UNITED STATES CODE ANNOTATED
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 206--PEN REGISTERS AND TRAP AND TRACE DEVICES
§ 3121. General prohibition on pen register and trap and trace device use;
exception
(a) In general.--Except as provided in this section, no
person may install or use a pen register or a trap and trace
device without first obtaining a court order under section 3123
of this title or under the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.).
(b) Exception.--The prohibition of subsection (a) does
not apply with respect to the use of a pen register or a trap and
trace 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 such provider, or to the protection
of users of that service from abuse of service or unlawful use
of service; or
(2) to record the fact that a wire or electronic communication
was initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of
the wire communication, or a user of that service, from fraudulent,
unlawful or abusive use of service; or (3) where the consent
of the user of that service has been obtained.
(c) Limitation.--A government agency authorized to install
and use a pen register or trap and trace device under this chapter
or under State law shall use technology reasonably available to
it that restricts the recording or decoding of electronic or other
impulses to the dialing, routing, addressing, and signaling information
utilized in the processing and transmitting of wire or electronic
communications so as not to include the contents of any wire or
electronic communications.
(d) Penalty.--Whoever knowingly violates subsection (a)
shall be fined under this title or imprisoned not more than one
year, or both.
§ 3122. Application for an order for a pen register or
a trap and trace device
(a) Application.--(1) An attorney for the Government
may make application for an order or an extension of an order under
section 3123 of this title authorizing or approving the installation
and use of a pen register or a trap and trace device under this
chapter, in writing under oath or equivalent affirmation, to a
court of competent jurisdiction.
(2) Unless prohibited by State law, a State investigative
or law enforcement officer may make application for an order
or an extension of an order under section 3123 of this title
authorizing or approving the installation and use of a pen register
or a trap and trace device under this chapter, in writing under
oath or equivalent affirmation, to a court of competent jurisdiction
of such State.
(b) Contents of application.--An application under subsection
(a) of this section shall include--
(1) the identity of the attorney for the Government or
the State law enforcement or investigative officer making the
application and the identity of the law enforcement agency conducting
the investigation; and
(2) a certification by the applicant that the information
likely to be obtained is relevant to an ongoing criminal investigation
being conducted by that agency.
§ 3123. Issuance of an order for a pen register or a
trap and trace device
(a) In general.--
(1) Attorney for the Government.--Upon an application
made under section 3122(a)(1), the court shall enter an ex parte
order authorizing the installation and use of a pen register
or trap and trace device anywhere within the United States, if
the court finds that the attorney for the Government has certified
to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation.
The order, upon service of that order, shall apply to any person
or entity providing wire or electronic communication service
in the United States whose assistance may facilitate the execution
of the order. Whenever such an order is served on any person
or entity not specifically named in the order, upon request of
such person or entity, the attorney for the Government or law
enforcement or investigative officer that is serving the order
shall provide written or electronic certification that the order
applies to the person or entity being served.
(2) State investigative or law enforcement officer.--Upon
an application made under section 3122(a)(2), the court shall
enter an ex parte order authorizing the installation and use
of a pen register or trap and trace device within the jurisdiction
of the court, if the court finds that the State law enforcement
or investigative officer has certified to the court that the
information likely to be obtained by such installation and use
is relevant to an ongoing criminal investigation.
(3)(A) Where the law enforcement agency implementing
an ex parte order under this subsection seeks to do so by installing
and using its own pen register or trap and trace device on a
packet-switched data network of a provider of electronic communication
service to the public, the agency shall ensure that a record
will be maintained which will identify--
(i) any officer or officers who installed the device
and any officer or officers who accessed the device to obtain
information from the network;
(ii) the date and time the device was installed,
the date and time the device was uninstalled, and the date,
time, and duration of each time the device is accessed to
obtain information;
(iii) the configuration of the device at the time
of its installation and any subsequent modification thereof;
and
(iv) any information which has been collected by
the device.
To the extent that the pen register or trap and trace device can be set automatically
to record this information electronically, the record shall be maintained
electronically throughout the installation and use of such device.
(B) The record maintained under subparagraph (A) shall
be provided ex parte and under seal to the court which entered
the ex parte order authorizing the installation and use of
the device within 30 days after termination of the order (including
any extensions thereof).
(b) Contents of order.--An order issued under this section--
(1) shall specify--
(A) the identity, if known, of the person to whom is
leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device
is to be attached or applied;
(B) the identity, if known, of the person who is the
subject of the criminal investigation;
(C) the attributes of the communications to which the
order applies, including the number or other identifier and,
if known, the location of the telephone line or other facility
to which the pen register or trap and trace device is to be
attached or applied, and, in the case of an order authorizing
installation and use of a trap and trace device under subsection
(a)(2), the geographic limits of the order; and".
(D) a statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates; and
(2) shall direct, upon the request of the applicant,
the furnishing of information, facilities, and technical assistance
necessary to accomplish the installation of the pen register
or trap and trace device under section 3124 of this title.
(c) Time period and extensions.--(1) An order issued
under this section shall authorize the installation and use of
a pen register or a trap and trace device for a period not to exceed
sixty days.
(2) Extensions of such an order may be granted, but only
upon an application for an order under section 3122 of this title
and upon the judicial finding required by subsection (a) of this
section. The period of extension shall be for a period not to
exceed sixty days.
(d) Nondisclosure of existence of pen register or a trap and
trace device.--An order authorizing or approving the installation
and use of a pen register or a trap and trace device shall direct
that--
(1) the order be sealed until otherwise ordered by the
court; and
(2) the person owning or leasing the line or other facility
to which the pen register or a trap and trace device is attached,
or applied, or who is obligated by the order to provide assistance
to the applicant, not disclose the existence of the pen register
or trap and trace device or the existence of the investigation
to the listed subscriber, or to any other person, unless or until
otherwise ordered by the court.
§ 3124. Assistance in installation and use of a pen register
or a trap and trace device
(a) Pen registers.--Upon the request of an attorney for
the Government or an officer of a law enforcement agency authorized
to install and use a pen register under this chapter, a provider
of wire or electronic communication service, landlord, custodian,
or other person shall furnish such investigative or law enforcement
officer forthwith all information, facilities, and technical assistance
necessary to accomplish the installation of the pen register unobtrusively
and with a minimum of interference with the services that the person
so ordered by the court accords the party with respect to whom
the installation and use is to take place, if such assistance is
directed by a court order as provided in section 3123(b)(2) of
this title.
(b) Trap and trace device.--Upon the request of an attorney
for the Government or an officer of a law enforcement agency authorized
to receive the results of a trap and trace device under this chapter,
a provider of a wire or electronic communication service, landlord,
custodian, or other person shall install such device forthwith
on the appropriate line or other facility and shall furnish such
investigative or law enforcement officer all additional information,
facilities and technical assistance including installation and
operation of the device unobtrusively and with a minimum of interference
with the services that the person so ordered by the court accords
the party with respect to whom the installation and use is to take
place, if such installation and assistance is directed by a court
order as provided in section 3123(b)(2) of this title. Unless otherwise
ordered by the court, the results of the trap and trace device
shall be furnished, pursuant to section 3123(b) or section 3125
of this title, to the officer of a law enforcement agency, designated
in the court order, at reasonable intervals during regular business
hours for the duration of the order.
(c) Compensation.--A provider of a wire or electronic communication
service, landlord, custodian, or other person who furnishes facilities
or technical assistance pursuant to this section shall be reasonably
compensated for such reasonable expenses incurred in providing
such facilities and assistance.
(d) No cause of action against a provider disclosing information
under this chapter.--No cause of action shall lie in any
court against any provider of a wire or electronic communication
service, its officers, employees, agents, or other specified
persons for providing information, facilities, or assistance
in accordance with a court order under this chapter or request
pursuant to section 3125 of this title.
(e) Defense.--A good faith reliance on a court order under
this chapter, a request pursuant to section 3125 of this title,
a legislative authorization, or a statutory authorization is a
complete defense against any civil or criminal action brought under
this chapter or any other law.
(f) Communications assistance enforcement orders.--Pursuant
to section 2522, an order may be issued to enforce the assistance
capability and capacity requirements under the Communications Assistance
for Law Enforcement Act.
§ 3125. Emergency pen register and trap and trace device
installation
(a) Notwithstanding any other provision of this chapter,
any investigative or law enforcement officer, specially designated
by the Attorney General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, any acting Assistant
Attorney General, or any Deputy Assistant Attorney General, or
by the principal prosecuting attorney of any State or subdivision
thereof acting pursuant to a statute of that State, who reasonably
determines that--
(1) an emergency situation exists that involves--
(A) immediate danger of death or serious bodily injury
to any person;
(B) conspiratorial activities characteristic of organized
crime;
(C) an immediate threat to a national security interest;
or
(D) an ongoing attack on a protected computer (as defined
in section 1030) that constitutes a crime punishable by a term
of imprisonment greater than one year;
that requires the installation and use of a pen register or a trap and trace
device before an order authorizing such installation and use can, with due
diligence, be obtained, and
(2) there are grounds upon which an order could be entered
under this chapter to authorize such installation and use;
may have installed and use a pen register or trap and trace device if, within
forty-eight hours after the installation has occurred, or begins to occur,
an order approving the installation or use is issued in accordance with section
3123 of this title.
(b) In the absence of an authorizing order, such use shall
immediately terminate when the information sought is obtained,
when the application for the order is denied or when forty-eight
hours have lapsed since the installation of the pen register or
trap and trace device, whichever is earlier.
(c) The knowing installation or use by any investigative
or law enforcement officer of a pen register or trap and trace
device pursuant to subsection (a) without application for the authorizing
order within forty-eight hours of the installation shall constitute
a violation of this chapter.
(d) A provider of a wire or electronic service, landlord,
custodian, or other person who furnished facilities or technical
assistance pursuant to this section shall be reasonably compensated
for such reasonable expenses incurred in providing such facilities
and assistance.
§ 3126. Reports concerning pen registers and trap and
trace devices
The Attorney General shall annually report to Congress on the
number of pen register orders and orders for trap and trace devices
applied for by law enforcement agencies of the Department of Justice,
which report shall include information concerning--
(1) the period of interceptions authorized by the order,
and the number and duration of any extensions of the order;
(2) the offense specified in the order or application,
or extension of an order;
(3) the number of investigations involved;
(4) the number and nature of the facilities affected;
and
(5) the identity, including district, of the applying
investigative or law enforcement agency making the application
and the person authorizing the order.
§ 3127. Definitions for chapter
As used in this chapter--
(1) the terms "wire communication", "electronic
communication", "electronic communication service",
and "contents" have the meanings set forth for such
terms in section 2510 of this title;
(2) the term "court of competent jurisdiction" means--
(A) any district court of the United States (including
a magistrate judge of such a court) or any United States court
of appeals having jurisdiction over the offense being investigated;
or
(B) a court of general criminal jurisdiction of a State
authorized by the law of that State to enter orders authorizing
the use of a pen register or a trap and trace device;
(3) the term "pen register" means a device
or process which records or decodes dialing, routing, addressing,
or signaling information transmitted by an instrument or facility
from which a wire or electronic communication is transmitted,
provided, however, that such information shall not include the
contents of any communication, but such term does not include
any device or process used by a provider or customer of a wire
or electronic communication service for billing, or recording
as an incident to billing, for communications services provided
by such provider or any device or process used by a provider
or customer of a wire communication service for cost accounting
or other like purposes in the ordinary course of its business;
(4) the term "trap and trace device" means
a device or process which captures the incoming electronic or
other impulses which identify the originating number or other
dialing, routing, addressing, and signaling information reasonably
likely to identify the source of a wire or electronic communication,
provided, however, that such information shall not include the
contents of any communication;
(5) the term "attorney for the Government" has
the meaning given such term for the purposes of the Federal Rules
of Criminal Procedure; and
(6) the term "State" means a State, the District
of Columbia, Puerto Rico, and any other possession or territory
of the United States.
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