How Lambis and CSLI Litigation Mandate Warrants for Cell-Site Simulator Usage in New York.

• Author: Ham, Cindy D.
• Position: Cell site location information

INTRODUCTION

Over the years, various federal, state, and local law enforcement agencies have enjoyed the growth and development of technology in aiding their efforts to combat crime. Until recently, not much information had been available regarding the use, or existence, of cell-site simulators. Cell-site simulators have been around for at least fifteen years, (1) and they operate by mimicking cell phone towers. (2) Known also by their popular brand name, Stingray, cell-site simulators have the capability to extract information such as location and call records by tricking a nearby cell phone to connect to them instead of cell towers. (3)

Perhaps as a result of the petitions of various civil liberty groups and privacy advocates, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued guidance policies on their use of cell-site simulators. These policies generally require a warrant to be obtained if probable cause exists, unless the circumstances are exigent or exceptional. (4) On the state level, however, the extent of available information and issued guidance varies widely. California's Electronic Communications Privacy Act requires a warrant before state law enforcement can obtain data through cell-site simulators and other means, (5) while the New York Police Department (NYPD) has been sued by the New York Civil Liberties Union (NYCLU) after it refused to reveal information on its use of cell-site simulators. (6)

As cell phones continue to play a larger and vital role in the everyday lives of Americans, it is troubling that enforcement agencies possess an unhindered ability to gather personal--and mostly irrelevant--information from anyone within the range of cell-site simulators without a warrant. This Note will focus on how cell-site simulators have been used in New York, and how New York's state and local law enforcement agencies must take note of United States v. Lambis (7) and appropriately modify or create (as it is unknown whether they even have such policy) (8) their policies to require warrants.

Part I of this Note will discuss the available information on cell-site simulators with specific regard to use in New York. Part II will discuss legal precedent regarding cell-site simulators and cell site location information (CSLI), comparing the two types of surveillance and analyzing why CSLI precedent points to the necessity of a warrant for cell-site simulators. Part III will discuss Lambis in detail and its potential impact on cell-site simulators. Part IV will discuss what a proposed legislative enactment on cell-site simulators should address and also discuss California's relevant statute briefly as an example. Lastly, the Note will conclude by discussing past and current efforts to require warrants for cell-site simulator use, why law enforcement officials should modify their policy to require warrants, and how state legislatures could, alternatively, take anticipatory action and modify statutes to require warrants for such devices.

1. THE FRIGHTENING CAPABILITY OF CELL-SITE SIMULATORS TO OBTAIN VARIOUS INFORMATION FROM CELL PHONES WITHIN THEIR RANGE

   Much of the information available on cell-site simulators stems from federal agencies and their disclosures. Based on available information, (9) it appears that the state and local use of such simulators are similar. (10) According to the Department of Justice, cell-site simulators force cell phones, within a certain range, to connect to them rather than the cell towers, and cause the phones to give up the phone and electronic serial numbers that are assigned by the manufacturers. (11) The DOJ emphasized in its policy that data obtained through cell-site simulators are similar to those from pen registers, (12) in that they only provide records such as phone numbers and call logs, and do not disclose emails, texts, the user's name, or the address. (13) However, state and local law enforcement agencies, especially those in New York, have refused to release in detail what type of information they collect, what they retain, and what is ultimately destroyed. (14)

   The DOJ's policy only covers federal agencies and fails to provide insight on how the devices are used on the state and local level, (15) where the simulators are used extensively and where the devices are often borrowed from the federal agencies. (16) Given that cell-site simulators have the full capacity to obtain a phone's location history, track its location through GPS, and also obtain contents of calls, texts, and history of visited websites, (17) the lack of transparency by state and local agencies is deeply concerning.

   1. Usage of Cell-Site Simulators in New York

      Prior to discussing how the cell-site simulators have been used in New York, it must be noted that these devices are not cheap. As of May 2015, the New York state police had spent over $640,000 on cell-site simulators. (18) Some portions of that amount were spent on upgrading the devices, including the purchase of an amplifier that could augment their surveillance capabilities. (19)

      While spending inordinate amounts of money purchasing and upgrading the cell-site simulators, when confronted with a Freedom of Information Law request, the New York State Police responded that it did not have any records on numbers of investigations during which the equipment was used or any applications to court to request the use of cell-site simulators. (20) However, there is evidence of the FBI working with state and local police departments to maintain secrecy on use of the devices, subjecting the departments to nondisclosure agreements. (21) Notably, the Erie County Sheriffs Office entered into a confidentiality agreement with the FBI. (22) This agreement required the Sheriff s Office to maintain total secrecy about the use of cell-site simulators, including in court filings and when responding to court orders, absent explicit written consent by the FBI. (23) Furthermore, the Office was required to pursue dismissal of a criminal prosecution rather than compromising the disclosure of any information concerning the devices and their use. (24)

      The usage of cell-site simulators is not uncommon. The NYPD used the devices in over 1,000 cases between 2008 and 2015, and the seriousness of the alleged crimes ranges from homicide to identity theft. (25) New York state and local police continue to use cell-site simulators and spend significant amounts of money to maintain them, without being subject to any constraints or regulations. They continue to use these devices while refusing to disclose any information. (26) Thus, it is unsurprising that privacy advocates have probed the practice with increased scrutiny in recent years. (27)

   2. Efforts by the New York Civil Liberties Union and Legislative Attempts to Require Warrants Have Been Unsuccessful

      In 2015, two bills were introduced to the New York legislature to require either a court order or a warrant before utilizing cell-site simulators. S04914, a bill introduced in the New York Senate in 2015, sought to include "mobile phone surveillance systems" within the New York pen register statute that granted the court to issue orders. (28) Another bill proposed including cell-site simulators specifically in the eavesdropping statute, which would require a warrant before use. (29) Neither bill proceeded beyond being sent to a committee for approval. (30)

      In 2016, a number of bills were introduced that would require warrants for cell-site simulators unless the agency had the explicit permission of the owner or authorized user of the electronic device. (31) Named the New York Electronic Communications Privacy Act, it advanced past the codes committee and was sent to the rules committee for approval in June 2016, but it did not proceed beyond that. (32) It is unclear why the bills have not garnered enough support to continue through the process and eventually become law, especially given that the bills gained support from prominent companies and organizations such as Google and The Legal Aid Society. (33) In March 2017, two members of the New York City Council introduced the Public Oversight of Surveillance Act (POST Act) that would require the NYPD to disclose basic information on the surveillance tools they use, including cell-site simulators. (34) Specifically, it would require the NYPD to "issue a surveillance impact and use policy about these technologies," which will be open for comments and the final version will be provided to the Council, the Mayor, and be posted on the NYPD's website. (35) After a committee hearing held on June 14, 2017, the bill was "laid over," (36) indicating that no votes or further actions were taken. (37) Since Mayor Bill De Blasio has publicly opposed it, this means that the bill must gain the support of at least two-thirds of the Council, or 34 votes, to override his veto, if the vote ever occurs. (38)

2. HOW THE UNRESTRICTED USAGE OF CELL-SLTE SIMULATORS VIOLATES FOURTH AMENDMENT RIGHTS

   Traditionally, legal issues concerning privacy have been scrutinized under well-established tests such as the reasonable expectation of privacy test underrate v. United States (39) and the mosaic theory as implied in United States v. Jones (40) and Riley v. California. (41) However, this Note will evaluate and discuss cell-site simulators through the lens of CSLI (42) litigation and the Lambis decision; (43) the latter of which held that using cell-site simulators requires a warrant. Additionally, the Note will incorporate established Fourth Amendment frameworks in analyzing the various litigation. (44) The Lambis decision, even though it was adjudicated in federal court, is important here because it establishes proper legal context to evaluate cellsite simulator use and why it requires a warrant, as apposite cases at the state level are practically nonexistent most likely due to the nondisclosure agreements. (45)

   1. Comparing CSLI and Cell-Site...