OLR Bill Analysis

sHB 7291

AN ACT CONCERNING THE USE OF CELL SITE SIMULATOR DEVICES BY LAW ENFORCEMENT OFFICIALS TO CONDUCT CELLULAR TELEPHONE SURVEILLANCE.

SUMMARY

This bill sets standards for law enforcement when conducting surveillance using a “cell site simulator device” (generally, a device that uses radio waves for certain purposes, such as tracking a cell phone's movements, intercepting its communications, or simulating a cell tower).

The bill allows law enforcement officials (e.g., prosecutors or police officers) to install and use a cell site simulator device to obtain geo-location data (defined below) only:

1. for up to two weeks under an ex parte court order (without notice to anyone except the applicant) issued under a probable cause standard or

2. for up to 48 hours without a court order in exigent circumstances.

The bill also specifies that the wiretapping and electronic surveillance law applies to interceptions of wire communications using cell site simulator devices ( 1). Under this law, a prosecutor can apply to a three-judge panel to approve a wiretap in connection with investigating certain crimes. The panel can unanimously agree to issue an ex parte wiretap order if it determines that the application contains sufficient factual allegations to establish probable cause that several factors are met (see BACKGROUND).

EFFECTIVE DATE: October 1, 2017

DEFINITIONS

Cell Site Simulator Device

Under the bill, a “cell site simulator device” is a device that transmits or receives radio waves in order to do any of the following:

1. identify, locate, or track the movements of a communications device;

2. intercept, obtain, access, or forward the communications, stored data, or metadata of a communications device;

3. affect a communications device's hardware or software operations or functions;

4. force transmissions from, or connections to, a communications device;

5. deny a communications device access to other communications devices, communications protocols, or services; or

6. spoof or simulate a communications device, cell tower, cell site, or service.

The bill specifies that the term includes (1) an international mobile subscriber identity catcher or other invasive cell phone or telephone surveillance or eavesdropping device that mimics a cell phone tower and sends out signals to cause cell phones in the area to transmit their locations, identifying information, and communications content, or (2) a passive interception device or digital analyzer that does not send signals to a communications device under surveillance.

The term does not include a device that an electric company (i.e., Eversource or United Illuminating) uses or installs to the extent the company uses it to measure electrical usage, provide services to customers, or operate the electric grid.

Geo-Location Data

Current law defines geo-location data as information on an electronic device's location (both real-time and historical) that, in whole or part, is generated by, derived from, or obtained by operating such a device, including a cell phone surveillance device. The bill specifies that this includes data generated by, derived from, or obtained by using a cell site simulator device.

USE OF CELL SITE SIMULATOR DEVICES TO OBTAIN GEO-LOCATION DATA

Under existing law, a law enforcement official may apply for an ex parte court order to compel telecommunications carriers or electronic communication or remote computing service providers to disclose geo-location data associated with a subscriber's or customer's call-identifying information. The court can grant these orders under a probable cause standard, authorizing the disclosure of up to two weeks' worth of such data. In exigent circumstances, law enforcement officials can request such a company to disclose up to 48 hours of such data without a court order.

The bill prohibits law enforcement officials from installing and using cell site simulator devices to obtain geo-location data except (1) under an ex parte court order or (2) in exigent circumstances without a court order. As described below, the legal standards and time frames are similar to those under existing law for disclosure by carriers or service providers.

Ex Parte Court Orders

The bill allows law enforcement officials to apply for an ex parte court order to allow the installation and use of a cell site simulator device to obtain geo-location data. The judge must grant the order if the official swears under oath that (1) there is probable cause to believe that a crime has been or is being committed and (2) the geo-location data associated with a subscriber's or customer's call-identifying information is relevant and material to an ongoing criminal investigation. Any such order may authorize the installation and use of such a device for up to 14 days.

The bill requires the law enforcement official to have the order signed by the authorizing judge within 48 hours of issuance or by the next business day, whichever is earlier. The order must include the case number assigned to the investigation, the date and time when it was issued, and the name of the authorizing judge.

Exigent Circumstances

Under the bill, law enforcement officials may install and use a cell site simulator device to obtain geo-location data for up to 48 hours without a court order when (1) facts exist to support the belief that the data is relevant and material to an ongoing criminal investigation, (2) the official believes exigent circumstances exist, and (3) the facts support that belief.

If the official seeks to install and use such a device beyond 48 hours for the same investigation, he or she must seek a court order as described above. When applying for such a court order, he or she must file with the application a statement under oath, attesting to the facts and beliefs about the exigent circumstances that existed and supported the use of the device for up to 48 hours. The statement must indicate the date and time that the device was used.

Other Provisions

Under the bill, certain other provisions of existing law on disclosure of geo-location data also apply when law enforcement officials obtain such data by using cell site simulators. Specifically, the bill provides that:

1. a law enforcement official who receives information by using such a device (a) may retain it for more than 14 days only if it relates to an ongoing criminal investigation and (b) must disclose it to defense counsel;

2. each law enforcement official must report to the chief state's attorney by January 15 annually on such ex parte orders issued the previous year; and

3. the chief state's attorney must compile the data in the individual reports and provide it in a report to the Judiciary Committee by January 31 annually.

BACKGROUND

Wiretapping and Electronic Surveillance

Existing law authorizes wiretap applications for certain crimes, such as gambling, racketeering, drug sales, human trafficking, and felonies involving violence ( 54-41b). The three-judge panel that receives the application can unanimously agree to issue an ex parte wiretap order if it determines, based on the facts submitted by the applicant, that there is probable cause to believe that:

1. an individual has committed or is committing a crime covered by the wiretap law;

2. particular communications will constitute material evidence of that offense or will materially aid in apprehending the perpetrator;

3. the communications are not otherwise privileged;

4. other normal investigative procedures have failed or reasonably appear unlikely to succeed or too dangerous to try;

5. the facilities from which, or the place where, the communications are to be intercepted are being used or are about to be used in connection with the crime being investigated, or are leased to, listed in the name of, or commonly used by the suspect;

6. such facilities or places are not those the wiretap law protects from interception (i.e., phone lines leased in the name of, or regularly used by, lawyers, doctors, or the clergy);

7. there is a special need for the wiretap if the facility from which a wire communication is to be intercepted is used by the public; and

8. the investigative officers who will conduct the interception have adequate training and experience to do so.

In addition, except for certain emergency situations, a panel cannot authorize a wiretap if more than 34 wiretaps have been authorized that year.

The wiretap law addresses other related matters, such as (1) the required contents of the application and the order and (2) criminal penalties for violations of the law (CGS 54-41a et seq.).

Related Bill

sHB 7256 (File 638), reported favorably by the Judiciary Committee, changes certain procedures concerning court filings after law enforcement officials are granted ex parte court orders compelling disclosure of cell phone and Internet records. The bill also makes technical changes to conform to PA 16-148, clarifying that the notice provisions and other requirements apply to communications data and geo-location data as set forth in that act.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

41

Nay

0

(04/07/2017)