United States District Court Northern District of California Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page18 of 46 1 Circuit case, United States v. Carpenter, where the government obtained 23,034 cell site location 2 data points for one defendant over a period of eighty-eight days). Indeed, according to a survey 3 cited by the U.S. Supreme Court in Riley, “nearly three-quarters of smart phone users report being 4 within five feet of their phones most of the time, with 12% admitting that they even use their 5 phones in the shower.” 134 S. Ct. at 2490 (citing Harris Interactive, 2013 Mobile Consumer 6 Habits Study (June 2013)). 7 In finding a reasonable expectation of privacy in historical CSLI, the Court notes its 8 agreement with another judge in this district. In United States v. Cooper, No. 13-CR-00693-SI-1, 9 2015 WL 881578, at *8 (N.D. Cal. Mar. 2, 2015), Judge Illston observed that “many, if not most, 10 will find their cell phone quite literally attached to their hip throughout the day.” “All the while,” 11 Judge Illston continued, “these phones connect to cell towers, and thereby transmit enormous 12 amounts of data, detailing the phone-owner’s physical location any time he or she places or 13 receives a call or text.” Id. “However, there is no indication to the user that making [a] call will 14 also locate the [user].” Id. (internal quotation marks omitted) (quoting Third Circuit Opinion, 620 15 F.3d at 317). This Court agrees further with Judge Illston that an individual’s “reasonable 16 expectation of privacy in his or her location is especially acute when the call is made from a 17 constitutionally protected area, such as inside a home.” Id. Judge Illston’s reasoning is all the 18 more compelling when one considers that historical CSLI is also generated by passive activities 19 such as automatic pinging, continuously running applications (“apps”), and the receipt of calls and 20 text messages. Moreover, over a sixty-day period, as the government concedes, the government 21 would inevitably obtain CSLI generated from inside the home. Hr’g Tr. at 18:15-24. 22 Furthermore, the Public Defender and amici point to evidence that individuals harbor a 23 subjective expectation of privacy in the historical CSLI associated with their cell phones. For 24 example, EFF informs the Court that in a 2014 survey, the Pew Research Center (“Pew”) found 25 that 82% of American adults consider details of their physical location over time to be sensitive 26 information. EFF Br. at 2 (citing Pew Research Ctr., Public Perceptions of Privacy and Security 27 28 18 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION