HLS 15RS-533 ORIGINAL
2015 Regular Session
HOUSE BILL NO. 138
BY REPRESENTATIVE HAVARD
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CRIME: Creates the crime of unlawful use of a cell site simulator device and restricts
lawful usage to certain law enforcement and investigative officers under certain
conditions
1 AN ACT
2To amend and reenact R.S. 15:1302(2), 1313(A) and (B)(introductory paragraph),
3 1314(A)(introductory paragraph) and (3), 1315(A), (B)(2), (C)(1), (D)(introductory
4 paragraph) and (2), and (E), and 1316 and to enact R.S. 14:222.3 and R.S.
5 15:1302(3.1) and (16.1), 1314(A)(4), and 1315(B)(3) and (F), relative to electronic
6 surveillance; to create the crime of unlawful use of a cell site simulator device; to
7 provide for definitions; to provide for criminal penalties; to provide for exceptions;
8 to provide for applicability; to provide procedures for use of a cell site simulator
9 device by law enforcement officers and investigative officers; and to provide for
10 related matters.
11Be it enacted by the Legislature of Louisiana:
12 Section 1. R.S. 14:222.3 is hereby enacted to read as follows:
13 §222.3. Unlawful use of a cell site simulator device; penalty
14 A. It shall be unlawful for any person to possess or use a cell site simulator
15 device.
16 B. For the purposes of this Section:
17 (1) "Cell site simulator device" means a device that transmits or receives
18 radio waves for the purpose of conducting one or more of the following operations:
19 (a) Identifying, locating, or tracking the movements of a telecommunications
20 device.
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1 (b) Intercepting, obtaining, accessing, or forwarding the communications,
2 stored data, or metadata of a telecommunications device.
3 (c) Affecting the hardware or software operations or functions of a
4 telecommunications device.
5 (d) Forcing transmissions from or connections to a telecommunications
6 device.
7 (e) Denying, spoofing, or simulating a telecommunications device access to
8 other communications devices or services including but not limited to an
9 international mobile subscriber identity catcher or other invasive cell phone or
10 telephone surveillance or eavesdropping device that mimics a cell phone tower and
11 sends out signals to cause cellular telephones in the area to transmit their locations,
12 identifying information, and communications content.
13 (2) "Telecommunications device" means any type of instrument, device, or
14 machine that is capable of transmitting or receiving telephonic, electronic, radio,
15 text, or data communications, including but not limited to a cellular telephone, a text-
16 messaging device, a personal digital assistant, a computer, or any other similar
17 wireless device that is designed to engage in a call or communicate text or data. It
18 does not include citizens band radios, citizens band radio hybrids, commercial two-
19 way radio communication devices, or electronic communication devices with a push-
20 to-talk function.
21 C. The provisions of this Section shall not apply to any of the following:
22 (1) An investigative or law enforcement officer using a cell site simulator
23 device in accordance with the Electronic Surveillance Act and pursuant to a court
24 order as provided for in R.S. 15:1315.
25 (2) An operator of a switchboard, or any officer, employee, or agent of any
26 electronic communications carrier, whose facilities are used in the transmission of
27 a wire communication, to intercept, disclose, or use that communication in the
28 normal course of his employment while engaged in any activity which is necessary
29 to his service or to the protection of the rights or property of the carrier of such
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1 communication; however, such communications common carriers shall not utilize
2 service observing or random monitoring, except for mechanical or service quality
3 control checks.
4 (3) An officer, employee, or agent of the Federal Communications
5 Commission, in the normal course of his employment and in discharge of the
6 monitoring responsibilities exercised by the commission in the enforcement of
7 Chapter 5 of Title 47 of the United States Code.
8 D. Whoever violates the provisions of this Section shall be fined not more
9 than three thousand dollars, imprisoned with or without hard labor for not more than
10 two years, or both.
11 Section 2. R.S. 15:1302(2), 1313(A), and (B)(introductory paragraph),
121314(A)(introductory paragraph) and (3), 1315(A) (B)(2), (C)(1), (D)(introductory
13paragraph) and (2), and (E), and 1316 are hereby amended and reenacted and R.S.
1415:1302(3.1) and (16.1), 1314(A)(4), and 1315(B)(3) and (F) are hereby enacted to read as
15follows:
16 §1302. Definitions
17 As used in this Chapter:
18 * * *
19 (2) "Attorney for a governmental entity" means an attorney on the staff or
20 under the direct supervision of the district attorney authorized by law to prosecute
21 such offenses as are subject of the pen register, or a trap and trace device, or a cell
22 site simulator device.
23 * * *
24 (3.1) "Cell site simulator device" means a device that transmits or receives
25 radio waves for the purpose of conducting one or more of the following operations:
26 (a) Identifying, locating, or tracking the movements of a telecommunications
27 device.
28 (b) Intercepting, obtaining, accessing, or forwarding the communications,
29 stored data, or metadata of a telecommunications device.
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1 (c) Affecting the hardware or software operations or functions of a
2 telecommunications device.
3 (d) Forcing transmissions from or connections to a telecommunications
4 device.
5 (e) Denying, spoofing, or simulating a telecommunications device access to
6 other telecommunications devices or services, including but not limited to an
7 international mobile subscriber identity catcher or other invasive cell phone or
8 telephone surveillance or eavesdropping device that mimics a cell phone tower and
9 sends out signals to cause cellular telephones in the area to transmit their locations,
10 identifying information, and communications content.
11 * * *
12 (16.1) "Telecommunications device" or "communications device" means any
13 type of instrument, device, or machine that is capable of transmitting or receiving
14 telephonic, electronic, radio, text, or data communications, including but not limited
15 to a cellular telephone, a text-messaging device, a personal digital assistant, a
16 computer, or any other similar wireless device that is designed to engage in a call or
17 communicate text or data. It does not include citizens band radios, citizens band
18 radio hybrids, commercial two-way radio communication devices, or electronic
19 communication devices with a push-to-talk function.
20 * * *
21 §1313. Pen registers and trap and trace devices, use prohibited
22 A. Except as provided in this Section, no person may install or use a pen
23 register, or a trap and trace device, or a cell site simulator device without first
24 obtaining a court order under pursuant to R.S. 15:1315 of this Part.
25 B. The prohibition of this Section does not apply with respect to the use of
26 pen register, or a trap and trace device, or a cell site simulator device by a provider
27 of a wire or electronic communication service:
28 * * *
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1 §1314. Application for an order for pen register, or a trap and trace device, or a cell
2 site simulator device
3 A. An investigative or law enforcement officer may make application for an
4 order or an extension of an order under pursuant to R.S. 15:1315 to a court of
5 competent jurisdiction authorizing or approving the installation and use of pen
6 register, or a trap and trace device, or a cell site simulator device under this Part, in
7 writing under oath or equivalent affirmation, to a court of competent jurisdiction of
8 this state. For the purposes of R.S. 15:1313 through 1316 only, "investigative or law
9 enforcement officer" means:
10 * * *
11 (3) Any sheriff or a deputy sheriff of a parish of this state which has been
12 specifically designated by the sheriff of that parish as responsible for preparation of
13 applications for installation and use of pen register, or a trap and trace devices, or
14 cell site simulator devices.
15 (4) The attorney general, or the deputy or any assistant attorney general
16 acting pursuant to the authorization of the attorney general.
17 * * *
18 §1315. Issuance of an order for pen register, or a trap and trace device, or a cell site
19 simulator device
20 A. Upon an application made under pursuant to R.S. 15:1314, the court may
21 enter an ex parte order authorizing the installation and use of pen register, or a trap
22 and trace device, or a cell site simulator device within the jurisdiction of the court
23 if the court finds that the investigative or law enforcement officer has certified to the
24 court that the information likely to be obtained by such installation and use is
25 relevant to an ongoing felony criminal investigation, and that the certification does
26 include reasonable suspicion as required by R.S. 15:1314.
27 B.
28 * * *
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1 (2) An order issued pursuant to this Section for a cell site simulator device
2 shall specify:
3 (a) The telephone number or other unique subscriber account number
4 identifying the wire or electronic communications service account used by the device
5 to which the cell site simulator device is to be attached or used.
6 (b) The physical location, if known, of the device to which the cell site
7 simulator device is to be attached or used.
8 (c) The type of device, and the communications protocols being used by the
9 device, to which the cell site simulator device is to be attached or used.
10 (d) The geographic area that will be covered by the cell site simulator device.
11 (e) All categories of metadata, data, or information to be collected by the cell
12 site simulator device from the targeted device including but not limited to call
13 records and geolocation information.
14 (f) Whether or not the cell site simulator device will incidentally collect
15 metadata, data, or information from any parties or devices not specified in the court
16 order, and if so, what categories of information or metadata will be collected.
17 (g) Any disruptions to access or use of a communications or Internet access
18 network that may be created by use of the device.
19 (h) A statement of the offense to which the information is likely to be
20 obtained by the cell site simulator device.
21 (2)(3) An order issued under pursuant to this Section shall direct, upon
22 request of the applicant, the furnishing of information, facilities, and technical
23 assistance necessary to accomplish the installation of the pen register, or a trap and
24 trace device, or a cell site simulator device under pursuant to R.S. 15:1316.
25 C.(1) An order issued under this Section shall authorize the installation and
26 use of pen register, or a trap and trace device, or a cell site simulator device for a
27 period not to exceed sixty days.
28 * * *
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1 D. An order authorizing or approving the installation and use of pen register,
2 or a trap and trace device, or a cell site simulator device shall direct that:
3 * * *
4 (2) The person owning or leasing the line to which the pen register, or a trap
5 and trace device, or a cell site simulator device is attached, or who has been ordered
6 by the court to provide assistance to the applicant, not disclose the existence of the
7 pen register, or a trap and trace device, or a cell site simulator device or the existence
8 of the investigation to the listed subscriber, or to any other person, unless or until
9 otherwise ordered by the court.
10 E. The head of each law enforcement agency possessing or making
11 application for the installation and use of a pen register, or a trap and trace device,
12 or a cell site simulator device shall establish and implement procedures which shall
13 provide for and ensure the following:
14 (1) Preparation and maintenance of such logs and records which record, after
15 unsealing of the applications and orders, the approval of applications for installation
16 and use of pen register, or a trap and trace devices, or cell site simulator devices and
17 the duration thereof.
18 (2) That only the law enforcement agency chief officer or specifically
19 authorized representative of the agency chief shall have the authority to authorize the
20 installation and use of pen register, or a trap and trace devices, or a cell site simulator
21 devices and only pursuant to court order.
22 (3) That no pen register, or a trap and trace device, or a cell site simulator
23 device in the possession of the law enforcement agency shall be subject to
24 unauthorized installation or use.
25 (4) That a designated sworn and commissioned officer of that law
26 enforcement agency executes and transmits no later than March first of each calendar
27 year to the deputy secretary of public safety services of the Department of Public
28 Safety and Corrections, a sworn affidavit stating that, to the best of the affiant's
29 knowledge, information, and belief, all installations and uses of the pen register, or
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1 a trap and trace devices, or a cell site simulator device in the custody of that law
2 enforcement agency have been in accordance with the provisions of this Part and
3 further that no pen register, or a trap and trace device, or a cell site simulator device
4 in the custody of that agency has been the subject of an unauthorized or illegal
5 installation or use.
6 F. A law enforcement agency authorized to use a cell site simulator device
7 in accordance with this Part shall do all of the following:
8 (1) Take all steps necessary to limit the collection of any information or
9 metadata to the target specified in the applicable court order.
10 (2) Take all steps necessary to permanently delete any information or
11 metadata collected from any party not specified in the applicable court order
12 immediately following such collection and shall not transmit, use, or retain such
13 information or metadata for any purpose whatsoever.
14 (3) Delete any information or metadata collected from the target specified
15 in the court order within thirty-five days if there is no longer probable cause to
16 support the belief that such information or metadata is evidence of a crime.
17 §1316. Assistance in installation and use of pen register, or a trap and trace device,
18 or a cell site simulator device
19 A. Upon the request of an investigative or law enforcement agency
20 authorized to install and use a pen register or a cell site simulator device under
21 pursuant to this Part, a provider of a wire or electronic communication service,
22 landlord, custodian, or other person shall furnish such investigative or law
23 enforcement officer forthwith all information, facilities, and technical assistance
24 necessary to accomplish the installation of the pen register unobtrusively and with
25 a minimum of minimal interference with the services that the person so ordered by
26 the court accords the party with respect to whom the installation and use is to take
27 place, if such assistance is directed by a court order as provided in R.S.
28 15:1315(B)(2)(3).
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1 B. Upon the request of an officer of a law enforcement agency authorized
2 to receive the results of a trap and trace device under this Part, a provider of a wire
3 or electronic communication service, landlord, custodian, or other person shall, if
4 technically possible, install such device forthwith on the appropriate line and shall
5 furnish such investigative or law enforcement officer all additional information,
6 facilities, and technical assistance including installation and operation of the device
7 unobtrusively and with a minimum of minimal interference with the services that the
8 person so ordered by the court accords the party with respect to whom the
9 installation and use is to take place, if such installation and assistance is directed by
10 a court order as provided in R.S. 15:1315(B)(2)(3). Unless otherwise ordered by the
11 court, the results of the trap and trace device shall be furnished to the investigative
12 or law enforcement officer designated in the court order, at reasonable intervals
13 during the regular business hours for the duration of the order.
14 C. Upon the request of an investigative or law enforcement agency
15 authorized to install and use a cell site simulator device pursuant to this Part, a
16 provider of a wire or electronic communication service, landlord, custodian, or other
17 person shall furnish such investigative or law enforcement officer with all
18 information, facilities, and technical assistance necessary, if applicable, to
19 accomplish the installation or use of a cell site simulator device unobtrusively and
20 with minimal interference with the services that the person so ordered by the court
21 accords the party with respect to whom the installation and use is to take place, if
22 such assistance is directed by a court order as provided in R.S. 15:1315(B)(3).
23 C.D. A provider of a wire or electronic communication service, landlord,
24 custodian, or other person who furnishes facilities or technical assistance pursuant
25 to this Section shall be compensated for such reasonable expenses incurred in
26 providing such facilities and assistance.
27 D.E. No cause of action shall lie in any Louisiana court against any provider
28 of a wire or electronic communication service, its officers, employees, agents, or
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1 other specified persons for providing information, facilities, or assistance in
2 accordance with the terms of a court order under pursuant to this Part.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 138 Original 2015 Regular Session Havard
Abstract: Prohibits the use of a cell site simulator device by anyone except a law
enforcement or investigative officer, telecommunication employee, or an FCC
employee.
Proposed law creates the crime of unlawful use of a cell site simulator device. A cell site
simulator device mimics a cell tower providing cell phone services and downloads or copies
the personal information of cell phone users. Makes exceptions for law enforcement and
investigative officers, telecommunications employees, and FCC employees in the
performance of their duties.
Proposed law provides penalties of a fine of not more than $3,000, imprisonment with or
without hard labor for not more than two years, or both.
Present law provides procedures for law enforcement and investigative officers to obtain
warrants from the court to use a trap and trace device or pen register (wire tapping
equipment).
Proposed law retains present law and adds cell site simulator devices to present law.
(Amends 15:1302(2), 1313(A) and (B)(intro. para.), 1314(A)(intro. para.) and (3), 1315(A),
(B)(2), (C)(1), (D)(intro. para.) and (2), and (E), and 1316; Adds R.S. 14:222.3 and R.S.
15:1302(3.1) and (16.1), and 1314(A)(4), and 1315(B)(3) and (F))
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