United States District Court Northern District of California Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page36 of 46 1 intrusion that can reveal a detailed and intimate picture of the user’s life places an unreasonable 2 burden on the user to forego [sic] necessary use of his cell phone, a device now considered 3 essential by much of the populace.” Tracey, 152 So. 3d at 523; see also In re U.S. for an Order 4 Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011) 5 (“The fiction that the vast majority of the American population consents to warrantless 6 government access to the records of a significant share of their movements by ‘choosing’ to carry 7 a cell phone must be rejected.”); Patrick E. Corbett, The Fourth Amendment and Cell Site 8 Location Information: What Should We Do While We Wait for the Supremes?, 8 Fed. Cts. L. Rev. 9 215, 226-27 (2015) (questioning whether requiring users to switch their cell phones off to avoid 10 being tracked is a “viable option” given “the desire (and often need) to stay connected and 11 informed”). In this regard, the Court takes heed of Judge Robin S. Rosenbaum’s concurrence in 12 Davis: “In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid 13 disclosing the most personal of information to third-party service providers on a constant basis, 14 just to navigate daily life. And the thought that the government should be able to access such 15 information without the basic protection that a warrant offers is nothing less than chilling.” 785 16 F.3d at 525 (Rosenbaum, J., concurring). 17 18 e. Conclusion For these reasons, the Court concludes that the third-party doctrine established in Miller 19 and Smith does not defeat cell phone users’ reasonable expectation of privacy in the historical 20 CSLI associated with their cell phones. The government therefore conducts a “search” within the 21 meaning of the Fourth Amendment when it asks cellular service providers to release that 22 information pursuant to 18 U.S.C. § 2703. 23 24 C. Exceptions to the Warrant Requirement Where, as here, “a search is undertaken by law enforcement officials to discover evidence 25 of criminal wrongdoing,” the Fourth Amendment “generally requires the obtaining of a judicial 26 warrant.” Riley, 134 S. Ct. at 2482 (internal quotation marks omitted). “In the absence of a 27 28 36 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION