18 U.S.C. § 3123 — Issuance of an order for a pen register or

Page 711 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3123 dressing,’’ after ‘‘dialing’’ and substituted ‘‘the proc- essing and transmitting of wire or electronic commu- nications so as not to include the contents of any wire or electronic communications’’ for ‘‘call processing’’. 1994—Subsecs. (c), (d). Pub. L. 103–414 added subsec. (c) and redesignated former subsec. (c) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 99–508, title III, § 302, Oct. 21, 1986, 100 Stat. 1872, provided that: ‘‘(a) IN GENERAL.—Except as provided in subsection (b), this title and the amendments made by this title [enacting this chapter and section 1367 of this title] shall take effect ninety days after the date of the en- actment of this Act [Oct. 21, 1986] and shall, in the case of conduct pursuant to a court order or extension, apply only with respect to court orders or extensions made after this title takes effect. ‘‘(b) SPECIAL RULE FOR STATE AUTHORIZATIONS OF INTERCEPTIONS.—Any pen register or trap and trace de- vice order or installation which would be valid and law- ful without regard to the amendments made by this title shall be valid and lawful notwithstanding such amendments if such order or installation occurs during the period beginning on the date such amendments take effect and ending on the earlier of— ‘‘(1) the day before the date of the taking effect of changes in State law required in order to make orders or installations under Federal law as amended by this title; or ‘‘(2) the date two years after the date of the enact- ment of this Act [Oct. 21, 1986].’’ § 3122. Application for an order for a pen register or a trap and trace device (a) APPLICATION.—(1) An attorney for the Gov- ernment may make application for an order or an extension of an order under section 3123 of this title authorizing or approving the installa- tion 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 com- petent jurisdiction. (2) Unless prohibited by State law, a State in- vestigative or law enforcement officer may make application for an order or an extension of an order under section 3123 of this title author- izing 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 in- clude— (1) the identity of the attorney for the Gov- ernment or the State law enforcement or in- vestigative 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. (Added Pub. L. 99–508, title III, § 301(a), Oct. 21, 1986, 100 Stat. 1869.) 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 exten- sions 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 (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 author- izing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the at- torney for the Government has certified to the court that the information likely to be ob- tained 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 elec- tronic 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 investiga- tive officer that is serving the order shall pro- vide written or electronic certification that the order applies to the person or entity being served. (2) STATE INVESTIGATIVE OR LAW ENFORCE- MENT 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 de- vice 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 on- going criminal investigation. (3)(A) Where the law enforcement agency im- plementing an ex parte order under this sub- section 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 pro- vider of electronic communication service to the public, the agency shall ensure that a record will be maintained which will iden- tify— (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 in- stalled, 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 col- lected 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. Page 712 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3124 (B) The record maintained under subpara- graph (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 investiga- tion; (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 facil- ity to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing in- stallation and use of a trap and trace device under subsection (a)(2), the geographic lim- its 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 ap- plicant, the furnishing of information, facili- ties, and technical assistance necessary to ac- complish 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 in- stallation 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 grant- ed, but only upon an application for an order under section 3122 of this title and upon the judi- cial 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 REG- ISTER 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 or- dered 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 assist- ance to the applicant, not disclose the exist- ence of the pen register or trap and trace de- vice or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. (Added Pub. L. 99–508, title III, § 301(a), Oct. 21, 1986, 100 Stat. 1869; amended Pub. L. 107–56, title II, § 216(b), Oct. 26, 2001, 115 Stat. 288.) 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 ap- plication made under section 3122 of this title, the court shall enter an ex parte order authorizing the in- stallation 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 cer- tified to the court that the information likely to be ob- tained 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 ap- plied’’ 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 loca- tion 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 exten- sions 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. § 3124. Assistance in installation and use of a pen register or a trap and trace device (a) PEN REGISTERS.—Upon the request of an at- torney 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 fur- nish such investigative or law enforcement offi- cer forthwith all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtru- sively 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 pro- vided 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 re- ceive 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 enforce- ment officer all additional information, facili- ties and technical assistance including installa- tion 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 in- stallation and use is to take place, if such in- stallation 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 fur-