From the archives... A court rules that FedGov can perform a live intercept of email metadata (but not content) using a pen register/trap and trace order...

More:
http://news.cnet.com/8301-13578_3-57596791-38/fbi-pressures-internet-providers-to-install-surveillance-software/

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IN THE MATTER OF APPLICATION OF THE UNITED STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE INSTALLATION AND USE OF A PEN REGISTER AND A TRAP
& TRACE DEVICE ON E-MAIL ACCOUNT

Misc. No. 06-11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

416 F. Supp. 2d 13

February 2, 2006, Decided

BACKGROUND

1

FOOTNOTES

1 Because this matter remains under seal the Court omitted any facts
that would reveal protected information.


This matter involves an ongoing grand jury investigation for which the
Government submitted an application requesting a court order authorizing
the installation and use of a pen register and trap and trace device on
an e-mail account. The Government seeks immediate review of the
Magistrate Judge's order staying the application and mandating that the
Government submit additional legal briefs addressing several questions,
including whether 18 U.S.C. § 3122 authorizes the use of pen register
and trap and trace devices on [**2] e-mail accounts. 2 To be specific,
the Government requests "that this Court vacate the order seeking
additional briefing and grant the government's original proposed order
authorizing its pen register and trap and trace device application." Id.
at 2. Because the Court finds that 18 U.S.C. §§ 3121-3127 unambiguously
authorize the use of pen registers and trap and trace devices on e-mail
accounts, the Court will grant the Government's motion.

FOOTNOTES

2 The Government sought review pursuant to Civil Rule 40.7(g) of the
Rules of the United States District Court for the District of Columbia
(colloquially referred to as the "Local Rules"), which states that "the
Chief Judge shall . . . hear and determine requests for review of
rulings by magistrate judges in criminal cases not already assigned to a
judge of the Court . . . ." The Government argued that "time is of the
essence" in this "sensitive" investigation and the Magistrate's Judge's
order staying the applications and requesting additional briefing
"effectively denied the government's application." Gov't Mot. 9.


[**3] ANALYSIS

Carl Sagan 3 reportedly once observed that "we live in a society
exquisitely dependent on science and technology, in which hardly anyone
knows anything about science and technology." Undoubtedly, this
observation contains an element of truth that explains, to some extent,
why [*15] the law is sometimes outpaced by advancing technology. In
this case, however, the Court is dealing with a federal law that has, in
fact, caught up with the pace of technology -- the question is how far
it now reaches. To be specific, the Court is presented with the question
of whether 18 U.S.C. §§ 3121-3127authorize the Government to use pen
registers and trap and trace devices on e-mail accounts during the
course of criminal investigations.

FOOTNOTES

3 Carl Sagan was a respected astronomer, educator and Pulitzer
Prize-winning author who gained fame as the host of the Emmy- and
Peabody-award winning television show Cosmos, which aired on the Public
Broadcasting System ("PBS").


1. The Scope of 18 U.S.C. §§ 3121 -3127 [**4]

HN1The Court's analysis "begins with the statutory text, and ends there
as well if the text is unambiguous." Bedroc Ltd. v. United States, 541
U.S. 176, 183, 124 S. Ct. 1587, 158 L. Ed. 2d 338 (2004) (noting that
"the preeminent canon of statutory interpretation requires us to
'presume that [the] legislature says in a statute what it means and
means in a statute what it says there'"). In this case, the statute at
issue expressly states that:
HN2An attorney for the Government may make application for an order . .
. 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.
18 U.S.C. § 3122(a)(1) (citations omitted). The statute further states that:
HN3Upon an application made under section 3122(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 [**5] and use is relevant to an ongoing criminal
investigation.
Id. at § 3123(a)(1). Accordingly,HN4 so long as an attorney for the
Government applies for a "pen register" or "trap and trace device" and
the court finds that the attorney certified that the information
obtained using the devices is relevant to an ongoing criminal
investigation, the court is mandated to enter an ex parte order
authorizing the use of the devices.

The issue the Magistrate Judge struggled with, and that poses concerns
in other areas, 4 is the scope of the statute. Specifically with regard
to this case, the question is whether a "pen register" or "trap and
trace device" may be a process that obtains information about e-mail
communications. The Court again turns to the statute as the first resort
for clarification about the meaning of these terms. HN5The statute
defines "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 . . . ." 18 U.S.C. § 3127(3). Thus, a pen register may be a
"process" that records outgoing [**6] signals from an instrument or
facility that transmits "electronic communication." Id.

FOOTNOTES

4 Our own court, as well as at least one other, has considered the
question of whether a pen register and trap and trace device may be used
to obtain cell site information that reveals the location of a cell
phone user. See e.g., In re Application of the United States of America
for an Order Authorizing the Release of Prospective Cell Site Info., No.
05-508, 2006 U.S. Dist. LEXIS 588 (D.D.C. Jan. 11, 2006); In re
Application of the United States for an Order Authorizing the Use of a
Pen Register, 384 F. Supp. 2d 562 (E.D.N.Y. 2005).


HN6The statute goes on to define "trap and trace device" to mean "a
device or process which captures the incoming electronic or other
impulses which identify the originating number or other dialing,
routing, addressing, [*16] and signaling information reasonably [**7]
likely to identify the source of a wire or electronic communication,
provided, however, that such information shall not include the contents
of any communication . . . ." Id. at § 3127(4). According to this
definition, a trap and trace device may be a "process" that is used to
capture incoming electronic impulses to identify the source of an
"electronic communication," albeit not the contents of that
communication. Id.

These definitions make clear that HN7both a pen register and a trap and
trace device may be a "process" 5 used to gather information relating to
"electronic communication." Id. HN8As for the term "electronic
communication," the statute points to the definition found in 18 U.S.C.
§ 2510. Id. at§ 3127(1) (stating that the term "electronic
communication" has the meaning "set forth for such term[] in section
2510 of this title"). That statute defines the term "electronic
communication" to mean "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 [**8] . . . ." 18
U.S.C. § 2510(12). Given that the statute defines an electronic
communication to be any "transfer of signals" of "any nature" by means
of virtually any type of transmission system (e.g., wire,
electromagnetic, etc.), there can be no doubt it is broad enough to
encompass e-mail communications and other similar signals transmitted
over the Internet. It therefore follows that pen registers and trap and
trace devices may be processes used to gather information about e-mail
communications.

FOOTNOTES

5 The statute does not define the term "process," so the Court will give
that term its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U.S.
179, 187, 115 S. Ct. 788, 130 L. Ed. 2d 682 (1995) (HN9"When terms used
in a statute are undefined, we give them their ordinary meaning.").
HN10The term "process" is generally understood to mean "a series of
actions or operations conducing to an end." Merriam-Webster's Collegiate
Dict. 929 (10th ed. 1999); see also Webster's Third New Int'l Dict. 1808
(1981) (defining the term "process" to mean "an artificial or voluntary
progressively continuing operation that consists of a series of
controlled actions or movements systematically directed toward a
particular result or end"). Given the breadth of this term, the Court
concludes that it covers software and hardware operations used to
collect information.


[**9] Further support for this conclusion is found elsewhere in the
statute, namely in the provision requiring law enforcement agencies to
maintain records about pen registers and trap and trace devices used "on
a packet-switched data network of a provider of electronic communication
service to the public." 18 U.S.C. § 3123(a)(3)(A). The Internet is such
a "packet-switched data network." SeeMicrosoft Corp. v. Multi-Tech Sys.,
Inc., 357 F.3d 1340, 1345 n. 2 (Fed. Cir. 2004) (stating that "a
'packet-switched network,' such as the Internet, is one in which data
packets are relayed through various stations on a network").
Consequently, the statute obviously anticipates that law enforcement
agencies will use pen registers and trap and trace devices on the
Internet or, for that matter, any such network used by a provider of
electronic communication service to the public, which would include a
provider of e-mail service.

The statute's history compels the same conclusion. In 2001, Congress
enacted the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "USA
Patriot Act"), Section 216 [**10] of which explicitly amended the
authorities relating to pen registers and trap and trace devices
provided in 18 U.S.C. §§ 3121-3127 [*17] by expanding the definitions
of these devices to include "processes" to obtain information about
"electronic communication." USA Patriot Act, Pub. L. No. 107-56, § 216,
115 Stat. 272, 288 (2001). Commenting on the very language that was
finally enacted in Section 216 of the USA Patriot Act, several members
of Congress highlighted the fact that the amendments would bring the
state of the law in line with current technology by making pen registers
and trap and trace devices applicable to the Internet and -- more to the
point -- e-mail.

For example, a section-by-section analysis of the bill that
Representative John Conyers included in the record before the final
House vote, which contains the same language that was finally enacted by
Congress, states that Section 216 "extends the pen/trap provisions so
they apply not just to telephone communications but also to Internet
traffic." 147 Cong. Rec. H7197 (daily ed. Oct. 23, 2001) (statement of
Rep. Conyers). In addition, Senator Jon Kyl, who is currently Chairman
of the United States [**11] Senate Judiciary Subcommittee on Terrorism,
Technology & Homeland Security, noted that the same language in the
Senate version of the bill "would codify current case law that holds
that pen/trap orders apply to modern communication technologies such as
e-mail and the Internet, in addition to traditional phone lines." 147
Cong. Rec. S11049 (daily ed. Oct. 25, 2001) (statement of Sen. Kyl). The
Congressional Research Service also published a legal analysis of the
USA Patriot Act that states that the Act "permits pen register and trap
and trace orders for electronic communications (e.g., e-mail)." Charles
Doyle, Congressional Research Serv., CRS Report for Congress, Order Code
RS21203, The USA PATRIOT Act: A Sketch (Apr. 18, 2002).

The plain language of the statute makes clear that pen registers and
trap and trace devices may be processes used to obtain information about
e-mail communications. The statute's history confirms this
interpretation and there is no support for a contrary result.
Accordingly, HN11the Court finds that 18 U.S.C. §§ 3121-3127 authorize
the Government to use pen registers and trap and trace devices on e-mail
accounts during the course [**12] of criminal investigations.

2. Protecting E-Mail Content

Although it is clear that the scope of 18 U.S.C. §§ 3121-3127
encompasses the use of pen registers and trap and trace devices on
e-mail accounts, the Government's use of such processes or devices is
not without constraint. The statute states:
HN12A government agency authorized to install and use a pen register or
trap and trace device 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, routing,
addressing, and signaling information utilized in the processing and
transmitting of wire or electronic communications so as not to include
the contents of any wire or electronic communication.
18 U.S.C. § 3121(c). Thus, the Government must ensure that the process
or device used to obtain information about e-mail communications
excludes the contents of those communications.

There is some concern that current technology, particularly the use of a
software process to obtain the requested information, increases the risk
that content will be impermissibly [**13] procured and disclosed to the
Government. A perhaps oversimplified response to that concern is that
the stricture to avoid the contents of e-mail communications should be
easy to comply [*18] with so long as the pen register and trap and
trace processes or devices exclude all information relating to the
subject line and body of the communication. The better approach,
however, may be to take heed of the fact that HN13"pen registers" and
"trap and trace devices" are statutorily defined as processes or devices
that are prohibited from collecting "the contents of any communication."
18 U.S.C. § 3127(3)-(4). Consequently, the argument could be made that
any process or device that collects the content of an electronic
communication is not, in fact, a pen register or trap and trace device
but, instead, is an electronic intercepting device as defined in Title
III of the Omnibus Crime Control and Safe Streets Act, codified at 18
U.S.C. §§ 2510-2520. 6 Consequently, the unauthorized use of that
process or device would be subject to the penalties set forth in that
statute.

FOOTNOTES

6 That statute prohibits any person from engaging in the unauthorized
"intercept" of "any wire, oral, or electronic communication" and
prescribes penalties for violations. 18 U.S.C. § 2511(1). The statute
goes on to define "intercept" to mean the "aural or other acquisition of
the contents of any wire, electronic, or oral communication through the
use of any electronic, mechanical, or other device." Id. at § 2510(4).
The statute also states that "no part of the contents of such
communication and no evidence derived therefrom may be received in
evidence . . . if the disclosure of that information would be in
violation of this chapter." Id. at § 2515.


[**14] In this case the Government's application and proposed order
explicitly identify the information the process or device is intended to
collect and noticeably omit content from the request. The Government
also assures the Court that the service providers subject to the
requested order are experienced at complying with such orders and employ
processes that siphon the permitted information without extracting
prohibited content. Recognizing that the Court must trust in the
expertise and experience of these service providers, particularly when
they are installing and using their own processes to capture information
in compliance with a court order, some caution nevertheless is warranted
to make certain the court order clearly identifies what is permitted
and, more importantly, what is prohibited so there is no question about
the scope of the authorized activities. 7 The Court concludes that the
application and court order at issue here satisfy these concerns and
clearly avoid e-mail content.

FOOTNOTES

7 See, for example, In re United States for an Order Authorizing the Use
of a Pen Register & Trap, 396 F. Supp. 2d 45 (D. Mass. 2005), in which
the district court took a more stringent approach by stating that an
order authorizing the use of a pen register and trap and trace device
should list exactly what may not be disclosed. 396 F. Supp. 2d at 49.
The court in that case also included a provision in its order placing
the service providers on notice that they may be held in contempt of
court for violating the order by disclosing unauthorized content. Id.
This Court is of the view that an order explicitly identifying the
permissible information to be captured by the pen register and trap and
trace process or device (e.g., the originating IP address, originating
header information, return header information, inbound packet payload
and outbound packet payload, and the date and time of the
communications) -- versus simply copying and pasting the language from
the statute allowing "dialing, routing, addressing and signaling
information" -- as well as an admonition making clear that the content
of e-mail is prohibited, serves the same purpose.


[**15] CONCLUSION

Having determined that 18 U.S.C. §§ 3121-3127 unambiguously authorize
the Government to use pen registers and trap and trace devices on e-mail
accounts during the course of criminal investigations, and that both the
Government's application [*19] and the Court's order afford sufficient
assurances that the contents of e-mail communications will be protected,
the Court will grant the Government's motion and issue the order
authorizing the requested pen register and trap and trace device to be
installed and used on an e-mail account.

February 2, 2006

/s/

Thomas F. Hogan

Chief Judge
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