Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page32 of 46 1 the user is outside the range of her provider’s cell tower network but roams onto the network of 2 another provider. See Larsen Decl. ¶¶ 2c, 4d (describing roaming on Verizon and AT&T 3 networks). It is only when a cell phone cannot connect to the network of any provider that the cell 4 phone will not generate CSLI. Neither the Fifth Circuit nor the Eleventh Circuit addressed 5 roaming or considered whether roaming impacts the voluntary conveyance analysis. United States District Court Northern District of California 6 These twin factual distinctions—(1) that historical CSLI may be generated by continually 7 running apps and automatic pinging; and (2) that historical CSLI may be recorded and turned over 8 to the government by any number of cellular service providers other than the cell phone user’s— 9 are essential to the Court’s finding of no voluntary conveyance. As the Fifth Circuit and the 10 Eleventh Circuit had no occasion to consider them, those decisions do not undermine the Court’s 11 conclusion that the third-party doctrine does not govern the facts here. 12 13 c. Passive Receipt of Calls and Texts Is Not A Voluntary Conveyance Either The Court has established that the generation of historical CSLI via continually running 14 apps or routine pinging is not a voluntary conveyance by the cell phone user in the way Miller and 15 Smith demand. This showing, on its own, is sufficient for the Court to conclude that the third- 16 party doctrine does not defeat a cell phone user’s reasonable expectation of privacy in the 17 historical CSLI associated with her cell phone. 18 Nonetheless, the Court also finds that the passive receipt of calls and text messages does 19 not amount to a voluntary conveyance under the meaning of Miller and Smith. In Miller, the bank 20 patron affirmatively conveyed checks and deposit slips to the bank. 425 U.S. at 437. In Smith, the 21 telephone user affirmatively dialed the numbers recorded by the pen register. 442 U.S. at 737, 22 742. Here, by contrast, a cell phone user who receives an unwanted or unanswered call or an 23 unwanted text generates historical CSLI without the commission of any similar affirmative act. 24 As the government’s FBI special agent explained, “CSLI for a cellular telephone may still be 25 generated in the absence of user interaction with a cellular telephone.” Luna Decl. ¶ 3B. As one 26 example, the special agent stated that “CSLI may still be generated during an incoming voice call 27 28 32 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION