Duke Law School

Civil Liberties Online

PART B: Access to ?Non-Content? Communications

Surveillance Power: Expanding the Scope of the Government?s Surveillance Power

Trap and trace devices and pen registers can identify the source and destination of calls made to and from a particular telephone without recording the content of the conversations.  Because these surveillance methods are less intrusive than wiretaps, Title III makes them available merely upon the government’s certification that the use of the device is likely to produce information relevant to the investigation of any crime (as opposed to a court finding of such). 18 U.S.C. ?? 3121, 3123. Neither the orders nor the results they produce need ever be revealed to those affected until a court may order disclosure.  18 U.S.C. ? 3123 (d).

This lowered level of judicial oversight has been a cause for concern among civil libertarians. Some have even argued that full 4th Amendment warrant requirements should apply in the area of pen registers or trap and trace devices.  See Arthur J. Carter, IV and Audrey Perry, Computer Crimes, 41 Am. Crim. L. Rev. 313, 352-3 (2003) (discussing that the extension of pen registers and trap and trace devices to electronic communications may violate the Fourth Amendment because there may be an expectation of privacy for internet address information on the internet).

FISA also permitted applications for a FISA pen register or trap and trace device for information related to a foreign intelligence or international terrorism investigation, and upon a showing that the telephone communications monitored would be either: (1) those of an international terrorist or spy, or (2) those of a foreign power or its agent relating to the criminal activities of an international terrorist or spy.  50 U.S.C. ? 1842.  With section 214, the USA PATRIOT extends FISA pen register or trap and trace devices availability to both wire and electronic communications.  Section 214 also removes requirements (1) and (2), so that these surveillance techniques are now available with respect to any communications relating to a foreign intelligence or international terrorism investigation, but adds that surveillance of a U.S. person cannot be conducted based solely on activities protected by the 1st Amendment.   See Anthony E. Orr, Marking Carnivore’s Territory: Rethinking Pen Registers on the Internet, 8 Mich. Telecomm. & Tech. L. Rev. 219 (2001/2002) (emphasizing that the PATRIOT Act subjects internet communications, such as e-mails and their accompanying header information, to the same low level of protection as telephone communications); see also Orin S. Kerr, Internet Surveillance Law after the USA PATRIOT Act: The Big Brother that Isn’t, 97 Nw. U. L. Rev. 607 (2003) (finding that the PATRIOT Act did not revolutionize internet surveillance).

Section 204 of USA PATRIOT clarifies that in foreign intelligence investigations, FISA (as opposed to Title III) governs the use of pen registers and trap and trace devices (in addition to the use of surveillance methods related to electronic communications seen in PART A). Section 216 extends the usage of trap and trace devices (previous used in the context of rotary phones to record incoming and outgoing phone numbers) by authorizing the installation of devices to record all computer routing, addressing, and signaling information when it has been certified that the information likely to be obtained is relevant to an ongoing criminal investigation.  The difficulty with extending trap and trace devices is the complexity of the internet itself and the fact that  e-mail header information is potentially much more revealing of communications content than a telephone number.  See Robert Ditzion, Electronic Surveillance in the Internet Age: The Strange Case of Pen Registers, 41 Am. Crim. L. Rev. 1321 (2004) (describing the lack of understanding that results from applying trap and trace devices to the internet due to the intermixed levels of communication on the internet); but see Orin S. Kerr, Internet Surveillance Law after the USA PATRIOT Act: The Big Brother that Isn’t, 97 Nw. U. L. Rev. 607 (2003) (concluding that the PATRIOT changes were not abrupt variations of previous, accepted law regulating access to internet information).

The courts have not yet had an opportunity to address these provisions of the USA PATRIOT Act.

PATRIOT Act Provisions

  • Confirms that in foreign intelligence investigations, FISA governs the interception of electronic communications and the use of pen registers and trap and trace devices (as opposed to Title III) (204)
  • Extends FISA pen register or trap and trace devices availability to both wire and electronic communications allowing the government to record or trace e-mail without having to obtain separate court orders from the several jurisdictions through which e-mail messages traveled. Adds the requirement that the investigation cannot be conducted based solely on activities protected by the 1stAmendment. (214)
  • Allows for pen register and trap and trace authority to be used against  U.S. citizens and lawful permanent aliens if “relevant to an ongoing investigation to protect against international terrorism or clandestine activities” (214)
  • Extends the usage of trap and trace devices (previous used in the context of rotary phones to record incoming and outgoing phone numbers) by authorizing the installation of devices to record all computer routing, addressing, and signaling information when it has been certified that the information likely to be obtained is relevant to an ongoing criminal investigation. (216)
  • Extends the use of pen registers or trap and trace devices beyond the judicial district in which the order was issued (prior law limited use to within that district alone) to authorize nationwide execution of court orders for pen registers, trap and trace devices, and access to stored e-mail or communications (216)
  • Other relevant provisions affecting the procedures by which authorization for surveillance is obtained, as summarized in CATEGORY 1: PART G.

Other Relevant Provisons

  • Requires the attorney general and the FBI director to submit a report to Congress on the use of Carnivore, the FBI's Internet trap-and-trace system to monitor e-mail and World Wide Web activity in real time. The report must include information such as the number of interceptions authorized. The language also requires the FBI director to report on the agency's information management and technology programs, including requests for legislation needed to enhance the effectiveness of those programs. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002).