Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page23 of 46 1 documents sought to be protected in order to determine whether there is a legitimate ‘expectation 2 of privacy’ concerning their contents.” Id. at 442 (quoting Couch v. United States, 409 U.S. 322, 3 335 (1973)). The Miller Court’s ultimate conclusion—that the defendant had no such 4 expectation—turned not on the fact that the records were owned or possessed by the bank, but on 5 the fact that the defendant had “voluntarily conveyed” the information contained therein to the 6 bank and its employees. Id. To that end, the Miller Court held that “the Fourth Amendment does 7 not prohibit the obtaining of information revealed to a third party and conveyed by him to 8 Government authorities, even if the information is revealed on the assumption that it will be used 9 only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. at 10 United States District Court Northern District of California 11 443. Three years later, in 1979, the U.S. Supreme Court in Smith held that the government’s use 12 of a pen register over a period of three days to capture the numbers dialed from a home landline 13 telephone was not a search under the Fourth Amendment. 442 U.S. at 737, 742. The Smith Court 14 found that telephone users do not maintain a subjective expectation of privacy in the numbers they 15 dial because “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone 16 company, since it is through telephone company switching equipment that their calls are 17 completed.” Id. at 742. The Smith Court, citing Miller, also found no objectively reasonable 18 expectation of privacy in dialed telephone numbers, reiterating “that a person has no legitimate 19 expectation of privacy in information he voluntarily turns over to third parties.” Id. at 743-44. 20 “When he used his phone,” the Miller Court explained, “petitioner voluntarily conveyed numerical 21 information to the telephone company,” destroying his reasonable expectation of privacy in that 22 information. Id. at 744. 23 Cell phone users, by contrast, do not “voluntarily convey” their location to the cellular 24 service provider in the manner contemplated by Miller and Smith. This is especially true when 25 historical CSLI is generated just because the cell phone is on, such as when cell phone apps are 26 sending and receiving data in the background or when the cell phone is “pinging” a nearby cell 27 28 23 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION