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UNITED STATES CODE ANNOTATED |
§ 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.