A pen register, or dialed number recorder (DNR), is a device that records all
The United States statutes governing pen registers are codified under 18 U.S.C., Chapter 206.
The term telegraph register came to be a generic term for such a recording device in the later 19th century.[3] Where the record was made in ink with a pen, the term pen register emerged. By the end of the 19th century, pen registers were widely used to record pulsed electrical signals in many contexts. For example, one fire-alarm system used a "double pen-register",[4] and another used a "single or multiple pen register".[5]
As pulse dialing came into use for telephone exchanges, pen registers had obvious applications as diagnostic instruments for recording sequences of telephone dial pulses. In the United States, the clockwork-powered Bunnell pen register remained in use into the 1960s.[6]
After the introduction of
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[7]
This is the current definition of a pen register, as amended by passage of the 2001
A device which records or decodes electronic or other impulses which identify the numbers called or otherwise transmitted on the telephone line to which such device is dedicated.
A pen register is similar to a trap and trace device. A trap and trace device would show what numbers had called a specific telephone, i.e., all incoming phone numbers. A pen register rather would show what numbers a phone had called, i.e. all outgoing phone numbers. The two terms are often used in concert, especially in the context of Internet communications. They are often jointly referred to as "Pen Register or Trap and Trace devices" to reflect the fact that the same program will probably do both functions in the modern era, and the distinction is not that important. The term "pen register" is often used to describe both pen registers and trap and trace devices.[8]
In wiretaps were unconstitutional searches, because there was a reasonable expectation that the communication would be private. From then on, the government was required to get a warrant to execute a wiretap.
Twelve years later the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Smith v. Maryland, 442 U.S. 735, 744 (1979). Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company.
The Smith decision left pen registers completely outside
The Electronic Communications Privacy Act (ECPA) was passed in 1986 (Pub. L. No. 99-508, 100 Stat. 1848). There were three main provisions or Titles to the ECPA. Title III created the Pen Register Act, which included restrictions on private and law enforcement uses of pen registers. Private parties were generally restricted from using them unless they met one of the exceptions, which included an exception for the business providing the communication if it needed to do so to ensure the proper functioning of its business.
For law enforcement agencies to get a pen register approved for surveillance, they must get a court order from a judge. According to 18 U.S.C. § 3123(a)(1), the "court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation".[9] Thus, a government attorney only needs to certify that information will "likely" be obtained in relation to an 'ongoing criminal investigation'. This is the lowest requirement for receiving a court order under any of the ECPA's three titles. This is because in Smith v. Maryland, the Supreme Court ruled that use of a pen register does not constitute a search. The ruling held that only the content of a conversation should receive full constitutional protection under the right to privacy; since pen registers do not intercept conversation, they do not pose as much threat to this right.
Some have argued that the government should be required to present "specific and articulable facts" showing that the information to be gathered is relevant and material to an ongoing investigation. This is the standard used by Title II of the ECPA with regard to the contents of stored communications. Others, such as
The Pen Register Act did not include an
Section 216 of the 2001
The Pen Register Statute is a privacy act. As there is no constitutional protection for information divulged to a third party under the Supreme Court's expectation of privacy test, and the routing information for phone and Internet communications are divulged to the company providing the communication, the absence or inapplicability of the statute would leave the routing information for those communications completely unprotected from government surveillance.
The government also has an interest in making sure the Pen Register Act exists and applies to Internet communications. Without the Act, they cannot compel service providers to give them records or do Internet surveillance with their own equipment or
Rather than creating new laws regarding Internet surveillance, the Patriot Act simply expanded the definition of a pen register to include computer software programs doing Internet surveillance by accessing information. While not completely compatible with the technical definition of a pen register device, this was the interpretation that had been used by almost all courts and law enforcement agencies prior to the change.[15]
When, in 2006, the Bush administration came under fire for having secretly collected billions of phone call details from regular Americans, ostensibly to check for calls to terror suspects, the Pen Register Act was cited, along with the Stored Communications Act, as an example of how such domestic spying violated Federal law.[16]
In 2013, the Obama administration sought a court order "requiring Verizon on an 'ongoing, daily basis' to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries". The order was approved on April 25, 2013, by federal Judge Roger Vinson, member of the secret
According to The Guardian, "it is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off or the latest in a series of similar orders".[17]
On September 1, 2013, the
Information that is legally collectible according to 2014 pen trap laws includes:
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