2016 Volume 34 Issue 3 Pages 1-12
It has not been determined whether warrantless information collection activities using cell-site simulators or IMSI Catchers (represented by StingRay) by the U.S. law enforcement agencies are “reasonable” searches under the Fourth Amendment of the Constitution of the United States. In my view, the activities are not lawful searches, even though the use of StingRay does not involve any physical intrusion by the government and even though the airwaves used for the collection of information are generally accessible to the public. This is because the activities can collect highly private information about the users of wireless devices, including their location, their movements, and even the content of their communications. In addition, users of wireless communications have very few means to become aware of the information collection and to avoid it. It is thus imperative to establish a new law to regulate the use of cell-site simulators, similar to the way that the Electronic Communications Privacy Act of 1986 was created to regulate the interception of electronic communications and the use of pen registers. In such a law, the use of cell-site simulators would be positioned as a new category between the interception of electronic communications and the use of pen registers. The laws of Japan should also be modified to create a new category of “compulsory disposition” that would be distinct from both interception of communications and investigations of stored communications. This would assist in the regulation of emerging investigative technologies that would otherwise threaten fundamental rights.
