A Deep Dive Into the Statutory Interpretation Behind the New Wiretap Circuit Split

The Statutory Engine Behind the Split: Why "Electronic Storage" Now Means Everything

In my 25 years as a federal prosecutor, I watched the government rely on a simple, elegant statutory shortcut to obtain historical cell-site location information without a warrant. The Stored Communications Act, codified at 18 U.S.C. §§ 2701–2712, was enacted in 1986 as part of the Electronic Communications Privacy Act, and it created a tiered system of access to stored electronic communications. For content that has been in "electronic storage" for 180 days or less, the government must obtain a warrant under § 2703(a). For content stored longer than 180 days, or for non-content records like subscriber information, the government may use a court order under § 2703(d) upon a showing of "specific and articulable facts" that the records are "relevant and material to an ongoing criminal investigation." That standard is far lower than probable cause.

The government's theory, which prevailed for years, was that historical CSLI—the records of which cell towers a phone pinged over days or weeks—constituted "a record of a person's movements" under § 2703(c)(1)(B) and could be obtained with a § 2703(d) order. But here is where the statutory interpretation gets treacherous. The Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, at 18 U.S.C. § 2510(17), defines "electronic storage" as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication." The question that now divides the circuits is whether CSLI, once transmitted to the provider and stored in its ordinary business records, falls within that definition.

The Third Circuit in Werdene held that it does. The court reasoned that when a cellular provider stores CSLI as part of its routine business records—not as a temporary buffer before transmission—that storage is not "incidental to the electronic transmission" under § 2510(17)(A), nor is it "backup protection" under § 2510(17)(B). Therefore, the court concluded, the data is not in "electronic storage" under the Wiretap Act, meaning the government cannot use the SCA's warrant exception for stored communications. Instead, the government must obtain a Title III warrant under 18 U.S.C. § 2518, which requires probable cause and particularity. The Sixth Circuit in Carpenter took the opposite view, holding that CSLI is in "electronic storage" because it is stored by the provider as part of the communication process, even if it is retained for billing or investigative purposes. This is not a Fourth Amendment dispute—it is a pure statutory interpretation battle over the meaning of two words in a 1986 statute.

The practical consequence of this split is enormous. In the Third Circuit, the government's long-standing practice of using § 2703(d) orders for CSLI is invalid. Any evidence obtained through such an order is subject to suppression under 18 U.S.C. § 2515, which prohibits the introduction of any wire or oral communication intercepted in violation of Title III. In the Sixth and Tenth Circuits, the government can continue its practice without fear of suppression. The Supreme Court granted certiorari in Carpenter v. United States in 2017, but the Court ultimately decided the case on Fourth Amendment grounds—holding that the government must obtain a warrant for seven days or more of CSLI—without reaching the statutory interpretation question. That leaves the statutory split unresolved, and it is now squarely before the lower courts again.

The Preemption Problem: How 18 U.S.C. § 2511(2)(a) Creates a Trap for the Government

One of the most overlooked aspects of this split is the preemption clause in the Wiretap Act itself. Section 2511(2)(a) states that "it shall not be unlawful under this chapter for an officer, employee, or agent of the United States ... to intercept a wire, oral, or electronic communication" if the interception is authorized by a court order under Chapter 119 of Title 18—that is, the SCA. But the statute does not say that the SCA's procedures satisfy the Wiretap Act's requirements for all types of stored communications. The preemption is limited: it only applies when the government is acting "in the normal course of his employment" and in accordance with the SCA's provisions. The question is whether obtaining CSLI under a § 2703(d) order counts as acting "in the normal course" of a criminal investigation.

In my experience prosecuting complex criminal cases, I saw the government treat the SCA as a catch-all authorization for any stored data. But the Wiretap Act's definition of "electronic storage" at § 2510(17) is not a rubber stamp. The Third Circuit in Werdene emphasized that the SCA's warrant exception for stored communications only applies to communications that are in "electronic storage" as defined by the Wiretap Act. If the CSLI is not in "electronic storage," then the government cannot rely on the SCA's warrant exception, and the preemption clause in § 2511(2)(a) does not shield the government from liability under Title III. This creates a statutory trap: the government thinks it is acting lawfully under the SCA, but if the data falls outside the Wiretap Act's definition, the entire interception is unlawful, and suppression under § 2515 is mandatory.

The government's fallback argument is that CSLI is not an "electronic communication" at all under the Wiretap Act. Section 2510(12) defines "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system." The government argues that CSLI is merely a record of a completed transmission—a historical log—not the communication itself. But the Third Circuit rejected this argument, holding that the CSLI is "data" transmitted by the phone to the tower, and thus falls within the definition of an electronic communication. The Sixth Circuit took the opposite view, holding that CSLI is not an electronic communication because it is not "in transmission" when the government obtains it from the provider's records. This is a classic Chevron-style ambiguity, but there is no agency interpretation to defer to—the courts must resolve it based on plain meaning.

For defense attorneys, this preemption problem is a goldmine. If you are in a jurisdiction that follows the Third Circuit's interpretation, you can argue that the government's § 2703(d) order was invalid ab initio because the data was not in "electronic storage." The government cannot retroactively cure the defect by obtaining a warrant after the fact, because the interception was unlawful at the time it occurred. And because the Wiretap Act's suppression remedy at § 2515 is strict—there is no good-faith exception for warrantless interceptions—the government cannot rely on the fact that it acted in reliance on the SCA's procedures. The only exception is if the government obtained a Title III warrant, which requires probable cause and a showing that normal investigative procedures have failed or are unlikely to succeed. That is a much higher bar, and it is one the government rarely meets for historical CSLI.

Strategic Implications for Defense Counsel: How to Exploit the Circuit Split Now

If you are defending a client in the Third Circuit—which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands—the split is already resolved in your favor. In United States v. Werdene, 883 F.3d 204 (3d Cir. 2020), the court held that CSLI obtained under a § 2703(d) order violates the Wiretap Act, and the evidence must be suppressed. But the government may argue that the good-faith exception to the exclusionary rule applies, as recognized in Davis v. United States, 564 U.S. 229 (2011), for searches conducted in objectively reasonable reliance on binding appellate precedent. The Third Circuit, however, has not yet addressed whether the good-faith exception applies to Wiretap Act violations, and the text of § 2515 provides no good-faith exception. I would argue that the statute's plain language precludes any judicial exception, and the Supreme Court has never extended the good-faith exception to Title III violations.

In the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming), the government's practice remains lawful under binding precedent. But that does not mean you are without arguments. The Supreme Court's decision in Carpenter v. United States, 585 U.S. ___ (2018), held that the Fourth Amendment requires a warrant for seven days or more of CSLI. If the government obtained less than seven days of CSLI under a § 2703(d) order, the Fourth Amendment claim fails, but the statutory claim under the Wiretap Act remains viable. You can argue that the Sixth Circuit's interpretation of "electronic storage" is inconsistent with the plain meaning of § 2510(17), and that the Supreme Court's Fourth Amendment holding implicitly supports the Third Circuit's statutory interpretation. While the district court is bound by circuit precedent, you can preserve the issue for certiorari and argue that the circuit split creates a reasonable basis for suppression.

The most powerful strategic move is to file a motion to suppress under § 2515, even in circuits where the government's practice is currently lawful. The motion forces the government to justify its statutory interpretation, and it creates a record for appeal. If the Supreme Court eventually resolves the split in favor of the Third Circuit's interpretation, defendants who preserved the issue will have a viable claim for retroactive relief. Under Teague v. Lane, 489 U.S. 288 (1989), new rules of criminal procedure are generally not retroactive on collateral review, but if the Supreme Court holds that the Wiretap Act's plain meaning requires a warrant, that is a substantive statutory interpretation, not a new procedural rule. It is the same rule that existed when the statute was enacted in 1986—the courts simply misinterpreted it. That makes the claim retroactive under the Montgomery v. Louisiana framework.

I also recommend that defense counsel conduct a thorough audit of the government's acquisition method. Did the government obtain CSLI under a § 2703(d) order, a Title III warrant, or a subpoena? Each method triggers different statutory arguments. If the government used a subpoena, it likely violated the SCA's requirement that the government provide notice to the subscriber under § 2703(b)(1)(B). If the government used a pen register or trap-and-trace device under 18 U.S.C. § 3121, the CSLI may be subject to suppression under the Pen Register Act's exclusionary rule at § 3124(d). The key is to identify the specific statutory authority the government relied on and then attack it using the circuit split as leverage. In my experience, prosecutors often fail to document the precise legal basis for their data requests, and that sloppiness creates openings for suppression.

The Future of the Split: Legislative Fix or Supreme Court Resolution?

Congress could resolve this split at any time by amending the Stored Communications Act to explicitly define whether historical CSLI is in "electronic storage" under the Wiretap Act. The ECPA Modernization Act of 2021, introduced in the 117th Congress, would have amended § 2703 to require a warrant for all CSLI regardless of age, but it did not address the definitional question in § 2510(17). The bill died in committee, and no similar legislation has been introduced in the current Congress. The problem is that any legislative fix would require bipartisan agreement on privacy issues, which has been elusive since the ECPA was last amended in 1994. The Department of Justice has opposed any amendment that would require a warrant for CSLI, arguing that it would hamstring investigations of terrorism and organized crime.

The Supreme Court is the more likely avenue for resolution. The Court denied certiorari in Werdene after the government did not petition, but the government may now be forced to seek certiorari if a defendant successfully suppresses CSLI in a major case. The Court could also grant certiorari in a case from the Sixth or Tenth Circuit where the defendant preserved the statutory argument. The Court's decision in Carpenter left the statutory question open, and Justice Gorsuch's concurrence explicitly invited Congress to address the issue. Justice Thomas, in his dissent, argued that the Court should have decided the case on statutory grounds rather than the Fourth Amendment. That suggests at least four justices are interested in the statutory interpretation question, which is enough to grant certiorari.

For defense attorneys, the best strategy is to force the issue now. File the motion to suppress, brief the statutory interpretation argument thoroughly, and cite the Third Circuit's decision in Werdene as persuasive authority even in circuits where it is not binding. The government will likely argue that the circuit split is irrelevant because the Sixth Circuit's precedent controls, but that argument ignores the fact that the Supreme Court has not resolved the question. Until the Court speaks, the split remains, and defendants are entitled to argue that the correct interpretation of the statute supports suppression. In my 25 years, I have seen circuit splits linger for decades—the split over the meaning of "carries a firearm" under 18 U.S.C. § 924(c) lasted 20 years before the Supreme Court resolved it. But the CSLI split is different because the stakes are so high: it affects every criminal case where the government uses historical location data.

If you or your organization is facing a federal criminal investigation involving historical cell-site location information, the time to act is now. The circuit split over the statutory interpretation of "electronic storage" under the Wiretap Act creates a powerful but time-sensitive legal argument that could result in suppression of critical evidence. I have spent over 25 years navigating the intersection of federal criminal procedure, the Stored Communications Act, and Title III wiretap law, and I understand how to exploit these statutory nuances to protect your rights. Do not wait until the government files a motion to compel or until your case is indicted. Contact my office today for a confidential consultation to discuss how the Third Circuit's decision in Werdene or the Supreme Court's holding in Carpenter

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