Privacy and Cell-Site Simulators Criminal Law & Procedure Practice Group Teleforum Tuesday, July 19, 01:00 PMFederalist Society Teleforum Conference Call
Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.
It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.
Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?
Short video featuring Paul Rosenzweig
- Howard W. Cox, Adjunct Professor, George Washington University
- Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law
Paul Rosenzweig, Professorial Lecturer in Law at the George Washington University, explains what encryption is and the legal issues that arise from its use. SCOTUScast 6-16-16 featuring Jonathan Ellis
Jonathan Ellis June 16, 2016
On April 20, 2016, the Supreme Court heard oral argument in Bernard v. Minnesota, which was consolidated with Birchfield v. North Dakota and Beylund v. Levi.
In Bernard, William Robert Bernard, Jr., admitted he had been drinking, but he denied driving his truck and refused to perform a field sobriety test. He was arrested on suspicion of driving while impaired and taken to the police station, where he refused to consent to a chemical test in violation of Minnesota state law. Bernard was charged with two counts of first-degree test refusal pursuant to state law. In Birchfield, Danny Birchfield was arrested after failing field sobriety tests after he had driven his vehicle into a ditch, but he refused to consent to a chemical test, resulting in a misdemeanor charge. He moved to dismiss the charge and claimed that the state law in question violated his Fourth Amendment right against unreasonable search and seizure. In Beylund, Steve Beylund consented to a blood alcohol to test to confirm he was driving under the influence, but only after being informed it was a criminal offense to refuse a blood alcohol test in North Dakota. The test confirmed he was over the legal limit, and Beylund was charged with driving under the influence.
The men in these cases challenged state statutes criminalizing refusal to submit to a chemical test, arguing among other things that the statutes violated the Fourth Amendment. The Supreme Court of Minnesota and the Supreme Court of North Dakota rejected their respective challenges. The question before the U.S. Supreme Court in these consolidated cases is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
To discuss the case, we have Jonathan Ellis, who is an Associate at Latham & Watkins. Short video featuring Paul Rosenzweig
Paul Rosenzweig, Professorial Lecturer in Law at the George Washington University, explains the core issues in Apple's recent legal battle with the FBI. International & National Security Law Practice Group Podcast
In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps.
- Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law
- Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee