Upon an affirmation, the People request that the Court issue a subpoena for Mr. Nelson's T-Mobile records. For the reasons stated below, the People's request is DENIED.

On July 6, 2022, the People requested that the Court issue a subpoena duces tecum demanding from T-Mobile, "all subscriber information; bill and payment information, including credit cards, and addresses; and any and all incoming and outgoing call details, SMS details, MMS details, logs, LUDs, tolls; IP logs, IP DR, IP sessions and any IP addresses from January 1, 2022 to May 11, 2022" for two telephone numbers.

The People claim these are "Mr. Nelson's . . . T-Mobile phone records." Aff. at 1.

A criminal court should inspect a party's request for a subpoena to ensure that it meets statutory requirements. After all, a subpoena is a "mandate of the court issued for the court." People v. Natal, 75 NY2d 379, 385 (1990). Under C.P.L. § 610.20(4), the People here must justify their request by showing that "the evidence sought is reasonably likely to be relevant and material to the proceedings, and the subpoena is not overbroad or unreasonably burdensome." Overbroad subpoenas include those that seek information that do not relate to the relevant and material evidence sought. See Christie's Inc. v. Koch, 110 AD3d 651, 652 (1st Dep't 2013).

Here, the People's requested subpoena for Mr. Nelson's T-Mobile records is overbroad. The People assert that they desire Mr. Nelson's records because they "are seeking text message communications and call logs between defendant and the complainant." Aff. at 2. However, their proposed subpoena demands far more than that. It requests "any and all" incoming and outgoing call details for a period larger than four months. It requests "any and all" SMS and MMS details for that same period. And it requests "any and all" IP information, also for that four-month period. The People do not provide any reasons why they chose that four-month period—or why the period covers four months. Further, the People acknowledge that they are seeking records that are "prior to" and "after" Mr. Nelson allegedly communicated with the complainant. Aff. at 2. The People do not explain why call details, text-message records, and IP information "prior to" or "after" the relevant communications would reasonably be relevant and material to this case.

In addition, the Court questions whether the People's subpoena is constitutionally [*2]permissible. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. To be sure, under the "third-party doctrine," courts often hold that people generally do not have a "reasonable expectation of privacy" in cellular records held by a mobile carrier, except for location information. See, e.g., People v. Slivienski, 204 AD3d 1228, 1237 (3d Dep't 2022). However, the "reasonable expectation of privacy" test "supplements, rather than displaces, the traditional property-based understanding of the Fourth Amendment." Byrd v. United States, 138 S. Ct. 1518, 1526 (2018). As a result, the "constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be." Ex Parte Jackson, 96 U.S. 727, 733 (1878) (emphasis added).

What matters under the property-based understanding of the Fourth Amendment is not whether a person stores their papers with a third party, but whether those papers are, in fact, theirs. The data at issue here, while stored with T-Mobile, may very well constitute Mr. Nelson's records. Indeed, 47 U.S.C. § 222 designates much of the data sought as "customer proprietary network information," and it gives cellular customers statutory rights to control and access those records about themselves. For instance, the law forbids a carrier to "use, disclose, or permit access to individually identifiable" data without the customer's consent. 47 U.S.C. § 222(c)(1). And it affords customers a private cause of action for damages against carriers who violate these protections. 47 U.S.C. § 207. T-Mobile's policies themselves state that they "will not intentionally use, access, or disclose your CPNI to third parties without your permission."^[FN1] In sum, both federal law and T-Mobile policy provide people a right to exclude and control the use of their records at issue here. Some may call that a property right.

In this case, however, the Court need not resolve this issue. The People's subpoena is plainly overbroad. Nonetheless, the question of whether the Fourth Amendment permits this type of subpoena will present itself in future cases. In this uncertainty, the People would do well to apply for a search warrant for the kind of records requested here, rather than merely requesting a subpoena.

For the foregoing reasons, the People's request for a subpoena is DENIED.

The People are reminded that any application to reargue or renew must be addressed to this Court. C.P.L.R. § 2221(a).

The foregoing constitutes the Decision and Order of the Court.