Cryptography's Role In Securing The Information Society

                Appendix N   Continued

[N.1.3 commences p. 526.]
__________________________________________________________________



       N.1.3 Pen Register and Traffic Analysis 
     (U.S. Code, Title 18, Chapters 121 and 206) 


Chapter 121


Sec. 2701. Unlawful access to stored communications.

     (a) Offense.--Except as provided in subsection (c) of this
section whoever--

(1) intentionally accesses without authorization a facility
through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that
facility;

and thereby obtains, alters, or prevents authorized access to a
wire or electronic communication while it is in electronic storage
in such system shall be punished as provided in subsection (b) of
this section.

     (b) Punishment.--The punishment for an offense under
subsection (a) of this section is--

(1) if the offense is committed for purposes of commercial
advantage, malicious destruction or damage, or private commercial
gain--

(A) a fine of not more than $250,000 or imprisonment for not more
than one year, or both, in the case of a first offense under this
subparagraph; and [527]

(B) a fine under this title or imprisonment for not more than two
years, or both, for any subsequent offense under this
subparagraph; and

(2) a fine of not more than $5,000 or imprisonment for not more
than six months, or both. in any other case.

     (c) Exceptions.--Subsection (a) of this section does not
apply with respect to conduct authorized--

(1) by the person or entity providing a wire or electronic
communications service;

(2) by a user of that service with respect to a communication of
or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.


Sec. 2702. Disclosure of contents.

     (a) Prohibitions.--Except as provided in subsection (b)--

(1) a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person or
entity the contents of a communication while in electronic storage
by that service; and

(2) a person or entity providing remote computing service to the
public shall not knowingly divulge to any person or entity the
contents of any communication which is carried or maintained on
that service--

(A) on behalf of, and received by means of electronic transmission
from (or created by means of computer processing of communications
received by means of electronic transmission from), a subscriber
or customer of such service; and

(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the
provider is not authorized to access the contents of any such
communications for purposes of providing any services other than
storage or computer processing.

     (b) Exceptions.--A person or entity may divulge the contents
of a communication--

(1) to an addressee or intended recipient of such communication or
an agent of such addressee or intended recipient;

(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703
of this title;

(3) with the lawful consent of the originator or an addressee or
intended recipient of such communication, or the subscriber in the
case of remote computing service;

(4) to a person employed or authorized or whose facilities are
used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service
or to the protection of the rights or property of the provider of
that service; or

(6) to a law enforcement agency, if such contents--

(A) were inadvertently obtained by the service provider; and 

(B) appear to pertain to the commission of a crime. [528]


Sec. 2703. Requirements for governmental access.

     (a) Contents of Electronic Communications in Electronic
Storage.--A governmental entity may require the disclosure by a
provider of electronic communication service of the contents of an
electronic communication, that is in electronic storage in an
electronic communications system for one hundred and eighty days
or less, only pursuant to a warrant issued under the Federal Rules
of Criminal Procedure or equivalent State warrant. A governmental
entity may require the disclosure by a provider of electronic
communications services of the contents of an electronic
communication that has been in electronic storage in an electronic
communications system for more than one hundred and eighty days by
the means available under subsection (b) of this section.


     (b) Contents of Electronic Communications in a Remote
Computing Service.-- 

(1) A governmental entity may require a provider of remote
computing service to disclose the contents of any electronic
communication to which this paragraph is made applicable by
paragraph (2) of this subsection--

(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued under the Federal
Rules of Criminal Procedure or equivalent State warrant; or (B)
with prior notice from the governmental entity to the subscriber
or customer if the governmental entity--

(i) uses an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury or trial subpoena;
or

(ii) obtains a court order for such disclosure under subsection
(d) of this section; except that delayed notice may be given
pursuant to section 2705 of this title.

(2) Paragraph one is applicable with respect to any electronic
communication that is held or maintained on that service--

(A) on behalf of, and received by means of electronic transmission
from (or created by means of computer processing of communications
received by means of electronic transmission from), a subscriber
or customer of such remote computing service; and

(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the
provider is not authorized to access the contents of any such
communications for purposes of providing any services other than
storage or computer processing.

     (c) Records Concerning Electronic Communication Service or
Remote Computing Service.--

(1)(A) Except as provided in subparagraph (B), a provider of
electronic communication service or remote service may disclose a
record or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications covered bv subsection (a) or (b) of this section)
to any person other than a governmental entity.

(B) A provider of electronic communication service or remote
computing service shall disclose a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications covered [529] by
subsection (a) or (b) of this section) to a governmental entity
only when the governmental entity--

(i) obtains a warrant issued under the Federal Rules of Criminal
Procedure or equivalent State warrant;

(ii) obtains a court order for such disclosure under subsection
(d) of this section; or 

(iii) has the consent of the subscriber or customer to such
disclosure.

(C) A provider of electronic communication service or remote
computing service shall disclose to a governmental entity the
name, address, telephone toll billing records, telephone number or
other subscriber number or identity, and length of service of a
subscriber to or customer of such service and the types of
services the subscriber or customer utilized, when the
governmental entity uses an administrative subpoena authorized by
a Federal or State statute or a Federal or State grand jury or
trial subpoena or any means available under subparagraph (B).

(2) A governmental entity receiving records or information under
this subsection is not required to provide notice to a subscriber
or customer.

     (d) Requirements for Court Order.--A court order for
disclosure under subsection (b) or (c) may be issued by any court
that is a court of competent jurisdiction described in section
3126(2)(A) and shall issue only if the governmental entity offers
specific and articulable facts showing that there are reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation. In the
case of a State governmental authority, such a court order shall
not issue if prohibited by the law of such State. A court issuing
an order pursuant to this section, on a motion made promptly by
the service provider, may quash or modify such order, if the
information or records requested are unusually voluminous in
nature or compliance with such order otherwise would cause an
undue burden on such provider.

     (e) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie in
any court against any provider of wire or electronic communication
service, its officers, employees, agents, or other specified
persons for providing information, facilities, or assistance in
accordance with the terms of a court order, warrant, subpoena, or
certification under this chapter.


Sec. 2704. Backup preservation.

     (a) Backup Preservation.--

(1) A governmental entity acting under section 2703(b)(2) may
include in its subpoena or court order a requirement that the
service provider to whom the request is directed create a backup
copy of the contents of the electronic communications sought in
order to preserve those communications.

Without notifying the subscriber or customer of such subpoena or
court order, such service provider shall create such backup copy
as soon as practicable [530] consistent with its regular business
practices and shall confirm to the governmental entity that such
backup copy has been made. Such backup copy shall be created
within two business days after receipt by the service provider of
the subpoena or court order.

(2) Notice to the subscriber or customer shall be made by the
governmental entity within three days after receipt of such
confirmation, unless such notice is delayed pursuant to section
2705(a).

(3) The service provider shall not destroy such backup copy until
the later of-- 

(A) the delivery of the information; or

(B) the resolution of any proceedings (including appeals of any
proceeding) concerning the government's subpoena or court order.

(4) The service provider shall release such backup copy to the
requesting governmental entity no sooner than fourteen days after
the governmental entity's notice to the subscriber or customer if
such service provider--

(A) has not received notice from the subscriber or customer that
the subscriber or customer has challenged the governmental
entity's request; and

(B) has not initiated proceedings to challenge the request of the
governmental entity.

(5) A governmental entity may seek to require the creation of a
backup copy under subsection (a)(1) of this section if in its sole
discretion such entity determines that there is reason to believe
that notification under section 2703 of this title of the
existence of the subpoena or court order may result in destruction
of or tampering with evidence. This determination is not subject
to challenge by the subscriber or customer or service provider.

     (b) Customer Challenges.--

(1) Within fourteen days after notice by the governmental entity
to the subscriber or customer under subsection (a)(2) of this
section, such subscriber or customer may file a motion to quash
such subpoena or vacate such court order, with copies served upon
the governmental entity and with written notice of such challenge
to the service provider. A motion to vacate a court order shall be
filed in the court which issued such order. A motion to quash a
subpoena shall be filed in the appropriate United States district
court or State court. Such motion or application shall contain an
affidavit or sworn statement--

(A) stating that the applicant is a customer or subscriber to the
service from which the contents of electronic communications
maintained for him have been sought; and

(B) stating the applicant's reasons for believing that the records
sought are not relevant to a legitimate law enforcement inquiry or
that there has not been substantial compliance with the provisions
of this chapter in some other respect.

(2) Service shall be made under this section upon a governmental
entity by delivering or mailing by registered or certified mail a
copy of the papers to the person, office, or department specified
in the notice which the customer has received pursuant to this
chapter. For the purposes of this section, the term 'delivery' has
the meaning given that term in the Federal Rules of Civil
Procedure.

(3) If the court finds that the customer has complied with
paragraphs (1) and (2) of this subsection, the court shall order
the governmental entity to file a sworn [531] response, which may
be filed in camera if the governmental entity includes in its
response the reasons which make in camera review appropriate. If
the court is unable to determine the motion or application on the
basis of the parties' initial allegations and response, the court
may conduct such additional proceedings as it deems appropriate.
All such proceedings shall be completed and the motion or
application decided as soon as practicable after the filing of the
governmental entity's response.

(4) If the court finds that the applicant is not the subscriber or
customer for whom the communications sought by the governmental
entity are maintained, or that there is a reason to believe that
the law enforcement inquiry is legitimate and that the
communications sought are relevant to that inquiry, it shall deny
the motion or application and order such process enforced. If the
court finds that the applicant is the subscriber or customer for
whom the communications sought by the governmental entity are
maintained, and that there is not a reason to believe that the
communications sought are relevant to a legitimate law enforcement
inquiry, or that there has not been substantial compliance with
the provisions of this chapter, it shall order the process
quashed.

(5) A court order denying a motion or application under this
section shall not be deemed a final order and no interlocutory
appeal may be taken therefrom by the customer.


Sec. 2705. Delayed notice.

     (a) Delay of Notification.-- 

(1) A governmental entity acting under section 2703(b) of this
title may--

(A) where a court order is sought, include in the application a
request, which the court shall grant, for an order delaying the
notification required under section 2703(b) of this title for a
period not to exceed ninety days, if the court determines that
there is reason to believe that notification of the existence of
the court order may have an adverse result described in paragraph
(2) of this subsection; or

(B) where an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury subpoena is
obtained, delay the notification required under section 2703(b) of
this title for a period not to exceed ninety days upon the
execution of a written certification of a supervisory official
that there is reason to believe that notification of the existence
of the subpoena may have an adverse result described in paragraph
(2) of this subsection.

(2) An adverse result for the purposes of paragraph (1) of this
subsection is-- 

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence; 

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly
delaying a trial. 

(3) The governmental entity shall maintain a true copy of
certification under paragraph (1)(B).

(4) Extensions of the delay of notification provided in section
2703 of up to ninety [532] days each may be granted by the court
upon application, or by certification by a governmental entity,
but only in accordance with subsection (b) of this section.

(5) Upon expiration of the period of delay of notification under
paragraph (1) or (4) of this subsection, the governmental entity
shall serve upon, or deliver by registered or first-class mail to,
the customer or subscriber a copy of the process or request
together with notice that--

(A) states with reasonable specificity the nature of the law
enforcement inquiry; and

(B) informs such customer or subscriber--

(i) that information maintained for such customer or subscriber by
the service provider named in such process or request was supplied
to or requested by that governmental authority and the date on
which the supplying or request took place;

(ii) that notification of such customer or subscriber was delayed;

(iii) what governmental entity or court made the certification or
determination pursuant to which that delay was made; and

(iv) which provision of this chapter allowed such delay.

(6) As used in this subsection, the term 'supervisory official'
means the investigative agent in charge or assistant investigative
agent in charge or an equivalent of an investigating agency's
headquarters or regional office, or the chief prosecuting attorney
or the first assistant prosecuting attorney or an equivalent of a
prosecuting attorney's headquarters or regional office.

     (b) Preclusion of Notice to Subject of Governmental
Access.--A governmental entity acting under section 2703, when it
is not required to notify the subscriber or customer under section
2703(b)(1), or to the extent that it may delay such notice
pursuant to subsection (a) of this section, may apply to a court
for an order commanding a provider of electronic communications
service or remote computing service to whom a warrant, subpoena,
or court order is directed, for such period as the court deems
appropriate, not to notify any other person of the existence of
the warrant, subpoena, or court order. The court shall enter such
an order if it determines that there is reason to believe that
notification of the existence of the warrant, subpoena, or court
order will result in-- 

(1) endangering the life or physical safety of an individual; 

(2) flight from prosecution;

(3) destruction of or tampering with evidence; 

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.


Sec. 2706. Cost reimbursement.

     (a) Payment.--Except as otherwise provided in subsection
(c), a governmental entity obtaining the contents of
communications, records, or other information under section 2702,
2703, or 2704 of this title shall pay to the person or entity
assembling or providing such information a fee for reimbursement
for such costs as are reasonably necessary and which have been
directly incurred in searching [533] for, assembling, reproducing,
or otherwise providing such information. Such reimbursable costs
shall include any costs due to necessary disruption of normal
operations of any electronic communication service or remote
computing service in which such information may be stored.

     (b) Amount.--The amount of the fee provided by subsection
(a) shall be as mutually agreed by the governmental entity and the
person or entity providing the information, or, in the absence of
agreement, shall be as determined by the court which issued the
order for production of such information (or the court before
which a criminal prosecution relating to such information would be
brought, if no court order was issued for production of the
information).

     (c) Exception.--The requirement of subsection (a) of this
section does not apply with respect to records or other
information maintained by a communications common carrier that
relate to telephone toll records and telephone listings obtained
under section 2703 of this title. The court may, however, order a
payment as described in subsection (a) if the court determines the
information required is unusually voluminous in nature or
otherwise caused an undue burden on the provider.


Sec. 2707. Civil action.

     (a) Cause of Action.--Except as provided in section 2703(e),
any provider of electronic communication service, subscriber, or
customer aggrieved by any violation of this chapter in which the
conduct constituting the violation is engaged in with a knowing or
intentional state of mind may, in a civil action, recover from the
person or entity which engaged in that violation such relief as
may be appropriate.

     (b) Relief.--In a civil action under this section,
appropriate relief includes-- (1) such preliminary and other
equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c); and

(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.

     (c) Damages.--The court may assess as damages in a civil
action under this section the sum of the actual damages suffered
by the plaintiff and any profits made by the violator as a result
of the violation, but in no case shall a person entitled to
recover receive less than the sum of $1,000.

     (d) Defense.--A good faith reliance on--

(1) a court warrant or order, a grand jury subpoena, a legislative
authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under
section 2518(7) of this title; or

(3) a good faith determination that section 2511(3) of this title
permitted the [534] conduct complained of; is a complete defense
to any civil or criminal action brought under this chapter or any
other law.

     (e) Limitation.--A civil action under this section may not
be commenced later than two years after the date upon which the
claimant first discovered or had a reasonable opportunity to
discover the violation.


Sec. 2708. Exclusivity of remedies.

     The remedies and sanctions described in this chapter are the
only judicial remedies and sanctions for nonconstitutional
violations of this chapter.


Sec. 2709. Counterintelligence access to telephone toll and
transactional records.

     (a) Duty to Provide.--A wire or electronic communication
service provider shall comply with a request for subscriber
information and toll billing records information, or electronic
communication transactional records in its custody or possession
made by the Director of the Federal Bureau of Investigation under
subsection (b) of this section.

     (b) Required Certification.--The Director of the Federal
Bureau of Investigation (or an individual within the Federal
Bureau of Investigation designated for this purpose by the
Director) may request any such information and records if the
Director (or the Director's designee) certifies in writing to the
wire or electronic communication service provider to which the
request is made that--

(1) the information sought is relevant to an authorized foreign
counterintelligence investigation; and

(2) there are specific and articulable facts giving reason to
believe that the person or entity to whom the information sought
pertains is a foreign power or an agent of a foreign power as
defined in section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801).

     (c) Prohibition of Certain Disclosure.--No wire or
electronic communication service provider, or officer, employee,
or agent thereof, shall disclose to any person that the Federal
Bureau of Investigation has sought or obtained access to
information or records under this section.

     (d) Dissemination by Bureau.--The Federal Bureau of
Investigation may disseminate information and records obtained
under this section only as provided in guidelines approved by the
Attorney General for foreign intelligence collection and foreign
counterintelligence investigations conducted by the Federal Bureau
of Investigation, and, with respect to dissemination to an agency
of the United States, only if such information is clearly relevant
to the authorized responsibilities of such agency. [535]

     (e) Requirement That Certain Congressional Bodies Be
Informed.~n a semiannual basis the Director of the Federal Bureau
of Investigation shall fully inform the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate concerning all requests
made under subsection (b) of this section.


Sec. 2710. Wrongful disclosure of video tape rental or sale
records....


Sec. 2711. Definitions for chapter.

     As used in this chapter--

     (1) the terms defined in section 2510 of this title have,
respectively, the definitions given such terms in that section;
and

     (2) the term 'remote computing service' means the provision
to the public of computer storage or processing services by means
of an electronic communications system.


Chapter 206


Sec. 3121. General prohibition on pen register and trap and trace
device use; exception.

     (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.).

     (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 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 and signaling information utilized in call processing.
[536]

(d) Penalty.--Whoever knowingly violates subsection (a) shall be
fined under this title or imprisoned not more than one year, or
both.


Sec. 3122. Application for an order for a pen register or a trap
and trace device.

     (a) Application.--(1) An attorney for the Government may
make application for an order or an extension of an order under
section 3123 of this title authorizing or approving the
installation and use of a pen register or a trap and trace device
under this chapter, in writing under oath or equivalent
affirmation, to a court of competent jurisdiction.

(2) Unless prohibited by State law, a State investigative or law
enforcement officer may make application for an order or an
extension of an order under section 3123 of this title authorizing
or approving the installation and use of a pen register or a trap
and trace device under this chapter, in writing under oath or
equivalent affirmation, to a court of competent jurisdiction of
such State.

     (b) Contents of Application.--An application under
subsection (a) of this section shall include--

(1) the identity of the attorney for the Government or the State
law enforcement or investigative officer making the application
and the identity of the law enforcement agency conducting the
investigation; and

(2) a certification by the applicant that the information likely
to be obtained is relevant to an ongoing criminal investigation
being conducted by that agency.


Sec. 3123. Issuance of an order for a pen register or a trap and
trace device.

     (a) In General.--Upon an application made under section 3122
of this title, the court shall enter an ex parte order authorizing
the installation and use of a pen register or a trap and trace
device within the jurisdiction of the court if the court finds
that the attorney for the Government or the State law enforcement
or investigative officer has certified to the court that the
information likely to be obtained by such installation and use is
relevant to an ongoing criminal investigation.

     (b) Contents of Order.--An order issued under this section--

(1) shall specify--

(A) the identity, if known, of the person to whom is leased or in
whose name is listed the telephone line to which the pen register
or trap and trace device is to be attached;

(B) the identity, if known, of the person who is the subject of
the criminal investigation;

(C) the number and, if known, physical location of the telephone
line to which the pen register or trap and trace device is to be
attached and, in the case of a trap and trace device, the
geographic limits of the trap and trace order; and [537]

(D) a statement of the offense to which the information likely to
be obtained by the pen register or trap and trace device relates;
and

(2) shall direct, upon the request of the applicant, the
furnishing of information, facilities, and technical assistance
necessary to accomplish the installation of the pen register or
trap and trace device under section 3124 of this title.

     (c) Time Period and Extensions.--

(1) An order issued under this section shall authorize the
installation and use of a pen register or a trap and trace device
for a period not to exceed sixty days.

(2) Extensions of such an order may be granted, but only upon an
application for an order under section 3122 of this title and upon
the judicial finding required by subsection (a) of this section.
The period of extension shall be for a period not to exceed sixty
days.

     (d) Nondisclosure of Existence of Pen Register or a Trap and
Trace Device.--An order authorizing or approving the installation
and use of a pen register or a trap and trace device shall direct
that--

(1) the order be sealed until otherwise ordered by the court; and

(2) the person owning or leasing the line to which the pen
register or a trap and trace device is attached, or who has been
ordered by the court to provide assistance to the applicant, not
disclose the existence of the pen register or trap and trace
device or the existence of the investigation to the listed
subscriber, or to any other person, unless or until otherwise
ordered by the court.


Sec. 3124. Assistance in installation and use of a pen register or
a trap and trace device.

     (a) Pen Registers.--Upon the request of an attorney for the
Government or an officer of a law enforcement agency authorized to
install and use a pen register under this chapter, a provider of
wire or electronic communication service, landlord, custodian, or
other person shall furnish such investigative or law enforcement
officer forthwith all information, facilities, and technical
assistance necessary to accomplish the installation of the pen
register unobtrusively and with a minimum of interference with the
services that the person so ordered by the court accords the party
with respect to whom the installation and use is to take place, if
such assistance is directed by a court order as provided in
section 3123(b)(2) of this title.

     (b) Trap and Trace Device.--Upon the request of an attorney
for the Government or an officer of a law enforcement agency
authorized to receive the results of a trap and trace device under
this chapter, a provider of a wire or electronic communication
service, landlord, custodian, or other person shall install such
device forthwith on the appropriate line and shall furnish such
investigative or law enforcement officer all additional
information, facilities and technical [538] assistance including
installation and operation of the device unobtrusively and with a
minimum of interference with the services that the person so
ordered by the court accords the party with respect to whom the
installation and use is to take place, if such installation and
assistance is directed by a court order as provided in section
3123(b)(2) of this title. Unless otherwise ordered by the court,
the results of the trap and trace device shall be furnished,
pursuant to section 3123(b) or section 3125 of this title, to the
officer of a law enforcement agency, designated in the court
order, at reasonable intervals during regular business hours for
the duration of the order.

     (c) Compensation.--A provider of a wire or electronic
communication service, landlord, custodian, or other person who
furnishes facilities or technical assistance pursuant to this
section shall be reasonably compensated for such reasonable
expenses incurred in providing such facilities and assistance.

     (d) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie in
any court against any provider of a wire or electronic
communication service, its officers, employees, agents, or other
specified persons for providing information, facilities, or
assistance in accordance with the terms of a court order under
this chapter or request pursuant to section 3125 of this title.

     (e) Defense.--A good faith reliance on a court order under
this chapter, a request pursuant to section 3125 of this title, a
legislative authorization, or a statutory authorization is a
complete defense against any civil or criminal action brought
under this chapter or any other law.


Sec. 3125. Emergency pen register and trap and trace device
installation.

     (a) Notwithstanding any other provision of this chapter, any
investigative or law enforcement officer, specially designated by
the Attorney General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, any acting
Assistant Attorney General, or any Deputy Assistant Attorney
General, or by the principal prosecuting attorney of any State or
subdivision thereof acting pursuant to a statute of that State,
who reasonably determines that--

(1) an emergency situation exists that involves--

(A) immediate danger of death or serious bodily injury to any
person; or 

(B) conspiratorial activities characteristic of organized crime,

that requires the installation and use of a pen register or a trap
and trace device before an order authorizing such installation and
use can, with due diligence, be obtained, and

(2) there are grounds upon which an order could be entered under
this chapter to authorize such installation and use "I may have
installed and use a pen register [539] or trap and trace device
if, within forty-eight hours after the installation has occurred,
or begins to occur, an order approving the installation or use is
issued in accordance with section 3123 of this title."(4)

     (b) In the absence of an authorizing order, such use shall
immediately terminate when the information sought is obtained,
when the application for the order is denied or when forty-eight
hours have lapsed since the installation of the pen register or
trap and trace device, whichever is earlier.

     (c) The knowing installation or use by any investigative or
law enforcement officer of a pen register or trap and trace device
pursuant to subsection (a) without application for the authorizing
order within forty-eight hours of the installation shall
constitute a violation of this chapter.

     (d) A provider for a wire or electronic service, landlord,
custodian, or other person who furnished facilities or technical
assistance pursuant to this section shall be reasonably
compensated for such reasonable expenses incurred in providing
such facilities and assistance.

__________

(4) So in original. A comma probably should appear after the word
"use", the quotation marks probably should not appear, and the
words beginning with "may" probably should appear flush left.



Sec. 3126. Reports concerning pen registers and trap and trace
devices.

     The Attorney General shall annually report to Congress on
the number of pen register orders and orders for trap and trace
devices applied for by law enforcement agencies of the Department
of Justice.


Sec. 3127. Definitions for chapter.

     As used in this chapter--

     (1) the terms "wire communication", "electronic
communication", and "electronic communication service'' have the
meanings set forth for such terms in section 2510 of this title;

     (2) the term "court of competent jurisdiction" means--

(A) a district court of the United States (including a magistrate
of such a court) or a United States Court of Appeals; or

(B) a court of general criminal jurisdiction of a State authorized
by the law of that State to enter orders authorizing the use of a
pen register or a trap and trace device; [540]

     (3) the term "pen register" means 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 attached, but such term does not include any device
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 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;

     (4) the term "trap and trace device" means a device which
captures the incoming electronic or other impulses which identify
the originating number of an instrument or device from which a
wire or electronic communication was transmitted;

     (5) the term "attorney for the Government" has the meaning
given such term for the purposes of the Federal Rules of Criminal
Procedure; and

     (6) the term "State" means a State, the District of
Columbia, Puerto Rico, and any other possession or territory of
the United States.

[End N.1.3]
