Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page45 of 46
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because “the phrase ‘only if’ describe[s] a necessary condition, not a sufficient condition” for
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obtaining a § 2703(d) order. Id. at 316 (internal quotation marks omitted). The Third Circuit
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explained:
Adopting the example of the baseball playoffs and World Series, we noted that
while a team may win the World Series only if it makes the playoffs[,] a team’s
meeting the necessary condition of making the playoffs does not guarantee that the
team will win the World Series. In contrast, winning the division is a sufficient
condition for making the playoffs because a team that wins the division is ensured a
spot in the playoffs and thus a team makes the playoffs if it wins its division.
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Id. (citations, alterations, and internal quotation marks omitted).
Because a showing of specific and articulable facts is a necessary, rather than a sufficient,
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United States District Court
Northern District of California
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condition for obtaining a § 2703(d) order, magistrate judges have discretion to require a higher
threshold where the Constitution so requires. See Third Circuit Opinion, 620 F.3d at 315
(agreeing that “the requirements of § 2703(d) merely provide a floor—the minimum showing
required of the Government to obtain the information—and that magistrate judges do have
discretion to require warrants”). The lesser showing of specific and articulable facts may well be
sufficient to obtain stored electronic information under § 2703(d) that, unlike historical CSLI, does
not raise constitutional privacy concerns. Here, however, where the information sought is
historical CSLI, a warrant supported by probable cause is required, and the government is not
foreclosed from proceeding under § 2703(d) so long as the probable cause standard is met. To
avoid unnecessary confusion, though, the government should request historical CSLI under
§ 2703(c)(1)(A), which expressly mentions “a warrant issued using the procedures described in the
Federal Rules of Criminal Procedure.”
IV.
CONCLUSION
For the foregoing reasons, the Court hereby AFFIRMS Judge Lloyd’s denial of the
government’s application for historical CSLI.
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Case No. 15-XR-90304-HRL-1(LHK)
ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION
INFORMATION
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