Cell site simulators are an electronic surveillance device that mimics a cell tower causing all nearby cell phones to register their data and information with the cell site simulator. Law enforcement increasingly relies on these devices during the course of routine criminal investigations. The use of cell site simulators raises several concerns. First, the federal government seeks judicial authorization to use such devices via a pen register application. This approach is problematic because a cell site simulator is different than a pen register. Moreover, the standard for issuance of a pen register is very low. Instead, this Article proposes that the applicable standard for granting a request to use a cell site simulator should be based on the Fourth Amendment probable cause standard. Second, cell site simulators sweep up the data and information of innocent third-parties. The government fails to account for this problem. This Article proposes that the granting of an application for a cell site simulator should require a protocol for dealing with the third-party information that is captured.
Brian L. Owsley,
TriggerFish, StingRays, and Fourth Amendment Fishing Expeditions,
66 Hastings L.J. 183
Available at: https://repository.uchastings.edu/hastings_law_journal/vol66/iss1/4