Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page34 of 46 1 dial to the cellular service provider so that a call may be connected. Smith, though involving a 2 home landline telephone, says as much. From that premise, however, it does not follow that cell 3 phone users also voluntarily convey their location merely by possessing a cell phone that is 4 capable of receiving calls and texts without warning and at any time of day. Other district courts 5 have taken the same view. See, e.g., Cooper, 2015 WL 881578, at *8 (agreeing with the Third 6 Circuit that “when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all” 7 (internal quotation marks omitted)). 8 United States District Court Northern District of California 9 The Fifth Circuit did not directly address receipt of phone calls, despite quoting from the Third Circuit’s opinion. See Fifth Circuit Opinion, 724 F.3d at 613-14 (discussing voluntary 10 conveyance when a cell phone user “makes a call” only). For its part, the Eleventh Circuit opted 11 to combine making and receiving calls in its analysis. See Davis, 785 F.3d at 512 n.12 (“Cell 12 phone users voluntarily convey cell tower location information to telephone companies in the 13 course of making and receiving calls on their cell phones. Just as in Smith, users could not 14 complete their calls without necessarily exposing this information to the equipment of third-party 15 service providers.” (emphasis added)). Neither opinion, as indicated above, addressed receipt of 16 text messages. See supra note 10. 17 For the reasons stated above, the Court finds that the Third Circuit has the better of the 18 argument: “when a cell phone user receives a call [or text], he hasn’t voluntarily exposed anything 19 at all.” Third Circuit Opinion, 620 F.3d at 317-18 (internal quotation marks omitted). Unlike the 20 bank depositor in Miller or the telephone dialer in Smith, a cell phone user receiving an 21 unanswered call or an unsolicited text has committed no affirmative act. She has done nothing 22 more than leave her phone on. 23 Accordingly, the Court finds that Miller and Smith do not control the analysis here for the 24 additional reason that the generation of historical CSLI via passive receipt of phone calls and text 25 messages is not a voluntary conveyance by the cell phone user in the way those cases require. 26 Where, as here, an individual has not voluntarily conveyed information to a third party, her 27 28 34 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION