§3123 — Title 18 Crimes and Criminal Procedure | U.S. Code

Summary

A court must, without telling the target, issue a secret order allowing law enforcement to install and use a pen register or trap and trace device if a federal or state prosecutor certifies that the information is likely relevant to an ongoing criminal investigation. A federal order can cover any location in the United States; a state officer’s request covers the court’s own area. The order applies to any phone or internet company whose help is needed. If such a company is served but not named, it can ask the government for written proof that the order covers them. If an agency puts its own device on a provider’s packet-switched network, the agency must keep a record of who installed or accessed the device, when it was installed and removed and when it was used, how it was set up, and what it collected, and give that record to the court under seal within 30 days after the order ends. The order must say, when known, who leases the line, who is the investigation subject, what kinds of communications or numbers are covered (and any geographic limits for state orders), and the crime under investigation. It can also require companies to provide technical help to install the device. Each order lasts up to 60 days and can be extended for up to 60 more days with a new court finding. The order must be kept sealed, and the provider or anyone ordered to help must not tell the subscriber or others about the device or the investigation unless the court allows it.

Title 18, §3123

Crimes and Criminal Procedure — Source: USLM XML via OLRC

(a)(1)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)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.

(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)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)(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)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.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2001—Subsec. (a). Pub. L. 107–56, § 216(b)(1), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Upon an application made under section 3122 of this title, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the attorney for the Government or 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.” Subsec. (b)(1)(A). Pub. L. 107–56, § 216(b)(2)(A), inserted “or other facility” after “telephone line” and “or applied” before semicolon at end. Subsec. (b)(1)(C). Pub. L. 107–56, § 216(b)(2)(B), added subpar. (C) and struck out former subpar (C) which read as follows: “the number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and”. Subsec. (d)(2). Pub. L. 107–56, § 216(b)(3), inserted “or other facility” after “leasing the line” and substituted “or applied, or who is obligated by the order” for “, or who has been ordered by the court”.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 90 days after Oct. 21, 1986, and, in case of conduct pursuant to court order or extension, applicable only with respect to court orders and extensions made after such date, with special rule for State authorizations of interceptions, see section 302 of Pub. L. 99–508, set out as a note under section 3121 of this title.

§3123 Issuance of an Order for a Pen Register or a Trap and Trace Device