Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page27 of 46 1 Florida Supreme Court, citing the Third Circuit’s opinion, concluded that the third-party doctrine 2 did not control: “Simply because the cell phone user knows or should know that his cell phone 3 gives off signals that enable the service provider to detect its location for call routing purposes, 4 and which enable cell phone applications to operate for navigation, weather reporting, and other 5 purposes, does not mean that the user is consenting to use of that location information by third 6 parties for any other unrelated purposes.” Tracey, 152 So. 3d at 522. One court, moreover, found 7 it “difficult to understand how the user ‘voluntarily’ expose[s] [CSLI] to a third party” where the 8 government seeks “information—essentially, continuous pinging—that is not collected as a 9 necessary part of cellular phone service, nor generated by the customer in placing or receiving a 10 United States District Court Northern District of California 11 call.” In re Application, 849 F. Supp. 2d at 539 n.6. Furthermore, the mere fact that historical CSLI is a record maintained by a cellular service 12 provider, and not kept by the user, does not defeat the user’s expectation of privacy in what that 13 information reveals—namely, the user’s location at any moment her cell phone communicates 14 with a cell tower. As the Ninth Circuit has explained, “it is clear that neither ownership nor 15 possession is a necessary or sufficient determinant of the legitimacy of one’s expectation of 16 privacy.” DeMassa v. Nunez, 770 F.2d 1505, 1507 (9th Cir. 1985). 17 Indeed, in Ferguson v. City of Charleston, 532 U.S. 67, 76-78 (2001), the U.S. Supreme 18 Court held that law enforcement needed a warrant to obtain drug testing results from the urine of 19 pregnant women, even though the results were kept by a third party state hospital. The Ferguson 20 Court so held because “[t]he reasonable expectation of privacy enjoyed by the typical patient 21 22 23 24 25 26 27 28 Commc’n Serv. to Disclose Records to the Gov’t, 534 F. Supp. 2d 585, 615 (W.D. Pa. 2008) (concluding that “CSLI is not ‘voluntarily and knowingly’ conveyed by cell phone users”), vacated on other grounds sub nom. Third Circuit Opinion, 620 F.3d 304 (3d Cir. 2010). Judge Lenihan’s opinion was notable, the Third Circuit explained, because it “was joined by the other magistrate judges in that district.” Third Circuit Opinion, 620 F.3d at 308. The Third Circuit continued: “This is unique in the author’s experience of more than three decades on this court and demonstrates the impressive level of support Magistrate Judge Lenihan’s opinion has among her colleagues who, after all, routinely issue warrants authorizing searches and production of documents.” Id. 27 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION