Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page29 of 46 1 b. The Factual Record Before the Fifth and Eleventh Circuits Did Not Include Continually Running Apps and Automatic Pinging 2 This conclusion is not at odds with the decisions of the Fifth and Eleventh Circuits because 3 the factual record in those cases was materially different. Both cases involved technology from 4 2010 and were expressly limited to instances where a cell phone user was either making or 5 receiving a call. The Fifth Circuit, for example, held that Smith controlled the analysis because a 6 cell phone user “understands that his cell phone must send a signal to a nearby cell tower in order 7 to wirelessly connect his call,” and therefore “voluntarily conveys his cell site data each time he 8 makes a call.” Fifth Circuit Opinion, 724 F.3d at 612-14. United States District Court Northern District of California 9 Similarly, the Eleventh Circuit en banc held that the “longstanding third-party doctrine 10 plainly controls the disposition of this case” because “[c]ell phone users voluntarily convey cell 11 tower location information to telephone companies in the course of making and receiving calls on 12 their cell phones.” Davis, 785 F.3d at 512 & n.12. “Just as in Smith,” the Eleventh Circuit 13 continued, “users could not complete their calls without necessarily exposing this information to 14 the equipment of third-party service providers.” Id. at 512 n.12. 15 Neither circuit, however, had occasion to address whether a cell phone user voluntarily 16 conveys her location to a cellular service provider when the historical CSLI is generated by 17 continuously operating apps or automatic pinging. The Fifth Circuit’s decision only contemplated 18 instances where the cell phone user “makes a call.” Fifth Circuit Opinion, 724 F.3d at 614. The 19 Fifth Circuit may have limited its analysis in this way because, according to the government there, 20 “cell phone service providers do not create cell site records when a phone is in an idle state.” Id. 21 at 602 n.1. This is contrary to the factual record here, which indicates that “CSLI for a cellular 22 telephone may still be generated in the absence of user interaction with a cellular telephone.” 23 Luna Decl. ¶ 3B. “For example,” the government’s FBI special agent explained, “CSLI may still 24 be generated” by “applications that continually run in the background that send and receive data 25 (e.g. email applications).” Id. 26 27 28 The Fifth Circuit’s analysis may also have been so limited because the government’s 29 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION