Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page22 of 46 1 issued by a court based upon a finding of probable cause to use the tracking instrument.” Ind. 2 Code § 35-33-5-12(a). 3 4 expectation of privacy in the historical CSLI associated with their cell phones, and that society is 5 prepared to recognize that expectation as objectively reasonable. Cell phone users do not expect 6 that law enforcement will be able to track their movements 24/7 for a sixty-day period simply 7 because the users keep their cell phones turned on. That expectation, the Court finds, is eminently 8 reasonable. 9 10 United States District Court Northern District of California For all the foregoing reasons, the Court concludes that cell phone users have an 2. Third-Party Doctrine The Court now addresses whether the so-called “third-party doctrine” destroys cell phone 11 users’ reasonable expectation of privacy in the historical CSLI associated with their cell phones. 12 The government argues that the third-party doctrine established by the U.S. Supreme Court in 13 cases like United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 14 (1979), deprives cell phone users of any reasonable expectation of privacy in their historical CSLI. 15 See Gov’t Br. at 3-6; Gov’t Reply at 4-8. Under Miller and Smith, the government contends, “the 16 Supreme Court has squarely held that individuals have no expectation of privacy in information 17 that they voluntarily share with third parties, and that principle forecloses any claim that 18 individuals have a reasonable expectation of privacy in historical cell site information.” Gov’t 19 Reply at 4. For the reasons stated below, the Court disagrees. 20 a. Passive Generation of Historical CSLI by Continually Running Apps and Automatic Pinging Renders Miller and Smith Inapposite 21 As Miller and Smith make clear, the third-party doctrine applies when an individual has 22 “voluntarily conveyed” to a third party the information that the government later obtains. In 1976, 23 the U.S. Supreme Court in Miller held that an individual making a deposit at a bank had no 24 expectation of privacy in records of transactions that were held by the bank. 425 U.S. at 437. In 25 arriving at this conclusion, the Miller Court focused on whether the bank records at issue 26 implicated a reasonable expectation of privacy: “We must examine the nature of the particular 27 28 22 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION