Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page35 of 46 1 expectation of privacy in that information is not defeated under the third-party doctrine. See, e.g., 2 Third Circuit Opinion, 620 F.3d at 317-18; Tracey, 152 So. 3d at 522. 3 4 Faced with the Court’s concerns over the acquisition of historical CSLI generated by 5 passive conduct, the government offered an alternative: people need not carry a cell phone in the 6 first place or they may keep it turned off. Hr’g Tr. at 17:11-18:13. This cannot be right. 7 Individuals cannot be compelled to choose between maintaining their Fourth Amendment right to 8 privacy in their location and using a device that has become so integral to functioning in today’s 9 society that the U.S. Supreme Court once quipped “the proverbial visitor from Mars might 10 United States District Court Northern District of California d. Discarding or Turning Off Cell Phones Is Not a Viable Alternative conclude [it was] an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. 11 For many, cell phones are not a luxury good; they are an essential part of living in modern 12 society. As the U.S. Supreme Court stated in City of Ontario v. Quon, 560 U.S. 746, 760 (2010), 13 “Cell phone and text message communications are so pervasive that some persons may consider 14 them to be essential means or necessary instruments for self-expression, even self-identification.” 15 As the U.S. Supreme Court explained in Riley, “it is the person who is not carrying a cell phone, 16 with all that it contains, who is the exception.” 134 S. Ct. at 2490. In fact, “more than 90% of 17 American adults . . . own a cell phone,” id., and “there are now more cell phones than people in 18 the United States,” Shane Miller, Drawing the Line: The Legality of Using Wiretaps to Investigate 19 Insider Trading, 13 U. Pitt. J. Tech. L. Pol’y 1, 2 (2013). Further, according to a poll cited in 20 Riley, “nearly three-quarters of smart phone users report being within five feet of their phones 21 most of the time, with 12% admitting that they even use their phones in the shower.” Riley, 134 22 S. Ct. at 2490. Considering the ubiquity of cell phones, and the important role they play in today’s 23 world, it is untenable to force individuals to disconnect from society just so they can avoid having 24 their movements subsequently tracked by the government. 25 Consequently, the Court agrees wholeheartedly with the Florida Supreme Court: 26 “Requiring a cell phone user to turn off the cell phone just to assure privacy from governmental 27 28 35 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION