Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page33 of 46 1 that is not answered.” Id. When an unanswered call goes to voicemail, it may be hours before the 2 cell phone user even realizes that she has been called. The historical CSLI, however, will generate 3 as soon as that call was received. United States District Court Northern District of California 4 At the hearing the government appeared to recognize that generation of CSLI via passive 5 receipt of calls or texts involves less affirmative conduct than what was at issue in Miller and 6 Smith: “It certainly feels like it’s a different affirmative act by the person holding the phone if they 7 can be called and, as a result, all this data is created, as opposed to them making the affirmative act 8 of calling.” Hr’g Tr. at 39:16-19. The government agreed with the Court, moreover, that “there’s 9 nothing to prevent . . . the creation, potentially, of cell site information by the government if [the 10 government] really wanted to know where someone was at a given moment.” Id. at 55:7-9. As 11 the government acknowledged, “We all know how to create cell site location information.” Id. at 12 55:11-12. Such a “ruse,” as the government calls it, id. at 55:14, is far from fantasy. In Forest, for 13 example, the Sixth Circuit found Smith distinguishable where federal law enforcement repeatedly 14 dialed the defendant’s cell phone and used the resulting CSLI to track his whereabouts. 355 F.3d 15 at 947. In that case, the Sixth Circuit found that the defendant’s receipt of government calls was 16 not voluntary. Id. 17 The Third Circuit, in finding that Miller and Smith did not foreclose magistrate judges 18 from demanding a warrant supported by probable cause to obtain historical CSLI, concluded 19 likewise that mere receipt of phone calls is not a voluntary conveyance: 20 21 22 23 24 A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all. 25 Third Circuit Opinion, 620 F.3d at 317-18 (emphasis added) (brackets and internal quotation 26 marks omitted). It is one thing to say that cell phone users voluntarily convey the numbers they 27 28 33 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION