[PUBLIC REDACTED VERSION]
Bеfore the Court is the government’s appeal of U.S. Magistrate Judge Howard R. Lloyd’s denial of an application for an order pursuant to 18 U.S.C. § 2703(d) authorizing the government to obtain historical cell site location information (“CSLI”) associated with [Redacted] target cell phones. ECF No. 4 (“Gov’t Br.”); ECF No. 5 (“Gov’t Supp. Br.”).
I. BACKGROUND
A. Cell Phone Technology and CSLI
Cell phones operate through the use.of radio waves. To facilitate cell phone use, cellular service providers maintain a network of radio base stations — also known as cell towers — throughout their coverage areas. See Electronic Communications Privacy Act (ECPA) (Part II): Geolocation Privacy and Surveillance, Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security, and Investigations, of the H. Comm, on the Judiciary, 113th Cong. 50 (2013) (written testimony of Prof. Matt Blaze, University of Pennsylvania) (“Blaze Testimony”), available at http:// www.judiciary.house.gov/index.cfm?a=
Whenever a cell phone makes or receives a call, sends or receives a text message, or otherwise sends or receives data, the phone connects via radio waves to an antenna on the closest cell tower, generating CSLI. The resulting CSLI includes the precise location of the cell tower and cell site serving the subject cell phone during each voice call, text message, or data connection. Luna ¶ 3A. If a cell phone moves away from the cell tower with which it started a call and closer to another cell tower, the phone connects seamlessly to that next tower. Blaze Testimony at 50.
Significantly, the government’s special agent from the Federal Bureau of Investigation (“FBI”) informs the Court that CSLI may be generated in the absence of user interaction with the cell phone. Luna Decl. ¶ 3B. For example, CSLI may still be generated during an incoming phone call that is not answered. Id. Additionally, most modern smartphones have applications that continually run in the background, sending and receiving data without a user having to interact with the cell phone. Id.
Indeed, cell phones, when turned on and not in airplane mode, are always scanning their network’s cellular environment. Luna Decl. ¶ 3B. In so doing, cell phones periodically identify themselves to the closest cell tower — i.e., the one with the strongest radio signal — as they move throughout their network’s coverage area. Blaze Testimony at 50, This process, known as “registration” or “pinging,” facilitates the making and receiving of calls, the sending and receiving of text messages, and the sending and receiving of cell phone data. See id. Pinging is automatic and occurs whenever the phone is on, without the user’s input or control. U.S. Dep’t of Homeland Sec., Lesson Plan: How Cell Phones Work 9 (2010) (“DHS Lesson Plan”), available at https://www. eff.org/files/filenode/3259_hpw_celL phones_work_lp.pdf. A cell phone that is switched on will ping the nearest tower every seven to nine minutes. Id. At oral argument, the Court was informed that at least some cellular service providers keep track of the CSLI generated by registration “pings.” Hr’g Tr. at 4:19-5:6.
As the number of cell phones has increased, the number of cell towers — and thus cell sites — has increased accordingly:
A sector can handle only a limited number of simultaneous call connections given the amount of radio spectrum “bandwidth” allocated to the wireless carrier. As the density of cellular users grows in a given area, the only way for a carrier to accommodate more customers is to divide the coverage area into smaller and smaller sectors, each served by its own base station and antenna. New services, such as 36 and LTE/46 Internet create additional pressure on the available spectrum bandwidth, usually requiring, again, that the area covered by each sector be made. smaller and smaller*.
In addition to the large, three-sided cell towers, smaller and smaller base stations are becoming increasingly common. Examples include microcells, picocells, and femtocells, all of which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home. Blaze Testimony at 43-44. This proliferation of base stations to cover smaller areas meаns that “knowing the identity of the base station (or sector ID) that handled a call is tantamount to knowing a phone’s location to within' a relatively small geographic area ... sometimes effectively identifying individual floors and rooms within buildings.” Id. at 55-56. Although the ability of cellular service providers to track a cell phone’s location within an area covered by a particular cell, site might vary, it has become ever more.possible for the government to use CSLI to calculate a cell phone user’s “locations with a precision that approaches that of GPS.” Id. at 53.
The government acknowledged as much at oral argument, conceding that CSLI has gotten more precise over the years. Hr’g Tr' at 32:5-9. The fact is new tools and techniques are continually being developed to track CSLI with greater precision. Cellular service providers, for instance, can triangulate the location of a cell phone within an area served by a particular cell site based on the strength, angle, and timing of that cell phone’s signal measured across multiple cell site locations. Blaze Testimony at 56,
Lastly, the volume of location data generated by an individuals’ cell phone can be immense, as the ACLU points out. See ACLU Br. at 5-7; ECF No. 19-1, Declaration of Nathan Freed Wessler (‘Wessler Deck”). For example, in United States v. Carpenter, a case now pending in the Sixth Circuit and arising out of the greater Detroit area, the government obtained 127 days of CSLI for one defendant, Timothy Carpenter, and 88 days of CSLI for another, Timothy Sanders. See United States v. Carpenter, No. 14-1572 (6th Cir. filed May 7, 2014). Carpenter’s data include 6,449 separate call records for which CSLI was logged, comprising 12,898 cell site location data points. See Wessler Deck ¶ 8. Sanders’s records reveal 11, 517 calls for which location information was logged, comprising 23,034 cell site location data points. Id. ¶ 9. Carpenter and Sanders, respectively, placed or received an average of 50.8 аnd 130.9 calls per day for which location data was recorded and later obtained by the government. Id. ¶ 10. For Carpenter, that amounts to an average of 102 location points per day, or one location point,every 14, minutes. ;For Sanders, it amounts to an average of 262 location points per day, or one location point every six minutes.
B. Statutory Framework
An application for historical CSLI is governed by- the Stored - Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., which was enacted in -1986 as Title II of the Electronic Communications Privacy Act (“ECPA”). The SCA covers the disclosure of communication information by providers of electronic communications, including cellular-service providers. Section. 2703(a) covers circumstances in which a government entity may require such pro
Instead, the government seeks what is referred to in § 2703(c) as “a record or other information pertaining to a subscriber to or customer of [a provider of electronic communication service],” a term that expressly excludes the contents of communications. 18 U.S.C. § 2703(c)(1). Although the SCA makes no mention of historical CSLI, there is no dispute that the historical CSLI sought by the government qualifies as a stored “record or other information pertaining to a subscriber ... or customer,” and therefore falls within the scope of § 2703(c)(1). As relevant here, § 2703(c) provides:
c) Records concerning electronic communication service or remote computing service.—
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity—
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of this section.
Id. § 2703(c)(l)(A)-(B) (emphases added).
In submitting its request to Judge Lloyd in this case, the government did not seek to obtain a warrant under § 2703(c)(1)(A). Rather, the government sought a court order under § 2703(d), as authorized by § 2703(c)(1)(B). The requirements for a court order under § 2703(d) are as follows:
(d) Requirements for court order.—
A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
18 U.S.C. § 2703(d) (emphasis added). The “specific and articulable facts” standard set forth in § 2703(d) requires a showing that is less than probable cause. See, e.g., United States v. Davis,
C. Government’s Application
The government’s application seeks historical CSLI associated with [Redacted] target cell phones for a period of sixty days prior to the date on which the application is granted. App. ¶¶ 1, 2a. According to the application, the requested CSLI includes “the physical location and/or address of the cellular tower and identification of the particular sector of the tower receiving the signal.” Id. ¶ 2a n.4. “This information,” the application says, “does not provide the specific or precise geographical coordinates of the [target cell phone],” nor does it include “the contents of communications.” Id. ¶ 2a & n.4. In addition, the application “does not seek” (1) CSLI “that might be available when the [target cell phones] are turned ‘on’ but a call is not in progress”; (2) information regarding the strength, angle, and timing of a target cell phone’s signal measured at two or more cell site locations “that would allow the government to triangulate” a target cell phone’s precise location; and (3) a target cell phone’s GPS information, “even if that technology is built in.” Id. ¶ 3 (footnote omitted). The application’s reference to a “call,” as the government confirmed at the hearing, includes phone calls, text messages, and data connections. Hr’g Tr. at 50:22-52:5. In sum, the government’s application seeks historical CSLI associated with [Redacted] target cell phones for a period of sixty days, and that CSLI may be generated whenever a phone Call is made or received, a text message is sent or received, or data is sent or received.
The cellular service providers for the [Redacted] target cell phones are Verizon Wireless (“Verizon”) and AT & T Wireless (“AT & T”). App. ¶ 1. The application also authorizes the government to obtain historical CSLI from any.One of dozens of other cellular service providers (e.g., Cellular One,, Sprint, and T-Mobile) that might have collected such information for any of the target cell phones. Id. ¶ 2. The application does so for two reasons. First, a provider other than Verizon or AT & T might have collected CSLI generated by one of the target cell phones if a target user switched providers during the sixty-day period but kept the same phone number, a feature .known as local number portr ability. Id. ¶2 n.2. Second, a provider other than Verizon or AT & T might have collected CSLI generated by one of the target cell phones if a target cell phone connected with the cell tower of that other provider over the course of the sixty-day period, an action known as “rpaming,” See ECF No. 26 Declaration of Public Defender Investigator Madeline Larsen (“Larsen Decl.”) ¶ 2c. Roaming occurs when there is a gap in the network of a cell phone’s provider and, as a result, the cell phone must connect to the cell tower of a different provider. See id. ¶¶ 2c, 4d (describing roaming on Verizon and AT & T networks)..
Both. Verizon and AT & T publish privacy policies telling their subscribers that location information is . collected and may be turned over to the government. Verizon informs its subscribers, “We collect information about your use of our products, services and sites. Information such as ... wireless location....” Verizon, Privacy Policy (updated June 2015) (“Verizon Policy”), available at http://www. verizon.com/about/privacy/policy/. “We may,” Verizon’s policy continues, “disclose information that individually identifies our customers or identifies customer devices in certain circumstances, such as: to comply with valid legal process including subpoenas, court orders or .search warrant.” Id. In addition, the Verizon policy states: “Personally identifiable and other sensitive
AT & T, for its part, tells subscribers that it will collect their “location information,” which includes “the whereabouts of your 'Wirеless device.” AT & T, Privacy Policy (effective Sept. 16, 2013) (“AT & T Policy”), available at http://www.att.com/ gen/privacy-policy?pid=2506. “Location information,” says AT & T’s policy, “is generated when your device communicates with cell towers, Wi-Fi routers or access points and/or' with other technologies, including the satellites that comprise the Global Positioning System.” Id, The AT & T policy states that AT & T “automatically collects] information” when'the user uses AT & T’s network, and that AT & T may provide this information to “government agencies” in order to “[c]omply with court orders.” Id. ' The policy also contains information concerning the accuracy of the “wireless location information” that AT & T collects and explains that AT & T “can locate your device based on the cell tower that’s serving you” up to 1,000 meters in urban areas and 10,000 meters in rural areas. Id. Neither policy indicates how much location data Verizon or AT & T collects] nor does either policy estimate how long each provider will retain that information.
D. Procedural History
The government has submitted, under seal, an application for an order pursuant to 18 U.S.C. '§§ 3122 and 3123 and 18 U.S.C. § 2703(d) seeking CSLI associated with [Redacted] target cell phones. See ECF No. 2 at 1. The application sought historical CSLI for sixty days'back from the date of the order, as well as prospective CSLI for sixty days going forward. See id. at 2, In support of its application to Judge Lloyd, the government submitted a letter brief on March 17,2015. ECF No. 1.
On April 9, 2015, Judge Lloyd issued a public order denying the government’s application. ECF No. 2. In that order, Judge Lloyd stated that he found “very persuasive” U.S. District Judge Susan Ill-ston’s analysis in United States v. Cooper, No. 13-CR-00693-SI-1,
On April 30, 2015, the government appealed Judge Lloyd’s order to the undersigned. Gov’t Br. at 9. The govеrnment elected to appeal Judge Lloyd’s denial of the application with respect to historical CSLI only. See id. at 1 (“The government appeals Judge Lloyd’s Order to this Court to the extent Judge , Lloyd denied the government historical cell site information.”); id. at 3 n.l (“As noted, however, the government is not appealing Judge Lloyd’s order to the extent it denied the government prospective cell site information.”). On May 7, 2015, the government filed a supplemental brief regarding the Eleventh Circuit’s en banc decision in United States v. Davis,
On June 12, 2015, the Public Defender filed its response to the government’s appeal. ECF No. 17. Three days later, the Public Defender filed an amended response. Opp. at 32. On June 5, 2015, the Court granted separate requests by the ACLU and EFF to file amicus briefs in support of the Public Defender. ECF Nos. 12, 13. On June 12, 2015, thé ACLU and EFF filed their amicus briefs. ACLU Br. at 18; EFF Br. at 13. On June 19, 2015, the government filed its reply. Gov’t Reply at 12. The Court held a hearing on this matter on June 24, 2015.
On June 25, 2015, the Court ordered supplemental briefing on the issue of whether cellular service providers ever retain historical CSLI when that CSLI is generated from a cell phone’s communications with the cell tower of another provider. ECF Nos. 24, 25. The government and the Public Defender respondеd separately with filings on June 29, 2015. See Larsen Deel.; ECF No. 29-1, Declaration of Assistant U.S. Attorney Jeff Schenk (“Schenk Deck”).
II. LEGAL STANDARD
The Court reviews de novo a magistrate, judge’s legal conclusions and reviews any underlying factual findings for clear error. See Quinn v. Robinson,
III. DISCUSSION
A. Fourth Amendment Principles
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Cell phones plainly qualify as “effects” under the meaning of the Fourth Amendment. See Oliver v. United States,
To determine whether a “search” has taken place such that the Fourth Amendment’s warrant requirement is triggered, courts employ the reasonable expectation of privacy test established in Katz v. United States,
B. Fourth Amendment “Search”
1. Reasonable Expectation of Privacy in Historical CSLI
Neither the U.S. Supreme Court nor the Ninth Circuit has squarely addressed whether cell phone users possess a reasonable expectation of privacy in the CSLI, historical or otherwise, associated with their cell phones. The closest the Ninth Circuit has come was to issue a warning several years back in an unpublished decision: “The government’s use at trial of [defendant’s] cell site location information raises important and troublesome privacy questions not yet addressed by this court.” United States v. Reyes,
Fortunately, the U.S. Supreme Court’s cases on electronic surveillance prove instructive. In United States v. Knotts, the U.S. Supreme Court first applied the Katz test to electronic surveillance, holding that the Fourth Amendment was not violated when the government used a beeper to track a vehicle’s movements on public roads.
Most recently, in United States v. Jones, five Justices of the U.S. Supreme Court concluded that prolonged electronic location monitoring by the government, even when limited to public places, infringes on a legitimate expectation of privacy in violation of the Fourth Amendment. — U.S. -,
The five Justices who did engage in a Katz analysis concluded that the government’s actions in tracking the car’s location over twenty-eight days violated the Fourth Amendment. Jones,
Justice Sotomayor agreed with her four colleagues that prolonged electronic surveillance would violate the Fourth Amendment. Jones, 132. S.Ct. at 955 (Sotomayor, J., concurring).
Two years later, the U.S. Supreme Court cited- Justice Sotomayor’s concurrence in Jones with approvаl in holding that police must obtain a warrant to search the contents of an arrestee’s cell phone. Riley v. California, — U.S. -,
Based on the preceding U.S. Supreme Court cases, the following principles are manifest:. (1) an individual’s expectation of privacy is at its pinnacle when government surveillance, intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3). location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an in
Here, as in Jones, the government seeks permission to track the movement of individuals — -without a warrant — over an extended period of time and by electronic means. CSLI, like GPS, can provide the government with a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Riley,
In fact, the information the government seeks here is arguably more invasive of an individual’s expectation of privacy than the GPS device attached to the defendant’s car in Jones. This is so for two reasons. First, as the government conceded at the hearing, over, the course of sixty days an individual will invariably enter constitutionally protected areas, such as private residences. Hr’g Tr. at 18:15-24. Tracking a person’s movements inside the home matters Lоr Fourth Amendment purposes because “private residences are places in which the individual normally expects privacy free of governmental intrusion pot authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” Karo,
Second, the government conceded at oral argument that, compared to GPS tracking of a car, the government will “get more information, more data points, on the cell phone” via historical CSLI. Hr’g Tr. at 29:8-9; see also id. at 29:19-21 (“But, yes, of course the person has the phone more than they- have their car, most people at least do, so it gives [the government] more data.”). Cell phones generate far more location data because, unlike the vehicle in Jones, cell phones typically accompany the user wherever she goes. See Wessler
In finding a reasonable expectation of privacy in historical CSLI, the Court notes its agreement with another judge in this district. In United States v. Cooper, No. 13-CR-00693-SI-1,
Furthermore, the Public Defender and amici point to evidence that individuals harbor a subjective expectation of privacy in the historical CSLI associated with their cell phones. For example, EFF informs the Court that in a 2014 survey, the Pew Research Center (“Pew”) found that 82% of American adults consider details of their physical location over time to be sensitive information. EFF Br. at 2 (citing Pew Research Ctr., Public Perceptions of Privacy and Security in the Post-Snowden Era 32 (2014), available at http://www. pewinternet.org/fiIes/2014/ll/PI_Public PerceptionsofPrivacy_111214.pdf). This figure is higher than the percentage of individuals surveyed who consider their relationship history, religious or political views, or the content of their text messages to be sensitive. Id. at 2-3. In a 2012 survey, Pew found that smartphone owners typically take precautions to protect access to their mobile data, with nearly one-third of them responding that they had turned off the location tracking featurе on their phone due to concerns over who might access that information. See Jan Lauren Boyles et al., Pew Research Internet & Am. Life Project, Privacy and Data Management on Mobile Devices 3-4, 8 (2012), available at http://www. pewinternet.Org/~/media//Files/Reports/ 2012/PIP_Mobile PrivacyManagementpdf. Further, a 2013 survey conducted on behalf of the Internet company TRUSTe found that 69% of American smart phone users did not like the idea of being tracked. David Deasy, TRUSTe Study Reveals Smartphone Users More Concerned About Mobile Privacy Than Brand or Screen Size, TRUSTe Blog (Sept. 5, 2013), http://www.truste.com/blog/2013/09/ 05/truste-study-reveals-smartphone-users-more-concerned-about-mobile-privacy-than-brand-or-screen-size/. The govern
This survey data is all the more salient because cell phone users who take affirmative measures to protect their location information may still generate CSLI that the government can obtain. EFF cites Pew surveys from 2012 showing that 30% of all smart phone owners turned off location tracking on their phones while “46% of teenagers turned location services off.” EFF Br. at 3. Turning off location services, however, does not preclude CSLI from being generated. As the ACLU explains, “many smartphones include a location privacy setting that, when enabled, prevents applications from accessing the phone’s location. But this setting has no impact upon carriers’ ability to learn the cell sector in use.” ACLU Br. at 13. In other words, even though a user may demonstrate a subjective expectation of privacy by disabling an app’s location identification features, that user’s cell phone will still generate CSLI whenever the phone makes or receives a call, sends or receives a text, sends or receives data, or merely “checks in” with a nearby cell tower.
What is more, society’s expectation of privacy in historical CSLI is evidenced by the myriad state statutes and cases suggesting thаt cell phone users “can claim a justifiable, a reasonable, or a legitimate expectation of privacy” in this kind of information. Knotts,
Outside of California, the high courts of Florida, Massachusetts and New Jersey have all recognized a reasonable expectation of privacy in CSLI. See Tracey v. State,
Six more states have legislated privacy protections for historical CSLI. Colorado, Maine, Minnesota, Montana, Tennessee, and Utah have passed statutes expressly requiring law enforcement to apply for a search warrant to obtain this data. See Colo.Rev.Stat. § 16-3303.5(2); Me.Rev. Stat. tit. 16, § 648; Minn.Stat. §§ 626A.28(3)(d), 626A.42(2); Mont.Code Ann. § 46-5-110(1)(a); Tenn.Code Ann. § 39-13-610(b); Utah Code Ann. § 77-23c-102(l)(a). In Utah, for example, “a government entity maynot obtain the location information ... of an electronic device without a search -warrant issued by a court upon probable cause,” subject to a handful of exceptions. Utah Code Ann. § 77-23c-102(1)(a). At least six additional states— Illinois, Indiana, Maryland, Virginia, Washington, and Wisconsin — have passed laws requiring police to obtain a search warrant to .track a cell phone, in real time. See 725 Ill. Comp. Stat. 168/10; Ind.Code § 35-33-5-12; Md.Code Ann., Crim. Proc. § 1-203.1; Va.Code Ann. 19.256.2; Wash. Rev.Code 9.73.260; Wis. Stat. § 968.373(2). Indiana, for instance, generally bars government .tracking of cell phones in real time unless law enforcement “has obtained an order issued by a court based upon a finding of probable cause to use the tracking instrument.” Ind.Code § 35-33-5-12(a).
For all the foregoing reasons, the Court concludes that cell phone users have an expectation of privacy in the historical CSLI associated with their cell phоnes, and. that society is prepared to recognize that expectation as objectively reasonable. Cell phone users do not expect that law enforcement will- be able to track their movements 24/7 for a sixty-day period simply because the users keep their cell phones turned on. That expectation, the Court finds, is eminently reasonable. -
2. Third-Party Doctrine
The Court now addresses whether the so-called “third-party doctrine” destroys cell phone users’ reasonable expectation of privacy in the historical CSLI associated with their cell phones. The government argues that the third-party doctrine established by the U.S. Supreme Court in cases like United States v. Miller,
As Miller and Smith make clear, the third-party doctrine applies when an individual has “voluntarily conveyed” to a third party the information that the government later obtains. In 1976, the U.S. Supreme Court in Miller held that an individual making a deposit at a bank had no expectation of privacy in records of transactions that were held by the bank.
Three years later, in 1979, the U.S. Supreme Court in Smith held that the government’s use of a pen register over a period of three days to capture the numbers dialed from a home landline telephone was not a search under the Fourth Amendment.
Cell phone users, by contrast, do not “voluntarily convey” their location to the cellular service provider in the manner contemplated by Miller and Smith. This is especially true when historical CSLI is generated just because the cell phone is on, such as when cell phone apps are sending and receiving data in the background or when the cell рhone is “pinging” a nearby cell tower. As the government’s FBI special agent explained, “CSLI for a cellular telephone may still be generated in the absence of user interaction with a cellular telephone.” Luna Deck ¶ 3B. “For example,” the special agent continued, CSLI may be generated by “applications that continually run in the background that send and receive data (e.g. email applications).” Id. At oral argument, the government confirmed that its § 2703(d) application authorizes the government to obtain historical CSLI generated by such activities. See Hr’g Tr. at 51:4-5.
In Miller and Smith, the individual knew with certainty the information that was being conveyed and the third party to which the conveyance was made. Cell phone users, on the other hand, enjoy far less certainty with respect to CSLI. CSLI, in contrast to deposit slips or digits on a telephone, is neither tangible nor visible to a cell phone user. When the telephone user in Smith received his monthly bill from the phone company, the numbers he dialed would appear. See
Roaming poses an additional problem. As stated previously, roaming occurs when there is a gap in the network of a cell phone’s provider and, as a result, the cell phone must connect to the cell tower of a different provider. See Larsen Decl. ¶¶ 2c, 4d (discussing roaming). Typically, a cell phone user does not know when her phone is roaming onto another provider’s network, much less the name of the other
In light of the foregoing, the Court concludes that historical CSLI generated via continuously operating apps or automatic pinging does not amount to a voluntary conveyance of the user’s location twenty-four hours a day for sixty days. Such data, it is clear, may be generated with far less intent, awareness, or affirmative conduct on the part of the user than what was at issue in Miller and Smith. Unlike the depositor in Miller who affirmatively conveyed checks and deposit slips to the bank, or the telephone user in Smith who affirmatively dialed the numbers recorded by the pen register,, a cell phone user may generate historical CSLI simply because her phone is on and without committing any .affirmative act or knowledge that CSLI is being generated. Smith, for example, never contemplated the disclosure of information while the landline telephone was not even in use.
This sort of passive generation of CSLI does not amount to a voluntary conveyance under the third-party doctrine'. The Ninth Circuit has distinguished information “passively conveyed through third party equipment” from information “voluntarily turned over” to a third party, the latter of which is governed by the third-party doctrine. United States v. Forrester,
Other courts have taken a similar view. The Third Circuit, for example, rejected the government’s argument that Miller and Smith, precluded magistrate judges from requiring a warrant supported by probable cause to obtain historical CSLI. Third Circuit Opinion,
Furthermore, the mere fact that historical CSLI is a record maintained by a cellular service provider, and not kept by the user, does not'defeat the user’s expectation of privacy in what that information reveals — namely, the user’s location at any moment hér cell phone communicates with a cell tower. As the Ninth Circuit has explained, “it is clear that neither ownership nor possession is a necessary or sufficient determinant of the legitimacy of one’s expectation of privacy.” DeMassa v. Nunez,
Indeed, in Ferguson v. City of Charleston,
Importantly, the Court is not holding that Miller and Smith áre no longer good law. Only the U.S. Supreme Court may do so.
b. The Factual Record Before the Fifth and Eleventh Circuits Did Not Include Continually Running Apps and Automatic Pinging
This conclusion is not at odds with the decisions of the Fifth and Eleventh Circuits because the factual record in those cases was mаterially different. Both cases involved technology from 2010 and were expressly limited to instances where a cell phone user was either making or receiving a call. The Fifth Circuit, for example, held that Smith controlled the analysis because a cell phone user “understands that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call,” and therefore “voluntarily conveys his cell site data each time he makes a call.” Fifth Circuit Opinion,
Similarly, the Eleventh Circuit en banc held that the “longstanding third-party doctrine plainly controls the disposition of this case” becausé “[c]ell phone users voluntarily' convey cell tower location information to telephone companies in the course of making and receiving calls on their cell phones.” Davis,
Neither circuit, however, had occasion to address whether a cell phone user voluntarily conveys her location to a cellular service provider when the historical CSLI is generated, by continuously operating apps or automatic pinging. The Fifth Circuit’s decision only contemplated instances where the cell phone user “makes a call.” Fifth Circuit Opinion,
The Fifth Circuit’s. analysis may also have been so limited because the government’s application for historical CSLI was filed in 2010. Fifth Circuit Opinion,
Further, the Eleventh Circuit, just like the Fifth Circuit, “limit[ed] its decision to the world (and technology) as we knew it in 2010.” Davis,
It is clear, then, that the factual record before this Court is distinct. It is not the case here that “the signal [to a cell tower] only happens when a user makes or receives a call.” Davis,
Nor is it the case here that “[u]sers are aware that cell phones do not work when they are outside the range of the provider company’s cell tower network.” Davis,
These twin factual distinctions — (1) that historical CSLI may be generated by continually running apps and automatic pinging; and (2) that historical CSLI may be recorded and turned over to the government by any number of cellular service providers other than the cell phone user’s — are essential to the Court’s finding of no voluntary conveyance. As the Fifth Circuit and the Eleventh Circuit had no occasion to consider them, those decisions do not undermine the Court’s conclusion that the third-party doctrine does not govern the facts here.
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 apps or routine pinging is not a voluntary conveyance by the cell phone user in the way Miller and Smith demand. This showing, on its own, is sufficient for the Court to conclude that the third-party doctrine does not defeat a cell phone user’s reasonable expectation of privacy in the historical CSLI associated with her cell phone.
Nonetheless, the Court also finds that the passive receipt of calls and text messages does not amount to a voluntary conveyance under the meaning of Miller and Smith. In Miller, the bank patron affirmatively conveyed checks and deposit slips to the bank.
At the hearing the government appeared to recognize that generation of CSLI via passive receipt of calls or texts involves less affirmative conduct than what was at issue in Miller and Smith: “It certainly feels like it’s a different affirmative act by the person holding the phone if they can be called and, as a result, all this data is created, as opposed to them making the affirmative act of calling.” Hr’g Tr. at 39:16-19. The government agreed with the Court, moreover, that “there’s nothing to prevent ... the creation, potentially, of
The Third Circuit, in finding that Miller and Smith did not foreclose magistrate judges from demanding a warrant supported by probable cause to obtain historical CSLI, concluded likewise that mere receipt of phone calls is not a voluntary conveyance:
A cell phone customer has-not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the ÉFF notes, it is unlikely that cell phone customers are award 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.
Third Circuit Opinion,
The Fifth Circuit did not directly address receipt of phone calls, despite quoting from the Third Circuit’s opinion. See Fifth Circuit Opinion,
For the reasons stated above, the Court finds that the Third Circuit has the better of the argument: “when a cell phone user receives a call [or text], he hasn’t voluntarily exposed anything at all.” Third Circuit Opinion,
d. Discarding or Turning Off Cell Phones Is Not a Viable Alternative
Faced with the Court’s concerns over the acquisition of historical CSLI generated by passive conduct, the government offered an alternative: people need not carry a cell phone in the first place or they may keep it turned off. Hr’g Tr. at 17:11-18:13. This cannot be right. Individuals cannot be compelled to choose between maintaining their Fourth Amendment right to privacy in their location and using a device that has become so integral to functioning in today’s society that the U.S. Supreme Court once quipped “the proverbial visitor from Mars might conclude [it was] an important feature of human anatomy.” Riley,
For many, cell phones are not a luxury good; they are an essential part of living in modern society. As the U.S. Supreme Court stated in City of Ontario v. Quon,
Consequently, the Court agrees wholeheartedly with the Florida Supreme Court: “Requiring a cell phone user to turn off the cell phone just to assure privacy from governmental intrusion that can reveal a detailed and intimate picture of the user’s life places an unreasonable burden on the user to forego [sic] necessary use of his cell phone, a device now considered essential by much of the populace.” Tracey,
e. Conclusion
For these reasons, the Cоurt concludes that the third-party doctrine established in Miller and Smith does not defeat cell phone users’ reasonable expectation of privacy in the historical CSLI associated with their cell phones. The government therefore conducts a “search” within the meaning of the Fourth Amendment when it asks cellular service providers to release that information pursuant to 18 U.S.C. § 2703.
C. Exceptions to the Warrant Requirement
Where, as here, “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing,” the Fourth Amendment “generally requires the obtaining of a judicial warrant.” Riley,
The only exception to the warrant requirement advanced by the government here is consent. It is well established that the government need not obtain a warrant when it has the consent of the individual whose person or property is to be searched. See Karo,
The question here, then, is whether cell phone users have consented to the government’s acquisition of the historical CSLI associated with their cell phones. Undoubtedly, this question bears some relation to the issue of voluntariness discussed in Part III.B.2, supra. The Court’s focus here, however, will be on the privacy policies issued by the cellular service providers of the target cell phones identified in the government’s appliсation: Verizon and AT & T. The mere existence of a privacy policy, the Court notes, does not dispose of the consent inquiry for Fourth Amendment purposes. In City of Ontario v. Quon, for example, the U.S. Supreme Court assumed that a police officer “had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City,” even though the department “made it clear that pager messages were not considered private” and “[t]he City’s Computer Policy stated that ‘users should have no expectation of privacy or confidentiality when using’ City computers,” including pagers.
Of primary concern to the Court is the fact that subscribers of Verizon and AT & T cannot possibly have consented to the government’s acquisition of CSLI generated by their cell phones but collected by an entirely different provider. There are at least two reasons why another provider
As to roaming, which neither the Fifth Circuit nor the Eleventh Circuit. addressed, the record before this Court indicates that “Verizon does retain CSLI for phone numbers belonging to other providers when those phones connect to Verizon towers.” Larsen Decl. ¶ 2c. The same is true for AT & T, which “can determine whether [a] number [that is not an AT & T number] roamed on its system or called one of its customers and, if so, it can provide details of that usage, including CSLI.”
What is more, the government says that, based on the language of the application, it “need not seek a new application” in order to obtain historical CSLI associated with a target cell phone from any of the dozens of other cellular service providers listed in the application. Schenk Decl. ¶ la. This is true whether the government’s basis for requesting historical CSLI from a separate provider is local number portability or roaming. See id.; App. ¶2 & n.2. The government’s application therefore authorizes the government to obtain CSLI from a plethora of other cellular service providers, such as; Cellular One, Sprint, and T-Mobile, to whom the target cell phone users could not possibly have provided their consent.
In fact, when the Court requested that the government provide “the most recent privacy policies for each Telephone Service Provider listed in the government’s application,” ECF No. 24, the government’s response illustrated the implausibility ■ of usеr consent:
If in its Order for Supplemental Filings, this Court is seeking the most recent privacy policies for each Telephone Service Provider listed in the government’s application, rather than the privacy policies for each Telephone Service Provider for each of the Target Devices, that request is nearly ivithout bound, essentially requiring the privacy policies for every service provider in the country. Therefore, if the Court, in fact, wants*1038 the privacy policies for any and all telephone service providers, the government requests additional time to comply with this request, assuming compliance is possible.
EOF No. 29 at 2 (emphases added). How is it, then, that a cell phone user has consented, to government acquisition of CSLI when, to do so, she would have had to read the privacy policy of “every service provider in the country,”.a task the government itself admits might not even be “possible”?
As for the privacy policies submitted by the government, the Court finds that they are sufficiently vague as to the nature and scope of the CSLI sought that subscribers cannot be said to have consented to that information’s release to the government. Verizon’s policy is especially vague. Verizon tells its subscribers, “We collect information about your use of our products, services and sites. Information such as ... wireless location____” Verizon Policy. “We may,” Verizon says, “disclose information that individually identifies our customers or identifies customer devices in certain circumstances, such as: to comply with valid legal process including subpoenas, court orders or search warrant.”
AT & T’s policy fares no better; AT & T informs its subscribers that it will collect their “location information,” which includes “the whereabouts of your wireless device.” AT & T Policy. “Location information,” AT & T’s policy continues, “is generated when your device communicates with cell towers, Wi-Fi routers or access points and/or with other technologies, including the satellites that’ comprise the Global Po-sitionihg System.” Id. The AT & T policy tells subscribers that AT & T “automatically collectfs] information” when they “use oúr network,” and that AT & T.may provide this information to “government agencies” in order to “[cjomply with court orders.” Id. The policy also contains information regarding the accuracy of the “wireless location information” that AT & T collects, explaining that AT & T “can locate your device based on the cell tower that’s serving you” up to 1,000 meters in urban areas and 10,000 meters in rural areas. Id.
In addition, nowhere does the Verizon or AT & T privacy policy indicate the volume of location data that is likely to be collected and stored by the provider. There is no estimate, for example, of the number of location data points a typical user will generate over the course of an hour, day, week, month, or-year. This omission is especially problematic considering that the sheer volume of CSLI generated by a user’s cell phone сan be staggering. See Wessler Decl. ¶¶ 810. In Davis, for instance, the government obtained the defendant’s CSLI for a period of sixty-seven days. “During that time, Davis made or received 5,803 phone calls, so the prosecution had 11,606 data points about Mr. Davis’s location.” Davis,
In light of the foregoing, the Court cannot conclude that cell phone users generally — or in this instance — consent through the privacy policies of their cellular service providers to the government’s- warrantless acquisition of the historical CSLI associated with the users’ cell phones. Because the government offers no other basis for its conduct to be excepted from the Fourth Amendment’s warrant requirement, the Court holds.that the government must, pursuant to Rule 41 of the Federal .Rules of Criminal Procedure, secure a warrant supported by probable cause in order to obtain a cell phone user’s historical CSLI.
This requirement does not impose an-undue burden on the government. Indeed, the SCA expressly contemplates that the government may need to “obtainf ] a warrant issued using the procedures described in the Federal Rules of Criminal Procedure” in order to acquire “a record or other information pertaining -to a subscriber to or customer of [a provider of electronic communication service].” 18 U.S.C. § 2703(c)(1)(A). Further, although requiring a warrant for historical CSLI will Surely have an impact on law enforcement practices, .this requirement “is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow weighed against the claims of police efficiency.’” Riley,
Finally, the Court does not hold that the government may never obtain historical CSLI without a warrant supported by probable cause. It may be that “other case-specific exceptions,” such as exigent circumstances, would “still justify a war-rantless search” for historical CSLI. Riley,
D. Remedy
Having found that the Fourth Amendment generally requires that the govern-: ment obtain a warrant supported by probable cause before acquiring a cell phone user’s historical CSLI from a cellular service provider, the Court must address whether such a conclusion renders any part of the SCA unconstitutional. The Court holds that it does not.
The Court agrees with Judge 111-ston that “the SCA makes no mention of cell site data, but rather speaks in general terms of ‘records concerning electronic communication.’ ” Cooper,
As stated earlier, the SCA provides, in relevant part:
c) Records concerning electronic communication service or remote computing service.—
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of this section.
18 U.S.C. § 2703(c)(l)(A)-(B) (emphases added). Subsection (d), referred to in § 2703(c)(1)(B), provides further:
(d) Requirements for court order.—
A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance*1041 with such order otherwise would cause an undue burden on such provider.
Id. § 2703(d) (emphasis added).
In short, the government has two basic options for obtaining “a record or other information pertaining to a subscriber to or customer of [a provider of electronic communication service],” such as historical CSLI. 18 U.S.C. § 2703(c)(1). Those options are: (1) a search warrant supported by probable cause, id. § 2703(c)(1)(A); or (2) a court order under § 2703(d) based on specific and articulable facts showing that the information sought is relevant and material to an ongoing criminal investigation, id. § 2703(c)(1)(B). It is less than clear why Congress created two different paths. Perhaps, as Judge Llоyd suggests, Congress did so out of “recognition that some information should be accorded a higher level of protection from disclosure than other information.” ECF No. 2 at 4. In any event, all the Court holds today is that when the government seeks to obtain historical CSLI from a cellular service provider, the Fourth Amendment requires that the government obtain a warrant. To do so, the government need only follow the procedures already outlined in § 2703(c)(1)(A).
The language of § 2703(d) is not to the contrary. Section 2703(d) provides that a “court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if’ the specific and articulable facts standard is' met. 18 U.S.C. § 2703(d) (emphases added). If, as the government contends, the language of § 2703(d) requires a magistrate judge to issue a court order so long as the government has met the specific and articulable facts standard, a standard lower than probable cause, then § 2703(d) of the SCA would be unconstitutional as applied to historical CSLI. See Gov’t Reply at 12.
This Court, however, finds that the Third Circuit’s interpretation of § 2703(d) is an acceptable construction of the provision such" that it need not be invalidated. See Third Circuit Opinion,
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.
Id. (citations, alterations, and internal quotation marks omitted).
Because a showing of specific and articulable facts is a necessary, rather than a sufficient, 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,
IV. CONCLUSION
For the foregoing reasons, the Court hereby AFFIRMS Judge Lloyd’s denial of the government’s application for historical CSLI.
IT IS SO ORDERED.
Notes
. The government does not appeal Judge Lloyd’s ruling to the extent he denied the government’s application for prospective CSLI. See Gov't Br. at 1. The Court’s analysis is therefore confined to historical CSLI only.
.' The original panel opinion, authored by D.C. Circuit Judge David Bryan Sentelle sitting by designation, unanimously held that "cell site location information is within the subscriber’s' reasonable expectation of privacy” such that ”[t]he obtaining of that data without a warrant is a Fourth Amendment violation.” United States v. Davis, 754 F.3d
. A "search” also occurs for Fourth Amendment purposes "[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects.” Florida v. Jardines, — U.S. -,
. Justice Sotomayor also signed on to the majority’s trespass-based holding. Jones, 132
. Verizon and Sprint utilize "the same land of system; so Sprint phones can connect to Verizon towers and vice versa." Larsen Decl. Í3a.
. In finding that cell phone users do not voluntarily convey historical CSLI to cellular service providers, the Third Circuit agreed with the opinion of U.S. Magistrate Judge Lisa Pupo Lenihan, the Magistrate Judge below. See In re U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov't,
. The Ferguson majority made no mention of the third-party doctrine, an omission underscored by Justice Scalia in dissent.,
. The Court notes that in her concurrence in Jones, Justice Sotomayor wrote that Miller and Smith, two cases decided in the 1970s, were "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
. That Smith involved & home landline telephone is of no moment. Regardless of the 'petitioner’s location, thé Smith Court found, "his conduct was not and could not have been
. The cellular service provider in Davis also did not record "any data at all for text messages sent or received.”
. The record also shows that “Sprint and Verizon have a roaming contract” whereby "Verizon sends a report of all roaming activity to Sprint’s billing department.” Larsen Decl, ¶ 3c. Sprint then bills its subscriber for roaming charges, but the subscriber's "bill does not contain CSLI.” Id.
. The mere mention of "court orders” in a privacy policy cannot provide a basis for consent. As the Verizon policy makes clear, cell phone users at most can consent to "valid” court orders — i.e., those that are not constitutionally infirm.
. , The Fifth Circuit’s brief analysis of privacy policies was limited to instances where cell phone. users are making phone calls. See Fifth Circuit Opinion,