Cell-Site Simulator Warrant Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 4022 To amend title 18, United States Code, to regulate the use of cell-site simulators, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 21, 2021 Mr. LIEU (for himself and Mr. MCCLINTOCK) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Intelligence (Permanent Select), Energy and Com- merce, and Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 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 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 4022 IH SEC. 2. PROHIBITION ON CELL-SITE SIMULATOR USE. 1 (a) PROHIBITION.—Chapter 205 of title 18, United 2 States Code, is amended by adding at the end the fol- 3 lowing: 4 ‘‘§ 3119. Cell-site simulators 5 ‘‘(a) PROHIBITION OF USE.— 6 ‘‘(1) IN GENERAL.—Except as provided in sub- 7 section (d), it shall be unlawful— 8 ‘‘(A) for any individual or entity to know- 9 ingly use a cell-site simulator in the United 10 States; or 11 ‘‘(B) for an element of the intelligence 12 community to use a cell-site simulator outside 13 the United States if the subject of the surveil- 14 lance is a United States person. 15 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 16 paragraph (1) shall be construed to authorize a law 17 enforcement agency of a governmental entity to use 18 a cell-site simulator outside the United States. 19 ‘‘(b) PENALTY.—Any individual or entity that vio- 20 lates subsection (a)(1) shall be fined not more than 21 $250,000. 22 ‘‘(c) PROHIBITION OF USE AS EVIDENCE.— 23 ‘‘(1) IN GENERAL.—Except as provided in para- 24 graph (2), no information acquired through the use 25 of a cell-site simulator in violation of subsection 26 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 4022 IH (a)(1), and no evidence derived therefrom, may be 1 received in evidence in any trial, hearing, or other 2 proceeding in or before any court, grand jury, de- 3 partment, officer, agency, regulatory body, legislative 4 committee, or other authority of the United States, 5 a State, or a political subdivision thereof. 6 ‘‘(2) EXCEPTION FOR ENFORCEMENT.—Infor- 7 mation acquired through the use of a cell-site simu- 8 lator in violation of subsection (a)(1) by a person, 9 and evidence derived therefrom, may be received in 10 evidence in any trial, hearing, or other proceeding 11 described in paragraph (1) of this subsection relat- 12 ing to the alleged violation of subsection (a)(1) in 13 connection with such use. 14 ‘‘(d) EXCEPTIONS.— 15 ‘‘(1) IN GENERAL.— 16 ‘‘(A) WARRANT.— 17 ‘‘(i) IN GENERAL.—Subsection (a)(1) 18 shall not apply to the use of a cell-site sim- 19 ulator by a law enforcement agency of a 20 governmental entity under a warrant 21 issued— 22 ‘‘(I) in accordance with this sub- 23 paragraph; and 24 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 4022 IH ‘‘(II) using the procedures de- 1 scribed in, and in accordance with the 2 requirements for executing and re- 3 turning a warrant under, the Federal 4 Rules of Criminal Procedure (or, in 5 the case of a State court, issued using 6 State warrant and execution and re- 7 turn procedures and, in the case of a 8 court-martial or other proceeding 9 under chapter 47 of title 10 (the Uni- 10 form Code of Military Justice), issued 11 under section 846 of that title and in 12 accordance with the requirements for 13 executing and returning such a war- 14 rant, in accordance with regulations 15 prescribed by the President) by a 16 court of competent jurisdiction. 17 ‘‘(ii) REQUIREMENTS.—A court may 18 issue a warrant described in clause (i) (ex- 19 cept, with respect to a State court, to the 20 extent use of a cell-site simulator by a law 21 enforcement agency of a governmental en- 22 tity is prohibited by the law of the State) 23 only if the law enforcement agency— 24 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 4022 IH ‘‘(I) demonstrates that other in- 1 vestigative procedures, including elec- 2 tronic location tracking methods that 3 solely collect records of the investiga- 4 tive target— 5 ‘‘(aa) have been tried and 6 have failed; or 7 ‘‘(bb) reasonably appear to 8 be— 9 ‘‘(AA) unlikely to suc- 10 ceed if tried; or 11 ‘‘(BB) too dangerous; 12 ‘‘(II) specifies the likely area of 13 effect of the cell-site simulator to be 14 used and the time that the cell-site 15 simulator will be in operation; 16 ‘‘(III) certifies that the requested 17 area of effect and time of operation 18 are the narrowest reasonably possible 19 to obtain the necessary information; 20 and 21 ‘‘(IV) demonstrates that the re- 22 quested use of a cell-site simulator 23 would be in compliance with applica- 24 ble provisions of the Communications 25 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 4022 IH Act of 1934 (47 U.S.C. 151 et seq.) 1 and the rules of the Federal Commu- 2 nications Commission. 3 ‘‘(iii) CONSIDERATIONS.—In consid- 4 ering an application for a warrant de- 5 scribed in clause (i), the court shall— 6 ‘‘(I) weigh the need of the gov- 7 ernment to enforce the law and appre- 8 hend criminals against the likelihood 9 and impact of any potential negative 10 side effects disclosed by the govern- 11 ment under subparagraph (C); and 12 ‘‘(II) not grant a request for a 13 warrant that would put public safety 14 at risk or unreasonably inconvenience 15 the community. 16 ‘‘(iv) PERIOD OF INITIAL AUTHORIZA- 17 TION.—No warrant described in clause (i) 18 may authorize the use of a cell site simu- 19 lator for any period longer than is nec- 20 essary to achieve the objective of the au- 21 thorization, nor in any event for longer 22 than 30 days. 23 ‘‘(v) EXTENSIONS.— 24 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 4022 IH ‘‘(I) IN GENERAL.—A court may 1 grant extensions of a warrant de- 2 scribed in clause (i), but only upon 3 application for an extension made in 4 accordance with clause (i) and the 5 court considering the factors described 6 in clause (iii) and determining the re- 7 quirements under clause (ii) are met. 8 ‘‘(II) PERIOD OF EXTENSION.— 9 The period of an extension of a war- 10 rant shall be no longer than the au- 11 thorizing judge determines necessary 12 to achieve the purposes for which the 13 extension was granted, nor in any 14 event for longer than 30 days. 15 ‘‘(vi) TERMINATION PROVISION.— 16 Each warrant described in clause (i), and 17 each extension thereof, shall contain a pro- 18 vision that the authorization to use the cell 19 site simulator shall be executed as soon as 20 practicable and shall terminate upon at- 21 tainment of the authorized objective, or in 22 any event in 30 days. 23 ‘‘(vii) START OF 30-DAY PERIODS.— 24 The 30-day periods described in clauses 25 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 4022 IH (iv), (v)(II), and (vi) shall begin on the 1 earlier of— 2 ‘‘(I) the date on which a law en- 3 forcement agency first begins to use 4 the cell site simulator as authorized 5 by the warrant, or extension thereof; 6 or 7 ‘‘(II) the date that is 10 days 8 after the warrant, or extension there- 9 of, is issued. 10 ‘‘(B) EMERGENCY.— 11 ‘‘(i) IN GENERAL.—Subject to clause 12 (ii), subsection (a)(1) shall not apply to the 13 use of a cell-site simulator by a law en- 14 forcement agency of a governmental entity, 15 or use of a cell-site simulator as part of as- 16 sistance provided by a component of the 17 Department of Defense or an Armed Force 18 to such a law enforcement agency, if— 19 ‘‘(I) the governmental entity rea- 20 sonably determines an emergency ex- 21 ists that— 22 ‘‘(aa) involves— 23 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 4022 IH ‘‘(AA) immediate dan- 1 ger of death or serious phys- 2 ical injury to any person; 3 ‘‘(BB) conspiratorial 4 activities characteristic of 5 organized crime; or 6 ‘‘(CC) an immediate 7 threat to a national security 8 interest; and 9 ‘‘(bb) requires use of a cell- 10 site simulator before a warrant 11 described in subparagraph (A) 12 can, with due diligence, be ob- 13 tained; and 14 ‘‘(II) except in an instance in 15 which the governmental entity is try- 16 ing to locate a lost or missing person, 17 locate someone believed to have been 18 abducted or kidnapped, or find vic- 19 tims, dead or alive, in an area where 20 a natural disaster, terrorist attack, or 21 other mass casualty event has taken 22 place— 23 ‘‘(aa) there are grounds 24 upon which a warrant described 25 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 4022 IH in subparagraph (A) could be en- 1 tered to authorize such use; and 2 ‘‘(bb) the governmental enti- 3 ty applies for a warrant described 4 in subparagraph (A) approving 5 such use not later than 48 hours 6 after such use begins, and takes 7 such steps to expedite the consid- 8 eration of such application as 9 may be possible. 10 ‘‘(ii) TERMINATION OF EMERGENCY 11 USE.— 12 ‘‘(I) IN GENERAL.—A law en- 13 forcement agency of a governmental 14 entity shall immediately terminate use 15 of a cell-site simulator under clause 16 (i) of this subparagraph at the earlier 17 of the time the information sought is 18 obtained or the time the application 19 for a warrant described in subpara- 20 graph (A) is denied. 21 ‘‘(II) WARRANT DENIED.—If an 22 application for a warrant described in 23 clause (i)(II)(bb) is denied— 24 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 4022 IH ‘‘(aa) any information or 1 evidence derived from use of the 2 cell-site simulator shall be— 3 ‘‘(AA) subject to sub- 4 section (c); and 5 ‘‘(BB) promptly de- 6 stroyed by the applicable law 7 enforcement agency; and 8 ‘‘(bb) the applicable law en- 9 forcement agency shall serve an 10 inventory on each person named 11 in the application. 12 ‘‘(C) DISCLOSURES REQUIRED IN APPLICA- 13 TION.—In any application for a warrant au- 14 thorizing the use of a cell-site simulator under 15 subparagraph (A) or (B), the governmental en- 16 tity shall include the following: 17 ‘‘(i) A disclosure of any potential dis- 18 ruption of the ability of the subject of the 19 surveillance or bystanders to use commer- 20 cial mobile radio services or private mobile 21 services, including using advanced commu- 22 nications services, to make or receive, as 23 applicable— 24 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 4022 IH ‘‘(I) emergency calls (including 1 9–1–1 calls); 2 ‘‘(II) calls to the universal tele- 3 phone number within the United 4 States for the purpose of the national 5 suicide prevention and mental health 6 crisis hotline system under designated 7 under paragraph (4) of section 251(e) 8 of the Communications Act of 1934 9 (47 U.S.C. 251(e)), as added by the 10 National Suicide Hotline Designation 11 Act of 2020 (Public Law 116–172; 12 134 Stat. 832); 13 ‘‘(III) calls to the nationwide toll- 14 free number for the poison control 15 centers established under section 1271 16 of the Public Health Service Act (42 17 U.S.C. 300d–71); 18 ‘‘(IV) calls using telecommuni- 19 cations relay services; or 20 ‘‘(V) any other communications 21 or transmissions. 22 ‘‘(ii) A certification that the specific 23 model of the cell-site simulator to be used 24 has been inspected by a third party that is 25 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 4022 IH an accredited testing laboratory recognized 1 by the Federal Communications Commis- 2 sion to verify the accuracy of the disclosure 3 under clause (i). 4 ‘‘(iii) A disclosure of the methods and 5 precautions that will be used to minimize 6 disruption, including— 7 ‘‘(I) any limit on the length of 8 time the cell-site simulator can be in 9 continuous operation; and 10 ‘‘(II) any user-defined limit on 11 the transmission range of the cell-site 12 simulator. 13 ‘‘(iv) A disclosure as to whether the 14 cell-site simulator will primarily be used at 15 a gathering where constitutionally pro- 16 tected activity, including speech, will occur. 17 ‘‘(D) NOTICE.— 18 ‘‘(i) IN GENERAL.—Within a reason- 19 able time, but, subject to clause (ii), not 20 later than 90 days after the filing of an 21 application for a warrant authorizing the 22 use of a cell-site simulator which is denied 23 or the termination of the period of such a 24 warrant, or extensions thereof, the issuing 25 VerDate Sep 11 2014 01:31 Jul 15, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H4022.IH H4022 pbinns on DSKJLVW7X2PROD with BILLS 14 •HR 4022 IH or denying judge shall cause to be served 1 on the persons named in the warrant or 2 the application, and, as the judge may de- 3 termine, in the discretion of the judge, is 4 in the interest of justice, other persons 5 about whose devices the government ob- 6 tained information with the cell site simu- 7 lator, an inventory which shall include no- 8 tice of— 9 ‘‘(I) the fact of the entry of the 10 warrant or the application; 11 ‘‘(II) the date of the entry and 12 the period of authorized, approved or 13 disapproved use of a cell-site simu- 14 lator, or the denial of the application; 15 and 16 ‘‘(III) whether, during the pe- 17 riod— 18 ‘‘(aa) information about 19 their device was, or was not, ob- 20 ta [Text truncated for display. 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