New DOJ Regulations to Restrict the Use of Cell-Site Simulator Technology

September 22, 2015

Big brother is watching you; He had to obtain a warrant in order to do so, but rest assured, he’s still watching you.  That’s essentially what the new Department of Justice regulations have done to the deployment cell-site simulator technology when used by the federal agencies.
Recently the Department of Justice has issued new regulations that restrict how and when the federal government can use cell-site simulator technology in order to comport with the Fourth Amendment.  These new regulations include increased intra-agency oversight, mandatory training, and a requirement for federal agencies to obtain a warrant.
Cell-site simulators function by pretending to be a cell phone tower.  Cellular devices such as cell phones, computers, and tablets, in the vicinity of a cell-site simulator are tricked into transmitted signals to the simulator, which then identifies their unique signal identifiers.  These signal identifiers are translatable into metadata.  In other words, cell-site simulators enable law enforcement officers to decipher an individual’s cell phone number and trace all the calls and texts to and from that individual’s phone.
Cell-site simulator technology helps law enforcement agents in two ways.  First, it can locate cell phones whose unique identifiers are known to law enforcement agents, and second, it can discover the unique identifiers of unknown devices by collecting signaling information from all the devices within the simulator’s vicinity.  Importantly, cell site simulators do not collect information stored on the phone such as contact lists or images, nor do they collect content-based information such as text messages or conversations.
In recent years, there has been a debate over the use of cell-site simulators, and whether their use comports with the Fourth Amendment.  Opponents of the unrestricted use cell-site simulator technology have said that it constitutes a search and therefore should require a warrant.  In response to these allegations, the DOJ has issued new regulations.
The new regulations, among other things, set out guidelines for control and accountability within the agencies that wish to make use of cell-site simulator technology.  First, anyone using Cell-site simulator technology must be trained and supervised appropriately.  Second, each agency that wishes to make use of the cell-site simulator technology must designate an executive level contact for the implementation of the new guidelines and a supervisor within the agency must approve the use of cell-site simulator technology.
In addition to the new intra-agency guidelines, there are now legal processes that an agency must follow in order to deploy cell-site simulator technology.

Law enforcement agencies must obtain a search warrant based on probable cause in accordance with Rule 41 of the Federal Rules of Criminal Procedure and the Pen Register Statute, except in certain, exigent, circumstances.

Further, the new guidelines provide rules regarding when federal law enforcement agencies should destroy the data collected by cell-site simulators.  When cell-site simulators are used to locate known cellular devices, all data must be deleted as soon as the device is located or once daily, which ever is more frequent.  Also, in the event that a federal law enforcement agency is using cell-site technology to locate an unknown cellular device, data must be deleted once the device is located or every 30 days, whichever is more frequent.  Finally, before the same cell-site simulator device is deployed for another mission all the data must be deleted from the previous mission.
Important to note, the new DOJ regulations only apply to federal law enforcement agencies.  State and Local agencies remain unaffected and are free to use cell-site simulator technology in accordance with local and state rules.  However, if a federal law enforcement agency is working with a state or local law enforcement agency, the new DOJ regulations will apply.  The new regulations also, only apply to investigations concerning U.S. citizens.  Federal law enforcement agencies are still permitted to use cell-site simulator technology without a warrant to track national security threats under the Foreign Intelligence Surveillance Act.
The new policies that the DOJ created have drawn criticism from those who think that they are not comprehensive enough.  Opponents at the Electronic Frontier Foundation say that if a court decision does not give the regulations the force of law, then they’re merely voluntary.  There is further criticism regarding the exigent circumstances exception to the new DOJ regulations.  Critics have claimed that they are too broad, and that law enforcement agencies can use them to continue using cell-site simulator technology without any restrictions.
Criticism aside, the new DOJ regulations represent a big first step in curtailing the use of cell site simulators.  Whether they will have any impact, remains to be seen.  However, it should be noted that at the very least, the DOJ recognizes that cell-site simulators are causing Fourth Amendment issues and are taking steps to remedy those issues.