PA 17-221—sHB 7291
AN ACT CONCERNING THE USE OF CELL SITE SIMULATOR DEVICES BY LAW ENFORCEMENT OFFICIALS TO CONDUCT CELLULAR TELEPHONE SURVEILLANCE
SUMMARY: This act sets standards for law enforcement 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 act allows law enforcement officials to install and use a cell site simulator device to obtain geo-location data (defined below) only for up to:
1. two weeks under an ex parte court order (without notice to anyone except the applicant) issued under a probable cause standard or
2. 48 hours without a court order in exigent circumstances.
The act also specifies that the state's wiretapping and electronic surveillance law applies to interceptions of wire communications using cell site simulator devices (§ 1). Under this law, a prosecutor can ask a three-judge panel to approve a wiretap in connection with investigating certain crimes. The panel may issue an ex parte wiretap order if its members unanimously agree that the application contains sufficient factual allegations to establish probable cause that several factors are met.
EFFECTIVE DATE: October 1, 2017
Cell Site Simulator Device
Under the act, 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 act 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, and (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.
Existing law defines geo-location data as information on an electronic device's location (both real-time and historical) that is wholly or partly generated by, derived from, or obtained by operating such a device, including a cell phone surveillance device. The act 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, law enforcement officials (e.g., prosecutors or police officers) 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. Law enforcement officials can request such a company to disclose up to 48 hours of such data without a court order in exigent circumstances.
The act 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 act 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 act 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 it was issued, and the judge's name.
Under the act, 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 that 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 apply for a court order as described above. When applying for such a court order, the official 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.
Under the act, certain other provisions of existing law on disclosure of geo-location data apply when law enforcement officials obtain such data by using cell site simulators. Specifically, the act 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 specified information regarding such ex parte orders issued during the previous year, and
3. the chief state's attorney must compile the data from the individual reports and report it to the Judiciary Committee by January 31 annually.
PA 17-216 changes certain procedures on court filings after law enforcement officials are granted ex parte court orders compelling disclosure of cell phone and internet records.