Note

How Lambis and CSLI Litigation Mandate Warrants for Cell-Site Simulator Usage in New York

Cindy D. Ham

Over the years, various federal, state, and local law enforcement agencies have enjoyed the growth and development of technology in aiding their efforts to combat crime. Until recently, not much information had been available regarding the use, or existence, of cell-site simulators. Cell-site simulators have been around for at least fifteen years, and they operate by mimicking cell phone towers. Known also by their popular brand name, Stingray, cell-site simulators have the capability to extract information such as location and call records by tricking a nearby cell phone to connect to them instead of cell towers.

Perhaps as a result of the petitions of various civil liberty groups and privacy advocates, the Department of Justice and the Department of Homeland Security issued guidance policies on their use of cell-site simulators. These policies generally require a warrant to be obtained if probable cause exists, unless the circumstances are exigent or exceptional. On the state level, however, the extent of available information and issued guidance varies widely. California’s Electronic Communications Privacy Act requires a warrant before state law enforcement can obtain data through cell-site simulators and other means, while the New York Police Department has been sued by the New York Civil Liberties Union after it refused to reveal information on its use of cell-site simulators.

As cell phones continue to play a larger and vital role in the everyday lives of Americans, it is troubling that enforcement agencies possess an unhindered ability to gather personal—and mostly irrelevant—information from anyone within the range of cell-site simulators without a warrant. This Note will focus on how cell-site simulators have been used in New York, and how New York’s state and local law enforcement agencies must take note of United States v. Lambis and appropriately modify or create (as it is unknown whether they even have such policy) their policies to require warrants.