Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page45 of 46 1 because “the phrase ‘only if’ describe[s] a necessary condition, not a sufficient condition” for 2 obtaining a § 2703(d) order. Id. at 316 (internal quotation marks omitted). The Third Circuit 3 explained: Adopting the example of the baseball playoffs and World Series, we noted that while a team may win the World Series only if it makes the playoffs[,] a team’s meeting the necessary condition of making the playoffs does not guarantee that the team will win the World Series. In contrast, winning the division is a sufficient condition for making the playoffs because a team that wins the division is ensured a spot in the playoffs and thus a team makes the playoffs if it wins its division. 4 5 6 7 8 Id. (citations, alterations, and internal quotation marks omitted). Because a showing of specific and articulable facts is a necessary, rather than a sufficient, 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 condition for obtaining a § 2703(d) order, magistrate judges have discretion to require a higher threshold where the Constitution so requires. See Third Circuit Opinion, 620 F.3d at 315 (agreeing that “the requirements of § 2703(d) merely provide a floor—the minimum showing required of the Government to obtain the information—and that magistrate judges do have discretion to require warrants”). The lesser showing of specific and articulable facts may well be sufficient to obtain stored electronic information under § 2703(d) that, unlike historical CSLI, does not raise constitutional privacy concerns. Here, however, where the information sought is historical CSLI, a warrant supported by probable cause is required, and the government is not foreclosed from proceeding under § 2703(d) so long as the probable cause standard is met. To avoid unnecessary confusion, though, the government should request historical CSLI under § 2703(c)(1)(A), which expressly mentions “a warrant issued using the procedures described in the Federal Rules of Criminal Procedure.” IV. CONCLUSION For the foregoing reasons, the Court hereby AFFIRMS Judge Lloyd’s denial of the government’s application for historical CSLI. 25 26 27 28 45 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION