INTERNET LAW - Is the Pen Register and Trap and Trace Devices Act Applicable to the Internet?

Martha L. Arias, IBLS Director
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The United States enacted the Pen Register and Trap and Trace Devices Act (the Pen/Trap Act), in 1989. The Pen/Trap Act prohibits the installation or use of a pen register or a trap and trace device without first obtaining a court order. Initially, a pen register and trap and trace device were defined as instruments used to collect numbers dialed in or out a particular phone. Obviously, after 1989 the Internet and other technologies developed, and now we even rely on Internet-connected phones and VoIP (Voice Over the Internet Protocol). Thus, the question is whether the Pen/Trap Act applies to these new technologies, particularly, to the Internet.

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The United States enacted the Pen Register and Trap and Trace Devices Act (the Pen/Trap Act), in 1989.  The Pen/Trap Act prohibits the installation or use of a pen register or a trap and trace device without first obtaining a court order.  Initially, a pen register and trap and trace device were defined as instruments used to collect numbers dialed in or out a particular phone. Obviously, after 1989 the Internet and other technologies developed, and now we even rely on Internet-connected phones and VoIP (Voice Over the Internet Protocol).  Thus, the question is whether the Pen/Trap Act applies to these new technologies, particularly, to the Internet.

The Pen/Trap Act, 18 U.S.C. §§3121-3127, initially defined pen registers as devices used to track numbers dialed from a particular telephone number.  Trap and trace devices were defined as those used to track numbers dialed in a specific telephone number.  None of these devices can be used without a proper court order under § 3123 of this Act or under the Foreign Intelligence Surveillance Act of 1978.  The evolution of information technologies made it more difficult for law enforcement authorities- which are usually the ones requiring these authorizations- to track people's calls or communications.  Criminals may communicate through cell phones, e-mails, and many Internet features. As a result, the United States (U.S.) legislature revised the definitions under the Pen/Trap Act and expanded them as to include other communication media upon which tracking devices could be installed.  The USA PATRIOT Act of 2001 was the regulatory source expanding these definitions.

The Pen/Trap Act currently applies to the Internet and other information technologies, as per the expansion offered by the USA PATRIOT Act.  A pen register is now defined as a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business." 18 U.S.C. § 2127.  Thus, the new definition of pen register includes any recording device attached to wire or electronic communications, but it does not relate to private recordings for business communications or billing purposes.    Similarly, the definition of "trap and trace device' was updated.  It is now defined as a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, and signaling information that identifies the source of a wire or electronic communications, without including the content of that communication.  This means that a trap and trace device can also be attached to trace Internet (e-communication), cell phone calls, etc.

Therefore, law enforcement authorities must obtain a court order before they can place a pen register or trap and trace device to track wire or electronic communications such as those made over the Internet.  Yet, it is clear from these definitions that pen registers and trap and trace devices only identify the source of the wire or electronic communication, but they must not reveal content.  Courts order authorizing installation or use of pen registers or trap and trace devices must ensure that proper limitation of its use is given; specifically, prohibition of the surveillance of wire or electronic communication content.  

Martha L. Arias, IBLS Director

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