Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page38 of 46 1 provider might have collected historical CSLI for a Verizon or AT&T subscriber that the 2 government has targeted. First, a provider other than Verizon or AT&T might have collected 3 CSLI generated by a target cell phone if a target user switched providers during the sixty-day 4 period but kept the same phone number pursuant to local number portability. App. ¶ 2 n.2. 5 Second, a provider other than Verizon or AT&T might have collected CSLI generated by one of 6 the target cell phones if a target cell phone connected with the cell tower of that other provider 7 over the course of the sixty-day period, an action known as roaming. Larsen Decl. ¶ 2c. As stated 8 above, roaming occurs when there is a gap in the network of a cell phone’s provider and, as a 9 result, the cell phone connects to the cell tower of a different provider. United States District Court Northern District of California 10 As to roaming, which neither the Fifth Circuit nor the Eleventh Circuit addressed, the 11 record before this Court indicates that “Verizon does retain CSLI for phone numbers belonging to 12 other providers when those phones connect to Verizon towers.” Larsen Decl. ¶ 2c. The same is 13 true for AT&T, which “can determine whether [a] number [that is not an AT&T number] roamed 14 on its system or called one of its customers and, if so, it can provide details of that usage, 15 including CSLI.”11 Id. ¶ 4d. A cell phone user, however, will rarely know when she is roaming 16 onto another provider’s network of cell towers, and she will almost certainly not know the name of 17 the other provider on whose network she is roaming. Even though the Court assumes that cell 18 phone users have read the privacy policies of their own cellular service providers, users almost 19 certainly do not read the privacy policies of every provider on whose towers their cell phones 20 might roam. It cannot be, therefore, that the privacy policy of a user’s cellular service provider 21 offers a basis for that user to consent to the government’s acquisition of CSLI from a separate 22 provider. 23 What is more, the government says that, based on the language of the application, it “need 24 25 26 27 28 11 The record also shows that “Sprint and Verizon have a roaming contract” whereby “Verizon sends a report of all roaming activity to Sprint’s billing department.” Larsen Decl. ¶ 3c. Sprint then bills its subscriber for roaming charges, but the subscriber’s “bill does not contain CSLI.” Id. 38 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION