18 U.S.C. § 3122 — Application for an order for a pen register

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.