Wednesday, November 2, 2016
Ban Stingray Spying
AN ACT Relating to prohibiting the use of a cell site simulator 2 device without a warrant; amending RCW 9.73.260; adding a new section to chapter 9.73 RCW; and declaring an emergency.3 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 5 NEW SECTION. Sec. 1. A new section is added to chapter 9.73 RCW to read as follows:6 7 The state and its political subdivisions shall not, by means of a 8 cell site simulator device, collect or use a person's electronic data 9 or metadata without (1) that person's informed consent, (2) a 10 warrant, based upon probable cause, that describes with particularity 11 the person, place, or thing to be searched or seized, or (3) acting 12 in accordance with a legally recognized exception to the warrant requirements.13 14 Sec. 2. RCW 9.73.260 and 1998 c 217 s 1 are each amended to read as follows:15 (1) As used in this section:16 17 (a) "Wire communication" means any aural transfer made in whole 18 or in part through the use of facilities for the transmission of 19 communications by the aid of wire, cable, or other like connection 20 between the point of origin and the point of reception, including the ENGROSSED SUBSTITUTE HOUSE BILL 1440 AS AMENDED BY THE SENATE Passed Legislature - 2015 Regular Session State of Washington 64th Legislature 2015 Regular Session By House Public Safety (originally sponsored by Representatives Taylor, Goodman, Pollet, Scott, Condotta, Shea, G. Hunt, Young, Moscoso, Smith, Ryu, Jinkins, Magendanz, Farrell, and McCaslin) READ FIRST TIME 02/17/15. p. 1 ESHB 1440.PL 1 use of such connection in a switching station, furnished or operated 2 by any person engaged in providing or operating such facilities for 3 the transmission of intrastate, interstate, or foreign 4 communications, and such term includes any electronic storage of such communication.5 6 (b) "Electronic communication" means any transfer of signs, 7 signals, writing, images, sounds, data, or intelligence of any nature 8 transmitted in whole or in part by a wire, radio, electromagnetic, 9 photoelectronic, or photo-optical system, but does not include: (i) Any wire or oral communication;10 11 (ii) Any communication made through a tone-only paging device; or 12 (iii) Any communication from a tracking device, but solely to the 13 extent the tracking device is owned by the applicable law enforcement agency.14 15 (c) "Electronic communication service" means any service that 16 provides to users thereof the ability to send or receive wire or electronic communications.17 18 (d) "Pen register" means a device that records or decodes 19 electronic or other impulses that identify the numbers dialed or 20 otherwise transmitted on the telephone line to which such device is 21 attached, but such term does not include any device used by a 22 provider or customer of a wire or electronic communication service 23 for billing, or recording as an incident to billing, for 24 communications services provided by such provider or any device used 25 by a provider or customer of a wire communication service for cost 26 accounting or other like purposes in the ordinary course of its business.27 28 (e) "Trap and trace device" means a device that captures the 29 incoming electronic or other impulses that identify the originating 30 number of an instrument or device from which a wire or electronic communication was transmitted.31 32 (f) "Cell site simulator device" means a device that transmits or 33 receives radio waves for the purpose of conducting one or more of the 34 following operations: (i) Identifying, locating, or tracking the 35 movements of a communications device; (ii) intercepting, obtaining, 36 accessing, or forwarding the communications, stored data, or metadata 37 of a communications device; (iii) affecting the hardware or software 38 operations or functions of a communications device; (iv) forcing 39 transmissions from or connections to a communications device; (v) 40 denying a communications device access to other communications p. 2 ESHB 1440.PL 1 devices, communications protocols, or services; or (vi) spoofing or 2 simulating a communications device, cell tower, cell site, or 3 service, including, but not limited to, an international mobile 4 subscriber identity catcher or other invasive cell phone or telephone 5 surveillance or eavesdropping device that mimics a cell phone tower 6 and sends out signals to cause cell phones in the area to transmit 7 their locations, identifying information, and communications content, 8 or a passive interception device or digital analyzer that does not 9 send signals to a communications device under surveillance. A cell 10 site simulator device does not include any device used or installed 11 by an electric utility, as defined in RCW 19.280.020, solely to the 12 extent such device is used by that utility to measure electrical 13 usage, to provide services to customers, or to operate the electric grid.14 15 (2) No person may install or use a pen register ((or)), trap and 16 trace device, or cell site simulator device without a prior court 17 order issued under this section except as provided under subsection (6) of this section or RCW 9.73.070.18 19 (3) A law enforcement officer may apply for and the superior 20 court may issue orders and extensions of orders authorizing the 21 installation and use of pen registers ((and)), trap and trace 22 devices, and cell site simulator devices as provided in this section. 23 The application shall be under oath and shall include the identity of 24 the officer making the application and the identity of the law 25 enforcement agency conducting the investigation. The applicant must 26 certify that the information likely to be obtained is relevant to an 27 ongoing criminal investigation being conducted by that agency. 28 (4) If the court finds that the information likely to be obtained 29 by such installation and use is relevant to an ongoing criminal 30 investigation and finds that there is probable cause to believe that 31 the pen register ((or)), trap and trace device, or cell site 32 simulator device will lead to obtaining evidence of a crime, 33 contraband, fruits of crime, things criminally possessed, weapons, or 34 other things by means of which a crime has been committed or 35 reasonably appears about to be committed, or will lead to learning 36 the location of a person who is unlawfully restrained or reasonably 37 believed to be a witness in a criminal investigation or for whose 38 arrest there is probable cause, the court shall enter an ex parte 39 order authorizing the installation and use of a pen register ((or p. 3 ESHB 1440.PL 1 a)), trap and trace device, or cell site simulator device. The order shall specify:2 3 (a)(i) In the case of a pen register or trap and trace device, 4 the identity, if known, of the person to whom is leased or in whose 5 name is listed the telephone line to which the pen register or trap 6 and trace device is to be attached; or 7 (ii) In the case of a cell site simulator device, the identity, 8 if known, of (A) the person to whom is subscribed or in whose name is 9 subscribed the electronic communications service utilized by the 10 device to which the cell site simulator device is to be used and (B) 11 the person who possesses the device to which the cell site simulator device is to be used;12 13 (b) The identity, if known, of the person who is the subject of the criminal investigation;14 15 (c)(i) In the case of a pen register or trap and trace device, 16 the number and, if known, physical location of the telephone line to 17 which the pen register or trap and trace device is to be attached 18 and, in the case of a trap and trace device, the geographic limits of 19 the trap and trace order; or 20 (ii) In the case of a cell site simulator device: (A) The 21 telephone number or other unique subscriber account number 22 identifying the wire or electronic communications service account 23 used by the device to which the cell site simulator device is to be 24 attached or used; (B) if known, the physical location of the device 25 to which the cell site simulator device is to be attached or used; 26 (C) the type of device, and the communications protocols being used 27 by the device, to which the cell site simulator device is to be 28 attached or used; (D) the geographic area that will be covered by the 29 cell site simulator device; (E) all categories of metadata, data, or 30 information to be collected by the cell site simulator device from 31 the targeted device including, but not limited to, call records and 32 geolocation information; (F) whether or not the cell site simulator 33 device will incidentally collect metadata, data, or information from 34 any parties or devices not specified in the court order, and if so, 35 what categories of information or metadata will be collected; and (G) 36 any disruptions to access or use of a communications or internet 37 access network that may be created by use of the device; and 38 (d) A statement of the offense to which the information likely to 39 be obtained by the pen register ((or)), trap and trace device, or cell site simulator device relates.40 p. 4 ESHB 1440.PL 1 The order shall direct, if the applicant has requested, the 2 furnishing of information, facilities, and technical assistance 3 necessary to accomplish the installation of the pen register ((or)), 4 trap and trace device, or cell site simulator device. An order issued 5 under this section shall authorize the installation and use of a: (i) 6 Pen register or a trap and trace device for a period not to exceed 7 sixty days; and (ii) a cell site simulator device for sixty days. An 8 extension of the original order may only be granted upon: A new 9 application for an order under subsection (3) of this section; and a 10 showing that there is a probability that the information or items 11 sought under this subsection are more likely to be obtained under the 12 extension than under the original order. No extension beyond the 13 first extension shall be granted unless: There is a showing that 14 there is a high probability that the information or items sought 15 under this subsection are much more likely to be obtained under the 16 second or subsequent extension than under the original order; and 17 there are extraordinary circumstances such as a direct and immediate 18 danger of death or serious bodily injury to a law enforcement 19 officer. The period of extension shall be for a period not to exceed sixty days.20 21 An order authorizing or approving the installation and use of a 22 pen register ((or a)), trap and trace device, or cell site simulator 23 device shall direct that the order be sealed until otherwise ordered 24 by the court and that the person owning or leasing the line to which 25 the pen register ((or)), trap and trace device, and cell site 26 simulator devices is attached or used, or who has been ordered by the 27 court to provide assistance to the applicant, not disclose the 28 existence of the pen register ((or)), trap and trace device, or cell 29 site simulator device or the existence of the investigation to the 30 listed subscriber or to any other person, unless or until otherwise ordered by the court.31 32 (5) Upon the presentation of an order, entered under subsection 33 (4) of this section, by an officer of a law enforcement agency 34 authorized to install and use a pen register under this chapter, a 35 provider of wire or electronic communication service, landlord, 36 custodian, or other person shall furnish such law enforcement officer 37 forthwith all information, facilities, and technical assistance 38 necessary to accomplish the installation of the pen register 39 unobtrusively and with a minimum of interference with the services 40 that the person so ordered by the court accords the party with p. 5 ESHB 1440.PL 1 respect to whom the installation and use is to take place, if such 2 assistance is directed by a court order as provided in subsection (4) of this section.3 4 Upon the request of an officer of a law enforcement agency 5 authorized to receive the results of a trap and trace device under 6 this chapter, a provider of a wire or electronic communication 7 service, landlord, custodian, or other person shall install such 8 device forthwith on the appropriate line and shall furnish such law 9 enforcement officer all additional information, facilities, and 10 technical assistance including installation and operation of the 11 device unobtrusively and with a minimum of interference with the 12 services that the person so ordered by the court accords the party 13 with respect to whom the installation and use is to take place, if 14 such installation and assistance is directed by a court order as 15 provided in subsection (4) of this section. Unless otherwise ordered 16 by the court, the results of the trap and trace device shall be 17 furnished to the officer of a law enforcement agency, designated in 18 the court order, at reasonable intervals during regular business hours for the duration of the order.19 20 A provider of a wire or electronic communication service, 21 landlord, custodian, or other person who furnishes facilities or 22 technical assistance pursuant to this subsection shall be reasonably 23 compensated by the law enforcement agency that requests the 24 facilities or assistance for such reasonable expenses incurred in providing such facilities and assistance.25 26 No cause of action shall lie in any court against any provider of 27 a wire or electronic communication service, its officers, employees, 28 agents, or other specified persons for providing information, 29 facilities, or assistance in accordance with the terms of a court 30 order under this section. A good faith reliance on a court order 31 under this section, a request pursuant to this section, a legislative 32 authorization, or a statutory authorization is a complete defense 33 against any civil or criminal action brought under this chapter or any other law.34 35 (6)(a) Notwithstanding any other provision of this chapter, a law 36 enforcement officer and a prosecuting attorney or deputy prosecuting 37 attorney who jointly and reasonably determine that there is probable 38 cause to believe that an emergency situation exists that involves 39 immediate danger of death or serious bodily injury to any person that 40 requires the installation and use of a pen register ((or a)), trap p. 6 ESHB 1440.PL 1 and trace device, or cell site simulator device before an order 2 authorizing such installation and use can, with due diligence, be 3 obtained, and there are grounds upon which an order could be entered 4 under this chapter to authorize such installation and use, may have 5 installed and use a pen register ((or)), trap and trace device, or 6 cell site simulator device if, within forty-eight hours after the 7 installation has occurred, or begins to occur, an order approving the 8 installation or use is issued in accordance with subsection (4) of 9 this section. In the absence of an authorizing order, such use shall 10 immediately terminate when the information sought is obtained, when 11 the application for the order is denied or when forty-eight hours 12 have lapsed since the installation of the pen register ((or)), trap 13 and trace device, or cell site simulator device, whichever is 14 earlier. If an order approving the installation or use is not 15 obtained within forty-eight hours, any information obtained is not 16 admissible as evidence in any legal proceeding. The knowing 17 installation or use by any law enforcement officer of a pen register 18 ((or)), trap and trace device, or cell site simulator device pursuant 19 to this subsection without application for the authorizing order 20 within forty-eight hours of the installation shall constitute a 21 violation of this chapter and be punishable as a gross misdemeanor. A 22 provider of a wire or electronic service, landlord, custodian, or 23 other person who furnished facilities or technical assistance 24 pursuant to this subsection shall be reasonably compensated by the 25 law enforcement agency that requests the facilities or assistance for 26 such reasonable expenses incurred in providing such facilities and assistance.27 28 (b) A law enforcement agency that authorizes the installation of 29 a pen register ((or)), trap and trace device, or cell site simulator 30 device under this subsection (6) shall file a monthly report with the 31 administrator for the courts. The report shall indicate the number of 32 authorizations made, the date and time of each authorization, whether 33 a court authorization was sought within forty-eight hours, and 34 whether a subsequent court authorization was granted. 35 (c) A law enforcement agency authorized to use a cell site 36 simulator device in accordance with this section must: (i) Take all 37 steps necessary to limit the collection of any information or 38 metadata to the target specified in the applicable court order; (ii) 39 take all steps necessary to permanently delete any information or 40 metadata collected from any party not specified in the applicable p. 7 ESHB 1440.PL 1 court order immediately following such collection and must not 2 transmit, use, or retain such information or metadata for any purpose 3 whatsoever; and (iii) must delete any information or metadata 4 collected from the target specified in the court order within thirty 5 days if there is no longer probable cause to support the belief that 6 such information or metadata is evidence of a crime. 7 NEW SECTION. Sec. 3. If any provision of this act or its 8 application to any person or circumstance is held invalid, the 9 remainder of the act or the application of the provision to other 10 persons or circumstances is not affected. 11 NEW SECTION. Sec. 4. This act is necessary for the immediate 12 preservation of the public peace, health, or safety, or support of 13 the state government and its existing public institutions, and takes 14 effect immediately.