How Did They Know That? Cell Site Simulators and the Secret Invasion of Privacy

This Comment addresses the widespread implementation of cell site simulators (CSS) without judicial review not only because the CSS issue remains unresolved, but also because a cycle of new surveillance technology, nondisclosure, revelation, and outrage is doomed to repeat unless law enforcement develops a more candid relationship with courts. Addressing the mechanics and capabilities of CSSs as well as the legal status of CSSs, this Comment explores (1) state and federal regulation, (2) the statutory scheme under which investigators and prosecutors have typically sought CSS authorization, and (3) the recent state and federal court holdings requiring a warrant under the Fourth Amendment. This Comment speaks on the government secrecy that, until recently, made proper judicial review impossible. This Comment demonstrates why pro-secrecy arguments fall short of justifying a non-acknowledgment policy that does not allow prosecutors to even name simulator devices to reviewing judges, and offers possible solutions, including a suggestion of a general policy of candor that will prevent the current CSS situation from recurring with another, not yet discovered surveillance technology.