Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page44 of 46 United States District Court Northern District of California 1 In short, the government has two basic options for obtaining “a record or other information 2 pertaining to a subscriber to or customer of [a provider of electronic communication service],” 3 such as historical CSLI. 18 U.S.C. § 2703(c)(1). Those options are: (1) a search warrant 4 supported by probable cause, id § 2703(c)(1)(A); or (2) a court order under § 2703(d) based on 5 specific and articulable facts showing that the information sought is relevant and material to an 6 ongoing criminal investigation, id. § 2703(c)(1)(B). It is less than clear why Congress created two 7 different paths. Perhaps, as Judge Lloyd suggests, Congress did so out of “recognition that some 8 information should be accorded a higher level of protection from disclosure than other 9 information.” ECF No. 2 at 4. In any event, all the Court holds today is that when the 10 government seeks to obtain historical CSLI from a cellular service provider, the Fourth 11 Amendment requires that the government obtain a warrant. To do so, the government need only 12 follow the procedures already outlined in § 2703(c)(1)(A). 13 The language of § 2703(d) is not to the contrary. Section 2703(d) provides that a “court 14 order for disclosure under subsection (b) or (c) may be issued by any court that is a court of 15 competent jurisdiction and shall issue only if ” the specific and articulable facts standard is met. 16 18 U.S.C. § 2703(d) (emphases added). If, as the government contends, the language of § 2703(d) 17 requires a magistrate judge to issue a court order so long as the government has met the specific 18 and articulable facts standard, a standard lower than probable cause, then § 2703(d) of the SCA 19 would be unconstitutional as applied to historical CSLI. See Gov’t Reply at 12. 20 This Court, however, finds that the Third Circuit’s interpretation of § 2703(d) is an 21 acceptable construction of the provision such that it need not be invalidated. See Third Circuit 22 Opinion, 620 F.3d at 315-17. The Third Circuit held that § 2703(d) provides magistrate judges 23 with discretion to require a warrant on a showing of probable cause because that provision begins 24 with the permissive language “may be issued” and uses the phrase “only if,” rather than simply 25 “if.” Id. at 315. The Third Circuit found that if issuing an order under § 2703(d) were not 26 discretionary, “the word ‘only’ would be superfluous.” Id. This is so, the Third Circuit reasoned, 27 28 44 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION