House Bill 696

AN ACT TO REQUIRE A LAW ENFORCEMENT AGENCY TO OBTAIN A WARRANT BEFORE USING A CELL SITE SIMULATOR DEVICE TO COLLECT INFORMATION FROM A COMMUNICATIONS DEVICE; TO AUTHORIZE A CELL SITE SIMULATOR DEVICE TO BE USED WITHOUT A WARRANT WHEN IT IS NECESSARY TO PREVENT LOSS OF LIFE OR BODILY INJURY; TO AMEND SECTIONS 41-29-701 AND 41-29-513, MISSISSIPPI CODE OF 1972, IN CONFORMITY WITH THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed unless the context clearly indicates otherwise:

(a) "Cell site simulator device" means a device that transmits or receives radio waves to or from a communications device that can be used to intercept, collect, access, transfer or forward the data transmitted or received by the communications device, or stored on the communications device, including an international mobile subscriber identity (IMSI) catcher or other cell phone or telephone surveillance or eavesdropping device that mimics a cellular base station and transmits radio waves that cause cell phones or other communications devices in the area to transmit or receive radio waves, electronic data, location data, information used to calculate location, identifying information, communications content or metadata, or otherwise obtains this information through passive means, such as through the use of a digital analyzer or other passive interception device. "Cell site simulator device" does not include any device used or installed by an electric utility solely to the extent the device is used by that utility to measure electrical usage, to provide services to customers or to operate the electric grid.

(b) "Communications device" means any electronic device that transmits signs, signals, writings, images, sounds or data in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system.

(c) "Law enforcement agency" means a law enforcement agency of the State of Mississippi or any political subdivision thereof.

(2) Except as otherwise provided in subsection (3) of this section, a law enforcement agency shall not use a cell site simulator device to obtain the location information, stored data or transmitted data of a communications device without first obtaining a search warrant issued by a proper court based upon probable cause that a person whose information is sought has committed, is committing or is about to commit a crime.

(3) A law enforcement agency may not use, copy or disclose, for any purpose, the location information, stored data or transmitted data of an electronic device that is not the subject of a warrant that is collected as part of an effort to obtain the location information, stored data or transmitted data of the electronic device that is the subject of a warrant issued under subsection (2) of this section. Any non-target data must be deleted as soon as reasonably practicable, but no later than forty-eight (48) hours after such data is collected.

(4) A cell site simulator device may be used without first obtaining a warrant when a law enforcement agency determines that there is sufficient probable cause that the person whose information is sought has committed, is committing or is about to commit an act of terrorism and there are exigent circumstances that exist which require the use of a cell site simulator device to prevent an imminent loss of life or bodily injury to a person. The warrantless use of a cell site simulator device must end when a request for a warrant has been denied or twenty-four (24) hours has passed, whichever happens first. Unless a warrant is granted that covers the target communications device, all data collected as part of a warrantless search must be deleted as soon as reasonably practicable, but no later than twenty-four (24) hours after such data is collected.

SECTION 2. Section 41-29-701, Mississippi Code of 1972, is amended as follows:

41-29-701. (1) As used in this section, the following words and phrases shall have the meanings ascribed to them herein unless the context clearly requires otherwise:

(a) "Pen register" means a mechanical or electronic device that attaches to a telephone line and is capable of recording outgoing numbers dialed from that line and date, time and duration of any incoming communication to that line.

(b) "Trap and trace device" means a device which captures the incoming electronic or other signals which identifies the originating number of an instrument or device from which a wire or other communication was transmitted.

(c) "Caller ID" means a service offered by a provider of communications services which identifies either or both of the originating number or the subscriber of such number of an instrument or device from which a wire or other communication was transmitted.

(2) (a) Attorneys for the Bureau of Narcotics, upon their own motion, may file an application with the circuit court for the installation and use of a pen register, trap and trace device or caller ID to obtain information material to an ongoing investigation of a felony violation of the Uniform Controlled Substances Law. Venue under this section shall be in the circuit court district of any of the following: (i) the county of residence of the subscriber, (ii) the county of residence of the user, (iii) the county in which the billing address is located, or (iv) the county in which the crime is allegedly being committed.

(b) The application shall be made in writing under oath and shall include the name of the subscriber, the telephone number or numbers, and the location of the telephone instrument or instruments upon which the pen register will be utilized. The application shall also set forth facts which the court shall consider in determining that probable cause exists that the installation and utilization of the pen register, trap and trace device or caller ID will be material to an ongoing investigation of a felony violation of the Uniform Controlled Substances Law.

(c) Upon consideration of the application and a determination that probable cause exists, the circuit court judge may order the installation and utilization of the pen register, trap and trace device or caller ID, and in the order the circuit court judge shall direct a communications common carrier, as defined by 47 USCS 153(h), to furnish all information, facilities and technical assistance necessary to facilitate the installation and utilization of the pen register, trap and trace device or caller ID unobtrusively and with a minimum of interference to the services provided by the carrier. The carrier is entitled to compensation at the prevailing rates for the facilities and assistance provided to the Bureau of Narcotics.

(d) An order for the installation and utilization of a pen register, trap and trace device or caller ID is valid for not more than thirty (30) days from the date the order is granted unless, prior to the expiration of the order, an attorney for the Bureau of Narcotics applies for and obtains from the court an extension of the order. The period of extension may not exceed thirty (30) days for each extension granted.

(e) The circuit court shall seal an application and order for the installation and utilization of a pen register, trap and trace device or caller ID granted under this section. The contents of an application or order may not be disclosed except in the course of a judicial proceeding and an unauthorized disclosure is punishable as contempt of court.

(3) On or before January 5 of each year, the Director of the Bureau of Narcotics shall submit a report to the Mississippi Administrative Office of Courts detailing the number of applications for pen registers sought and the number of orders for the installation and utilization of pen registers, trap and trace devices or caller ID granted during the preceding calendar year.

(4) If an application is made under this section to authorize the use of a cell site simulator device, as defined in Section 1 of this act, the application shall only be approved by the circuit court judge if the application is accompanied by a search warrant issued in accordance with Section 1 of this act.

SECTION 3. Section 41-29-513, Mississippi Code of 1972, is amended as follows:

41-29-513. (1) To be valid, an application for an order authorizing the interception of a wire, oral or other communication must be made in writing under oath to a judge of competent jurisdiction in the circuit court district of the location where the interception of wire, oral or other communications is sought, or a circuit court district contiguous to such circuit court district, and must state the applicant's authority to make the application. An applicant must include the following information in the application:

(a) A statement that the application has been requested by the director and the identity of the prosecutor making the application;

(b) A full and complete statement of the facts and circumstances relied on by the applicant to justify his belief that an order should be issued including:

(i) Details about the particular offense that has been, is being, or is about to be committed;

(ii) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(iii) A particular description of the type of communication sought to be intercepted; and

(iv) The identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed or to be too dangerous if tried;

(d) A statement of the period of time for which the interception is required to be maintained and, if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication is first obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur after the described type of communication is obtained;

(e) A statement whether a covert entry will be necessary to properly and safely install the wiretapping or electronic surveillance or eavesdropping equipment and, if a covert entry is requested, a statement as to why such an entry is necessary and proper under the facts of the particular investigation, including a full and complete statement as to whether other investigative techniques have been tried and have failed or why they reasonably appear to be unlikely to succeed or to be too dangerous if tried or are not feasible under the circumstances or exigencies of time;

(f) A full and complete statement of the facts concerning all applications known to the prosecutor making the application that have been previously made to a judge for authorization to intercept wire, oral or other communications involving any of the persons, facilities or places specified in the application and of the action taken by the judge on each application; * * * ~~and~~

(g) If the application is for the extension of an order, a statement setting forth the results already obtained from the interception or a reasonable explanation of the failure to obtain results * * *.; and

(h) If an application is made under this section to authorize the use of a cell site simulator device, as defined in Section 1 of this act, the application shall only be approved by the judge if the application is accompanied by a search warrant issued in accordance with Section 1 of this act.

(2) The judge may, in an ex parte in camera hearing, require additional testimony or documentary evidence in support of the application, and such testimony or documentary evidence shall be preserved as part of the application.

SECTION 4. This act shall take effect and be in force from and after July 1, 2018.