18 U.S.C. § 3121 — General prohibition on pen register and

Page 710 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3118 § 3118. Implied consent for certain tests (a) CONSENT.—Whoever operates a motor vehi- cle in the special maritime and territorial juris- diction of the United States consents thereby to a chemical test or tests of such person’s blood, breath, or urine, if arrested for any offense aris- ing from such person’s driving while under the influence of a drug or alcohol in such jurisdic- tion. The test or tests shall be administered upon the request of a police officer having rea- sonable grounds to believe the person arrested to have been driving a motor vehicle upon the special maritime and territorial jurisdiction of the United States while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district. (b) EFFECT OF REFUSAL.—Whoever, having con- sented to a test or tests by reason of subsection (a), refuses to submit to such a test or tests, after having first been advised of the con- sequences of such a refusal, shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of arrest upon which such test or tests was refused, and such refusal may be admitted into evidence in any case aris- ing from such person’s driving while under the influence of a drug or alcohol in such jurisdic- tion. Any person who operates a motor vehicle in the special maritime and territorial jurisdic- tion of the United States after having been de- nied such privilege under this subsection shall be treated for the purposes of any civil or crimi- nal proceedings arising out of such operation as operating such vehicle without a license to do so. (Added Pub. L. 100–690, title VI, § 6477(b)(1), Nov. 18, 1988, 102 Stat. 4381, § 3117; renumbered § 3118, Pub. L. 101–647, title XXXV, § 3574, Nov. 29, 1990, 104 Stat. 4929.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–647 renumbered second section 3117 of this title as this section. CHAPTER 206—PEN REGISTERS AND TRAP AND TRACE DEVICES Sec. 3121. General prohibition on pen register and trap and trace device use; exception. 3122. Application for an order for a pen register or a trap and trace device. 3123. Issuance of an order for a pen register or a trap and trace device. 3124. Assistance in installation and use of a pen register or a trap and trace device. 3125. Emergency pen register and trap and trace device installation. 3126. Reports concerning pen registers and trap and trace devices. 3127. Definitions for chapter. Editorial Notes AMENDMENTS 1988—Pub. L. 100–690, title VII, §§ 7068, 7092(c), Nov. 18, 1988, 102 Stat. 4405, 4411, substituted ‘‘trap and trace’’ for ‘‘trap or trace’’ in item 3123, added item 3125, and redesignated former items 3125 and 3126 as 3126 and 3127, respectively. § 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 reg- ister or a trap and trace device without first ob- taining a court order under section 3123 of this title or under the Foreign Intelligence Surveil- lance Act of 1978 (50 U.S.C. 1801 et seq.) or an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Con- gress satisfies section 2523. (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 pro- vider of electronic or wire communication serv- ice— (1) relating to the operation, maintenance, and testing of a wire or electronic communica- tion service or to the protection of the rights or property of such provider, or to the protec- tion of users of that service from abuse of service or unlawful use of service; or (2) to record the fact that a wire or elec- tronic communication was initiated or com- pleted in order to protect such provider, an- other 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 con- sent of the user of that service has been ob- tained. (c) LIMITATION.—A government agency author- ized 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, rout- ing, addressing, and signaling information uti- lized in the processing and transmitting of wire or electronic communications so as not to in- clude 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. (Added Pub. L. 99–508, title III, § 301(a), Oct. 21, 1986, 100 Stat. 1868; amended Pub. L. 103–414, title II, § 207(b), Oct. 25, 1994, 108 Stat. 4292; Pub. L. 107–56, title II, § 216(a), Oct. 26, 2001, 115 Stat. 288; Pub. L. 115–141, div. V, § 104(3)(A), Mar. 23, 2018, 132 Stat. 1217.) Editorial Notes REFERENCES IN TEXT The Foreign Intelligence Surveillance Act of 1978, re- ferred to in subsec. (a), is Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to chapter 36 (§ 1801 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 50 and Tables. AMENDMENTS 2018—Subsec. (a). Pub. L. 115–141 inserted before pe- riod at end ‘‘or an order from a foreign government that is subject to an executive agreement that the At- torney General has determined and certified to Con- gress satisfies section 2523’’. 2001—Subsec. (c). Pub. L. 107–56 inserted ‘‘or trap and trace device’’ after ‘‘pen register’’ and ‘‘, routing, ad- 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.