                       ON REHEARING EN BANC

                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4659


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

AARON GRAHAM,

                Defendant - Appellant.

------------------------------------

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG;
DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF
AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND,

                Amici Supporting Appellant.



                            No. 12-4825


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.
ERIC JORDAN,

                Defendant - Appellant.

------------------------------------

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; DOWNSIZEDC.ORG; DOWNSIZE
DC FOUNDATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION;  INSTITUTE  ON   THE  CONSTITUTION;  REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION,

                Amici Supporting Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2)


Argued:   March 23, 2016                      Decided:   May 31, 2016


Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.


Affirmed by published opinion.   Judge Motz wrote the majority
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Niemeyer, King, Gregory, Shedd, Duncan, Agee, Keenan, Diaz and
Harris joined.    Judge Wilkinson wrote a separate concurring
opinion. Judge Wynn wrote a dissenting opinion in which Judges
Floyd and Thacker joined.


ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER,  Greenbelt,   Maryland,   for  Appellants.     Rod  J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.   ON BRIEF:   James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Aaron Graham; Ruth Vernet, RUTH J.

                                 2
VERNET, ESQ., LLC, Rockville, Maryland, for Appellant Eric
Jordan.   Nathan Judish, Computer Crime & Intellectual Property
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Sujit Raman, Chief of Appeals, Greenbelt, Maryland, Benjamin M.
Block, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.       Nathan
Freed Wessler, Catherine Crump, Ben Wizner, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York; David R. Rocah,
AMERICAN   CIVIL   LIBERTIES  UNION   FOUNDATION  OF   MARYLAND,
Baltimore, Maryland; Kevin S. Bankston, Gregory T. Nojeim,
CENTER FOR DEMOCRACY & TECHNOLOGY, Washington, D.C.; Thomas K.
Maher, Vice-Chair, 4th Circuit Amicus Committee, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Durham, North Carolina;
Hanni Fakhoury, ELECTRONIC FRONTIER FOUNDATION, San Francisco,
California, for Amici American Civil Liberties Union Foundation,
American Civil Liberties Union Foundation of Maryland, Center
for Democracy & Technology, Electronic Frontier Foundation, and
National Association of Criminal Defense Lawyers.        Michael
Connelly, Ramona, California, for Amicus United States Justice
Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson,
Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia,
for Amici DownsizeDC.org, Downsize DC Foundation, United States
Justice Foundation, Gun Owners of America, Inc., Gun Owners
Foundation, Conservative Legal Defense and Education Fund, and
Institute on the Constitution.    Bruce D. Brown, Gregg Leslie,
Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, Washington, D.C., for Amicus Reporters Committee for
Freedom of the Press.




                               3
DIANA GRIBBON MOTZ, Circuit Judge:

       In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a

panel of this court affirmed the convictions of Defendants Aaron

Graham and Eric Jordan arising from their participation in a

series of armed robberies.              The panel opinion sets out the facts

of this case in great detail.                    Id. at 339-43.              The only facts

now    relevant         concern     the         portion        of      the     Government’s

investigation       during      which      it    obtained        historical         cell-site

location     information          (CSLI)         from        Defendants’        cell     phone

provider.        This historical CSLI indicated which cell tower --

usually    the    one    closest    to     the     cell       phone    --     transmitted     a

signal when the Defendants used their cell phones to make and

receive calls and texts.                The Government used the historical

CSLI at Defendants’ trial to place them in the vicinity of the

armed robberies when the robberies had occurred.

       A majority of the panel held that, although the Government

acted in good faith in doing so, it had violated Defendants’

Fourth    Amendment      rights     when    it     obtained         the     CSLI    without   a

warrant.     The majority directed that henceforth the Government

must     secure    a     warrant    supported           by     probable       cause    before

obtaining     these       records    from        cell        phone     providers.         The

Government       moved    for     rehearing       en     banc,        which    we     granted,

vacating the panel opinion.              See United States v. Graham, 624 F.

App’x 75 (4th Cir. 2015); 4th Cir. R. 35(c).                              We now hold that

                                             4
the Government’s acquisition of historical CSLI from Defendants’

cell phone provider did not violate the Fourth Amendment. 1

       Supreme Court precedent mandates this conclusion.                          For the

Court       has   long    held    that       an   individual      enjoys    no     Fourth

Amendment protection “in information he voluntarily turns over

to [a] third part[y].”            Smith v. Maryland, 442 U.S. 735, 743-44

(1979).       This rule -- the third-party doctrine -- applies even

when       “the   information     is    revealed”       to   a   third   party,       as   it

assertedly was here, “on the assumption that it will be used

only for a limited purpose and the confidence placed in the

third party will not be betrayed.”                 United States v. Miller, 425

U.S.       435,   443   (1976).        All   of   our    sister    circuits      to    have


       1
       We reinstate the affirmance of Defendants’ convictions and
sentences and adopt the panel opinion with respect to all issues
not addressed in this opinion. We note that, after en banc oral
argument, Defendants moved to file supplemental briefing on a
new claim, based on Johnson v. United States, 135 S. Ct. 2551,
2554 (2015).     Defendants argued, for the first time, that
Johnson’s holding rendering 18 U.S.C. § 924(e) void for
vagueness also renders void different language in § 924(c). We
denied the motion as untimely. Even if we were to consider
Defendants’ late claim, however, it would not survive plain
error review.    United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013) (“An error is plain ‘if the settled law of the
Supreme Court or this circuit establishes that an error has
occurred.’”). This court has not yet addressed this claim, and
our sister circuits have divided on the issue.     Compare United
States v. Vivas–Ceja, 808 F.3d 719, 723 (7th Cir. 2015)
(applying Johnson to find language identical to § 924(c) void
for vagueness), and Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th
Cir. 2015) (same), with United States v. Taylor, 814 F.3d 340,
375-79 (6th Cir. 2016) (declining to find § 924(c) void for
vagueness after Johnson).


                                              5
considered the question have held, as we do today, that the

government does not violate the Fourth Amendment when it obtains

historical CSLI from a service provider without a warrant.                                 In

addition      to      disregarding         precedent,         Defendants’         contrary

arguments misunderstand the nature of CSLI, improperly attempt

to   redefine      the    third-party       doctrine,       and    blur    the    critical

distinction between content and non-content information.

      The     Supreme      Court     may    in    the    future      limit,       or     even

eliminate,      the      third-party       doctrine.          Congress     may     act    to

require a warrant for CSLI.                But without a change in controlling

law, we cannot conclude that the Government violated the Fourth

Amendment in this case.



                                            I.

      The   Fourth       Amendment       ensures     that     “[t]he      right    of    the

people   to     be    secure    in      their    persons,      houses,     papers,       and

effects, against unreasonable searches and seizures, shall not

be   violated.”          U.S.   Const.      amend.      IV.       Broadly,    “a       Fourth

Amendment      search       occurs       when     the     government         violates       a

subjective     expectation         of   privacy    that       society     recognizes       as

reasonable.”         Kyllo v. United States, 533 U.S. 27, 33 (2001).

The issue that confronts us here is whether the Government’s

acquisition of the historical CSLI records constituted a Fourth

Amendment search.

                                             6
       In assessing whether such a search has occurred, “it is

important to begin by specifying precisely the nature of the

state activity that is challenged.”                           Smith, 442 U.S. at 741

(emphasis added).              Here, that “activity” is the Government’s

acquisition from a phone company, Sprint/Nextel, of historical

CSLI records -- i.e., the records of the phone company that

identify which cell towers it used to route Defendants’ calls

and    messages.         The    Government           did    not    surreptitiously         view,

listen      to,    record,      or    in    any       other       way    engage    in    direct

surveillance of Defendants to obtain this information.                                   Rather,

as the Sprint/Nextel custodian of the CSLI records testified at

trial, CSLI is created and maintained in the normal course of

Sprint/Nextel’s          business.          Defendants            themselves      acknowledge

that       service      providers,        like       Sprint/Nextel,          maintain       CSLI

records “[b]y technical and practical necessity.”                                 Defendants’

Br. at 13. 2

       Moreover,        to     obtain      the       CSLI    from       Sprint/Nextel,       the

Government        had    to    apply      to     a    federal       court    for    an     order

directing      the      company      to    disclose         the   records.         The   Stored


       2
       As the Sixth Circuit explained, “[c]arriers necessarily
track their customers’ phones across different cell-site sectors
to connect and maintain their customers’ calls,” and keep CSLI
records “to find weak spots in their network and to determine
whether roaming charges apply, among other purposes.”     United
States v. Carpenter, Nos. 14-1572/1805, 2016 WL 1445183, at *4.
(6th Cir. Apr. 13, 2016).


                                                 7
Communications            Act    (SCA    or   the    Act)    provides    that,    to    gain

access to even these non-content records, the Government must

demonstrate either probable cause for a warrant or “specific and

articulable facts showing that there are reasonable grounds to

believe that . . . the records . . . are relevant and material

to an ongoing criminal investigation” for a court order.                                 18

U.S.C.    §    2703(c),          (d)    (2012).       The   Government       followed   the

second route and Defendants do not contend that in doing so it

failed to meet the requirements of the Act.                           What Defendants do

contend       is    that    in    permitting        the   Government     to    obtain   the

Sprint/Nextel records in this way, the Act violates the Fourth

Amendment.           According to Defendants, the statute permits the

Government           to     unconstitutionally              collect      their     private

information.

     This          argument      ignores      the     nature    of     the    governmental

activity      here,       which    critically        distinguishes      this     case   from

those    in    which       the    government        did   unconstitutionally       collect

private information.               In United States v. Karo, 468 U.S. 705,

714-15 (1984), for instance, the Drug Enforcement Agency placed

a beeper within a can of ether and received tracking information

from the beeper while the can was inside a private residence.

Similarly, in Kyllo, 533 U.S. at 34-35, the Department of the

Interior used a thermal imager to gather “information regarding

the interior of the home.”                    And in United States v. Jones, 132

                                                8
S.    Ct.   945,    948-49,      954   (2012),      the    FBI    and   local        law

enforcement      secretly     installed       a   GPS    tracking   device      on    a

suspect’s vehicle and monitored the vehicle’s movements for four

weeks. 3

      On the basis of these cases, Defendants contend that the

government always invades an individual’s reasonable expectation

of privacy when it employs technological devices to track an

individual’s       moves.     Perhaps    so.       But    that   question    is      not

before us.       No government tracking is at issue here.                    Rather,

the   question     before   us   is    whether     the    government    invades       an

individual’s reasonable expectation of privacy when it obtains,

from a third party, the third party’s records, which permit the

government to deduce location information.                       Karo, Kyllo, and




      3 Contrary to Defendants’ suggestion, and unlike the
information in Karo and Jones, the CSLI obtained here does not
enable the government to “place an individual” at home or at
other private locations. The historical CSLI at issue here does
not provide location information anywhere near that specific.
Rather, the record evidence establishes that each of the cell
sites at issue here covers an area with a radius of up to two
miles, and each data point of CSLI corresponds to a roughly 120-
degree sector of a cell site’s coverage area.     That means the
CSLI could only determine the four-square-mile area within which
a person used his cell phone.      Although we do not think the
applicability of the Fourth Amendment hinges on the precision of
CSLI, it is premature to equate CSLI with the surveillance
information obtained in Karo and Jones.



                                          9
Jones,     all    of     which    involve       direct     government       surveillance

activity, tell us nothing about the answer to that question. 4

       Instead, the cases that establish the third-party doctrine

provide     the    answer.             Under    the      third-party       doctrine,      an

individual can claim “no legitimate expectation of privacy” in

information       that    he     has    voluntarily       turned    over    to     a    third

party.      Smith,       442   U.S.     at     743-44.      The    Supreme       Court    has

reasoned     that,       by    “revealing        his     affairs     to    another,”      an

individual “takes the risk . . . that the information will be

conveyed by that person to the Government.”                        Miller, 425 U.S. at

443.       The     Fourth      Amendment        does      not   protect      information

voluntarily disclosed to a third party because even a subjective

expectation       of   privacy     in    such       information     is    “not    one    that

society is prepared to recognize as ‘reasonable.’”                               Smith, 442

U.S. at 743 (internal quotation marks and citation omitted).

The government therefore does not engage in a Fourth Amendment

“search” when it acquires such information from a third party. 5


       4
       Like these instances of government surveillance, when the
government uses cell-site simulators (often called “stingrays”)
to directly intercept CSLI instead of obtaining CSLI records
from phone companies, the Department of Justice requires a
warrant.    See Dep’t of Justice, Department of Justice Policy
Guidance: Use of Cell-Site Simulators 3 (2015), available at
https://www.justice.gov/opa/file/767321/download.
     5 Defendants argue that “[t]he government, not the cellular

service providers, surveilled [them].”   Defendants’ En Banc Br.
at 7.    This is assertedly so because (1) the Communications
Assistance For Law Enforcement Act, 47 U.S.C. § 1002 (2012)
(Continued)
                                               10
     Applying         the    third-party          doctrine      to    the     facts      of   this

case,     we    hold       that     Defendants       did       not    have     a    reasonable

expectation      of    privacy       in     the    historical         CSLI.        The   Supreme

Court’s    reasoning         in     Smith     controls.          There,       the     defendant

challenged the government’s use of a pen register -- a device

that could record the outgoing phone numbers dialed from his

home telephone.            Id. at 737.        The Court held that the defendant

could    “claim       no    legitimate        expectation            of   privacy”       in    the

numbers    he    had       dialed    because        he   had    “voluntarily          conveyed”

those     numbers      to     the     phone        company      by    “‘expos[ing]’           that

information to” the phone company’s “equipment in the ordinary

course    of    business.”            Id.     at    744.        The       defendant      thereby

“assumed the risk that the company would reveal to police the

numbers he dialed.”           Id.




(CALEA), requires service providers to have the capacity to
allow law enforcement to access CSLI, and (2) service providers
use CSLI in the aggregate, while law enforcement analyzes
individuals’ CSLI to infer their location. Neither argument is
sound.    Miller involved a federal statute that similarly
required a service provider (there, a bank) to create and
maintain customer records, and the Supreme Court expressly held
that the statute did not affect the applicability of the third-
party doctrine. See Miller, 425 U.S. at 436, 440-44. Moreover,
the third-party doctrine does not require the government to use
the third party’s records in the same way the third party does.
Third parties maintain records in the ordinary course of their
own business.   See Smith, 442 U.S. at 744.     That business is
usually not crime-fighting.       See, e.g., id.       Thus, law
enforcement will almost always use the accessed information for
a different purpose and in a different way than the third party.


                                               11
      Here, as in Smith, Defendants unquestionably “exposed” the

information at issue to the phone company’s “equipment in the

ordinary course of business.”              Id.     Each time Defendants made or

received     a    call,    or     sent    or     received       a    text     message   --

activities       well    within    the    “ordinary       course”      of     cell   phone

ownership -- Sprint/Nextel generated a record of the cell towers

used.      The CSLI that Sprint/Nextel recorded was necessary to

route Defendants’ cell phone calls and texts, just as the dialed

numbers recorded by the pen register in Smith were necessary to

route the defendant’s landline calls.                    Having “exposed” the CSLI

to Sprint/Nextel, Defendants here, like the defendant in Smith,

“assumed the risk” that the phone company would disclose their

information to the government.                  Id. at 744.         For these reasons,

the   Government’s        acquisition      of     that    information         (historical

CSLI) pursuant to § 2703(d) orders, rather than warrants, did

not violate the Fourth Amendment.

      This     holding     accords       with    that    of    every    other     federal

appellate        court    that    has     considered          the    Fourth     Amendment

question before us.         Not one has adopted the Defendants’ theory.

      Three of our sister courts have expressly held, as we do

today, that individuals do not have a reasonable expectation of

privacy in historical CSLI records that the government obtains

from cell phone service providers through a § 2703(d) order.

See   United      States    v.    Carpenter,       Nos.    14-1572/1805,         2016   WL

                                           12
1445183, at *4-6 (6th Cir. Apr. 13, 2016) (holding that “for the

same reasons that Smith had no expectation of privacy in the

numerical information at issue [in Smith], the defendants have

no such expectation in the [CSLI] locational information here”);

United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en

banc) (holding that defendant has no “objective[ly] reasonable

expectation of privacy in MetroPCS’s business records showing

the cell tower locations that wirelessly connected his calls”),

cert. denied, 136 S. Ct. 479 (2015); In re Application of U.S.

for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)

(In re Application (Fifth Circuit)) (holding that the government

can use “[s]ection 2703(d) orders to obtain historical cell site

information” without implicating the Fourth Amendment (emphasis

omitted)).     And although the fourth of our sister courts opined

that “[a] cell phone customer has not ‘voluntarily’ shared his

location information with a cellular provider in any meaningful

way,” it held that “CSLI from cell phone calls is obtainable

under   a     § 2703(d)    order,”    which   “does   not   require     the

traditional     probable    cause    determination”   necessary   for    a

warrant.     In re Application of U.S. for an Order Directing a

Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t,

620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third

Circuit)).



                                     13
     Moreover, even in the absence of binding circuit precedent,

the vast majority of federal district court judges have reached

the same conclusion. 6       Defendants are forced to rely on four

inapposite   state   cases    that   either   interpret   broader   state

constitutional provisions instead of the Fourth Amendment, or do




     6 See, e.g., United States v. Wheeler, No. 15-216, 2016 WL
1048989, at *11-13 (E.D. Wis. Mar. 14, 2016) (Pepper, J.);
United States v. Chavez, No. 3:14-185, 2016 WL 740246, at *2-4
(D. Conn. Feb. 24, 2016) (Meyer, J.); United States v. Epstein,
No. 14-287, 2015 WL 1646838, at *4 (D.N.J. Apr. 14, 2015)
(Wolfson, J.); United States v. Dorsey, No. 14-328, 2015 WL
847395, at *8 (C.D. Cal. Feb. 23, 2015) (Snyder, J.); United
States v. Lang, No. 14-390, 2015 WL 327338, at *3-4 (N.D. Ill.
Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328,
2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.);
United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5
(S.D. Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers,
71 F. Supp. 3d 745, 748-50 (N.D. Ill. 2014)(Kocoras, J.); United
States v. Giddins, 57 F. Supp. 3d 481, 491-94 (D. Md. 2014)
(Quarles, J.); United States v. Banks, 52 F. Supp. 3d 1201,
1204-06 (D. Kan. 2014) (Crabtree, J.); United States v. Serrano,
No. 13-58, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014)
(Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841,
2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013) (Benitez, J.);
United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14
(D. Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon,
No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012)
(Urbina, J.); United States v. Benford, No. 09-86, 2010 WL
1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.); In re
Applications of U.S. for Orders Pursuant to Title 18, U.S. Code
Section 2703(d), 509 F. Supp. 2d 76, 79-82 (D. Mass. 2007)
(Stearns, J.). But see In re Application for Tel. Info. Needed
for a Criminal Investigation, 119 F. Supp. 3d 1011, 1024 (N.D.
Cal. 2015) (Koh, J.); In re Application of U.S. for an Order
Authorizing Release of Historical Cell-Site Info., 809 F. Supp.
2d 113, 120-27 (E.D.N.Y. 2011) (Garaufis, J.).



                                     14
not consider historical CSLI records, or both. 7          In sum, the

Defendants’ preferred holding lacks support from all relevant

authority and would place us in conflict with the Supreme Court

and   every   other   federal   appellate   court   to   consider    the

question.



                                  II.

      Despite the lack of support for their position, Defendants

insist that the third-party doctrine does not apply here.           They

argue that “[a] cell phone user does not even possess the CSLI

to voluntarily convey,” and that even assuming users do convey

such information, “revealing this information is compelled, not


      7 Three of the state cases interpret broader state
constitutional protections than the Fourth Amendment.       See
Commonwealth v. Augustine, 4 N.E.3d 846, 858 (Mass. 2014)
(finding “no need to wade into the[] Fourth Amendment waters”
when the court could rely on article 14 of the Massachusetts
Declaration of Rights); State v. Earls, 70 A.3d 630, 641-42
(N.J. 2013) (explaining that New Jersey has “departed” from
Smith and Miller and does not recognize the third-party
doctrine); People v. Weaver, 909 N.E.2d 1195, 1201-02 (N.Y.
2009) (“[W]e premise our ruling on our State Constitution
alone.”).     In  addition  to   interpreting  only the   state
constitution, the third case dealt with direct GPS surveillance
by police, not CSLI records procured from a phone company.
Weaver, 909 N.E.2d at 1201-02.     And the court in the fourth
state case repeatedly pointed out that it was not considering
“historical cell site location records” -- like those at issue
here -- but “real time cell site location information,” which
had been obtained not through a § 2703(d) order, but under an
order that had authorized only a “pen register” and “trap and
trace device.” Tracey v. State, 152 So.3d 504, 506-08, 515-16,
526 (Fla. 2014).


                                  15
voluntary.” 8         Defendants’ En Banc Br. at 10-11.        These arguments

misapprehend the nature of CSLI, improperly attempt to redefine

the third-party doctrine, and rest on a long-rejected factual

argument        and      the     constitutional       protection   afforded    a

communication’s content.

                                         A.

       Defendants maintain that cell phone users do not convey

CSLI to phone providers, voluntarily or otherwise.                     We reject

that contention.          With respect to the nature of CSLI, there can

be little question that cell phone users “convey” CSLI to their

service providers.         After all, if they do not, then who does?

       Perhaps Defendants believe that because a service provider

generates a record of CSLI, the provider just conveys CSLI to

itself.       But before the provider can create such a record, it

must receive information indicating that a cell phone user is

relying on a particular cell tower.               The provider only receives

that       information    when    a   cell    phone   user’s   phone   exchanges

signals with the nearest available cell tower.                     A cell phone

       8
       Defendants also emphasize the “highly private” nature of
location information.   Defendants’ En Banc Br. at 13.   But to
the extent they do so to argue that the third-party doctrine
does not apply to CSLI, they are mistaken.      The third-party
doctrine clearly covers information that is also considered
“highly private,” like financial records, Miller, 425 U.S. at
441-43, phone records, Smith, 442 U.S. at 743-745, and secrets
shared with confidants, United States v. White, 401 U.S. 745,
749 (1971).



                                         16
user therefore “conveys” the location of the cell towers his

phone     connects         with     to    his       provider       whenever      he   uses    the

provider’s network.

       There is similarly little question that cell phone users

convey    CSLI       to    their     service         providers       “voluntarily.”          See

Davis,    785       F.3d    at    512     n.12      (“Cell     phone    users      voluntarily

convey cell tower location information to telephone companies in

the     course       of    making        and     receiving         calls    on     their     cell

phones.”).          This is so, as the Fifth Circuit explained, even

though a cell phone user “does not directly inform his service

provider of the location of the nearest cell phone tower.”                                    In

re    Application          (Fifth    Circuit),           724   F.3d    at     614;     see   also

Carpenter, 2016 WL 1445183, at *5.

       Logic        compels       this      conclusion.              When     an      individual

purchases       a    cell     phone      and     chooses       a    service      provider,     he

expects    the      provider        will,      at    a   minimum,      route     outgoing     and

incoming calls and text messages.                        As most cell phone users know

all too well, proximity to a cell tower is necessary to complete

these tasks.          Anyone who has stepped outside to “get a signal,”

or has warned a caller of a potential loss of service before

entering an elevator, understands, on some level, that location

matters.       See In re Application (Fifth Circuit), 724 F.3d at 613

(“Cell phone users recognize that, if their phone cannot pick up



                                                 17
a signal (or ‘has no bars’), they are out of the range of their

service provider’s network of towers.”).

       A cell phone user voluntarily enters an arrangement with

his service provider in which he knows that he must maintain

proximity to the provider’s cell towers in order for his phone

to function.         See Carpenter, 2016 WL 1445183, at *5 (“[A]ny

cellphone     user       who    has     seen       her        phone’s      signal       strength

fluctuate must know that, when she places or receives a call,

her phone ‘exposes’ its location to the nearest cell tower and

thus to the company that operates the tower.”).                                 Whenever he

expects     his     phone      to     work,    he        is     permitting      --       indeed,

requesting -- his service provider to establish a connection

between his phone and a nearby cell tower.                              A cell phone user

thus    voluntarily       conveys       the    information            necessary         for   his

service provider to identify the CSLI for his calls and texts.

And    whether     the    service     provider       actually         “elects      to    make   a

. . .    record”     of    this      information         “does       not   . . .     make     any

constitutional difference.”              Smith, 442 U.S. at 745.

       To be sure, some cell phone users may not recognize, in the

moment,     that     they      are     “conveying”            CSLI    to     their       service

provider.        See In re Application (Third Circuit), 620 F.3d at

317.    But the Supreme Court’s use of the word “voluntarily” in

Smith and Miller does not require contemporaneous recognition of



                                              18
every detail an individual conveys to a third party. 9          Rather,

these cases make clear that the third-party doctrine does not

apply when an individual involuntarily conveys information -- as

when the government conducts surreptitious surveillance or when

a third party steals private information.

     Thus, this would be a different case if Sprint/Nextel had

misused its access to Defendants’ phones and secretly recorded,

at   the   Government’s   behest,   information   unnecessary   to   the

provision of cell service.     Defendants did not assume that risk


     9 If it were otherwise, courts would frequently need to
parse business records for indicia of what an individual knew he
conveyed to a third party. For example, when a person hands his
credit card to the cashier at a grocery store, he may not pause
to consider that he is also “conveying” to his credit card
company the date and time of his purchase or the store’s street
address. But he would hardly be able to use that as an excuse
to claim an expectation of privacy if those pieces of
information appear in the credit card company’s resulting
records of the transaction.    Cf. United States v. Phibbs, 999
F.2d 1053, 1077-78 (6th Cir. 1993) (Defendant “did not have both
an actual and a justifiable privacy interest in . . . his credit
card statements.”).
     Our dissenting colleagues similarly argue that the third-
party doctrine requires specific “knowledge” on the part of the
phone user about what information is being conveyed at the time.
Because phone users usually do not “know[]” their own CSLI, the
dissent argues, they cannot convey it.    But the dissent cannot
have it both ways:   Accepting its premise as true for purposes
of argument, we fail to see how a phone user could have a
reasonable expectation of privacy in something he does not know.
Indeed, the dissent rightly questions “whether anyone could
credibly assert the infringement of a legitimate expectation of
privacy” in “numbers dialed by someone else.”     The same logic
would also apply to CSLI, which is created “by someone else” --
and of which phone users, according to the dissent, are not even
“aware.”


                                    19
when they made calls or sent messages.                         But like the defendant

in Smith, 442 U.S. at 745, Defendants here did “assume the risk”

that the phone company would make a record of the information

necessary    to   accomplish         the     very    tasks      they       paid      the   phone

company to perform.           They cannot now protest that providing this

essential information was involuntary.

                                             B.

        In   their      efforts      to     avoid       the    third-party           doctrine,

Defendants     attempt     to      redefine       it.     They        maintain        that   the

third-party doctrine does not apply to historical CSLI because a

cell   phone    user     does      not     “actively      choose[]         to     share”     his

location information.              Defendants’ Br. at 30.                  Such a rule is

nowhere to be found in either Miller or Smith.                              Moreover, this

purported    requirement           cannot    be     squared      with      the     myriad     of

federal cases that permit the government to acquire third-party

records, even when individuals do not “actively choose to share”

the information contained in those records.

       For   example,         courts       have     attached          no    constitutional

significance      to    the    distinction          between      records        of    incoming

versus outgoing phone calls.                The technology the police used in

Smith -- a pen register -- recorded only the numbers dialed by a

suspect’s      phone.         It    did     not   (and        could    not)       record     any

information about incoming calls.                   To capture that information,

police routinely use a “trap and trace” device.                              If Defendants

                                             20
were correct that the third-party doctrine applies just when an

individual      “actively        chooses    to    share”    information,      then    any

effort     to     acquire       records     of     incoming     phone      calls    would

constitute a search protected by the Fourth Amendment.                             After

all, the phone customer never “actively chooses to share” with

the phone company the numbers from incoming telephone calls.

Only the user on the other end of the line, who actually dials

the numbers, does so.

     But federal courts have not required a warrant supported by

probable     cause       to     obtain     such    information.         Rather,      they

routinely       permit    the    government        to    install   “trap    and    trace”

devices without demonstrating probable cause.                      See, e.g., United

States v. Reed, 575 F.3d 900, 914-17 (9th Cir. 2009); United

States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990). 10                            And

recently     we    held       that   police       “did    not   violate     the    Fourth

Amendment”        when        obtaining     a     defendant’s      “cellular       phone

records,” even though the records included “basic information


     10 Our dissenting colleagues posit that perhaps records of
incoming calls have just not been challenged in court.     They
have been.   See, e.g., In re Application of F.B.I., No. BR 14-
01, 2014 WL 5463097, at *4 (Foreign Intel. Surv. Ct. Mar. 20,
2014) (listing courts that “have relied on Smith in concluding
that the Fourth Amendment does not apply to . . . incoming
calls”); Reed, 575 F.3d at 914 (noting that there is “no Fourth
Amendment expectation of privacy” in “call origination” data);
Sun Kin Chan v. State, 78 Md. App. 287, 300-01(Md. App. 1989)
(“There is no constitutional distinction between the questions
of 1) whom you call and 2) who calls you.”).


                                             21
regarding       incoming    and    outgoing     calls   on   that    phone     line.”

United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011)

(emphasis added). 11

     Moreover, outside the context of phone records, we have

held that third-party information relating to the sending and

routing    of    electronic       communications    does     not    receive    Fourth

Amendment protection.          United States v. Bynum, 604 F.3d 161, 164

(4th Cir. 2010).           In Bynum, we explained that it “would not be

objectively reasonable” for a defendant to expect privacy in his

phone     and   Internet     subscriber     records,     including     “his    name,

email address, telephone number, and physical address.”                          Id.

Although we had no occasion in Bynum to consider whether an

individual      has   a    protected   privacy     interest    in    his   Internet

Protocol (IP) address, id. at 164 n.2, several of our sister

circuits    have      concluded     that   no   such    interest     exists.     See

United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013);

United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).

     11 Nor has this court ever suggested that other information
typically contained in phone records -- the date, time, and
duration of each call, for example -- merits constitutional
protection.   Yet a phone customer never “actively chooses to
share” this information either.     Rather, this information is
passively generated and recorded by the phone company without
overt intervention that might be detected by the target user.
If individuals “voluntarily convey,” all of this information to
their phone companies, we see no basis for drawing the line at
the CSLI at issue here. We note that this case deals with only
2010- and 2011-era historical CSLI, generated by texts and phone
calls made and received by a cell phone.


                                           22
       Similarly,      the    Ninth     Circuit       has   held    that     “e-mail      and

Internet users have no expectation of privacy in . . . the IP

addresses      of   the      websites     they    visit.”           United    States      v.

Forrester, 512 F.3d 500, 510 (9th Cir. 2008).                              The Forrester

court   also    held      that    there   is     no    reasonable        expectation      of

privacy in either the to/from addresses of a user’s emails or

the “total amount of data transmitted to or from [a user’s]

account.”       Id. at 510-11.            The court found the government’s

acquisition          of          this       information              “constitutionally

indistinguishable from the use of a pen register that the Court

approved in Smith,” in part because “e-mail and Internet users,

like the telephone users in Smith, rely on third-party equipment

in order to engage in communication.”                  Id. at 510.

       Of course, computer users do “actively choose to share”

some of the information discussed in the above cases, like the

“to” address in an email and the subscriber information conveyed

when    signing     up    for    Internet       service.           But    users     do   not

“actively choose to share” other pieces of information, like an

IP address or the amount of data transmitted to their account.

Internet       service        providers         automatically            generate        that

information.        See Christie, 624 F.3d at 563; cf. Forrester, 512

F.3d at 511.        Thus, the redefinition of the third-party doctrine

that Defendants advocate not only conflicts with Supreme Court



                                           23
doctrine and all the CSLI cases from our sister circuits, but is

also at odds with other established circuit precedent.

                                               C.

       In    another       attempt      to    avoid     the       third-party       doctrine,

Defendants      rely       on    a   factual     argument         long    rejected       by    the

Supreme Court and a series of cases involving the content of

communications to support their assertion that historical CSLI

is protected by the Fourth Amendment.

       First,      Defendants         emphasize      that     cell       phone     use    is    so

ubiquitous      in    our       society      today    that    individuals          must       risk

producing CSLI or “opt out of modern society.”                                Defendants’ En

Banc Br. at 11.             Defendants contend that such widespread use

shields CSLI from the consequences of the third-party doctrine

and    renders       any        conveyance     of     CSLI        “not    voluntary,”          for

“[l]iving off the grid . . . is not a prerequisite to enjoying

the protection of the Fourth Amendment.”                      Id.

       But    the      dissenting            justices        in     Miller       and      Smith

unsuccessfully advanced nearly identical concerns.                                 Dissenting

in Miller, Justice Brennan contended that “the disclosure by

individuals or business firms of their financial affairs to a

bank   is    not     entirely        volitional,      since        it    is   impossible        to

participate in the economic life of contemporary society without

maintaining a bank account.”                     425 U.S. at 451 (Brennan, J.,

dissenting)        (internal         quotation      marks     and       citation    omitted).

                                               24
And dissenting in Smith, Justice Marshall warned that “unless a

person is prepared to forgo use of what for many has become a

personal      or    professional           necessity,”      i.e.,   a   telephone,       “he

cannot help but accept the risk of surveillance.”                             442 U.S. at

750 (Marshall, J., dissenting).                    It was, in Justice Marshall’s

view, “idle to speak of ‘assuming’ risks in contexts where, as a

practical      matter,     individuals         have    no    realistic     alternative.”

Id.     The     Supreme       Court    has     thus    twice    rejected      Defendants’

theory.       Until the Court says otherwise, these holdings bind us.

       Second,       Defendants        rely       on   cases     that    afford      Fourth

Amendment protection to the content of communications to suggest

that CSLI warrants the same protection.                        See Ex parte Jackson,

96 U.S. 727, 733 (1877) (content of letters and packages); Katz

v. United States, 389 U.S. 347, 353 (1967) (content of telephone

calls); United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir.

2010) (content of emails).                 What Defendants fail to recognize is

that for each medium of communication these cases address, there

is also a case expressly withholding Fourth Amendment protection

from    non-content           information,          i.e.,      information         involving

addresses and routing.               See Jackson, 96 U.S. at 733 (no warrant

needed to examine the outside of letters and packages); Smith,

442    U.S.    at    743-44    (no     reasonable      expectation       of    privacy    in

phone numbers dialed); Forrester, 512 F.3d at 510 (no reasonable

expectation         of   privacy      in    the    to/from     addresses      of    emails);

                                              25
accord Jones,      132     S.    Ct.    at     957    (Sotomayor,       J.,    concurring)

(noting the Fourth Amendment does not currently protect “phone

numbers”    disclosed      to     phone       companies    and      “e-mail     addresses”

disclosed to Internet service providers).

     The    Supreme       Court    has        thus    forged    a     clear    distinction

between    the    contents        of    communications          and    the     non-content

information      that    enables       communications          providers       to    transmit

the content. 12         CSLI, which identifies the equipment used to

route calls and texts, undeniably belongs in the non-content

category.        As the Sixth Circuit recently recognized, CSLI is

non-content information because “cell-site data -- like mailing

addresses, phone numbers, and IP addresses -- are information

that facilitate personal communications, rather than part of the

content of those communications themselves.”                        Carpenter, 2016 WL

1445183, at *4.

     Defendants         disagree       with    this    conclusion.            They    contend

that CSLI should be treated “as content” because it “record[s] a

person’s    movements           over     a     prolonged       period,”        implicating

“serious . . . privacy concerns.”                     Defendants’ Br. at 33.              But


     12In addition to being firmly grounded in the case law, the
content/non-content distinction makes good doctrinal sense. The
intended recipient of the content of communication is not the
third party who transmits it, but the person called, written,
emailed, or texted. The routing and addressing information, by
contrast, is intended for the third parties who facilitate such
transmissions.


                                               26
all   routing   information    “records”     some    form   of    potentially

sensitive activity when aggregated over time.               For example, a

pen register records every call a person makes and allows the

government to know precisely when he is at home and who he is

calling and credit card records track a consumer’s purchases,

including the location of the stores where he made them.                    Of

course, CSLI is not identical to either of these other forms of

routing information, just as cell phones are not identical to

other modes of communication.        It blinks at reality, however, to

hold that CSLI, which contains no content, somehow constitutes a

communication of content for Fourth Amendment purposes.

      Defendants’   attempts    to    blur    this    clear      distinction 13

further illustrate the extent to which their proposed holding




      13Related concerns about a general “erosion of privacy”
with respect to cell phones rest on a similar misapprehension of
this distinction.   These concerns revolve around protecting the
large quantity of information stored on modern cell phones and
on remote servers like the “cloud.” See, e.g., Davis, 785 F.3d
at 536 (Martin, J., dissenting).    If all that information were
indeed at risk of disclosure, we would share this concern. But
documents stored on phones and remote servers are protected, as
“content,” in the same way that the contents of text messages or
documents and effects stored in a rented storage unit or office
are protected.    See, e.g., United States v. Johns, 851 F.2d
1131, 1136 (9th Cir. 1988) (finding that a person renting a
storage unit has a reasonable expectation of privacy in its
contents); United States v. Speights, 557 F.2d 362, 363 (3d Cir.
1977) (finding reasonable expectation of privacy in secured
locker at place of employment).       These are clear limiting
principles. Our holding today, that the Government may acquire
with a court order, but without a warrant, non-content routing
(Continued)
                                     27
would be a constitutional outlier -- untenable in the abstract

and bizarre in practice.                 Case in point:              Under Defendants’

theory, the Government could legally obtain, without a warrant,

all data in the Sprint/Nextel records admitted into evidence

here, except the CSLI.              If that is so, then the line between a

Fourth      Amendment      “search”      and        “not    a   search”     would   be      the

literal line that, moving left to right across the Sprint/Nextel

spreadsheets, separates the seventh column from the eighth.                                 The

records to the left of that line list the source of a call, the

number dialed, the date and time of the call, and the call’s

duration --        all     of    which   the    government         can    acquire   without

triggering        Fourth    Amendment     protection.              The    records     to    the

right of that line list the cell phone towers used at the start

and   end    of    each     call    --   information            Defendants’    contend       is

protected by the Fourth Amendment.                         Constitutional distinctions

are made of sturdier stuff.



                                           III.

      Technology           has     enabled      cell         phone       companies,        like

Sprint/Nextel, to collect a vast amount of information about

their customers.           The quantity of data at issue in this case --




information (including historical CSLI), does not disturb those
principles.


                                               28
seven       months’    worth      of    cell        phone      records,        spanning        nearly

30,000      calls     and    texts      for    each       defendant        --     unquestionably

implicates weighty privacy interests.

       Outrage        at    the    amount           of    information           the       Government

obtained, rather than concern for any legal principle, seems to

be at the heart of Defendants’ arguments.                                Thus they repeatedly

emphasize the amount of CSLI obtained here and rely on authority

suggesting that the government can obtain a limited amount of

CSLI    without       a     warrant.           In    response,           the    panel       majority

expressly held that the government can acquire some amount of

CSLI    “before       its    inspection        rises          to   the    level      of    a   Fourth

Amendment search.”             Graham, 796 F.3d at 350 n.8.                           But, if as

Defendants      maintain,         every       bit    of       CSLI   has    the      potential     to

“show when a particular individual is home,” and no CSLI is

voluntarily conveyed, Defendants’ Br. at 19-20, then why would

only    large       quantities         of   CSLI         be    protected        by    the      Fourth

Amendment? 14

       Defendants’ answer appears to rest on a misunderstanding of

the analysis embraced in the two concurring opinions in Jones.

There, the concurring justices recognized a line between “short-

       14The lack of a bright line between permissible and
impermissible amounts of CSLI also stands at odds with the
Supreme Court’s “general preference to provide clear guidance to
law   enforcement  through   categorical  rules.”     Riley   v.
California, 134 S. Ct. 2473, 2491 (2014).



                                                29
term    monitoring         of    a    person’s       movements       on    public      streets,”

which would not infringe a reasonable expectation of privacy,

and “longer term GPS monitoring,” which would.                                  Jones, 132 S.

Ct. at 964 (Alito, J., concurring in the judgment); see also id.

at     955    (Sotomayor,            J.,    concurring).             But       Jones    involved

government surveillance of an individual, not an individual’s

voluntary       disclosure           of    information    to     a    third      party.         And

determining         when        government       surveillance             infringes       on     an

individual’s reasonable expectation of privacy requires a very

different analysis.

       In considering the legality of the government surveillance

at issue in Jones, Justice Alito looked to what a hypothetical

law enforcement officer, engaged in visual surveillance, could

reasonably have learned about the defendant.                               He concluded that

four weeks of GPS monitoring by the government constituted a

Fourth       Amendment      “search”        because    “society’s          expectation”         had

always been “that law enforcement agents and others would not --

and indeed, in the main, simply could not -- secretly monitor

and    catalogue”        an      individual’s        movements       in    public       for    very

long.        Id.    at     964    (Alito,      J.,    concurring          in    the    judgment)

(emphasis added).                In other words, direct surveillance by the

government         using    technological        means     may,       at       some    point,    be




                                                30
limited      by     the   government’s          capacity   to     accomplish         such

surveillance by physical means. 15

      However, society has no analogous expectations about the

capacity of third parties to maintain business records.                        Indeed,

we expect that our banks, doctors, credit card companies, and

countless other third parties will record and keep information

about      our    relationships     with   them,     and   will    do    so    for    the

entirety of those relationships -- be it several weeks or many

years.       Third parties can even retain their records about us

after our relationships with them end; it is their prerogative,

and many business-related reasons exist for doing so.                          This is

true even when, in the aggregate, these records reveal sensitive

information        similar     to   what    could     be   revealed       by    direct

surveillance.        For this reason, Justice Alito’s concern in Jones

is   simply      inapposite    to   the    third-party     doctrine      and    to    the

instant case.

      Here,       Defendants    voluntarily       disclosed     all     the    CSLI    at

issue to Sprint/Nextel.             And the very act of disclosure negated


      15
       We note, though, that such a rule would be unprecedented
in rendering unconstitutional -- because of some later action --
conduct that was undoubtedly constitutional at the time it was
undertaken.   See United States v. Sparks, 750 F. Supp. 2d 384,
392 (D. Mass. 2010), aff’d, 711 F.3d 58 (1st Cir. 2013)
(recognizing the aggregation theory as “unworkable” because
“conduct that is initially constitutionally sound could later be
deemed impermissible if it becomes part of the aggregate”).



                                           31
any   reasonable    expectation      of    privacy,      regardless      of    how

frequently that disclosure occurred or how long the third party

maintained records of the disclosures.              Defendants ignore these

critical   facts,    attempting   to      apply    the   same    constitutional

requirements for location information acquired directly through

GPS tracking by the government to historical CSLI disclosed to

and maintained by a third party.

      We recognize the appeal -- if we were writing on a clean

slate -- in holding that individuals always have a reasonable

expectation    of    privacy    in     large       quantities     of    location

information, even if they have shared that information with a

phone company.      But the third-party doctrine does not afford us

that option.     Intrinsic to the doctrine is an assumption that

the quantity of information an individual shares with a third

party does not affect whether that individual has a reasonable

expectation of privacy.

      Although third parties have access to much more information

now than they did when the Supreme Court decided Smith, the

Court was certainly then aware of the privacy implications of

the   third-party   doctrine.        Justice      Stewart   warned     the    Smith

majority that “broadcast[ing] to the world a list of the local

or long distance numbers” a person has called could “reveal the

most intimate details of [that] person’s life.”                 Smith, 442 U.S.

at 748 (Stewart, J., dissenting).           That is, in essence, the very

                                      32
concern     that      Defendants    raise.        But   the     Supreme   Court   was

unmoved by the argument then, and it is not our place to credit

it   now.        If   individuals    lack      any   legitimate     expectation     of

privacy     in    information      they   share      with   a   third   party,    then

sharing     more      non-private    information        with    that    third    party

cannot change the calculus.

      Of course, in the face of rapidly advancing technology,

courts must “assure[] preservation of that degree of privacy

against government that existed when the Fourth Amendment was

adopted.”        Kyllo, 533 U.S. at 34.              The Supreme Court has long

concluded that the third-party doctrine does this.                         Thus the

Court has never held that routing information, like CSLI, shared

with third parties to allow them to deliver a message or provide

a service is protected under the Fourth Amendment.                      Perhaps this

is implicit acknowledgment that the privacy-erosion argument has

a flip-side: technological advances also do not give individuals

a Fourth Amendment right to conceal information that otherwise

would not have been private. 16


      16For example, the Smith Court noted that, because a phone
user who “had placed his calls through an operator . . . could
claim   no   legitimate  expectation  of   privacy”   in   routing
information    exposed   to    that   operator,    “a    different
constitutional result” did not follow simply “because the
telephone company has decided to automate.” Smith, 442 U.S. at
744-45.    Similarly here, “a different constitutional result”
does not follow because the telephone company has decided to
make its phones mobile. Cf. United States v. Skinner, 690 F.3d
(Continued)
                                          33
       Moreover, application of the third-party doctrine does not

render privacy an unavoidable casualty of technological progress

-- Congress remains free to require greater privacy protection

if it believes that desirable.                    The legislative branch is far

better positioned to respond to changes in technology than are

the courts.          See Jones, 132 S. Ct. at 964 (Alito, J., concurring

in the judgment) (“A legislative body is well situated to gauge

changing       public     attitudes,       to     draw    detailed       lines,       and       to

balance privacy and public safety in a comprehensive way.”); see

also     In     re     Application      (Fifth     Circuit),       724        F.3d    at    615

(explaining that that the proper “recourse” for those seeking

increased       privacy     is    often    “in    the     market   or     the        political

process”).

       The very statute at issue here, the Stored Communications

Act (SCA), demonstrates that Congress can -- and does -- make

these judgments.            The SCA requires the government to meet a

higher        burden    when     acquiring       “the     contents       of     a    wire       or

electronic           communication”       from     “a     provider       of         electronic

communication          service”    than    when     obtaining      “a    record        .    .    .

pertaining to a subscriber . . . or customer” from the provider.

18   U.S.C.      § 2703(a),       (c)   (emphasis        added).     It       requires      the



772, 778 (6th Cir. 2012) (“Law enforcement tactics must                                         be
allowed to advance with technological changes, in order                                         to
prevent criminals from circumventing the justice system.”).


                                             34
executive to obtain judicial approval, as the Government did

here,     before    acquiring       even    non-content         information.          Id.

§ 2703(c), (d).        And the SCA is part of a broader statute, the

Electronic     Communications        Privacy      Act    of     1986   (ECPA),     which

Congress enacted in the wake of Smith.                   See Pub. L. No. 99-508,

100 Stat. 1848.        In the ECPA, Congress responded directly to the

holding in Smith by requiring the government to obtain a court

order     (albeit    not    one     supported     by    probable       cause)    before

installing a pen register or “trap and trace” device.                            See 18

U.S.C. § 3121(a) (2012).            Although Congress could undoubtedly do

more, it has not been asleep at the switch. 17

     Ultimately,       of    course,     the     Supreme      Court    may   decide    to

revisit      the    third-party      doctrine.           Justice       Sotomayor      has

suggested that the doctrine is “ill suited to the digital age,

in   which    people       reveal    a   great    deal     of    information       about

     17Indeed, Congress has been actively considering changes to
the ECPA in recent years based on advances in technology.    See
Jared P. Cole & Richard M. Thompson II, Congressional Research
Service, Stored Communications Act:     Reform of the Electronic
Communications Privacy Act (ECPA), 8-10 (2015) (describing
various proposed congressional amendments to the ECPA); Scott A.
Fraser, Making Sense of New Technologies and Old Law: A New
Proposal for Historical Cell-Site Location Jurisprudence, 52
Santa Clara L. Rev. 572, 576 (2012) (describing congressional
fact-finding hearings on possible changes to the SCA). And some
state legislatures have recently enacted warrant requirements
for state agencies acquiring historical CSLI.    See, e.g., Utah
Code Ann. § 77-23c-102 (West 2015), amended by 2016 Utah Laws
H.B. 369; N.H. Rev. Stat. Ann. § 644-A:2-A:3 (West 2015).
Legislatures manifestly can and are responding to changes in the
intersection of privacy and technology.


                                           35
themselves     to    third       parties     in    the     course          of    carrying    out

mundane     tasks.”        Jones,      132    S.    Ct.       at    957    (Sotomayor,       J.,

concurring).        Indeed, although the Court formulated the third-

party doctrine as an articulation of the reasonable-expectation-

of-privacy inquiry, it increasingly feels like an exception.                                  A

per    se   rule    that    it    is    unreasonable           to     expect       privacy    in

information        voluntarily         disclosed         to        third        parties   seems

unmoored from current understandings of privacy.                                   But Justice

Sotomayor also made clear that tailoring the Fourth Amendment to

“the   digital      age”   would       require     the     Supreme         Court    itself    to

“reconsider” the third-party doctrine.                     Id.

       The landscape would be different “if our Fourth Amendment

jurisprudence cease[d] to treat secrecy as a prerequisite for

privacy.”     Id.     But unless and until the Supreme Court so holds,

we are bound by the contours of the third-party doctrine as

articulated by the Court.                See, e.g., Agostini v. Felton, 521

U.S. 203, 237 (1997) (reversing the Second Circuit but noting

that   it   had     correctly      applied        then-governing            law,    explaining

that “if a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case which

directly    controls”      (internal         quotation         marks,       alteration,      and

citation     omitted)).             Applying         the       third-party           doctrine,

consistent with controlling precedent, we can only conclude that

                                             36
the Fourth Amendment did not protect Sprint/Nextel’s records of

Defendants’   CSLI.   Accordingly,    we   hold   that   the   Government

legally acquired those records through § 2703(d) orders.



                               IV.

     For the reasons set forth above, we affirm in all respects

the judgment of the district court.

                                                                 AFFIRMED




                                37
WILKINSON, Circuit Judge, concurring:

     I am pleased to concur in Judge Motz’s fine opinion. The

court rightly holds that obtaining historical cell site location

information (CSLI) from a third party cell phone provider is not

a search under the Fourth Amendment. Any result to the contrary

would be at odds with the Supreme Court and decisions from our

sister circuits. I write separately to emphasize my concern that

requiring probable cause and a warrant in circumstances such as

these needlessly supplants the considered efforts of Congress

with an ill-considered standard of our own.

     Appellants appear to think that the Framers drafted the

Constitution with the judiciary alone in mind. I do not deny

that the judiciary has an important, indeed critical, role to

play in interpreting the Fourth Amendment. But I fear that by

effectively rewriting portions of a federal statute under the

guise of reasonableness review courts run the risk of boxing the

democratic branches out of the constitutional dialogue. For good

reason,   developing    constitutional         meaning       has    always   been    a

collaborative    enterprise          among     the    three        departments      of

government. The present case offers a perfect example of why

that is so.

                                        I.

     In   enacting     Title    II    of     the   Electronic       Communications

Privacy    Act   of     1986,        popularly       known     as     the    Stored

                                        38
Communications Act (SCA), 18 U.S.C. § 2701 et seq., Congress did

not    behave      in   a      flippant     or    haphazard         fashion.      Instead,       it

crafted a thorough statutory framework limiting the government’s

ability to gather wire and electronic communication data from

communications          service       providers         (here,       Sprint/Nextel).         The

SCA’s “comprehensive remedial scheme,” Kelley v. Fed. Bureau of

Investigation, 67 F. Supp. 3d 240, 271 (D.D.C. 2014), “creates a

set    of    Fourth     Amendment-like           privacy       protections        by    statute,

regulating the relationship between government investigators and

service providers in possession of users’ private information.”

Sams    v.    Yahoo!        Inc.,    713    F.3d       1175,      1179    (9th     Cir.     2013)

(quoting       Orin       S.     Kerr,      A     User’s          Guide     to    the     Stored

Communications Act, and a Legislator’s Guide to Amending It, 72

Geo. Wash. L. Rev. 1208, 1212 (2004)).

       At    the    heart       of   the    SCA       lies    §     2703.    That      provision

establishes a calibrated set of procedural safeguards based on

the type and amount of information sought and the length of time

the    records      are     stored.        For   instance,          “only    pursuant       to   a

warrant,” 18 U.S.C. § 2703(a), can the government obtain the

contents of a communication that is in electronic storage with a

service      provider        for     180    days      or     less.    Alternatively,         the

government has a number of options for compelling the disclosure

of     non-content           customer        records,          or     the        contents        of

communications in electronic storage for more than 180 days:

                                                 39
“obtain[] a warrant,” id. §§ 2703(b)(1)(A), (c)(1)(A), “use[] an

administrative         subpoena          .     .        .    or       trial     subpoena,”          id.

§ 2703(b)(1)(B)(i),                or         “obtain[]                a       court         order.”

Id. §§ 2703(b)(1)(B)(ii), (c)(1)(B).

      Here,      the    government            secured         a       court     order       for     the

disclosure of non-content communication records (specifically,

CSLI)     pursuant      to    § 2703(c)(1)(B).                    Congress      set     forth       the

requirements      for    a     valid          court         order       in    § 2703(d),          which

mandates that the government supply “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.” Id. § 2703(d). In other

words,     § 2703(d)         “is        essentially               a    reasonable        suspicion

standard.” In re U.S. for an Order Pursuant to 18 U.S.C. Section

2703(d), 707 F.3d 283, 287 (4th Cir. 2013).

      I   see    no     reason          to    depart         from       Congress’s       carefully

tailored scheme. As the majority points out, the SCA in fact

exceeds    the    constitutional              floor         established        by     the    Supreme

Court, whose decisions hold that the Fourth Amendment does not

apply to information voluntarily conveyed to third parties. Ante

at 9-10; see, e.g., Smith v. Maryland, 442 U.S. 735, 743-44

(1979);    United      States      v.        Miller,        425       U.S.    435,    443    (1976).

Although appellants would insert their own impressions of the

                                                   40
Fourth Amendment into § 2703(d) by way of a warrant and probable

cause requirement, that approach not only aspires to overturn

Supreme Court rulings but to scuttle the laborious efforts of

the Congress to balance privacy and law enforcement interests in

a responsible way.

                                               II.

       It has long been the case that developing constitutional

meaning          is    not   a     responsibility    that    rests      solely     on   the

shoulders of the judiciary. It has instead been “a power and

duty       shared       by   all    three   branches,      and    its    shared     nature

suggests that it ought not be fulfilled by each branch acting

independently within its sphere of authority.” Dawn E. Johnsen,

Functional Departmentalism and Nonjudicial Interpretation: Who

Determines            Constitutional     Meaning?,    67    Law   &     Contemp.    Probs.

105,       121    (2004).        Formulation    of   constitutional       guidance,      in

other words, is a collaborative enterprise, “with each branch

encouraged to recognize its own institutional limitations and to

respect the superior competencies of the others.” Id. at 120. *


       *My dissenting friend rightly lauds the function of
judicial review, see Marbury v. Madison, 5 U.S. 137, 178 (1803),
but effectively dismisses respect for Congress’s efforts as one
component of that review. See post at 65-66 n. 14. This, of
course, envisions a process where the judiciary speaks only to
itself, a curiously monologic exercise at odds with the
constitutional structure of American government.
     Not to worry, says the dissent. All it is doing is
“eliminating a single line of statutory text, specifically 18
(Continued)
                                               41
       This principle applies with special force where Congress

has    weighed     in   on     the   Fourth     Amendment’s      requirement        of

“reasonableness.”       That    term,   of     course,    “is   not    capable      of

precise definition or mechanical application.” Bell v. Wolfish,

441 U.S. 520, 559 (1979). Faced with a term literally crying out

for    balance     between     the   competing     interests      of   individual

privacy and societal security, it is appropriate to accord some

degree of deference to legislation weighing the utility of a

particular investigative method against the degree of intrusion

on individuals’ privacy interests. See United States v. Jones,

132 S. Ct. 945, 963-64 (2012) (Alito, J., concurring).

       In   this   setting,     Congress      brings   several    cards      to    the

table. First, it enjoys a relatively greater degree of access

than courts to expert opinion generally and to the expertise of

the executive branch in particular. Trial courts, of course,

hear    expert     testimony     all    the    time,     but    they   are    to     a

considerable extent at the mercy of the parties whose witnesses

may be called to serve a narrow set of interests rather than the

interests of the public at large. Appellate amicus briefs and




U.S.C. § 2703(c)(1)(B).” Id. But “eliminating” a critical option
Congress has provided in favor of the dissent’s idea of what is
best for us is the kind of constitutional club that ends the
conversation and severely limits opportunities for legislative
reforms and responses in what is a rapidly evolving field.



                                        42
arguments are helpful to be sure, but not enough, I think, to

close the expertise gap or compensate for the large differences

in    size   between    congressional         and    judicial   staffs.       The   more

technical the issue (as the one before us surely is), the more

salient the expertise differential may prove to be. It is not

surprising, then, that “[t]hroughout our history . . . it has

been Congress that has taken the lead in . . . balanc[ing] the

need for a new investigatory technique against the undesirable

consequences       of   any    intrusion       on    constitutionally     protected

interests in privacy.” Dalia v. United States, 441 U.S. 238, 264

(1979) (Stevens, J., dissenting). That tradition is a sound one,

for     it   not    only      reflects     an       understanding   of        our    own

institutional limitations, but the value of having democratic

backing behind Fourth Amendment balancing.

       Second,     Congress      is   often     better   positioned      to    achieve

legal    consistency.      Abandoning      Congress’s      comprehensive        effort

for    particularized      and    improvised        judicial    standards      invites

confusion into what has been a relatively stable area of the

law. See ante at 10-13. The SCA -- which remains “the primary

vehicle by which to address violations of privacy interests in

the communication field,” Adams v. City of Battle Creek, 250

F.3d 980, 986 (6th Cir. 2001) -- promotes uniformity by focusing

the courts’ inquiry on a prescribed set of conditions that must

be satisfied before disclosure will be compelled. See, e.g., 18

                                         43
U.S.C. § 2703(d). Detailed statutory standards have at least as

fair a chance of achieving clear guidance and consistency as

court developed rules. Congress’s aim of consistency would be

imperiled, however, if courts become willing to strike this or

that portion of the statute to accommodate what may be their

unique privacy policy views. In my judgment, uniform national

standards rather than regional variations among the courts has

merit     where    Congress        has    comprehensively         legislated          in    a

particular field.

       Finally,      Congress       imparts      the     considerable          power       of

democratic legitimacy to a high stakes and highly controversial

area. The emergence of advanced communication technologies has

set off a race between criminal enterprises on the one hand and

law    enforcement       efforts     on    the   other.        Modern    communication

devices      --   even    as      they    abet   the     government’s          indigenous

tendencies to intrude upon our privacy -- also assist criminal

syndicates and terrorist cells in inflicting large-scale damage

upon    civilian        populations.       Appellants’         strict     standard         of

probable cause and a warrant even for non-content information

held    by   third      parties    thus    risks    an   imbalance        of    the    most

dangerous sort, for it allows criminals to utilize the latest in

technological        development     to    commit      crime    and     hamstrings         the

ability      of   law    enforcement       to    capitalize       upon     those       same

developments to prevent crime. The fact that the appellants in

                                           44
this case were convicted of Hobbs Act violations and brandishing

offenses     cannot       obscure     the    implications        of        their    proposed

standards for much more serious threats down the road.

     In my view, striking a balance in an area rife with the

potential for mass casualty cannot leave democracy out in the

cold.     Courts    must    continue        to    play   a    vital    role        in    Fourth

Amendment interpretation, but in large matters of life and death

the people’s representatives must also play their part. See,

e.g., Donovan v. Dewey, 452 U.S. 594, 603 (1981) (Congress’s

authorization        of     warrantless           inspections         of     surface         and

underground        mines     deemed     constitutional           under        the        Fourth

Amendment     in     light    of    the          “notorious    history        of        serious

accidents” causing large loss of life in the mining industry).

It   is    naive,    I     think,   for      the     judicial     branch       to        assume

insensitivity to privacy concerns on the part of our elected

brethren. Just last year, for example, a bipartisan Congress

terminated    the     National      Security        Agency’s    collection              of   bulk

phone records. Uniting and Strengthening America by Fulfilling

Rights and Ensuring Effective Discipline Over Monitoring Act of

2015 (USA Freedom Act), Pub. L. No. 114-23, 129 Stat. 268. Other

statutes make Congress’s privacy concerns abundantly clear. See,

e.g., Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896

(codified at 5 U.S.C. § 552a (2012)); Omnibus Crime Control and



                                             45
Safe   Streets    Act    of    1968,    Pub. L.   No.     90-351,   82   Stat.   197

(codified as amended at 18 U.S.C. § 2510 et seq. (2012)).

       It is human nature, I recognize, to want it all. But a

world of total privacy and perfect security no longer exists, if

indeed it ever did. We face a future of hard tradeoffs and

compromises,      as    life    and    privacy    come     simultaneously    under

siege. How sad, near the very inception of this journey, for

appellants   to    adopt       the    most    stringent    of   Fourth   Amendment

standards, to discard the great values of democratic compromise,

and to displace altogether the legislative role.




                                             46
WYNN, Circuit Judge, with whom FLOYD and THACKER, Circuit
Judges, join, dissenting in part and concurring in the judgment: 1

     A customer buys a cell phone.         She turns it on and puts it

in her pocket.        With those acts, says the majority, she has

“voluntarily   conveyed”   an    unbounded    set     of   personal   location

data to her service provider, all of which is unprotected by the

Fourth   Amendment.      Here,   that    included     221   days’     worth   of

information,   amounting   to    roughly     29,000    location-identifying

data points for each Defendant.

     The majority further claims that “Supreme Court precedent

mandates this conclusion,” that “[l]ogic compels” it.                 Ante, at

5, 17.   But those contentions are difficult to square with the

array of concurring and dissenting opinions that have already

been issued by federal appellate judges on this subject. 2                With


     1 In accordance with the practice of my colleague, see
United States v. Graham, 796 F.3d 332, 378 n.1 (4th Cir. 2015)
(Motz, J., dissenting in part and concurring in the judgment), I
have styled this opinion as a partial dissent.    Even though I
would affirm the Defendants’ convictions under the exclusionary
rule’s good-faith exception, I take issue with the majority’s
determination that there was no Fourth Amendment violation, a
conclusion which “will have profound consequences in future
cases in the Fourth Circuit.” Id.
     2 Four other federal appellate courts have issued five
decisions considering as a matter of first impression the
applicability of the Fourth Amendment to CSLI, and those
decisions generated seven concurring or dissenting opinions.
See United States v. Carpenter, Nos. 14-1572, 14-1805, 2016 WL
1445183, at *1 (6th Cir. Apr. 13, 2016) (majority opinion); id.
at *11 (Stranch, J., concurring); United States v. Davis, 785
F.3d 498, 500 (11th Cir. 2015) (en banc) (majority opinion); id.
at 519 (W. Pryor, J., concurring); id. at 521 (Jordan, J.,
(Continued)
                                    47
respect for the differing view of my colleagues in the majority,

this is not an easy issue.            Not only that, but a close reading

of the Supreme Court’s third-party doctrine demonstrates that

cell    site     location      information    (CSLI)    is    not     “voluntarily

conveyed” by cell phone users.               It is therefore not beyond the

Fourth Amendment’s reach.

                                        I.

                                        A.

       The third-party doctrine operates to bar Fourth Amendment

protection       only    for   information     that    has   been     “voluntarily

conveyed” by an individual to a third party.                 The majority does

not    dispute    this   limitation,    see    ante,    at   10–11,    16–18,   nor

could it.      That phrase, or some slight variation of it, appears

without exception as a necessary analytical component in each of

the Supreme Court’s founding third-party doctrine cases.                    Smith



concurring); id. at 524 (Rosenbaum, J., concurring); id. at 533
(Martin, J., dissenting); United States v. Davis, 754 F.3d 1205
(11th Cir.) (unanimous), vacated, reh’g en banc granted, 573 F.
App’x 925 (11th Cir. 2014); In re Application of the U.S. for
Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013) (In
re Application (Fifth Circuit)) (majority opinion); id. at 615
(Dennis, J., dissenting); In re Application of U.S. for an Order
Directing a Provider of Elec. Commc’n Serv. to Disclose Records
to Gov’t, 620 F.3d 304, 305 (3d Cir. 2010) (In re Application
(Third Circuit)) (majority opinion); id. at 319 (Tashima, J.,
concurring).     The   only  unanimous   panel  held   that  the
government’s warrantless acquisition of CSLI constituted a
Fourth Amendment violation. Davis, 754 F.3d at 1215. No doubt,
when the votes are tallied, more now support the majority’s
position. But that should not decide this case.


                                        48
v. Maryland, 442 U.S. 735, 744 (1979) (“When he used his phone,

petitioner         voluntarily       conveyed       numerical        information        to   the

telephone       company       . . . .”        (emphasis         added));        id.    at    745

(“[P]etitioner            voluntarily        conveyed      to    [the      phone       company]

information         that     it   had     facilities          for     recording        . . . .”

(emphasis added)); United States v. Miller, 425 U.S. 435, 442

(1976)    (“All      of     the   documents         obtained,       including         financial

statements          and     deposit      slips,          contain         only      information

voluntarily conveyed to the banks . . . .” (emphasis added));

Hoffa v. United States, 385 U.S. 293, 302 (1966) (“Neither this

Court nor any member of it has ever expressed the view that the

Fourth Amendment protects a wrongdoer’s misplaced belief that a

person to whom he voluntarily confides his wrongdoing will not

reveal it.” (emphasis added)); Lewis v. United States, 385 U.S.

206,    212     (1966)      (“[This      case]      presents        no    question      of   the

invasion      of    the     privacy     of    a     dwelling;       the    only    statements

repeated were those that were willingly made to the agent and

the only things taken were the packets of marihuana voluntarily

transferred to him.” (emphasis added)); see also United States

v.     White,      401     U.S.   745,       749     (1971)     (no       Fourth      Amendment

protection         where     an      individual          “voluntarily           confides     his

wrongdoing” to another (quoting Hoffa, 385 U.S. at 302)).

       The    Supreme       Court,    then,        has   intentionally          employed     the

“voluntary conveyance” concept in every relevant case to limit

                                               49
the   reach    of   an     otherwise     sweeping      per    se    rule    that   denies

Fourth Amendment protection.              It seems therefore crucial here to

ask: what, precisely, did the Court mean when it chose those

words, in the context of those cases?

      Here     is   what      those    various      defendants      actually       did    to

“voluntarily convey” information.                   One used his finger to dial,

one by one, the numerical digits of a telephone number.                            Smith,

442 U.S. at 741 (highlighting that pen registers disclose “only

the telephone numbers that have been dialed” (quoting United

States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977))).                               Another

submitted      multiple       checks    and     deposit      slips—each      presumably

bearing    a    date,     a   dollar     amount,      a     recipient      name,    and   a

personal      signature.        Miller,       425    U.S.    at    442.     The    others

actually spoke.          White, 401 U.S. at 746–47 (conversations with a

bugged government informant related to narcotics transactions);

Hoffa, 385 U.S. at 296 (statements to an associate “disclosing

endeavors      to   bribe     [jury]    members”);        Lewis,    385    U.S.    at    210

(conversations with an undercover law enforcement agent in the

course of executing a narcotics sale).

      In all of these cases—the only cases that can bind us here—

“voluntary conveyance” meant at least two things.                             First, it

meant that the defendant knew he was communicating particular

information.        We can easily assume Miller knew how much money he

was depositing, that Smith knew the numbers he was dialing, and

                                           50
that   Hoffa,   Lewis,   and    White   knew   about    the    misconduct   they

verbally described to another.

       Second, “voluntary conveyance” meant that the defendant had

acted in some way to submit the particular information he knew.

Crucially,   there   was   an    action—depositing,      dialing,     speaking—

corresponding to each piece of submitted information.                 And where

many data pieces were compiled into records—financial records in

Miller,    phone   records      in   Smith—there       was    presumptively    a

discrete action behind each piece of data.                    The Court never

suggested that the simple act of signing up for a bank account,

or a phone line, was enough to willingly turn over thousands of

pages of personal data.

       These two components of “voluntary conveyance”—knowledge of

particular      information      and     an    action         submitting    that

information—were thus present in every “Supreme Court precedent”

that can “mandate[] [our] conclusion” here.              Ante, at 5.        Those

features also characterize the vast majority of cases where the

third-party doctrine has been applied by other federal courts.

       When a credit card holder signs a receipt that includes the

address of the vendor, the bill amount, and the time of the

transaction, she both indicates her knowledge of that particular




                                        51
information and acts to submit it. 3                 Thus, courts have held that

the third-party doctrine applies to credit card records.                      E.g.,

United States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993);

see also United States v. Maturo, 982 F.2d 57, 59 (2d Cir. 1992)

(credit card records admitted as evidence); United States v.

Kragness, 830 F.2d 842, 865 (8th Cir. 1987) (same).

       When       someone    types   “his    name,     email   address,    telephone

number, and physical address” into a form and then submits that

information to a service provider in order to secure internet

access, he not only has knowledge of the typed information but

has affirmatively acted to communicate it.                      United States v.

Bynum, 604 F.3d 161, 164 (4th Cir. 2010).                      Thus, courts have

held       that    the      third-party     doctrine     applies   to     subscriber

       3
       The majority argues that reading “voluntary conveyance” to
require user knowledge would require courts “frequently . . . to
parse business records [such as credit card records] for indicia
of what an individual knew he conveyed to a third party.” Ante,
at 19 n.9. That argument is a bogeyman. Courts would not need
to “parse” credit card records to determine whether the
cardholder at a grocery knew he was conveying “the date and time
of his purchase or the store’s street address,” id., any more
than the Supreme Court had to “parse” Miller’s bank records to
determine whether he knew he was conveying the date, amount, or
recipient name that appeared on the checks he himself had
endorsed.   That much was obvious from the nature of the record
and the transactions it reflected. Where user knowledge cannot
be easily ascertained in this manner, however, I would not force
an ill-fitting presumption of voluntariness in order to strip
Fourth Amendment protection from a defendant.        See Ohio v.
Robinette, 519 U.S. 33, 40 (1996) (“[V]oluntariness is a
question of fact to be determined from all the circumstances.”
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248–49
(1973))).


                                            52
information.   Id.; see also United States v. Perrine, 518 F.3d

1196, 1204 (10th Cir. 2008) (collecting cases).

     When an internet user types a URL—which is uniquely linked

to a single IP address 4—into her web browser and hits the “Enter”

key, she knows the web address and she actively submits it.

Thus, although the law in this area is still unsettled, courts

have generally concluded that the third-party doctrine applies

to the IP addresses of visited websites.         See, e.g., United

States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (“Like

telephone   numbers   . . .   e-mail   to/from   addresses   and   IP

addresses are not merely passively conveyed through third party

equipment, but rather are voluntarily turned over in order to

direct the third party’s servers.”). 5


     4 See United States v. Forrester, 512 F.3d 500, 510 n.5 (9th
Cir. 2008) (“Every computer or server connected to the Internet
has a unique IP address.    A website typically has only one IP
address even though it may contain hundreds or thousands of
pages.   For example, Google’s IP address is 209.85.129.104 and
the New York Times’ website’s IP address is 199.239.137.200.”).
     5 One category of generally admitted third-party information

would not be “voluntarily conveyed” under my reading of that
requirement: phone records of incoming calls. See ante, at 20—
22.   Perhaps one reason such information is routinely admitted
is that it is rarely challenged by defendants, since it is
outgoing call information that tends to be incriminating, as was
the case in the sole authority from this circuit cited by the
majority. See United States v. Clenney, 631 F.3d 658, 662 (4th
Cir. 2011) (investigator “confirmed through phone records that
[defendant’s] phone number was the source of outgoing calls”).
Regardless, it is an open question whether anyone could credibly
assert the infringement of a legitimate expectation of privacy
in the numbers dialed by someone else (as one can in her
(Continued)
                                 53
     It follows that knowledge of particular information and a

corresponding    act     transmitting    that     information     have     defined

“voluntary    conveyance”     in   virtually      every   case    espousing      or

applying the third-party doctrine, and certainly in every case

that can bind us here.       Those features describe traditional bank

records    and   phone    records,     hotel      bills   and    airline    miles

statements,      email     addresses        and     social      media      profile

information.     This is a description—not a redefinition—of the

third-party doctrine. 6

                                       B.

     The   foregoing      discussion    makes     clear   that    CSLI     is   not

“voluntarily conveyed” by a cell phone user, and therefore is

not subject to the third-party doctrine.



movements over time, see infra section II). In other words, my
view of “voluntary conveyance” may not require excluding
warrantlessly procured incoming call information.     Even if it
did, that would be a small price to pay for preserving the
substance of a constitutionally mandated limitation on the
third-party doctrine’s scope.
     6 Indeed, it is the majority who has “improperly attempt[ed]

to redefine the third-party doctrine.”     Ante, at 6; see also
ante, at 16, 20.      The majority recasts the Supreme Court’s
“voluntary conveyance” language in a double negative, such that
“the third-party doctrine does not apply when an individual
involuntarily conveys information.” Ante, at 19 (first emphasis
added). The upshot of this approach is that the protections of
the Fourth Amendment are limited to situations where “the
government conducts surreptitious surveillance or when a third
party steals private information.”     Id.    While the majority
might prefer to preserve Fourth Amendment protection only for
information that is not coercively seized, that is not the
Supreme Court’s standard, and it should not be ours.


                                       54
       First, consider how little a cell phone user likely knows

about his CSLI.            Unlike the deposit amounts in Miller and the

phone      numbers    in     Smith,    which       were    at     various    points     made

obvious to the user “in the ordinary course of business,” Smith,

442 U.S. at 744, there is no reason to think that a cell phone

user is aware of his CSLI, or that he is conveying it.                             He does

not write it down on a piece of paper, like the dollar amount on

a deposit slip, or enter it into a device, as he does a phone

number before placing a call.                 Nor does CSLI subsequently appear

on     a    cell     phone      customer’s         statement,       as      the    relevant

information did for the banking customer in Miller and the phone

caller in Smith.           See Smith, 442 U.S. at 742 (“All subscribers

realize . . . that the phone company has facilities for making

permanent records of the numbers they dial, [because] they see a

list       of   their      . . .      calls        on     their     monthly       bills.”).

Consequently,        “it   is    unlikely      that       cell    phone     customers   are

aware that their cell phone providers collect and store [CSLI].”

In re Application of U.S. for an Order Directing a Provider of

Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304,

317 (3d Cir. 2010) (In re Application (Third Circuit)).                                 And

even if cell phone customers have a vague awareness that their

location affects the number of “bars” on their phone, see ante,

at 18, they surely do not know which cell phone tower their call

will be routed through, a fact even the government concedes.

                                              55
Appellee’s Br. at 53 (“[T]he location of the cell phone tower

handling a customer’s call is generated internally by the phone

company and is not typically known by the customer.”).                 User

knowledge,   the    first   component    of    “voluntary   conveyance,”   is

therefore essentially absent. 7

     Second, consider what the cell phone user does—or does not

do—to transmit CSLI.        As a general matter, “CSLI is purely a

function and product of cellular telephone technology, created

by the provider’s system network at the time that a cellular

telephone    call   connects   to   a   cell    site.”      Commonwealth   v.

Augustine, 4 N.E.3d 846, 862 (Mass. 2014).               In some instances,

CSLI is produced when a user places an outgoing call, an action

     7 The majority “fail[s] to see how a phone user could have a
reasonable expectation of privacy in something he does not
know.”   Ante, at 19 n.9.    I wonder: does the majority imagine
that Danny Kyllo knew what levels of infrared radiation emanated
from his home and were recorded with precision by the
government’s thermal imaging device? See Kyllo v. United States,
533 U.S. 27, 29–30 (2001).    The rule that one must “know” what
one can reasonably expect to keep private is new to me, and I
believe to Fourth Amendment doctrine as well.     It is also yet
another aspect of this Court’s present decision with troubling
future implications. I suppose we can also expect no privacy in
data transmitted by networked devices such as the “Fitbit”
bracelet, which “can track the steps you take in a day, calories
burned, and minutes asleep”; the “Scanadu Scout,” which can
“measure your temperature, heart rate, and hemoglobin levels”;
or the “Mimo Baby Monitor ‘onesie’ shirt,” which can “monitor
your baby's sleep habits, temperature, and breathing patterns.”
Scott R. Peppet, Regulating the Internet of Things: First Steps
Toward Managing Discrimination, Privacy, Security, and Consent,
93 Tex. L. Rev. 85, 88 (2014); see also infra note 8.      Making
knowledge requisite to privacy is inconsistent not only with
Supreme Court precedent but with our basic societal norms.


                                    56
that arguably corresponds with the generated information (even

if the user remains unaware of that information).                        However, CSLI

is also generated when a phone simply receives a call, even if

the   user       does   not    answer.         In     these    instances,    CSLI    is

automatically       generated     by     the        service    provider’s     network,

without any user participation at all.                        See In re Application

(Third Circuit), 620 F.3d at 317–18 (“[W]hen a cell phone user

receives     a    call,   he    hasn’t   voluntarily           exposed    anything   at

all.”). 8


      8 The majority does not take seriously this idea—that
information might be automatically generated without user
involvement.   See ante, at 16 (“[T]here can be little question
that cell phone users ‘convey’ CSLI to their service providers.
After all, if they do not, then who does?”); id. (“Perhaps
Defendants believe that . . . the [service] provider just
conveys CSLI to itself.”).    But even in the era of Miller and
Smith, human beings were not the only entities capable of
collecting and conveying information.   That is also surely the
case now, and will only become increasingly relevant going
forward.     See, e.g., Neil M. Richards, The Dangers of
Surveillance, 126 Harv. L. Rev. 1934, 1940 (2013) (“The
incentives for the collection and distribution of private data
are on the rise. The past fifteen years have seen the rise of
an Internet in which personal computers and smartphones have
been the dominant personal technologies.    But the next fifteen
will likely herald the ‘Internet of Things,’ in which networked
controls, sensors, and data collectors will be increasingly
built into our appliances, cars, electric power grid, and homes,
enabling   new   conveniences  but  subjecting   more  and  more
previously unobservable activity to electronic measurement,
observation, and control.”); Peppet, supra note 7, at 88–89.
Today, the majority saddles us with a rule that does not
distinguish between information an individual himself conveys
and information that computerized devices automatically record,
generate, and transmit.       In other words, the majority’s
expansive interpretation of Miller and Smith will, with time,
(Continued)
                                          57
       In sum, because a cell phone customer neither possesses

knowledge of his CSLI nor acts to disclose it, I agree with the

Third Circuit that he “has not ‘voluntarily’ shared his location

information with a cellular provider in any meaningful way.”

Id. at 317; accord Augustine, 4 N.E.3d at 862; Tracey v. State,

152 So. 3d 504, 525 (Fla. 2014). 9

                                      II.

       Because    CSLI   is   not    voluntarily    conveyed     to    service

providers, the third-party doctrine alone cannot resolve whether

the government here conducted a Fourth Amendment “search.”                  In

other words, there must be an independent evaluation of whether

“the   government    violates   a    subjective    expectation   of    privacy

that    society    recognizes   as    reasonable”     by   acquiring     large



gather   momentum—with   effects  increasingly   destructive  of
privacy.
     9 Because CSLI is not voluntarily conveyed by cell phone

users, I find it unnecessary to wade into the murky waters that
separate “content” from “non-content” information. The point of
the “content” designation, as recognized by the Supreme Court,
is that even some information that is voluntarily conveyed to
(or routed through) third parties is nevertheless protected by
the Fourth Amendment. For example, even though one voluntarily
conveys information by speaking into a public telephone
receiver,   “the   contents   of  [those]   communications”  are
protected.   Smith, 442 U.S. at 741.    The voluntarily conveyed
content contained in a letter, Ex parte Jackson, 96 U.S. 727,
733 (1877), or in the body of an e-mail, United States v.
Warshak, 631 F.3d 266, 288 (6th Cir. 2010), is protected, too.
But where the information in question was never voluntarily
conveyed in the first place, the third-party doctrine should
have no application, even if that information is deemed “non-
content.”


                                      58
amounts of CSLI.        Kyllo v. United States, 533 U.S. 27, 33 (2001)

(citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,

J., concurring)).            To answer that question, an examination is

warranted of both the quality and quantity of the information

the government here acquired.

     The    government         obtained     221     days     of    CSLI   for    each

Defendant. 10     That amounted to 29,659 location data points for

Graham (an average of 134 data location points per day) and

28,410    location      data    points    for     Jordan    (an   average   of   129

location points per day).              Each piece of data revealed not only

the particular cell tower through which the relevant call was

routed,    but   also    a     particular      120-degree    sector—or    one-third

“slice”—within that cell tower’s range.                     The record indicates

that the cell sites at issue in this case covered a circular

area with a radius no larger than two miles.                        But given the

density    of    cell   sites     in   urban     areas     like   Baltimore,    where

Sprint/Nextel operates 79 cell sites within the city limits and

many more in Baltimore County, the relevant cell site area was

likely far more precise for much of the location data obtained.


     10  This CSLI acquisition far eclipses any a federal
appellate court has previously approved. Cf. Carpenter, 2016 WL
1445183, at *3 (considering two CSLI acquisitions, for separate
defendants, spanning 88 and 127 days); Davis, 785 F.3d at 515
(CSLI acquisition spanning 67 days); In re Application (Fifth
Circuit), 724 F.3d at 608 n.9 (CSLI acquisition spanning 60
days).


                                          59
The records reveal extensive details about Defendants’ locations

and    movements         throughout        the   seven      months-long      period.      For

Graham, over two thousand calls were initiated and terminated in

different         cell    site    sectors,       indicating        movement      during   the

call.       Some days offer particularly telling data.                          For example,

during      one    38-hour       period     in    October     2010,      Graham    made   and

received 209 calls located in 55 different cell site sectors.

       In    United      States       v.   Jones,     132    S.    Ct.    945   (2012),   the

Supreme       Court           unanimously        held       that      the       government’s

installation of a GPS device on a suspect’s vehicle and its use

of that device to track the vehicle’s movements over a 28-day

period violated the Fourth Amendment.                        See id. at 949, 954; id.

at 964 (Alito, J., concurring in the judgment).                              A majority of

the     Court       agreed       that       “longer      term      GPS      monitoring     in

investigations           of    most    offenses       impinges      on    expectations     of

privacy.”         Id. at 955 (Sotomayor, J., concurring); id. at 964

(Alito, J., concurring in the judgment). 11                         That conclusion was

rooted in concerns about the government’s ability to capture

data    describing        an     individual’s         movements     and     aggregate     that


       11
        That is, five Justices agreed that longer-term location
monitoring could violate an individual’s reasonable expectation
of privacy.    Although the majority opinion was grounded in a
trespass-based rationale, see id. at 949, it made clear that
“[s]ituations involving merely the transmission of electronic
signals without trespass would remain subject to [reasonable
expectation of privacy] analysis,” id. at 953.


                                                 60
data “to ascertain, more or less at will,” private information

about       an   individual,     such   as     her   “political    and    religious

beliefs, sexual habits, and so on.”                  Id. at 956 (Sotomayor, J.,

concurring).        While the Justices left it an open question how

long location surveillance could occur before triggering Fourth

Amendment protection, Justice Alito clarified that “the line was

surely crossed before the 4–week mark.”                Id. at 964.

       Here, we confront a locational data set that is on the

whole       more    invasive     than    the     one    considered       in   Jones.

Admittedly,        the    CSLI   acquired      here,    which   could     trace   an

individual to a neighborhood even if not to a specific address,

was less precise than the GPS tracking information in Jones.

“But        precision     is     not    the     only    variable     with     legal

significance.”           United States v. Carpenter, Nos. 14-1572, 14-

1805, 2016 WL 1445183, at *12 (6th Cir. Apr. 13, 2016) (Stranch,

J., concurring).          Quantity matters, too.           And in my view, the

sheer volume of data the government acquired here decides this

case. 12


       12
        The majority wonders “why . . . only large quantities of
CSLI [would] be protected by the Fourth Amendment.”       Ante, at
29. That is a fair question to ask of Defendants, who maintain
that even smaller amounts of CSLI can be used to peer “into the
home.”   Appellants’ Br. at 20.    In my view, however, the CSLI
utilized   here   was  not   precise   enough   to   implicate   an
individual’s privacy interest in the home’s interior.           See
United   States   v.  Karo,    468   U.S.  705,    714–16   (1984).
Consequently, I consider the main privacy expectation infringed
(Continued)
                                          61
       Whereas     the    Supreme     Court        deemed      the        government’s

collection of 28 days of location data unconstitutional, the

data   challenged     here    spans   221    days—nearly        eight       times   the

surveillance period evaluated in Jones.                  The Eleventh Circuit

concluded that a 67-day set of CSLI could “[w]ithout question

. . . when closely analyzed, reveal certain patterns with regard

to [the defendant’s] physical location in the general vicinity

of his home, work, and indeed the robbery locations.”                          United

States v. Davis, 785 F.3d 498, 516 (11th Cir. 2015) (en banc).

I have little trouble concluding that the close analysis of a

221-day CSLI set would reveal much more, potentially “enabl[ing]

the    Government    to   ascertain,        more    or   less        at    will,    [an

individual’s]      political   and    religious      beliefs,        sexual   habits,

and    so   on.”     Jones,    132    S.    Ct.     at   956    (Sotomayor,         J.,

concurring).



here to be in Defendants’ movements over an extended period of
time, which necessarily requires examining the quantity of data
obtained. Furthermore, I agree that “[i]ntrinsic to the [third-
party]   doctrine  is  an   assumption  that  the   quantity of
information an individual shares . . . does not affect whether
that individual has a reasonable expectation of privacy.” Ante,
at 32.    That is, in part, why the majority’s holding is so
troublingly broad.     See infra section III.        But having
determined that CSLI is not voluntarily conveyed, and thus that
the third-party doctrine does not decide this case, I must
evaluate separately whether a reasonable expectation of privacy
has been infringed.     Because the basis for my decision is
extrinsic to the third-party doctrine, it is natural that I
would not be bound by an “intrinsic . . . assumption” of that
doctrine.


                                       62
      By    acquiring     vast     quantities       of   Defendants’      location

information, spanning months, without Defendants’ consent, the

government    infringed    their       reasonable    expectations    of   privacy

and   thereby   engaged    in     a    search.      Because   that   search     was

warrantless, it violated the Fourth Amendment. 13

                                        III.

      Even more disquieting to me than the result the majority

has reached today is the path it has chosen to reach it.

      The   majority    does     not   decide,   for     instance,   as   did   the

Third Circuit, that the CSLI employed here was too imprecise or

too discontinuous to infringe Defendants’ privacy.                     See In re

Application (Third Circuit), 620 F.3d at 312–13.                 That narrower

holding would have allowed this Court to grapple, in the future,

with the effect of rapidly changing phone technology, like the

increasing “proliferation of smaller and smaller [cell sites]

such as microcells, picocells, and femtocells—which cover a very

specific area, such as one floor of a building, the waiting room

of an office, or a single home,” In re Application for Tel.

Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011,


      13“[A]s a general matter, warrantless searches ‘are per se
unreasonable under the Fourth Amendment . . . .’”        City of
Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz,
389 U.S. at 357).    In my view, none of the “few specifically
established and well-delineated exceptions” to that rule apply
here. Id.



                                         63
1023 (N.D. Cal. 2015), or the advent of smartphone “pinging,”

whereby location data can be generated almost continuously, see,

e.g.,    In     re     Application          of   U.S.    for     an    Order    Authorizing

Disclosure of Location Info. of a Specified Wireless Tel., 849

F.    Supp.     2d    526,     534    (D.    Md.      2011).      Rather,      the    majority

concedes       what     follows        unavoidably         from       its    holding:       “the

applicability of the Fourth Amendment [does not] hinge[] on the

precision of CSLI,” ante, at 9 n.3, or on its quantity, ante, at

32.       The        Supreme    Court        has      cautioned       that    “[w]hile       the

technology used in the present case [may be] relatively crude,

the    rule     we    adopt     must    take        account    of     more    sophisticated

systems that are already in use or in development.”                                 Kyllo, 533

U.S. at 36.            Suppose the same case arises in two years, now

featuring months of GPS-pinpointed location data, down to the

second.       Apply the majority’s rule.                Same result.

       Neither does the majority hold, as the Eleventh Circuit did

in the alternative, that the court order required by 18 U.S.C.

§ 2703(d), though less than a warrant backed by probable cause,

nevertheless          satisfied       the     Fourth     Amendment’s         reasonableness

“touchstone.”           See Davis, 785 F.3d at 516–18; id. at 521–24

(Jordan,      J.,     concurring).           That      holding    would      have    at   least

preserved       a     modicum    of    Fourth         Amendment       protection      for    the

location      data     at    issue     here,       requiring     an    evaluation      of    the

relevant statutory provision that “assess[es], on the one hand,

                                                 64
the degree to which [the search] intrudes upon an individual's

privacy and, on the other, the degree to which it is needed for

the promotion of legitimate governmental interests.”               Id. at 517

(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).                     If

that    were   the    Court’s    holding,    then   the    majority’s    token

assurances     that   “Congress    . . .    has   not   been   asleep   at   the

switch,” ante, at 35, and my concurring colleague’s laudatory

musings about Congress’s “striking a balance in an area rife

with the potential for mass casualty,” ante, at 45, might do

more than salve our judicial consciences: they would actually be

doctrinally relevant. 14        But as it is, Congress could repeal the


       14
        My concurring colleague joins the majority based on his
“fear that by effectively rewriting portions of a federal
statute under the guise of reasonableness review courts run the
risk of boxing the democratic branches out of the constitutional
dialogue.” Ante, at 38. If that is truly the grounds for his
concurrence, I hope my friend understands that the majority’s
opinion today will be the last word spoken in that “dialogue.”
It is a conversation ender.      Following today’s decision, the
judiciary will have absolutely no role in articulating what
protections   the   Fourth   Amendment    requires    for   private
information that is not either directly gathered by the
government or secretively stolen by third parties. We have thus
avoided “boxing out” the other branches, but only at the cost of
boxing out ourselves.    So much for a “collaborative enterprise
among the three departments of government.”      Ante, at 38.    By
the way, the statutory “rewriting” my colleague fears would
require   eliminating   a   single   line   of    statutory   text,
specifically 18 U.S.C. § 2703(c)(1)(B).    The efficiency of that
modification is possible because Congress, as my colleague
recognizes, provided in its “carefully tailored scheme,” ante,
at 40, that the government could acquire non-content customer
information by obtaining a warrant.    18 U.S.C. § 2703(c)(1)(A).
One wonders whether Congress itself might have anticipated the
(Continued)
                                      65
SCA and the ECPA tomorrow.     Apply the majority’s rule.    Same

result.

     What this elucidates is the extraordinary breadth of the

majority’s decision today.    It is not bounded by the relative

precision of location data, by the frequency with which it is

collected, or by the statutory safeguards Congress has thought

it prudent to enact.   The majority’s holding, under the guise of

humble service to Supreme Court precedent, markedly advances the

frontlines of the third-party doctrine.    The Fourth Amendment,

necessarily, is in retreat.

                               IV.

     Only time will tell whether our society will prove capable

of preserving age-old privacy protections in this increasingly

networked era.   But one thing is sure: this Court’s decision

today will do nothing to advance that effort.   I dissent.




potential for a contrary decision today.    Finally, although I
appreciate my colleague’s civics lesson on the institutional
competencies of Congress, I would remind him of one of our own:
judicial review.    See Marbury v. Madison, 5 U.S. 137, 178
(1803).


                               66
