A
pen register is an
electronicElectronics is a branch of science and technology that deals with the controlled flow of electrons. The ability to control electron flow is usually applied to information handling or device control. Electronics is distinct from electrical science and technology, which deals with the generation,...
device that records all
numbersA telephone number or phone number is a sequence of numbers used to call from one telephone line to another in a public switched telephone network. When telephone numbers were invented, they were short — as few as one, two or three digits — and were used by people to call a few neighbors...
dialed from a particular
telephoneThe telephone is a telecommunications device that transmits and receives sound, most commonly the human voice. It is one of the most common household appliances in the developed world, and has long been considered indispensable to business, industry and government...
line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring
InternetThe Internet is a global system of interconnected computer networks that use the standardized Internet Protocol Suite to serve billions of users worldwide...
communications.
The USA statutes governing pen registers are codified under
18 U.S.C., Chapter 206.
Title 18 of the
United States CodeThe United States Code is a compilation and codification of the general and permanent federal law of the United States. It contains 50 titles and is published every six years by the Office of the Law Revision Counsel of the US House of Representatives.- Codification process :The official text of...
defines a pen register 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.
This is the current definition of a Pen Register, as amended by passage of the 2001
USA PATRIOT ActThe USA PATRIOT Act, commonly known as the "Patriot Act", is a statute enacted by the United States Government that President George W. Bush signed into law on October 26, 2001...
.
A
pen register is an
electronicElectronics is a branch of science and technology that deals with the controlled flow of electrons. The ability to control electron flow is usually applied to information handling or device control. Electronics is distinct from electrical science and technology, which deals with the generation,...
device that records all
numbersA telephone number or phone number is a sequence of numbers used to call from one telephone line to another in a public switched telephone network. When telephone numbers were invented, they were short — as few as one, two or three digits — and were used by people to call a few neighbors...
dialed from a particular
telephoneThe telephone is a telecommunications device that transmits and receives sound, most commonly the human voice. It is one of the most common household appliances in the developed world, and has long been considered indispensable to business, industry and government...
line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring
InternetThe Internet is a global system of interconnected computer networks that use the standardized Internet Protocol Suite to serve billions of users worldwide...
communications.
The USA statutes governing pen registers are codified under
18 U.S.C., Chapter 206.
Definitions
Title 18 of the
United States CodeThe United States Code is a compilation and codification of the general and permanent federal law of the United States. It contains 50 titles and is published every six years by the Office of the Law Revision Counsel of the US House of Representatives.- Codification process :The official text of...
defines a pen register 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.
This is the current definition of a Pen Register, as amended by passage of the 2001
USA PATRIOT ActThe USA PATRIOT Act, commonly known as the "Patriot Act", is a statute enacted by the United States Government that President George W. Bush signed into law on October 26, 2001...
. The original statutory definition of a pen register was created in 1984 as part of the
Electronic Communications Privacy Act- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but...
. That defined a 'Pen Register' as:
- A device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is dedicated.
A pen register is similar to a
trap and trace deviceA trap and trace device is an electronic device used to record and trace all communication signals from a telecommunication system. An analogous feature available for use by the general public would be Caller ID....
. 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.
Background
In
Katz v. United StatesKatz v. United States, 389 U.S. 347 was a United States Supreme Court decision that extended the Fourth Amendment protection from unreasonable search and seizure to protect individuals in a telephone booth from wiretaps by authorities without a warrant.-Facts:Charles Katz was convicted in...
(1967), the United States Supreme Court established its "reasonable expectation of privacy" test. It overturned
Olmstead v. United StatesOlmstead v. United States, 277 U.S. 438 , is a 1928 opinion of the Supreme Court of the United States, in which the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a...
and held that
wiretapTelephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The telephone or wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
s were
unconstitutionalConstitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these directly violates the constitution it is unconstitutional...
searches, because there was a reasonable expectation that the communication would be
privatePrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
. The government was then required to get a
warrantMost often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which commands an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
to execute a wiretap.
Ten 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. MarylandSmith v. Maryland, 442 U.S. 735 , was a case in which the Supreme Court of the United States held that the installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required....
, 442 U.S. 735, 744 (1979). Since the
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
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
constitutionalThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
protection. If there was to be any privacy protection, it would have to be enacted by Congress as statutory privacy law.
The Pen Register Act
The
Electronic Communications Privacy Act- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but...
(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.
In order for
law enforcement agenciesIn North American English, a Law enforcement agency is an organisation that enforces the law.Outside North America, such organisations are called police services. In North America, some of these services are called police, others have other names In North American English, a Law enforcement agency...
to get a pen register approved for
surveillanceSurveillance is the monitoring of the behavior, activities, or other changing information, usually of people and often in a surreptitious manner...
, they must get a
court orderA court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
from a judge. However, they need only certify to the judge that the information likely to be obtained is relevant to an ongoing criminal investigation, at which point the judge 'shall' issue the order.
This is the lowest requirement for receiving a court order under any of ECPA's three titles. This reflects the fact that pen registers do not gather the contents of any information, only the addressing or routing information, which was not deemed as important of a privacy interest. 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.
The Pen Register Act did not include an
exclusionary ruleThe exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
. While there were civil remedies for violations of the Act, evidence gained in violation of the Act can still be used against a defendant in court. There have also been calls for congress to add an
exclusionary ruleThe exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
to the Pen Register Act, as this would make it more analogous to traditional
Fourth AmendmentThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution...
protections.
USA-PATRIOT Act
Section 216 of the 2001
USA PATRIOT ActThe USA PATRIOT Act, commonly known as the "Patriot Act", is a statute enacted by the United States Government that President George W. Bush signed into law on October 26, 2001...
expanded the definition of a pen register to include devices or programs that provide an analogous function with internet communications. Prior to the Patriot Act, it was unclear whether or not the definition of a pen register, which included very specific telephone terminology, could apply to internet communications. Most courts and law enforcement personnel operated under the assumption that it did, however the Clinton administration had begun to work on legislation to make that clear, and one
magistrateA magistrate is a judicial officer; in ancient Rome, the word magistratus denoted one of the highest government officers with judicial and executive powers. Today, in common law systems, a magistrate has limited law enforcement and administration authority...
judge in
CaliforniaCalifornia is the most populous state in the United States, and the third largest by area. California is the second most populous sub-national entity in the Americas, behind only São Paulo, Brazil...
did rule that the language was too telephone-specific to apply to Internet surveillance.
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 software, and the law enforcement agency, which may not have very good technological capabilities, will have to do the surveillance itself at its own cost.
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. 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.
NSA Call Database Controversy
- Main article: NSA call database
The NSA call database is a database created by the United States National Security Agency that contains hundreds of billions of records of telephone calls made by U.S...
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 ActThe Stored Communications Act was passed by the United States Congress in 1986 as part of the Electronic Communications Privacy Act, and is codified at 18 U.S.C. §§ 2701 to 2712...
, as example of how such domestic spying violated Federal law.
External links