Regular Session 2019-2020 House Bill 0338 P.N. 0315

PRINTER'S NO. 315

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

338

Session of

2019

INTRODUCED BY CRUZ, KINSEY, HILL-EVANS AND CALTAGIRONE,

FEBRUARY 1, 2019

REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 1, 2019

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in wiretapping and electronic

surveillance, further providing for definitions, for

exceptions to prohibition of interception and disclosure of

communications, for possession, sale, distribution,

manufacture or advertisement of electronic, mechanical or

other devices and telecommunication identification

interception devices and for general prohibition on use of

certain devices and exception, providing for application for

warrant for use of cell site simulator devices and for

issuance of warrant for use of cell site simulator devices

and further providing for reports concerning certain devices;

and making editorial changes.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 5702 of Title 18 of the Pennsylvania

Consolidated Statutes is amended by adding a definition to read:

§ 5702. Definitions.

As used in this chapter, the following words and phrases

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Cell site simulator device." A device that transmits or

receives radio waves for the purpose of conducting one or more

of the following operations:

(1) Identifying, locating or tracking the movements of a

communications device.

(2) Intercepting, obtaining, accessing or forwarding the

communications, stored data or metadata of a communications

device.

(3) Affecting the hardware or software of a

communications device.

(4) Forcing transmissions from or connections to a

communications device.

(5) Denying a communications device access to other

communications devices, communications protocols or

communications services.

(6) Spoofing or simulating a communications device, cell

tower, cell site or communication service, including, but not

limited to, an international mobile subscriber identity

catcher or other invasive mobile phone or telephone

surveillance or eavesdropping device that mimics a cell tower

and sends out signals to cause communications devices in the

area to transmit their locations, identifying information and

contents or a passive interception device or digital analyzer

that does not send signals to a communications device under

surveillance.

* * *

Section 2. Section 5704(5) of Title 18 is amended to read:

§ 5704. Exceptions to prohibition of interception and

disclosure of communications.

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

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* * *

(5) Any investigative or law enforcement officer, or

communication common carrier acting at the direction of an

investigative or law enforcement officer or in the normal

course of its business, to use a pen register, trap and trace

device [or], telecommunication identification interception

device or cell site simulator device as provided in

Subchapter E (relating to pen registers, trap and trace

devices [and], telecommunication identification interception

devices and cell site simulator devices).

* * *

Section 3. Section 5705 heading of Title 18 is amended and

the section is amended by adding a paragraph to read:

§ 5705. Possession, sale, distribution, manufacture or

advertisement of electronic, mechanical or other

devices [and], telecommunication identification

interception devices and cell site simulator devices.

Except as otherwise specifically provided in section 5706

(relating to exceptions to prohibitions in possession, sale,

distribution, manufacture or advertisement of electronic,

mechanical or other devices), a person is guilty of a felony of

the third degree if he does any of the following:

* * *

(6) Intentionally possesses a cell site simulator

device.

Section 4. The heading of Subchapter E of Chapter 57 of

Title 18 is amended to read:

SUBCHAPTER E

PEN REGISTERS, TRAP AND TRACE DEVICES

[AND], TELECOMMUNICATION IDENTIFICATION

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INTERCEPTION DEVICES AND CELL SITE

SIMULATOR DEVICES

Section 5. Section 5771(a) and (b) of Title 18 are amended

and the section is amended by adding a subsection to read:

§ 5771. General prohibition on use of certain devices and

exception.

(a) General rule.--Except as provided in this section, no

person may install or use a pen register [or], a trap and trace

device or a telecommunication identification interception

device, without first obtaining a court order under section 5773

(relating to issuance of an order for use of certain devices)

[.], or a cell site simulator device without first obtaining a

warrant under section 5773.1 (relating to issuance of warrant

for use of cell site simulator devices).

[(b) Exception.--The prohibition of subsection (a) does not

apply with respect to the use of a pen register, a trap and

trace device or a telecommunication identification interception

device by a provider of electronic or wire communication

service:

(1) relating to the operation, maintenance and testing

of a wire or electronic communication service or to the

protection of the rights or property of the provider, or to

the protection of users of the service from abuse of service

or unlawful use of service;

(2) to record the fact that a wire or electronic

communication was initiated or completed in order to protect

the provider, another provider furnishing service toward the

completion of the wire communication or a user of the service

from fraudulent, unlawful or abusive use of service; or

(3) with the consent of the user of the service.]

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* * *

(b.2) Exceptions.--The prohibition of subsection (a) does

not apply with respect to the use of the following:

(1) A pen register, a trap and trace device or a

telecommunication identification interception device by a

provider of electronic or wire communication service:

(i) relating to:

(A) the operation, maintenance and testing of a

wire or electronic communication service;

(B) the protection of the rights or property of

the provider; or

abuse of service or unlawful use of service;

(ii) to record the fact that a wire or electronic

communication was initiated or completed in order to

protect the provider, another provider furnishing service

toward the completion of the wire communication or a user

of the service from fraudulent, unlawful or abusive use

of service; or

(iii) with the consent of the user of the service.

(2) A cell site simulator device by an investigative or

law enforcement agency, a government agency or a

communication common carrier acting at the direction of an

investigative or law enforcement officer:

(i) as provided in section 5773.1;

(ii) if the communications device is reported stolen

by the user;

(iii) with the consent of the user of the service;

(iv) with the consent of the legal guardian or next

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of kin of the user if the user is believed to be deceased

or reported missing and unable to be contacted.

* * *

Section 6. Title 18 is amended by adding sections to read:

§ 5772.1. Application for warrant for use of cell site

simulator devices.

(a) Application.--The Attorney General or a deputy attorney

general designated in writing by the Attorney General or a

district attorney or an assistant district attorney designated

in writing by the district attorney may make application for a

warrant or an extension of warrant under section 5773.1

(relating to issuance of warrant for use of cell site simulator

devices) authorizing or approving the installation and use of a

cell site simulator device under this subchapter. The

application shall be made in writing and under oath or

equivalent affirmation to:

(1) a court of common pleas having jurisdiction over the

offense under investigation; or

(2) a Superior Court judge when an application for a

warrant authorizing interception of communications is or has

been made for the targeted communications device or another

application for interception under this subchapter has been

made involving the same investigation.

(b) Contents of application.--An application under

subsection (a) shall include:

(1) The identity and authority of the attorney making

the application and the identity of the investigative or law

enforcement agency conducting the investigation.

(2) A certification by the applicant that the

information likely to be obtained is relevant to an ongoing

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criminal investigation being conducted by that agency.

(3) An affidavit by an investigative or law enforcement

officer that establishes probable cause for the issuance of a

warrant or an extension under section 5773.1.

§ 5773.1. Issuance of warrant for use of cell site simulator

devices.

(a) In general.--The following apply:

(1) Upon an application made under section 5772.1

(relating to application for warrant for use of cell site

simulator devices), the court shall authorize the

installation and use of a cell site simulator device within

this Commonwealth if the court finds that there is probable

cause to believe that information relevant to an ongoing

criminal investigation will be obtained by the installation

and use on the targeted communications device.

(2) If exigent circumstances exist, the court may

verbally authorize the installation and use of a cell site

simulator device, conditioned upon the filing with the court

within 72 hours thereafter of an application for a warrant.

If granted, the warrant shall be retroactive to the time of

the installation and recite the verbal authorization.

(3) In the event an application for a warrant is denied

or no application is made, the use of a cell site simulator

device shall immediately terminate and the metadata, data,

information or contents collected shall be deemed as having

been obtained in violation of this subchapter and shall not

be admissible in a criminal proceeding or used as probable

cause in an effort to obtain a warrant.

(b) Contents of warrant.--A warrant issued under this

section shall:

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(1) Specify:

(i) That there is probable cause to believe that

information relevant to an ongoing criminal investigation

will be obtained from the targeted communications device.

(ii) The identity, if known, of the person or

persons using the targeted communications device.

(iii) The identity, if known, of the person who is

the subject of the criminal investigation.

(iv) The telephone number or other unique number

identifying the communication service account used by the

targeted communications device.

(v) If known, the physical location of the

communications device.

(vi) The type of communications device and the

communications protocols being used by the communications

device.

(vii) The geographic area that will be covered by

the cell site simulator device.

(viii) All categories of metadata, data, information

or contents to be collected from the targeted

communications device.

(ix) Whether the cell site simulator will

incidentally collect metadata, data, information or

contents from any person or communications device not

specified in the warrant and, if so, what categories of

information or metadata will be collected.

(x) Disruptions to access or use of any

communications system that could be potentially created

by use of a cell site simulator device.

(xi) A statement of the offense to which the

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information likely to be obtained by the cell site

simulator device relates.

(2) Direct that a government, investigative or law

enforcement agency authorized to use a cell site simulator

device under this chapter shall:

(i) Record and monitor all interceptions in

accordance with section 5714(a)(1) and (2) (relating to

recording of intercepted communications).

(ii) Take all steps necessary to limit the

collection of information or metadata to the targeted

communications device specified in the applicable

warrant.

(iii) Seal only interceptions from the person and

communications device specified in the applicable warrant

in accordance with section 5714(b).

(iv) Permanently delete information or metadata

collected from a person or communications device not

specified in the applicable warrant immediately following

the collection and not transmit, use or retain the

information or metadata for any purpose.

(1) A warrant issued under this section shall authorize

the installation and use of a cell site simulator device for

a period not to exceed 60 days.

(2) Extensions of the warrant may be granted but only

upon an application for a warrant under section 5772.1 and

upon the judicial finding required under subsection (a). The

period of each extension shall not exceed 30 days.

(d) Nondisclosure of existence of a cell site simulator

device.--A warrant authorizing or approving the installation and

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use of a cell site simulator device shall direct all of the

following:

(1) The warrant be sealed until otherwise ordered by the

court.

(2) The person owning or leasing the targeted

communications device or who has been ordered by the court to

provide assistance to the applicant not disclose the

existence of the cell site simulator device or the existence

of the investigation to the listed subscriber or to any other

person, unless or until otherwise ordered by the court.

Section 7. Section 5775 of Title 18 is amended to read:

§ 5775. Reports concerning certain devices.

(a) Attorney General.--The Attorney General shall annually

report to the Administrative Office of Pennsylvania Courts on

the number of orders for pen registers, trap and trace devices

[and], telecommunication identification interception devices and

warrants for cell site simulator devices applied for by

investigative or law enforcement agencies of the Commonwealth or

its political subdivisions.

(b) District attorney.--Each district attorney shall

annually provide to the Attorney General information on the

number of orders for pen registers, trap and trace devices

[and], telecommunication identification interception devices and

warrants for cell site simulator devices applied for on forms

prescribed by the Attorney General.

Section 8. This act shall take effect in 60 days.

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