Report Details Law Enforcement’s Use of Cell-Site Simulators
House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT) and Ranking Member Elijah Cummings (D-MD) released a bipartisan staff report after a yearlong investigation into federal, state, and local law enforcement use of cell-site simulators – devices that transform a cell phone into a real-time tracking device.
The report finds these law enforcement agencies have varying policies for the use of these powerful devices. As a result, the report recommends Congress pass legislation to establish a clear, nationwide framework that ensures the privacy of all Americans are adequately protected.
Excerpts from the report:
“Advances in emerging surveillance technologies like cell-site simulators . . . require careful evaluation to ensure their use is consistent with the protections afforded under the First and Fourth Amendments to the U.S. Constitution.”
“While law enforcement agencies should be able to utilize technology as a tool to help officers be safe and accomplish their missions, absent proper oversight and safeguards, the domestic use of cell-site simulators may well infringe upon the constitutional rights of citizens to be free from unreasonable searches and seizures, as well as the right to free association.”
“Transparency and accountability are therefore critical to ensuring that when domestic law enforcement decide to use these devices on American citizens, the devices are used in a manner that meets the requirements and protections of the Constitution.”
As a result of the committee’s investigation, the Department of Justice (DOJ), Department of Homeland Security (DHS), and Internal Revenue Service (IRS) updated their policies to require obtaining a warrant before deploying a cell-site simulator. Additionally, the Treasury Inspector General for Tax Administration (TIGTA) has agreed to not obtain additional equipment or software upgrades for its current device, thus effectively decommissioning the device.
- State laws continue to vary as to what court authorization is required before law enforcement can deploy cell-site simulators.
- In many cases, state and local law enforcement continue to rely on the state equivalent of a pen register/trap and trace order, which only requires law enforcement to meet a “relevance based standard” to use cell-site simulation devices, a standard that is lower than probable cause.
- DOJ has 310 cell-site simulation devices and spent more than $71 million in fiscal years 2010-14 on cell-site simulation technology.
- DHS has 124 cell-site simulation devices and spent more than $24 million in fiscal years 2010-14 on cell-site simulation technology.
- Congress should pass legislation to establish a clear, nationwide framework for when and how geolocation information can be accessed and used.
- DOJ and DHS should make federal funding and/or approval of cell-site simulator technology to state and local law enforcement contingent on a requirement that these law enforcement agencies at a minimum adopt the new and enhanced guidelines that have been promulgated by DOJ and DHS for the use of these devices.
- State and local law enforcement agencies should at a minimum adopt policies for the use of cell-site simulators that are equivalent to the new and enhanced guidelines DOJ and DHS have established for their use of these devices.
- Non-disclosure agreements should be replaced with agreements that require clarity and candor to the court whenever a cell-site simulator has been used by law enforcement in a criminal investigation.