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

(a) In general. When a federal government attorney applies under the companion application section of this chapter, the court must issue an ex parte order — one-sided, without the target present — letting law enforcement install and use a pen register or trap-and-trace device anywhere in the United States, as long as the court finds the attorney has certified that the information likely to come from it is relevant to an ongoing criminal investigation. Once served, the order applies to any phone or electronic communication provider in the United States whose help might be needed to carry it out. If served on a provider not specifically named in the order, that provider can ask for, and must get, written or electronic confirmation that the order covers it. When a state law enforcement or investigative officer applies under the same companion section, the court must issue a similar ex parte order, but limited to the court's own jurisdiction, if it finds the officer has certified that same relevance to an ongoing criminal investigation. If law enforcement installs and runs its own pen register or trap-and-trace device on a provider's packet-switched data network — an internet-type network — it must keep a record showing which officers installed the device and which accessed it to pull information, when it was installed and removed and the date, time, and length of each access, how the device was configured when installed and any later changes, and everything the device collected. If the device can record this automatically, it must do so electronically the whole time it's running. This record must be given to the court, under seal and without notifying the other side, within 30 days after the order, including any extensions, ends. (b) Contents of order. An order under this section must specify the identity, if known, of the person who leases or is listed as the owner of the phone line or facility the device attaches to; the identity, if known, of the person under investigation; the specific communications the order covers, including the phone number or other identifier and, if known, the location of the line or facility, plus, for a trap-and-trace order sought by a state officer, the geographic limits of the order; and what crime the sought information relates to. It must also direct, if the applicant asks, that the provider furnish the information, facilities, and technical help needed to install the device. (c) Time period and extensions. An order under this section can authorize the device for up to 60 days. It can be extended, but only through a new application under the companion application section and the same judicial finding required by subsection (a); each extension can also last up to 60 days. (d) Nondisclosure of existence of pen register or a trap and trace device. An order must direct that the order itself stay sealed until the court says otherwise, and that whoever owns or leases the line, or is required to help carry out the order, not tell the subscriber or anyone else that the device, or the investigation, exists, unless and until the court orders otherwise.

The source credit shows that this section was added by Public Law 99–508, title III, § 301(a), enacted October 21, 1986, and published at 100 Stat. 1869. It was subsequently amended once, by Public Law 107–56, title II, § 216(b), enacted October 26, 2001, and published at 115 Stat. 288. Beyond these two legislative actions, the record does not indicate further amendment activity. Public Law 99–508 is commonly known as the Electronic Communications Privacy Act of 1986. The Act is generally understood to have been enacted to update federal law governing electronic surveillance and communications privacy in response to advances in telecommunications technology that had outpaced the existing legal framework, much of which dated to the Wiretap Act of 1968. Title III of that Act, sometimes referred to as the Pen Register Act, is commonly understood to have established a statutory framework governing law enforcement use of pen registers and trap and trace devices, which had previously operated with limited statutory guidance. Public Law 107–56, the USA PATRIOT Act, is widely understood as a legislative response to the September 11, 2001 terrorist attacks, broadly aimed at expanding and updating law enforcement and intelligence-gathering authorities, including in the area of electronic surveillance. The specific legislative purpose behind the particular amendment made to this section by § 216(b) is not established by the materials provided, and no further detail should be inferred.