This Week’s Guest Column from Sen. Will Kraus for the Week of April 10, 2017

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Senate Advances Measure to Further Protect Missourians’ Constitutional Right to Privacy

It is hard to believe there are now only four weeks remaining in the 2017 legislative session. While there’s still a lot of work to do, including passing a balanced and on-time budget, I’m proud of the progress we’ve already achieved on behalf of Missouri and its citizens. As of today, the Senate has given the green light to six of my sponsored measures, the most recent of which, Senate Bill 84, will further protect Missourians’ constitutional right to privacy.

In August 2014, Missouri voters passed Amendment 9 to add electronic communications and data to the list of what is protected against unreasonable searches and seizures under the Missouri Constitution. It was an important and necessary first step toward safeguarding our citizens’ constitutional right to privacy in this ever-evolving digital age. The reality, however, is technology advances faster than laws can be changed, and we once again find ourselves facing inadequate constitutional protection under current state law. Senate Bill 84, relating to cell site simulator devices, is Missouri’s next step after Amendment 9.

Cell site simulator devices, also known as Stingrays or IMSI-catchers, mimic cell phone towers. Once activated, they trick cell phones that are in range into connecting to them and are then able to capture their data. Cell site simulators are often used by law enforcement to gather information for investigations. The problem is these devices don’t just collect and store data on suspects — they also sweep up information from any communications device that happens to be close by, regardless of whether the user is a target of the investigation. So while these devices are an important crime-solving tool, the ability of law enforcement to use them without first getting a warrant is an infringement of Missourians’ Fourth Amendment right to be protected against unreasonable searches and seizures.

Presently, state law prohibits the interception of oral and wire communications without prior authorization from a court. Senate Bill 84 simply provides similar prohibitions on the use of a cell site simulator device to obtain information from a cell phone, tablet or laptop. Recognizing the value of this tool to law enforcement, SB 84 authorizes a judge, upon receiving an affidavit from a law enforcement officer, to issue a warrant for the use of a cell site simulator for up to 30 days, with the possibility of extensions.

To further protect citizens’ privacy rights, SB 84 requires law enforcement to delete any data or information collected from any party who is not specified in the warrant immediately following collection, as well as that of the specified target within 30 calendar days if there’s no longer probable cause to support the belief that the data is evidence of a crime. In addition, SB 84 will make it a Class E felony to knowingly install or use a cell site simulator in violation of the law to obtain information from a communications device; it is already a Class E felony to knowingly intercept a wire communication or oral communication.

Finally, SB 84 does allow for cell site simulators to be used without a warrant in specific circumstances, such as when a cell phone is reported stolen by the owner or in certain emergencies. That being said, law enforcement must still apply for a warrant as soon as practicable. If a judge finds that an emergency situation didn’t occur and declines to issue the warrant, any evidence obtained won’t be admissible in a criminal action. A copy of the warrant must be delivered by the requesting law enforcement officer to the device owner or possessor that was named in the warrant within seven calendar days of the warrant’s expiration, unless a court has granted a delay in notice.

As I’ve previously stated, I don’t support the practice of collecting data on citizens who haven’t done anything wrong, and I’d actually ban the use of cell site simulators if it was up to me. However, since banning technology that is already widely in use is incredibly difficult, I believe the least we can do as lawmakers is establish a protocol for using these devices that balances the constitutional rights of Missouri citizens with law enforcement’s need to access them. Senate Bill 84 accomplishes both of these goals.

The U.S. departments of Justice and Homeland Security require federal government agencies to obtain warrants to use cell site simulators. Furthermore, many of Missouri’s law enforcement agencies already seek a court’s permission to use cell site simulators; SB 84 is just codifying the practice.

Join the conversation and follow me on Twitter @SenWillKraus. Pease feel free to contact me with any questions or concerns at any time. We look forward to hearing your comments and suggestions and will try to answer any questions you may have. You can reach us by phone at (573) 751-1464, or email at Will.Kraus@Senate.Mo.Gov.

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Senator Will Kraus serves Eastern Jackson County in the 8th State Senatorial District.