50 U.S.C. § 1842 — Pen registers and trap and trace devices

Page 272 TITLE 50—WAR AND NATIONAL DEFENSE § 1842 1 See References in Text note below. § 1842. Pen registers and trap and trace devices for foreign intelligence and international ter- rorism investigations (a) Application for authorization or approval (1) Notwithstanding any other provision of law, the Attorney General or a designated attor- ney for the Government may make an applica- tion for an order or an extension of an order au- thorizing or approving the installation and use of a pen register or trap and trace device for any investigation to obtain foreign intelligence in- formation not concerning a United States per- son or to protect against international ter- rorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amend- ment to the Constitution which is being con- ducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order. (2) The authority under paragraph (1) is in ad- dition to the authority under subchapter I of this chapter to conduct the electronic surveil- lance referred to in that paragraph. (b) Form of application; recipient Each application under this section shall be in writing under oath or affirmation to— (1) a judge of the court established by sec- tion 1803(a) of this title; or (2) a United States Magistrate Judge under chapter 43 of title 28 who is publicly des- ignated by the Chief Justice of the United States to have the power to hear applications for and grant orders approving the installation and use of a pen register or trap and trace de- vice on behalf of a judge of that court. (c) Executive approval; contents of application Each application under this section shall re- quire the approval of the Attorney General, or a designated attorney for the Government, and shall include— (1) the identity of the Federal officer seeking to use the pen register or trap and trace device covered by the application; (2) a certification by the applicant that the information likely to be obtained is foreign in- telligence information not concerning a United States person or is relevant to an ongo- ing investigation to protect against inter- national terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution; (3) a specific selection term to be used as the basis for the use of the pen register or trap and trace device; (4) a certification by the Federal Officer seeking to use the pen register or trap and trace device covered by the application that, to the best knowledge of the Federal Officer, the Attorney General or a designated attorney for the Government has been apprised of all information that might reasonably— (A) call into question the accuracy of the application or the reasonableness of any as- sessment in the application conducted by the department or agency on whose behalf the application is made; or (B) otherwise raise doubts with respect to the findings required under subsection (d); and (5) non-cumulative information known to the Federal officer seeking to use the pen reg- ister or trap and trace device covered by the application, that is potentially exculpatory re- garding the requested legal findings or any as- sessment in the application. (d) Ex parte judicial order of approval (1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the in- stallation and use of a pen register or trap and trace device if the judge finds that the applica- tion satisfies the requirements of this section. (2) An order issued under this section— (A) shall specify— (i) the identity, if known, of the person who is the subject of the investigation; (ii) 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; and (iii) the attributes of the communications to which the order applies, such as the num- ber or other identifier, and, if known, the lo- cation 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 a trap and trace device, the geo- graphic limits of the trap and trace order; (B) shall direct that— (i) upon request of the applicant, the pro- vider of a wire or electronic communication service, landlord, custodian, or other person shall furnish any information, facilities, or technical assistance necessary to accomplish the installation and operation of the pen register or trap and trace device in such a manner as will protect its secrecy and produce a minimum amount of interference with the services that such provider, land- lord, custodian, or other person is providing the person concerned; (ii) such provider, landlord, custodian, or other person— (I) shall not disclose the existence of the investigation or of the pen register or trap and trace device to any person unless or until ordered by the court; and (II) shall maintain, under security proce- dures approved by the Attorney General and the Director of National Intelligence pursuant to section 1805(b)(2)(C) 1 of this title, any records concerning the pen reg- ister or trap and trace device or the aid furnished; and (iii) the applicant shall compensate such provider, landlord, custodian, or other per- son for reasonable expenses incurred by such provider, landlord, custodian, or other per- son in providing such information, facilities, or technical assistance; and Page 273 TITLE 50—WAR AND NATIONAL DEFENSE § 1842 (C) shall direct that, upon the request of the applicant, the provider of a wire or electronic communication service shall disclose to the Federal officer using the pen register or trap and trace device covered by the order— (i) in the case of the customer or sub- scriber using the service covered by the order (for the period specified by the order)— (I) the name of the customer or sub- scriber; (II) the address of the customer or sub- scriber; (III) the telephone or instrument num- ber, or other subscriber number or identi- fier, of the customer or subscriber, includ- ing any temporarily assigned network ad- dress or associated routing or transmission information; (IV) the length of the provision of serv- ice by such provider to the customer or subscriber and the types of services uti- lized by the customer or subscriber; (V) in the case of a provider of local or long distance telephone service, any local or long distance telephone records of the customer or subscriber; (VI) if applicable, any records reflecting period of usage (or sessions) by the cus- tomer or subscriber; and (VII) any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and (ii) if available, with respect to any cus- tomer or subscriber of incoming or outgoing communications to or from the service cov- ered by the order— (I) the name of such customer or sub- scriber; (II) the address of such customer or sub- scriber; (III) the telephone or instrument num- ber, or other subscriber number or identi- fier, of such customer or subscriber, in- cluding any temporarily assigned network address or associated routing or trans- mission information; and (IV) the length of the provision of serv- ice by such provider to such customer or subscriber and the types of services uti- lized by such customer or subscriber. (3) A denial of the application made under this subsection may be reviewed as provided in sec- tion 1803 of this title. (e) Time limitation (1) Except as provided in paragraph (2), an order issued under this section shall authorize the installation and use of a pen register or trap and trace device for a period not to exceed 90 days. Extensions of such an order may be grant- ed, but only upon an application for an order under this section and upon the judicial finding required by subsection (d). The period of exten- sion shall be for a period not to exceed 90 days. (2) In the case of an application under sub- section (c) where the applicant has certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, an order, or an extension of an order, under this section may be for a pe- riod not to exceed one year. (f) Cause of action barred No cause of action shall lie in any court against any provider of a wire or electronic com- munication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or tech- nical assistance under subsection (d) in accord- ance with the terms of an order issued under this section. (g) Furnishing of results Unless otherwise ordered by the judge, the re- sults of a pen register or trap and trace device shall be furnished at reasonable intervals during regular business hours for the duration of the order to the authorized Government official or officials. (h) Privacy procedures (1) In general The Attorney General shall ensure that ap- propriate policies and procedures are in place to safeguard nonpublicly available informa- tion concerning United States persons that is collected through the use of a pen register or trap and trace device installed under this sec- tion. Such policies and procedures shall, to the maximum extent practicable and consistent with the need to protect national security, in- clude privacy protections that apply to the collection, retention, and use of information concerning United States persons. (2) Rule of construction Nothing in this subsection limits the author- ity of the court established under section 1803(a) of this title or of the Attorney General to impose additional privacy or minimization procedures with regard to the installation or use of a pen register or trap and trace device. (Pub. L. 95–511, title IV, § 402, as added Pub. L. 105–272, title VI, § 601(2), Oct. 20, 1998, 112 Stat. 2405; amended Pub. L. 107–56, title II, § 214(a), Oct. 26, 2001, 115 Stat. 286; Pub. L. 107–108, title III, § 314(a)(5), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, §§ 105(c), 128(a), Mar. 9, 2006, 120 Stat. 195, 228; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 114–23, title II, §§ 201(a), 202(a), June 2, 2015, 129 Stat. 277; Pub. L. 115–118, title II, § 205(b)(4), Jan. 19, 2018, 132 Stat. 22; Pub. L. 118–49, § 10(a)(3), (b)(3), Apr. 20, 2024, 138 Stat. 876, 877.) Editorial Notes REFERENCES IN TEXT Executive Order No. 12333, referred to in subsec. (a)(1), is set out as a note under section 3001 of this title. Section 1805(b)(2)(C) of this title, referred to in sub- sec. (d)(2)(B)(ii)(II), was redesignated section 1805(c)(2)(C) of this title by Pub. L. 106–567, title VI, § 602(b)(1), Dec. 27, 2000, 114 Stat. 2851. AMENDMENTS 2024—Subsec. (c)(4). Pub. L. 118–49, § 10(a)(3), added par. (4). Subsec. (c)(5). Pub. L. 118–49, § 10(b)(3), added par. (5). Page 274 TITLE 50—WAR AND NATIONAL DEFENSE § 1843 2018—Subsec. (d)(3). Pub. L. 115–118 added par. (3). 2015—Subsec. (c)(3). Pub. L. 114–23, § 201(a), added par. (3). Subsec. (h). Pub. L. 114–23, § 202(a), added subsec. (h). 2010—Subsec. (d)(2)(B)(ii)(II). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below. 2006—Subsec. (d)(2)(A). Pub. L. 109–177, § 128(a)(1), in- serted ‘‘and’’ at end of cl. (ii) and substituted semicolon for period at end of cl. (iii). Subsec. (d)(2)(C). Pub. L. 109–177, § 128(a)(2), (3), added subpar. (C). Subsec. (e). Pub. L. 109–177, § 105(c), designated exist- ing provisions as par. (1), substituted ‘‘Except as pro- vided in paragraph (2), an order issued’’ for ‘‘An order issued’’, and added par. (2). 2004—Subsec. (d)(2)(B)(ii)(II). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted ‘‘Director of National Intelligence’’ for ‘‘Director of Central Intel- ligence’’. 2001—Subsec. (a)(1). Pub. L. 107–56, § 214(a)(1), sub- stituted ‘‘for any investigation to obtain foreign intel- ligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not con- ducted solely upon the basis of activities protected by the first amendment to the Constitution’’ for ‘‘for any investigation to gather foreign intelligence informa- tion or information concerning international ter- rorism’’. Subsec. (c)(1). Pub. L. 107–108, § 314(a)(5)(A), inserted ‘‘and’’ after semicolon at end. Subsec. (c)(2). Pub. L. 107–56, § 214(a)(2), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘a certification by the applicant that the infor- mation likely to be obtained is relevant to an ongoing foreign intelligence or international terrorism inves- tigation being conducted by the Federal Bureau of In- vestigation under guidelines approved by the Attorney General; and’’. Subsec. (c)(3). Pub. L. 107–56, § 214(a)(3), struck out par. (3) which read as follows: ‘‘information which dem- onstrates that there is reason to believe that the tele- phone line to which the pen register or trap and trace device is to be attached, or the communication instru- ment or device to be covered by the pen register or trap and trace device, has been or is about to be used in communication with— ‘‘(A) an individual who is engaging or has engaged in international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal laws of the United States; or ‘‘(B) a foreign power or agent of a foreign power under circumstances giving reason to believe that the communication concerns or concerned international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal laws of the United States.’’ Subsec. (d)(2)(A). Pub. L. 107–56, § 214(a)(4), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘shall specify— ‘‘(i) the identity, if known, of the person who is the subject of the foreign intelligence or international terrorism investigation; ‘‘(ii) in the case of an application for the installa- tion and use of a pen register or trap and trace device with respect to a telephone line— ‘‘(I) the identity, if known, of the person to whom is leased or in whose name the telephone line is listed; and ‘‘(II) the number and, if known, physical location of the telephone line; and ‘‘(iii) in the case of an application for the use of a pen register or trap and trace device with respect to a communication instrument or device not covered by clause (ii)— ‘‘(I) the identity, if known, of the person who owns or leases the instrument or device or in whose name the instrument or device is listed; and ‘‘(II) the number of the instrument or device; and’’. Subsec. (f). Pub. L. 107–108, § 314(a)(5)(B), substituted ‘‘terms of an order issued’’ for ‘‘terms of a court’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Amendment by section 10(a)(3) of Pub. L. 118–49 appli- cable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(a)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(b)(3) of Pub. L. 118–49 appli- cable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. § 1843. Authorization during emergencies (a) Requirements for authorization Notwithstanding any other provision of this subchapter, when the Attorney General makes a determination described in subsection (b), the Attorney General may authorize the installa- tion and use of a pen register or trap and trace device on an emergency basis to gather foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such inves- tigation of a United States person is not con- ducted solely upon the basis of activities pro- tected by the first amendment to the Constitu- tion if— (1) a judge referred to in section 1842(b) of this title is informed by the Attorney General or his designee at the time of such authoriza- tion that the decision has been made to install and use the pen register or trap and trace de- vice, as the case may be, on an emergency basis; and (2) an application in accordance with section 1842 of this title is made to such judge as soon as practicable, but not more than 7 days, after the Attorney General authorizes the installa- tion and use of the pen register or trap and trace device, as the case may be, under this section. (b) Determination of emergency and factual basis A determination under this subsection is a reasonable determination by the Attorney Gen- eral that— (1) an emergency requires the installation and use of a pen register or trap and trace de- vice to obtain foreign intelligence information not concerning a United States person or in- formation to protect against international