United States District Court Northern District of California Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page31 of 46 1 Further, the Eleventh Circuit, just like the Fifth Circuit, “limit[ed] its decision to the world 2 (and technology) as we knew it in 2010.” Davis, 785 F.3d at 521 (Jordan, J., concurring); see also 3 id. at 502 (majority opinion) (explaining that the government sought historical CSLI “for the 4 period from August 1, 2010 through October 6, 2010). Indeed, the court in Davis expressly 5 declined to consider “newer technology,” such as “femtocells,” that had developed since 2010. Id. 6 at 503 n.7 (majority opinion). This Court, in contrast, must consider the state of the technology as 7 it exists in June 2015 as well as going forward. See Kyllo, 533 U.S. at 35-36 (rejecting “a 8 mechanical interpretation of the Fourth Amendment” because courts “must take account of more 9 sophisticated systems that are already in use or in development”). That technology includes 10 femtocells, which the government says can be used to locate an individual within her home. See 11 Hr’g Tr. at 29:22-33:25 (government discussion of femtocell technology). 12 It is clear, then, that the factual record before this Court is distinct. It is not the case here 13 that “the signal [to a cell tower] only happens when a user makes or receives a call.” Davis, 785 14 F.3d at 498 (emphasis added). Rather, historical CSLI is also generated by continuously operating 15 apps and by frequent pinging. Luna Decl. ¶ 3B. Critically, the government here does not disclaim 16 its purported right to obtain without a warrant historical CSLI generated by such passive activities. 17 This is true even though, as explained above, the government’s application “does not seek” CSLI 18 “that might be available when the [target cell phones] are turned ‘on’ but a call is not in progress.” 19 App. ¶ 3. Because the government broadly defines “call” to include any call, text message, or data 20 transfer, see Hr’g Tr. at 50:22-52:5, the government’s application could very well obtain historical 21 CSLI generated by “applications that continually run in the background that send and receive 22 data,” Luna Decl. ¶ 3B. 23 Nor is it the case here that “[u]sers are aware that cell phones do not work when they are 24 outside the range of the provider company’s cell tower network.” Davis, 785 F.3d at 511 25 (emphasis added). Whatever the factual record may have been before the Fifth and Eleventh 26 Circuits, the record here establishes that a user’s cell phone works—and generates CSLI—when 27 28 31 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION