Can a District Court Judge Sign an Order for Phone Records?

Last year, I published a paper about law enforcement access to phone records and other information about electronic communications. In the paper, I explained that "[a]mong North Carolina judges, only superior court judges may issue court orders for phone records." As luck would have it, a few weeks later, Congress amended some of the relevant statutes, calling that conclusion into question. Because I know that judges, prosecutors, and officers are confused about this issue, I thought I'd try to clear it up. The analysis is a little technical, so bear with me. Generally, phone records aren't protected by the Fourth Amendment, because under Smith v. Maryland, 442 U.S. 735 (1979), there is no expectation of privacy in information that a telephone user voluntarily conveys to a service provider. However, there are federal statutes that prevent service providers from disclosing phone records to law enforcement except in specified circumstances. One of those circumstances is when law enforcement obtains a court order under 18 U.S.C. § 2703(d), after presenting "specific and articulable facts showing that there are reasonable grounds to believe that the . . . information sought [is] relevant and material to an ongoing criminal investigation." Section 2703(d) says that such an order may be issued by "any court that is a court of competent jurisdiction." So we need to decipher that phrase. In order to do so, we need to look at the list of definitions contained in the group of statutes to which section 2703(d) belongs. Those definitions appear in [...]