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New DHS policy guideline raises issue of privacy in criminal investigations, P.3

We’ve been discussing in our last couple posts the recent change in policy announced by the Department of Homeland Security concerning the use of cell site simulator devices. With the change in policy, investigators must now—at least in most cases—demonstrate to a judge that they will likely be able to gather evidence of criminal activity with the use of the device before they can actually go ahead and use them.

The new policy does not apply to agencies at the state and local level which purchase cell site simulators with their own money, and it will be interesting to see whether local agencies establish similar policies. One of the questions that comes out of this discussion is the comparability of the use of these devices at the state and local level to use at the federal level.

As used by the Department of Homeland Security, the main information gathered by the devices is the relative signal strength and the general direction of a cell phone user. Investigators use this information to locate devices whose unique identifiers are already known or to determine the identifiers of an unknown device in the user’s vicinity. It isn’t clear whether the technology as used by local and state agencies has the same limitations.

Another issue is the extent to which investigators using the technology under a warrant can be scrutinized for exceeding the scope of the warrant. To be constitutionally sound, search warrants must specify the scope of the search to be conducted and investigators acting under the warrant must not exceed the scope of the warrant in their actual search. How all this would play out in practice with the use of these devices isn’t clear given their net-like usage.

Anybody who has been targeted in an investigation involving the use of cell-site simulator technology should certainly work with an experienced criminal defense attorney to explore any privacy issues. Doing so allows a defendant to be prepared to seek legal remedies when necessary and to build the best possible case.

Sources:

BuzzFeedNews, “Homeland Security Now Requires A Warrant Before Tracking Your Cell Phone,” Salvador Hernandez, Oct. 21, 2015.

Department of Justice, “Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology,” Accessed Oct. 28, 2015.

American Civil Liberties Union, “Stingray Tracking Devices: Who's Got Them?,” Accessed Oct. 28, 2015.

Cornell University Law School, “Exigent Circumstances,” Accessed Oct. 28, 2015.

Scientific American, “What Is the Big Secret Surrounding Stingray Surveillance?,” Larry Greenmeier, June 25, 2015. 

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