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In re Application of the United States

February 2, 2006

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.


The opinion of the court was delivered by: Thomas F. Hogan Chief Judge

MEMORANDUM OPINION

Pending before the Court is the Motion to Review Ruling of Magistrate Judge filed by the United States of America (hereafter referred to as the "Government") on January 19, 2006. For the reasons set forth below, the Court grants the motion in its entirety.

BACKGROUND*fn1

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 e-mail accounts.*fn2 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.

ANALYSIS

Carl Sagan*fn3 reportedly once observed that "[w]e 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 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. §§ 3121-3127 authorize the Government to use pen registers and trap and trace devices on e-mail accounts during the course of criminal investigations.

1. The Scope of 18 U.S.C. §§ 3121-3127

The 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 (2004) (noting that "[t]he 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:

An 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: Upon 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 and use is relevant to an ongoing criminal investigation.

Id. at § 3123(a)(1). Accordingly, 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,*fn4 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. The 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 signals from an instrument or facility that transmits "electronic communication." Id.

The 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, and signaling information reasonably 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 both a pen register and a trap and trace device may be a "process"*fn5 used to gather information relating to "electronic communication." Id. As 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 . . . ."

18 U.S.C. ยง 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 ...


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