18 U.S.C. § 3121

General prohibition on pen register and trap and trace device use; exception

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(a)In General.—Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance 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 Congress 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 provider of electronic or wire communication service—(1) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service; or(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another 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 consent of the user of that service has been obtained.(c)Limitation.—A government agency authorized 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, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include 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 NotesReferences in Text

The Foreign Intelligence Surveillance Act of 1978, referred 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 period at end “or an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523”.

2001—Subsec. (c). Pub. L. 107–56 inserted “or trap and trace device” after “pen register” and “, routing, addressing,” after “dialing” and substituted “the processing and transmitting of wire or electronic communications 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 SubsidiariesEffective 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 enactment 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 device order or installation which would be valid and lawful 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 enactment of this Act [Oct. 21, 1986].”

Notes of Decisions

Cited in 90 cases (7 in the last 5 years), 1987–2026 · leading case: Saldana v. State, 846 P.2d 604 (Wyo. 1993).

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Saldana v. State, 846 P.2d 604 (Wyo. 1993). · cites it 8× “99-508 (1986), 18 U.S.C. §§ 3121 through 3127. [4] *638 What this means is the principal authority used in the majority opinion, Smith, 442 U.”

State v. Copes, 165 A.3d 418 (Md. 2017). · cites it 4× “If the application is approved, the order must identify the individual, if known, whose phone number is being surveilled and the individual who is the subject of the criminal investigation. CJ §10-4B- 04(b). The order may authorize use of the device for a maximum of 60 days.”

In Re the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448 (S.D.N.Y. 2006). · cites it 3× “The government contends that courts may order the disclosure of such information pursuant to the combined authority of 18 U.S.C. § 3121 et seq. (the “Pen Register Statute”) and 18 U.”

Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016). · cites it 2× “, and 18 U.S.C. §§ 3121 et seq.). 11 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Electronic Communications Privacy Act of 1986, Justice Information Sharing, https://it.”

United States v. Aaron Graham, 824 F.3d 421 (4th Cir. 2016). “See 18 U.S.C. § 3121 (a) (2012). Although Congress could undoubtedly do more, it has not been asleep at the switch.”

In Re Us, 441 F. Supp. 2d 816 (S.D. Tex. 2006). · cites it 8× “4279 , 4292 (1994) (codified at 18 U.S.C. § 3121 (c)). Subsequent to CALEA's passage, attention turned to the development of specific technological standards through which telecommunications carriers would comply with their obligation to assist law enforcement by providing…”

In Re US for an Order Aut. Dis. of Prosp. Cell, 412 F. Supp. 2d 947 (E.D. Wis. 2006). · cites it 3× “See 18 U.S.C. §§ 3121 (a), 3127(3), and 3127(4).”

In Re the United States for Orders Authorizing the Installation, 416 F. Supp. 2d 390 (D. Maryland 2006). · cites it 3× “5), outlining its position that an order to obtain prospective cell site information can be entered upon less than probable cause-pursuant to the combined authority of 18 U.S.C. § 3121 et seq. (the “Pen/Trap Statute”) and 18 U.”

In Re Applic. of US for an Order for Disclosure, 405 F. Supp. 2d 435 (S.D.N.Y. 2005). · cites it 4× “See 18 U.S.C. § 3121 (a). Taken together, the two sections require that prospective cell site information may be obtained only pursuant to the Pen Register Statute.”

In Re Orders (1) Authorizing Use of Pen Registers, 515 F. Supp. 2d 325 (E.D.N.Y 2007). · cites it 6× “18 U.S.C. § 3121 (a). The standard for obtaining a court order is far from burdensome.”

Pellegrino v. U.S. Transp. SEC. Admin., 896 F.3d 207 (3rd Cir. 2018). · cites it 2× “§§ 2510–2522, and the Electronic Communications Privacy Act of 1986 (ECPA), which amended Title III and added new provisions governing “pen registers and trap and trace devices,” see 18 U.S.C. §§ 3121–3127.13 Title III provides standards for when 13 In addition, 50 U.”

Bansal v. Russ, 513 F. Supp. 2d 264 (E.D. Pa. 2007). · cites it 3× “In Count 13 of the complaint, Plaintiff alleges the AUSA Defendants violated the Pen Register Statute, 18 U.S.C. § 3121 , et seq., by causing to be installed pen registers and trap & trace devices without a court order.”

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