to (1), that yes, because of Rule E911, the government clearly knew of the intrusive conduct (On December 11 and 12, 2000, the Federal Trade Commission (“FTC”) held a public workshop to educate itself and the public about emerging wireless technologies and to provide a forum for discussion of the consumer protection issues raised by these technologies, see: “The Mobile Wireless Web, Data Services and Beyond: Emerging Technologies and Consumer Issues Federal Trade Commission, February 2002.”
This report was prepared by Allison Brown and Jessica Rich of the FTC staff, a government agency. In quoting page 8 of the report, ” Panelists generally agreed that the generation and potential use of location-based information is one of the most significant privacy issues in the wireless age. Many panelists, representing both industry and consumer groups, stated that location-based services raise concerns because the consumer’s specific location can be tracked whenever the user’s device is on, which could be a significant portion of the day. Panelists recognized that personally identifiable location information is extremely sensitive.
Since the government (FTC) created Rule E911, and set its parameters their level of acquiescence can only be said to be fully capitulated . In essence and in fact the government were the ringleaders every step of the way. They formulated as well as mandated substantial rules to be followed and were kept fully informed on a quarterly basis by Cellular Service providers as to this emerging technology and the sensitivity thereof.
With respect to (2), since E911 mandates that all CSP’s collect this information for E911 purposes, to be turned over to the government , their assistance to the government is clearly not “de minimus” but rather substantial.
In U.S. v. Lambert (6th Cir.1985) 771 F.2d 83, 89 in gauging “agent status” the court has said, [“First, the police must have instigated, encouraged or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.”]
When applying the standard set forth in U.S. v Lambert to this issue we see that by the government’s implementation of Rule E911 they not only instigated and encouraged the search but mandated it as well. Secondly, we see that since E911 requires all CSP’s to collect and turn over this information to the government for E911 purposes, their level of assisting the police in their investigative efforts is clear and proactively inclusive.
Cellular Service Providers “agent” status is further exhibited when both the “public function test” as well as the “Lugar test” is applied to its situation. The “public function test” states that a private entity will be considered a state actor if the private entity assumes or is delegated a power “ traditionally exclusively reserved to the State”, see Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1974).
In the United States collecting evidence for criminal trials has always been traditionally exclusively reserved to the State/Government. When FCC Rule E911 delegated this responsibility to cellular service providers this provided more than enough “nexus” to satisfy the “significant” requisite for classifying them as “actor/agents” for fourth amendment purposes.
When the government’s FCC rule E911 endowed Cellular Service Providers with the power and/or function to collect HCSLI for the Public Safety Agency they (CSP’s) became “instrumentalities of the government/state” and thus they became subjected to constitutional limitations and restraints of the highest magnitude; Moreover, restraints in not collecting this information ( because of their private entity status) but restraint in relinquishing this information for criminal investigative purposes, and this court knows best.
In quoting Evans v. Newton, 382 U.S. 296, at 299 (1966), “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”
Your Honorable Justices, under the state action doctrine the Bill of Rights applies to official police. “Whether termed ‘traditional,’ ‘exclusive,’ or ‘significant’….the State’s delegation of that power to a private party is, accordingly, subject to due process scrutiny”, see Flagg Bros. V Brooks, 436 U.S. 149, 176 (1978) and is subject to constitutional limitations, see 4th Amend, U.S. Constitution.
When we view the decisions and rationale used by the court in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) we see that, just as your petitioner is asserting in his case, a legislative statute provided the basis for a constitutional deprivation.
Likewise, Georgia Code 69-504 and 69-505 enacted and adopted in 1905 made segregation of parks legal by circumventing current segregation laws and thus made lawful charitable trusts “dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose” and provide that “the use of said park, pleasure ground, or other property so conveyed to said municipality [may] be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only . . . .”
Your Honors, regulatory policy can constitute government action (see. Tribe, American Constitutional Law 18-7 (1978); Moreover, as in Flagg Bros., Inc. v. Brooks, 436 U.S. 149, at 155 (1978) and Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. 922, at 937 (1982) both require the identification of a state actor.
When we apply the mandated “two prong test” that the “Lugar Test” outlines to this issue before this court we see that it too dictates that cellular service providers are state/federal actors /agents for fourth amendment purposes ( Lugar v Edmondson Oil Co., Inc., supra, 457 U.S. 922, at 937).
The first prong of the Lugar Test states that the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.
The deprivation occurs in the relinquishing of a person’s HCSLI by cellular service providers at the behest of the government under the rule of conduct as outlined in the legislative rule SCA 18 U.S.C. 2703 (d).
The second prong of the Lugar Test states, the party charged with the deprivation must be a person (entity) who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is chargeable to the State.
The party charged with the deprivation are the cellular service providers while already established as “actors/agents” of the State /Government because of FCC Rule E911 and their conduct is chargeable to the Government , because of their obligations instigated by, instructed upon, and mandated by the requirements of said Rule E911.
It is fortunate that FCC rule E911 delegates all cellular service providers as actors/agents of the State and thereby activates the fullest umbrella of 4th amendment constitutional considerations and protections . If not for the past implementation of the E911 rule the third party doctrine would create an unbreachable gauntlet that would cause chaos in our U.S. courts for years to come.
Because the government mandated that all CSP’s collect precise location information for E911 purposes prior to any post 2001 contract between CSP’s and customers it is clear, and this court knows best, that the third party doctrine is inapplicable despite the wording of future contracts between CSP’s and their customers.
The only way FCC rule E911 can fulfill its mandated obligations is if all “actors” abide by the most strictest adherence to 4th amendment protocols, i.e., a warrant based on probable cause would be needed to effectuate release of HCSLI. All enforcement agencies are obliged to protect and abide by the U.S, Constitution because of their oath; Therefore, SCA 18 U.S.C. 2703 (d) is unconstitutional because it allows for release of HCSLI using a lesser standard of proof (specific and articulable facts ).
“Satisfaction of any one test is sufficient to find state action so long as no countervailing factor exists.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002), which says: “See Brentwood, 531 U.S. at 304 (‘When … the relevant facts show pervasive entwinement…the implications of state action is not affected by pointing out that the facts might not loom large under a different test.’)”).
Your Honors truth stands clear from falsehood so no matter what test we use to gauge “actorship” with respect to CSP’s the results will be conclusively affirmative as to the “agent/actor” status of Cellular Service Providers.
What has substantially officiated and cemented all cellular service providers statuses as “agents/actors” of the government was the “significant” nexus that was created in or around 2001 when the government’s FCC issued a set of rules, called the Enhanced 911 rules (E911 rules), that mandated all wireless carriers to collect precise location information in the near future in order to improve the delivery of emergency services…See, The Mobile Wireless Web, Data, Services and Beyond: Emerging Technologies and Consumer Issues, pg. 9… published by the Federal Trade Commission, by Robert Ptofsky February,2002..
. https://drive.google.com/file/d/0B1q7pqeJ0PWGbmJqNVVkVnJSN0h4cHRSQ2hyWnZienR5YlJz/view?usp=docslist_ api
On the issue of Historical CSLI being equated to and likened to GPS TRACKING Information the Honorable Justices have ruled:
“The privacy interests affected by long-term GPS monitoring, as identified in Maynard and the Jones concurrences, apply with equal or greater force to historical CSLI for an extended time period.” See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass. 2014) (“CSLI implicates the same nature of privacy concerns as a GPS tracking device.”). “[C]itizens of this country largely expect the freedom to move about in relative anonymity without the government keeping an individualized, turn-by-turn itinerary of our comings and goings.” Renée McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 455 (2007).
Government use of tracking devices is governed by Rule 41 of the Federal Rules of Criminal Procedure, FED. R. CRIM. P. 41(b)(4), (d)(1), (e)(2)(C), (f)(2), when the use of a tracking device implicates the Fourth Amendment, see H.R. Rep. 99-647, at 60 (1986).
This wizened court has ruled: HCSLI data not only functions more like a GPS tracking device but has greater functions as well. Applying this fact to the case at hand, this court has ruled in U.S. v Jones 565 U.S. 3 (2012) …(a warrant based on probable cause is needed to track someone via GPS).
The Wise and Honorable Justices have said in Union Pac. R.Co.V.Botsford. 141 U.S. 250, at 251, “No right is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
The Well-balanced Justices of the court has said in Terry v Ohio 392 U.S. 1, at 15: “Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials”.
The Honorable and Well respected Justice Frankfurter has said in Lustig v United States, 338 U.S. 74, at 78-79:
“[A] search is a search by a federal agent if he had a hand in it***the decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanction means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.”
The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34, “The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”
The Gouled Case, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, having under review the rights of a citizen under the Fourth and Fifth Amendments to the Constitution, Mr. Justice Clarke, speaking for the unanimous court, said: “It would not be possible to add to the emphasis with which the framers of our Constitution and this court [citing cases] have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the `full enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.”
CONCLUSION
In closing, our judicial system is not yet perfect but it is a system that can only work if we meticulously safeguard all elements of our Constitution. When we sacrifice one atom’s weight of our constitutional rights for a paltry gain, lack of insight, or for whatever reason the end result can only lead to chaos, nonconformity, and inconsistency in our courts decisions, nonparallel judicial mindset, along with increased mayhem in society (cause and effect) as is prevalent because of this issue today, Moreover; these problems are in addition to the iniquitous violations already incurred by countless citizens of our great country, the United States.
We must clean house, send a message, and put safeguards in place that will insure our predecessors will be spared the turmoil that we see is evident from such actions.
I humbly and respectfully besiege this court to return our judicial system back to its near as can be flawless
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