United States of America v. In the Matter of the Application of the United States

Doc. 1

FILED
015
11/9/2

UNITED STATES DISTRICT COURT
. BRUTON
T
THOMAS G
NORTHERN DISTRICT OF ILLINOIS
TRICT COUR
IS
D
.
.S
U
,
CLERK
WESTERN DIVISION
In the Matter of the Application of the
United States of America for an Order
Relating to Telephones Used by
Suppressed

)
) No. 15 M 0021
) Iain D. Johnston
) U.S. Magistrate Judge
)

MEMORANDUM OPINION AND ORDER
This opinion explains this Court’s requirements relating to the use of cell-site
simulators in a typical drug-trafficking investigation. To date, the requirements
outlined in this opinion have not interfered with effective law enforcement.
I.

Facts
A.

Investigatory Facts

The basic facts relating to the investigation are unsurprising. A target of an
investigation is allegedly distributing, through a conspiracy, a large amount of
controlled substances in the Northern District of Illinois, in violation of 21 U.S.C.
§§ 841(a), 846. The target frequently uses a cell phone as part of the conspiracy to
distribute the controlled substances. This target frequently discards the cell phone
after a period of time and obtains a new cell phone to continue to distribute the
controlled substances. This target obtains cell phones by using fictitious identifying
information. During the investigation, this target discarded the cell phone that had
previously been used, and obtained a new cell phone. The United States of America
seeks to obtain the new telephone number for the new cell phone to continue its
investigation.

1

Dockets.Justia.com

 Although the investigative facts are unsurprising, the method and technology
used to obtain the cell phone number may be surprising to many people. The
United States has submitted an application for a warrant to use a cell-site
simulator to obtain this target’s new cell phone number.
B.

What is a Cell-Site Simulator?

Unfortunately, the manufacturer of cell-site simulators (a company called the
Harris Corporation) is extremely protective about information regarding its device.
In fact, Harris is so protective that it has been widely reported that prosecutors are
negotiating plea deals far below what they could obtain so as to not disclose cell-site
simulator information. Ellen Nakashima, Secrecy Around Police Surveillance
Equipment Proves a Case’s Undoing, Washington Post, February 22, 2015. Indeed,
Harris requires law enforcement officers, and others, to sign non-disclosure
agreements (NDAs) regarding the devices. Ernest Reith Acting Assistant Director
of the Fed. Bureau of Investigation, Baltimore Police Department Non-Disclosure
Agreement (July 13, 2011),
http://s3.documentcloud.org/documents/1808819/baltimore-police-stingray-nondisclosure-agreement.pdf.
So where is one, including a federal judge, able to learn about cell-site
simulators? A judge can ask a requesting Assistant United States Attorney or a
federal agent, but they are tight lipped about the device, too; in all likelihood
because of the NDAs. Jack Gillum, Feds Urge Quiet on Spying Technology, The
Spokesman-Review (June 13, 2014),

2

 http://www.spokesman.com/stories/2014/jun/13/feds-urge-quiet-on-spyingtechology/. The Court could attempt to learn about the device on the Internet. See
Stingray Phone Tracker, http://en.wikipedia.org/wiki/Stingray_phone_tracker (last
visited October 19, 2015). But most reasonable people know to be highly skeptical
about what they read on the Internet, particularly in Wikipedia posts. United
States v. Lawson, 677 F.3d 629, 650-51 (4th Cir. 2012) (collecting federal decisions
expressing concern regarding Wikipedia’s reliability); Crispin v. Audigier, Inc., 717
F. Supp. 2d 965, 976 n.19 (C.D. Cal. 2010) (collecting authority noting danger of
relying on Wikipedia). 1 Cell-site simulators are also the topic of many recent law
review articles. See, e.g., Stephanie K. Pell & Christopher Soghoian, A Lot More
Than a Pen Register, and Less Than a Wiretap: What the Stingray Teaches Us About
How Congress Should Approach the Reform of Law Enforcement Surveillance
Technology, 16 Yale J.L. & Tech. 134 (2013-2014). A good overview of cell-site
simulators was recently discussed in The Champion. C. Justin Brown & Kasha M.
Leese, StingRay Devices Usher in a New Fourth Amendment Battleground, The
Indeed, the concern of Wikipedia entry accuracy is recognized in popular culture. See, e.g.,
The Big Bang Theory, The Pirate Solution (Series 3, Episode 4) (when asked by Leonard
what he was doing for six months, Raj explains that he was busy checking e-mail, updating
his Facebook status and “messing up Wikipedia entries”); 30 Rock, Cleveland, (Season 1,
Episode 20) (“Ah, well, it must be true if it’s on the ‘Interweb.’”) Additionally, the Court is
aware of Judge Hamilton’s well-reasoned and well-stated concerns in Rowe v. Gibson, 798
F.3d 622, 638-44 (7h Cir. 2015) (Hamilton, J., dissenting in part) regarding judicial internet
research, including the reliability of internet research.
The requirements in this opinion establishing the use of a cell-site simulator do not
violate those concerns for several reasons. First, the application process is ex parte.
Second, before imposing the requirements, the Court gave the United States government
the opportunity to explain the use and technology of cell-site simulators, as well as,
importantly, the opportunity to express concerns about the requirements based upon the
Court’s understanding of the use and technology. Third, the matter is in the investigative
stage, not the merits stage.
1

3

 Champion, June 2015, at 12. But those articles often rely on secondary source
material, including the possibly untrustworthy Internet websites. Unfortunately,
the one place where a person will be unable to find much discussion of cell-site
simulators is case law. In the Matter of the Application of the United States of
America for an Order Authorizing the Installation and Use of a Pen Register and
Trap and Trace Device, 890 F. Supp. 2d 747, 752 (S.D. Tex. 2012) (“Regardless of
what it is called, there is scant case law addressing the equipment.”). And even
case law that discusses stingrays refers to newspaper reports as authority on these
devices. See, e.g., Wisconsin v. Tate, 849 N.W.2d 798, 802 n.8 (2014) (citing Jenifer
Valentio-DeVries, “Stingray” Phone Tracker Fuels Constitutional Clash, Wall Street
Journal, September 22, 2011).
Despite all the confidentiality surrounding cell-site simulators, an excellent
source of information regarding the device is published by the Department of
Justice. See Department of Justice, Electronic Surveillance Manual (June 2005),
http://www.justice.gov/criminal/foia/docs/elec-sur-manual.pdf. When presented with
an application to use a cell-site simulator, at a minimum, courts should review this
document to understand exactly what the United States is requesting of the court.
Some commentators argue that judges may be allowing the use of cell-site
simulators without possessing a complete understanding of the device and how it
works, because, in part, the information is buried in technical jargon in the
application. Pell & Soghoian, A Lot More Than a Pen Register, and Less Than a
Wiretap, 16 Yale J.L. & Tech. at 160; Brown & Leese, StingRay Devices Usher in a

4

 New Fourth Amendment Battleground, The Champion, at 16. This Court does not
know whether that argument is accurate, in part, because of the dearth of case law
discussing these devices. 2
The Court has spent a considerable amount of time collecting information
relating to cell-site simulators. The following is the Court’s understanding of the
device. A cell-site simulator goes by many different names, including, but not
limited to “stingray,” “triggerfish” and “kingfish.” 3 Although these devices were also
previously called “digital analyzers,” the moniker “cell-site simulator” is the most
self-explanatory. The device does exactly what the name describes: it simulates a
cell site. And by simulating a cell site, the device causes or forces cell-phones in an
area to send their signals – with all the information contained therein – to the cellsite simulator. Once the cell phones in the area send their signals to the cell-site
simulator, the device captures a vast array of information, including, but not
limited to, the cell phones’ electronic serial number (“ESN”) or international mobile
subscriber identification (“IMSI”). A cell phone need only be on for the cell-site
simulator to capture the cell phone’s ESN and IMSI; the cell phone need not be “in

The undersigned was a friend of the late Kurt F. Schmid, the former Chicago HIDTA
Director. Kurt was a fantastic law enforcement officer and phenomenal person. Kurt
provided non-confidential information to the undersigned to attempt to corroborate the
information the undersigned collected. Kurt Schmid’s recent passing is a loss to those who
strived for effective and constitutional law enforcement. The undersigned is grateful to
Kurt Schmid for his friendship and help in understanding cell-site simulators, among many
other things.
3
Apparently, having exhausted the ichthyological theme, law enforcement has started
referring to cell-site simulators as “superdog.” Hopefully, this new moniker is an homage to
the famous drive-in restaurant, located at the intersection of Milwaukee, Devon and Nagle,
and operated by the great Berman family. See Superdawg Drive-In,
http://www.superdawg.com (last visited Oct. 19, 2015).
2

5

 use.” 4 The cell-site simulators signals penetrate structures, just as cell phones’
signals penetrate most structures. Although the operator of a cell-site simulator can
use a directional antenna to direct the simulator’s signal toward a certain area
(sometimes referred to as “directional finding”), the cell-site simulator will still force
many innocent third parties’ cell phones to direct their signals to the simulator.
Armed with a cell-site simulator, a law enforcement officer can obtain a
target’s cell phone’s ESN or IMSI (among many other things) by taking the device
near the physical location of the target’s cell phone and then activating the device.
By activating the device, the cell phones in a geographical area will send their
signals to the device, which in turn captures the information. This process can be
repeated at a later time and different location so that the target’s cell phone ESN or
IMSI can be identified among all the other cell phone telephone information
previously captured. (Basically, by process of elimination, the target’s cell phone
number is identified.) According to the application submitted to the Court, with the
ESN or IMSI, the United States can subpoena the service provider to obtain the cell
phone’s telephone number. However, according to the Department of Justice, a cell
site simulator can collect a cell phone’s telephone number directly; thereby
eliminating this step.
Now possessing the target’s cell phone telephone number, the United States
can return to a judicial officer with an application for a trap and trace and/or pen
Today, cell phones are essentially always on. At any given moment, even when the owner
is not speaking on the cell phone, the cell phone can be receiving emails, text messages, and
location information about their children’s cell phones, among other things. Even while
being charged, cell phones are on.

4

6

 registry to obtain information regarding the use of the phone or even obtain a wiretap for that phone from a District Court Judge. See 18 U.S.C. § 2518 (wiretap); 18
U.S.C. § 3123 (pen registry and trap and trace).
II.

Constitutional Concerns

The use of cell-site simulators raises numerous Fourth Amendment concerns.
The main concern is whether the use of a cell-site simulator implicates the Fourth
Amendment’s probable cause requirement. In re the Application of the U.S. for an
Order, 890 F. Supp. 2d at 752; United States v. Rigmaiden, 844 F. Supp. 2d 982, 996
n.6 (D. Ariz. 2012) (government conceded that the Fourth Amendment’s probable
cause standard applied). Luckily for the Court, the application in this case
recognizes the need to meet the probable cause standard, and, in fact, easily meets
that standard. Indeed, recently, the United States Department of Justice has
required federal agents to meet the probable cause standard in most circumstances.
Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology
(Sept. 3, 2015), http://www.justice.gov/opa/file/767321/download.
Because there is no dispute that a warrant meeting the probable cause
standard is necessary to use a cell-site simulator under these circumstances, the
Court addresses a different but similarly important issue. This opinion focuses on
the collection of innocent third parties’ information, an occurrence that appears
inevitable by the cell-site simulator’s use. As shown below, the Court believes that
a process must be created to reasonably ensure that innocent third parties’
information collected by the use of a cell-site simulator is not retained by the United

7

 States or any government body. The concern over the collection of innocent third
parties’ information is not theoretical. It has been reported that the federal
government collects telephone numbers, maintains those numbers in a database
and then is very reluctant to disclose this information. See Defendant’s Motion to
Suppress Evidence at 17-19, United States v. Hassanshahi, No. 1:13-cr-00274-RC
(D.D.C. Mar. 27, 2014), ECF No. 28; Zoe Tillman, Judge Questions Feds’
“Mysterious” Phone Database, National Law Journal, Dec. 8, 2014, at 19. Moreover,
even in the civil litigation context, third parties have more privacy interests and are
afforded more court protections than litigants. McGreal v. AT&T Corp., 892 F.
Supp. 2d 996, 1010 (N.D. Ill. 2012).
III.

Requirements for the Use of a Cell-Site Simulator

When a cell-site simulator is used, the Court will impose three requirements:
the first relates to the manner in which the device is used; the second relates to the
destruction of innocent third parties’ data; and the third explicitly prohibits the use
of innocent third parties’ data. See generally Brian L. Owsley, The Fourth
Amendment Implications of the Government’s Use of Cell Tower Dumps in Its
Electronic Surveillance, 16 U. Pa. J. Const. L. 1, 45-47 (2013).
First, law enforcement officers must make reasonable efforts to minimize the
capture of signals emitted from cell phones used by people other than the target of
the investigation. For example, when appropriate, law enforcement officers must
use methods available to direct the cell-site simulator’s signal. Moreover, law
enforcement officers must not use a cell-site simulator when, because of the location

8

 and time, an inordinate number of innocent third parties’ information will be
collected. A hyperbolic example of this requirement would prohibit law enforcement
officers from using the device outside the BMO Harris Bank Center during a
Rockford Ice Hogs 5 game or a high school graduation. 6 Reasonable law enforcement
officers would have no quarrel with this requirement. Indeed, their own selfinterest is served in minimizing the amount of innocent third parties’ cell phone
information that is collected. The additional information only complicates the
process of identifying the target’s cell phone ESN or ISMI.
Second, law enforcement officers must immediately destroy all data other
than the data identifying the cell phone used by the target. The destruction must
occur within forty-eight hours after the data is captured. The forty-eight hour time
frame is designed to have some consistency with other Fourth Amendment
principles, such as promptly presenting a defendant before a neutral and detached
magistrate judge for a probable cause determination, seeking a warrant for an
overhear device when one cannot be obtained beforehand because of an emergency,
and obtaining, after the fact, an order for a pen registry and trap and trace when
one could not be previously obtained because of an emergency. See County of
Riverside v. McLaughlin, 500 U.S. 44 (1991); 18 U.S.C. § 2518(7); 18 U.S.C.
§ 3125(a)(2). Additionally, the destruction must be evidenced by a verification
provided to the Court with the return of the warrant. In civil litigation, protective
The Rockford Ice Hogs are the proud American Hockey League affiliate of the mighty
Chicago Blackhawks of the National Hockey League. The Ice Hogs play their home games
at the BMO Harris Bank Center.
6
Each spring, many Rockford high schools hold their graduations in the BMO Harris Bank
Center.
5

9

 orders and confidentiality orders often contain provisions requiring a party to
certify that confidential documents have been destroyed at the termination of the
case. Indeed, the U.S. District Court for the Northern District of Illinois’ own model
confidentiality order form contains a similar provision. Model Confidentiality Order
Pursuant to Local Rule 26.2, United States District Court Northern District of
Illinois, at 10 (June 29, 2012),
http://www.ilnd.uscourts.gov/_assets/_documents/OnlineForms/26.2%20FORM.pdf.
Furthermore, because the United States will be returning the warrant at a later
date, the additional requirement mandating that the verification be returned at the
same time is minimal at most.
Third, law enforcement officers are prohibited from using any data acquired
beyond that necessary to determine the cell phone information of the target. A cellsite simulator is simply too powerful of a device to be used and the information
captured by it too vast to allow its use without specific authorization from a fully
informed court. Minimizing procedures such as the destruction of private
information the United States has no right to keep are necessary to protect the
goals of the Fourth Amendment. See In the Matter of the Search of Information
Associated with the Facebook Account Identified by the Username AA Ron.Alexis
That is Stored at Premises Controlled by Facebook Inc., 21 F. Supp. 3d 1, 9-10
(D.D.C. 2013).
Accordingly, this Court requires that the order granting the application must
contain a provision that reads as follows: “The Federal Bureau of Investigation, and

10

 other authorized law enforcement officials, may employ electronic investigative
techniques to capture and analyze signals emitted by any and all cellular
telephones used by [the target] for a period of 30 days. Officials of the Federal
Bureau of Investigation and other authorized law enforcement officials (a) must
make reasonable efforts to minimize the capture of signals emitted from cellular
telephones used by people other than [the target], (b) must immediately destroy all
data other than the data identifying the cellular telephones used by [the target]
(such destruction must occur within forty-eight (48) hours after the data is
captured, and the destruction must be evidenced by a verification provided to the
Court with the return of the warrant), and (c) are prohibited from using the data
acquired beyond that necessary to determine the cellular telephones used by [the
target].”
*

*

*

The minimizing procedures outlined in this opinion and required by this
Order are designed to reasonably balance the competing interests of effective law
enforcement and people’s Fourth Amendment privacy interests.

Entered: November 9, 2015

By: __________________________
Iain D. Johnston
U.S. Magistrate Judge

11