Cell-Site Simulator Warrant Act of 2021

II 117TH CONGRESS 1ST SESSION S. 2122 To amend title 18, United States Code, to regulate the use of cell-site simulators, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 17, 2021 Mr. WYDEN (for himself and Mr. DAINES) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to regulate the use of cell-site simulators, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Cell-Site Simulator 4 Warrant Act of 2021’’. 5 SEC. 2. PROHIBITION ON CELL-SITE SIMULATOR USE. 6 (a) PROHIBITION.—Chapter 205 of title 18, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 2122 IS ‘‘§ 3119. Cell-site simulators 1 ‘‘(a) PROHIBITION OF USE.— 2 ‘‘(1) IN GENERAL.—Except as provided in sub- 3 section (d), it shall be unlawful— 4 ‘‘(A) for any individual or entity to know- 5 ingly use a cell-site simulator in the United 6 States; or 7 ‘‘(B) for an element of the intelligence 8 community to use a cell-site simulator outside 9 the United States if the subject of the surveil- 10 lance is a United States person. 11 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 12 paragraph (1) shall be construed to authorize a law 13 enforcement agency of a governmental entity to use 14 a cell-site simulator outside the United States. 15 ‘‘(b) PENALTY.—Any individual or entity that vio- 16 lates subsection (a)(1) shall be fined not more than 17 $250,000. 18 ‘‘(c) PROHIBITION OF USE AS EVIDENCE.— 19 ‘‘(1) IN GENERAL.—Except as provided in para- 20 graph (2), no information acquired through the use 21 of a cell-site simulator in violation of subsection 22 (a)(1), and no evidence derived therefrom, may be 23 received in evidence in any trial, hearing, or other 24 proceeding in or before any court, grand jury, de- 25 partment, officer, agency, regulatory body, legislative 26 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 2122 IS committee, or other authority of the United States, 1 a State, or a political subdivision thereof. 2 ‘‘(2) EXCEPTION FOR ENFORCEMENT.—Infor- 3 mation acquired through the use of a cell-site simu- 4 lator in violation of subsection (a)(1) by a person, 5 and evidence derived therefrom, may be received in 6 evidence in any trial, hearing, or other proceeding 7 described in paragraph (1) of this subsection relat- 8 ing to the alleged violation of subsection (a)(1) in 9 connection with such use. 10 ‘‘(d) EXCEPTIONS.— 11 ‘‘(1) IN GENERAL.— 12 ‘‘(A) WARRANT.— 13 ‘‘(i) IN GENERAL.—Subsection (a)(1) 14 shall not apply to the use of a cell-site sim- 15 ulator by a law enforcement agency of a 16 governmental entity under a warrant 17 issued— 18 ‘‘(I) in accordance with this sub- 19 paragraph; and 20 ‘‘(II) using the procedures de- 21 scribed in, and in accordance with the 22 requirements for executing and re- 23 turning a warrant under, the Federal 24 Rules of Criminal Procedure (or, in 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 2122 IS the case of a State court, issued using 1 State warrant and execution and re- 2 turn procedures and, in the case of a 3 court-martial or other proceeding 4 under chapter 47 of title 10 (the Uni- 5 form Code of Military Justice), issued 6 under section 846 of that title and in 7 accordance with the requirements for 8 executing and returning such a war- 9 rant, in accordance with regulations 10 prescribed by the President) by a 11 court of competent jurisdiction. 12 ‘‘(ii) REQUIREMENTS.—A court may 13 issue a warrant described in clause (i) (ex- 14 cept, with respect to a State court, to the 15 extent use of a cell-site simulator by a law 16 enforcement agency of a governmental en- 17 tity is prohibited by the law of the State) 18 only if the law enforcement agency— 19 ‘‘(I) demonstrates that other in- 20 vestigative procedures, including elec- 21 tronic location tracking methods that 22 solely collect records of the investiga- 23 tive target— 24 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 2122 IS ‘‘(aa) have been tried and 1 have failed; or 2 ‘‘(bb) reasonably appear to 3 be— 4 ‘‘(AA) unlikely to suc- 5 ceed if tried; or 6 ‘‘(BB) too dangerous; 7 ‘‘(II) specifies the likely area of 8 effect of the cell-site simulator to be 9 used and the time that the cell-site 10 simulator will be in operation; 11 ‘‘(III) certifies that the requested 12 area of effect and time of operation 13 are the narrowest reasonably possible 14 to obtain the necessary information; 15 and 16 ‘‘(IV) demonstrates that the re- 17 quested use of a cell-site simulator 18 would be in compliance with applica- 19 ble provisions of the Communications 20 Act of 1934 (47 U.S.C. 151 et seq.) 21 and the rules of the Federal Commu- 22 nications Commission. 23 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 2122 IS ‘‘(iii) CONSIDERATIONS.—In consid- 1 ering an application for a warrant de- 2 scribed in clause (i), the court shall— 3 ‘‘(I) weigh the need of the gov- 4 ernment to enforce the law and appre- 5 hend criminals against the likelihood 6 and impact of any potential negative 7 side effects disclosed by the govern- 8 ment under subparagraph (C); and 9 ‘‘(II) not grant a request for a 10 warrant that would put public safety 11 at risk or unreasonably inconvenience 12 the community. 13 ‘‘(iv) PERIOD OF INITIAL AUTHORIZA- 14 TION.—No warrant described in clause (i) 15 may authorize the use of a cell site simu- 16 lator for any period longer than is nec- 17 essary to achieve the objective of the au- 18 thorization, nor in any event for longer 19 than 30 days. 20 ‘‘(v) EXTENSIONS.— 21 ‘‘(I) IN GENERAL.—A court may 22 grant extensions of a warrant de- 23 scribed in clause (i), but only upon 24 application for an extension made in 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 2122 IS accordance with clause (i) and the 1 court considering the factors described 2 in clause (iii) and determining the re- 3 quirements under clause (ii) are met. 4 ‘‘(II) PERIOD OF EXTENSION.— 5 The period of an extension of a war- 6 rant shall be no longer than the au- 7 thorizing judge determines necessary 8 to achieve the purposes for which the 9 extension was granted, nor in any 10 event for longer than 30 days. 11 ‘‘(vi) TERMINATION PROVISION.— 12 Each warrant described in clause (i), and 13 each extension thereof, shall contain a pro- 14 vision that the authorization to use the cell 15 site simulator shall be executed as soon as 16 practicable and shall terminate upon at- 17 tainment of the authorized objective, or in 18 any event in 30 days. 19 ‘‘(vii) START OF 30-DAY PERIODS.— 20 The 30-day periods described in clauses 21 (iv), (v)(II), and (vi) shall begin on the 22 earlier of— 23 ‘‘(I) the date on which a law en- 24 forcement agency first begins to use 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 2122 IS the cell site simulator as authorized 1 by the warrant, or extension thereof; 2 or 3 ‘‘(II) the date that is 10 days 4 after the warrant, or extension there- 5 of, is issued. 6 ‘‘(B) EMERGENCY.— 7 ‘‘(i) IN GENERAL.—Subject to clause 8 (ii), subsection (a)(1) shall not apply to the 9 use of a cell-site simulator by a law en- 10 forcement agency of a governmental entity, 11 or use of a cell-site simulator as part of as- 12 sistance provided by a component of the 13 Department of Defense or an Armed Force 14 to such a law enforcement agency, if— 15 ‘‘(I) the governmental entity rea- 16 sonably determines an emergency ex- 17 ists that— 18 ‘‘(aa) involves— 19 ‘‘(AA) immediate dan- 20 ger of death or serious phys- 21 ical injury to any person; 22 ‘‘(BB) conspiratorial 23 activities characteristic of 24 organized crime; or 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 2122 IS ‘‘(CC) an immediate 1 threat to a national security 2 interest; and 3 ‘‘(bb) requires use of a cell- 4 site simulator before a warrant 5 described in subparagraph (A) 6 can, with due diligence, be ob- 7 tained; and 8 ‘‘(II) except in an instance in 9 which the governmental entity is try- 10 ing to locate a lost or missing person, 11 locate someone believed to have been 12 abducted or kidnaped, or find victims, 13 dead or alive, in an area where a nat- 14 ural disaster, terrorist attack, or other 15 mass casualty event has taken place— 16 ‘‘(aa) there are grounds 17 upon which a warrant described 18 in subparagraph (A) could be en- 19 tered to authorize such use; and 20 ‘‘(bb) the governmental enti- 21 ty applies for a warrant described 22 in subparagraph (A) approving 23 such use not later than 48 hours 24 after such use begins, and takes 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 2122 IS such steps to expedite the consid- 1 eration of such application as 2 may be possible. 3 ‘‘(ii) TERMINATION OF EMERGENCY 4 USE.— 5 ‘‘(I) IN GENERAL.—A law en- 6 forcement agency of a governmental 7 entity shall immediately terminate use 8 of a cell-site simulator under clause 9 (i) of this subparagraph at the earlier 10 of the time the information sought is 11 obtained or the time the application 12 for a warrant described in subpara- 13 graph (A) is denied. 14 ‘‘(II) WARRANT DENIED.—If an 15 application for a warrant described in 16 clause (i)(II)(bb) is denied— 17 ‘‘(aa) any information or 18 evidence derived from use of the 19 cell-site simulator shall be— 20 ‘‘(AA) subject to sub- 21 section (c); and 22 ‘‘(BB) promptly de- 23 stroyed by the applicable law 24 enforcement agency; and 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 2122 IS ‘‘(bb) the applicable law en- 1 forcement agency shall serve an 2 inventory on each person named 3 in the application. 4 ‘‘(C) DISCLOSURES REQUIRED IN APPLICA- 5 TION.—In any application for a warrant au- 6 thorizing the use of a cell-site simulator under 7 subparagraph (A) or (B), the governmental en- 8 tity shall include the following: 9 ‘‘(i) A disclosure of any potential dis- 10 ruption of the ability of the subject of the 11 surveillance or bystanders to use commer- 12 cial mobile radio services or private mobile 13 services, including using advanced commu- 14 nications services, to make or receive, as 15 applicable— 16 ‘‘(I) emergency calls (including 17 9–1–1 calls); 18 ‘‘(II) calls to the universal tele- 19 phone number within the United 20 States for the purpose of the national 21 suicide prevention and mental health 22 crisis hotline system under designated 23 under paragraph (4) of section 251(e) 24 of the Communications Act of 1934 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 2122 IS (47 U.S.C. 251(e)), as added by the 1 National Suicide Hotline Designation 2 Act of 2020 (Public Law 116–172; 3 134 Stat. 832); 4 ‘‘(III) calls to the nationwide toll- 5 free number for the poison control 6 centers established under section 1271 7 of the Public Health Service Act (42 8 U.S.C. 300d–71); 9 ‘‘(IV) calls using telecommuni- 10 cations relay services; or 11 ‘‘(V) any other communications 12 or transmissions. 13 ‘‘(ii) A certification that the specific 14 model of the cell-site simulator to be used 15 has been inspected by a third party that is 16 an accredited testing laboratory recognized 17 by the Federal Communications Commis- 18 sion to verify the accuracy of the disclosure 19 under clause (i). 20 ‘‘(iii) A disclosure of the methods and 21 precautions that will be used to minimize 22 disruption, including— 23 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 2122 IS ‘‘(I) any limit on the length of 1 time the cell-site simulator can be in 2 continuous operation; and 3 ‘‘(II) any user-defined limit on 4 the transmission range of the cell-site 5 simulator. 6 ‘‘(iv) A disclosure as to whether the 7 cell-site simulator will primarily be used at 8 a gathering where constitutionally pro- 9 tected activity, including speech, will occur. 10 ‘‘(D) NOTICE.— 11 ‘‘(i) IN GENERAL.—Within a reason- 12 able time, but, subject to clause (ii), not 13 later than 90 days after the filing of an 14 application for a warrant authorizing the 15 use of a cell-site simulator which is denied 16 or the termination of the period of such a 17 warrant, or extensions thereof, the issuing 18 or denying judge shall cause to be served 19 on the persons named in the warrant or 20 the application, and, as the judge may de- 21 termine, in the discretion of the judge, is 22 in the interest of justice, other persons 23 about whose devices the government ob- 24 tained information with the cell site simu- 25 VerDate Sep 11 2014 22:20 Jun 18, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122 pbinns on DSKJLVW7X2PROD with BILLS 14 •S 2122 IS lator, an inventory which shall include no- 1 tice of— 2 ‘‘(I) the fact of the entry of the 3 warrant or the application; 4 ‘‘(II) the date of the entry and 5 the period of authorized, approved or 6 disapproved use of a cell-site simu- 7 lator, or the denial of the application; 8 and 9 ‘‘(III) whether, during the pe- 10 riod— 11 ‘‘(aa) information about 12 their device was, or was not, ob- 13 tained by the government; 14 ‘‘(bb) their location was, or 15 was not, tracked; and 16 ‘‘(cc) their communications 17 were, or were not, intercepted. 18 ‘‘(ii) DELAY OF NOTICE.—On an ex 19 parte showing of good cause to a court of 20 competent jurisdiction, the serving of the 21 invento [Text truncated for display. 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