Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page26 of 46 1 continuously operating apps or automatic pinging does not amount to a voluntary conveyance of 2 the user’s location twenty-four hours a day for sixty days. Such data, it is clear, may be generated 3 with far less intent, awareness, or affirmative conduct on the part of the user than what was at 4 issue in Miller and Smith. Unlike the depositor in Miller who affirmatively conveyed checks and 5 deposit slips to the bank, or the telephone user in Smith who affirmatively dialed the numbers 6 recorded by the pen register, a cell phone user may generate historical CSLI simply because her 7 phone is on and without committing any affirmative act or knowledge that CSLI is being 8 generated. Smith, for example, never contemplated the disclosure of information while the 9 landline telephone was not even in use. United States District Court Northern District of California 10 This sort of passive generation of CSLI does not amount to a voluntary conveyance under 11 the third-party doctrine. The Ninth Circuit has distinguished information “passively conveyed 12 through third party equipment” from information “voluntarily turned over” to a third party, the 13 latter of which is governed by the third-party doctrine. United States v. Forrester, 512 F.3d 500, 14 510 (9th Cir. 2008). In the same vein, the Sixth Circuit found Smith distinguishable where federal 15 law enforcement had dialed the defendant’s cell phone without allowing it to ring and used the 16 resulting CSLI to track his movements. United States v. Forest, 355 F.3d 942, 947 (6th Cir. 17 2004), judgment vacated on other grounds sub nom. Garner v. United States, 543 U.S. 1100 18 (2005). In that instance, the Sixth Circuit agreed, the defendant “did not voluntarily convey his 19 cell site data to anyone.” Id. (internal quotation marks omitted). 20 Other courts have taken a similar view. The Third Circuit, for example, rejected the 21 government’s argument that Miller and Smith precluded magistrate judges from requiring a 22 warrant supported by probable cause to obtain historical CSLI. Third Circuit Opinion, 620 F.3d at 23 317-18. “A cell phone customer,” the Third Circuit explained, “has not ‘voluntarily’ shared his 24 location information with a cellular provider in any meaningful way.”6 Id. at 317. Likewise, the 25 6 26 27 28 In finding that cell phone users do not voluntarily convey historical CSLI to cellular service providers, the Third Circuit agreed with the opinion of U.S. Magistrate Judge Lisa Pupo Lenihan, the Magistrate Judge below. See In re U.S. for an Order Directing a Provider of Elec. 26 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION