Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page25 of 46 1 United States District Court Northern District of California 2 n.2. In Miller and Smith, the individual knew with certainty the information that was being 3 conveyed and the third party to which the conveyance was made. Cell phone users, on the other 4 hand, enjoy far less certainty with respect to CSLI. CSLI, in contrast to deposit slips or digits on a 5 telephone, is neither tangible nor visible to a cell phone user. When the telephone user in Smith 6 received his monthly bill from the phone company, the numbers he dialed would appear. See 442 7 U.S. at 742. The CSLI generated by a user’s cell phone makes no such appearance. See Larsen 8 Decl. ¶ 3c. Rather, because CSLI is generated automatically whenever a cell tower detects radio 9 waves from a cell phone, a cell phone user typically does not know that her phone is 10 communicating with a cell tower, much less the specific cell tower with which her phone is 11 communicating. See Hr’g Tr. at 16:7-9. It may be, as the government explained, that a cell phone 12 connects to “many towers” during the length of a call, id. at 3:9, and the tower to which a cell 13 phone connects is not necessarily the closest one geographically, id. at 31:21-22. Moreover, when 14 an app on the user’s phone is continually running in the background, see Luna Decl. ¶ 3B, she may 15 not be aware that the cell phone in her pocket is generating CSLI in the first place. 16 Roaming poses an additional problem. As stated previously, roaming occurs when there is 17 a gap in the network of a cell phone’s provider and, as a result, the cell phone must connect to the 18 cell tower of a different provider. See Larsen Decl. ¶¶ 2c, 4d (discussing roaming). Typically, a 19 cell phone user does not know when her phone is roaming onto another provider’s network, much 20 less the name of the other provider on whose network her phone is roaming. As a result, cell 21 phone users, unlike a bank depositor or telephone dialer, will often not know the identity of the 22 third party to which they are supposedly conveying information. Unlike her counterparts in Miller 23 or Smith, a cell phone user therefore has less reason to suspect that she is disclosing information to 24 a third party, especially since she may not even know that the information is being disclosed or 25 who the third party is. 26 27 28 In light of the foregoing, the Court concludes that historical CSLI generated via 25 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION