Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page6 of 46 1 subscriber . . . or customer,” and therefore falls within the scope of § 2703(c)(1). As relevant here, 2 § 2703(c) provides: 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 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; (B) obtains a court order for such disclosure under subsection (d) of this section. Id. § 2703(c)(1)(A)-(B) (emphases added). In submitting its request to Judge Lloyd in this case, the government did not seek to obtain a warrant under § 2703(c)(1)(A). Rather, the government sought a court order under § 2703(d), as authorized by § 2703(c)(1)(B). The requirements for a court order under § 2703(d) are as follows: 14 (d) Requirements for court order.— 15 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. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. 16 17 18 19 20 21 22 23 24 25 26 27 28 18 U.S.C. § 2703(d) (emphasis added). The “specific and articulable facts” standard set forth in § 2703(d) requires a showing that is less than probable cause. See, e.g., 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 6 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION